Constitutional Law

Before Their Lordships

Between

AND

Before Their Lordships

Between

AND

…………………….A…………………….

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, Admiral Murtala Nyako, a retired naval officer, was elected the Governor of Adamawa State on the 5th of February 2012 to serve for a term of four years from the date he subscribed to the oath of the office. On the basis of its allegation of misconduct against the appellant, the 1st respondent following a resolution it passed, commenced the process of appellant’s removal from the office of the Governor of Adamawa State he was elected to.

Before Their Lordships

Between

AND

…………………….A…………………….

SULEIMAN GALADIMA, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Makurdi Division (hereinafter referred to as “the court below”) delivered on 13/2/2014, which affirmed the judgment of the Federal High Court, and Makurdi (hereinafter referred to as “the trial court delivered on 26/6/2012. The court below upheld the decision of the trial court and dismissed the appellant’s appeal. It held, inter alia, that the trial court had jurisdiction to entertain the suit and that the respondents herein are vested with the necessary locus standi to institute the action at the trial court and that there is “continuance in the oppression” of Otukpa State Constituency.

Before Their Lordships

Between

AND

Judgment

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018. The Respondent commenced the action in the lower Court by a motion brought pursuant to provisions of the Fundamental Right (Enforcement Procedure) Rules 2009.

The Respondent sought for the enforcement of his fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom of expression as guaranteed, according to him, under Sections 34, 35, 39, 41, 44 and 46 of Constitution of the Federal Republic of Nigeria 1999 (as amended), an order of injunction to restrain further breach of his fundamental rights, public apology to be published in two widely read newspapers and the sum of N20 Million as damages. ​The case of the Respondent on the processes filed was that he is an Alkali and had served in various Sharia Courts in Jigawa State and was also an Islamic scholar and preacher in his village, Doko, and in other neighbouring villages in Garki Local Government Area of Jigawa State.

It was his case that on the 28th of September, 2018 while transiting to his farm on a commercial motorcycle, he was stopped by the fourth to the sixth Appellants who were on duty on the Kano/Gumel highway and he and the motorcyclist were asked to dismount for a search to be conducted.

It was his case that they dismounted and that the officers insisted on searching him even after he identified himself as an Alkali and showed them his identification card, and that at the end of the search, nothing incriminating was found on them. ​It was his case that after concluding the search and finding nothing incriminating, the officers still did not allow him to go and that when he insisted on being allowed to go, the officers started abusing him, calling him all sorts of names, and this attracted passer-by who were mainly people from his village and the neighbouring villages where he preached.

It was his case that he reacted to the abuses by telling the officers that their actions were useless acts and whereupon the officers started beating him to the point of unconsciousness, and in the course of which he sustained an injury to his lip and that he was arrested by them, leg-cuffed and detained in the back of their Toyota Hilux vehicle. It was his case that he remained in that position in the scorching sun in the full glare of his village people for more than three hours before people came to plead with the officers to release him.

It was his case that he lost his self-esteem and dignity and that the actions of the officers infringed his fundamental rights. ​The Appellants filed a joint counter-affidavit and they denied the case of the Respondent and it was their case that the fourth to the sixth, while on a lawful routine patrol on the highway, Gumel/Kano highway, on the 21st of September, 2018, flagged down a motorcycle conveying three people.

It was their case that the motorcycle stopped and the rider submitted for a search and was searched, but that the Respondent who was the second passenger on the motorcycle refused to submit to a search. It was their case that they conceded to the Respondent to search himself by bringing out everything in his pocket and that after doing so very reluctantly, and nothing incriminating was found on him, they asked the Respondent to step aside to enable them conduct a search on the third passenger.

It was their case that rather than step aside, the Respondent started abusing the officers and created a scene which attracted other persons and in the course of which they were prevented from searching the third passenger on the motorcycle who escaped from the scene of the search. It was their case that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

It was their case that the Respondent resisted the arrest and that in course of the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that they did not beat the Respondent and that the Respondent was conscious the whole time.

It was their case that the Respondent did not at anytime introduce himself as an Alkali. ​It was their case that when they succeeded in arresting the Respondent, they leg-cuffed him to restrain him from running away with the intent of taking him to their office in Hadeija. It was their case that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent.

It was their case that the Respondent then instigated the youths of the area and who gathered at the scene and threatened to burn the vehicle of the first Appellant and kill the three officers and the officers had to quickly leave the area. It was their case that on their way from the scene of the incident, they were accosted by policemen from the Nigerian Police Force, Garki Station Jigawa State and that they narrated to the policemen all that transpired.

It was their case that it was the Respondent that degraded and inhumanly treated the fourth to the sixth Appellants with his utterances. ​Counsel to the parties filed written addresses in support of the respective cases of the parties and the lower Court heard the matter on the merits and it entered judgment granting all the claims of the Respondent, but awarding him N5 Million as damages, instead of the N20 Million claimed.

The lower Court found in the judgment that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless, and it proceeded from the finding to hold that the Appellants breached the fundamental rights of the Respondent. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 14th of December, 2018 and containing seven grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants presented a brief of arguments dated and filed on the 17th of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 20th of February, 2020 on the 21st of February, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments. ​Counsel to the Appellants distilled three issues for determination in the appeal and these were: i.

Whether having regards to the affidavit evidence and issues canvassed before the lower Court, the lower Court made a proper evaluation of the evidence before coming to the conclusions reached by the Court. ii. Whether the award of N5 Million damages against the Appellant as well as an order of public apology were not arbitrary as they did not follow the principles for award of damages and public apology in cases of this nature. iii. Whether the judgment of the lower Court was not perverse and therefore occasioned a miscarriage of justice.

In arguing the first issue for determination, Counsel to the Appellants referred to the case of Mbonu Vs Nwoti (1991) 7 NWLR (Pt 206) 737 in reiterating that it was the duty of a trial Court to properly evaluate the evidence contained in the depositions in the affidavits filed by the parties in making its findings and stated the trial Court failed to properly do so in the present case.

Counsel stated that in response to the allegation of the Respondent that the fourth to the sixth Appellants pounced on him and beat him, the Appellants stated in paragraph 5(q) of the counter affidavit very clearly that the fourth to the sixth Appellants did not beat the Respondent. Counsel stated that the finding of the lower Court that the Appellants did not deny pouncing on the Respondent was grossly erroneous in law and was a complete misapprehension of the facts placed before the lower Court.

Counsel stated that there was conflict in the affidavit evidence of the parties on whether or not the Respondent was assaulted by the fourth to the sixth Appellants and that instead of calling for oral evidence to resolve the conflict, the lower Court did so suo motu and that this was wrongful and he referred to the case of Asonye Vs Registered Trustees of CAN (1995) 2 NWLR (Pt 379) 623 and Boothia Maritime Inc Vs Far East Mercantile Company Ltd (2001) FWLR (Pt 50) 1713. ​Counsel stated that the failure to call for oral evidence to resolve the apparent conflict in the affidavit evidence of the parties led the lower Court to make perverse finding which occasioned a miscarriage of justice and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such a situation and he referred to the cases of Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1 and Dumez Nigeria Limited Vs Nwakhoda (2008) 18 NWLR 36.

Counsel stated that not only was the decision not borne out by the evidence put forward by the parties, it was obvious that the lower Court acted on irrelevant factors by reason of the sentiments it expressed in the statements it made concerning the status of the Respondent in the award of damages.

Counsel stated that it is settled law that a decision reached on irrelevant factors and considerations cannot be allowed to stand and that the appellate Court is empowered to reevaluate the evidence in such circumstances and he referred to the cases of Ojeleye Vs Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2009) 15 NWLR 520, Ushae Vs Commissioner of Police (2005) 2 NWLR (Pt 937) 499 and Macaulay Vs NAL Merchant Bank Ltd (1990) 6 SCNJ 117.

Counsel urged the lower Court to resolve the first issue for determination in favour of the Appellants. ​On the second issue for determination, Counsel stated that the lower Court did not follow the laid down principles of award of damages in cases of this nature and that the award of exemplary damages is made cautiously and based on established principles and not on the whims and sentiments of the adjudicator and that the Respondent did not place sufficient materials before the lower Court to support the claim for damages and he referred to the cases of Attah Vs Inspector General of Police (2015) All FWLR (Pt 805) 108 and Onagoruwa Vs Inspector General of Police (1991) 5 NWLR (Pt 193) 621.

Counsel stated that the lower Court did not give any legal basis or reasoning for the award of N5 Million as damages and said that it was doing ‘just to show sympathy and mitigate his medical and other expenses’ and that this amounted to speculation which a Court is not allowed to do and he referred to the case of Ushae Vs Commissioner of Police supra. ​Counsel went on a voyage of restating the principles governing the award of aggravated and exemplary damages and he cited case law authorities thereon.

Counsel noted the instances when an appellate Court will interfere with an award of damages by a trial Court and stated that this one of such instances as the N5 Million awarded by the lower Court was very high and excessive in the circumstances of this case. Counsel stated that lower Court awarded the damages to the Respondent ‘just to show sympathy and mitigate his medical and other expenses’, but that the Respondent did not depose that he incurred medical expenses or other expenses and did not put before the Court anything he lost.

Counsel stated that this Court is empowered in the circumstances of this case to either set aside the award of damages or to re-assess the sum of N5 Million awarded and he referred to the cases of Adim Vs Nigeria Bottling Company Ltd (2010) All FWLR (Pt 527) 690 and Attah Vs Inspector General of Police supra. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

On the third issue for determination, Counsel stated that where the decision of a trial is perverse and has occasioned a miscarriage of justice, this Court should interfere and he referred to the cases of Njoku Vs The Registered Trustees of Congregation of Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 139, Uwah Vs Akpabio (2014) LPELR-22311(SC). Counsel stated that all the attributes of a perverse decision are present in the judgment of the lower Court and this Court should thus interfere with the decision.

Counsel urged the Court to resolve the issue for determination also in favour of the Appellants. Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court. Counsel to the Respondent adopted the three issues for determination as formulated by Counsel to the Appellants.

In arguing the first issue for determination, Counsel stated that it is the duty of the trial Court to make findings based on the evidence adduced by the parties and to arrive at a decision granting or dismissing the reliefs sought and that it is only where a trial Court fails to evaluate or improperly evaluates the evidence led that an appellate can intervene and reevaluate the evidence, but not otherwise and he referred to the cases of Sabo Vs Abdul Kadir (2016) All FWLR (Pt 992) 178, Olofin Vs Rasaki (2016) All FWLR (Pt 830) 1281 and Insurance Brokers of Nigeria Vs A. T. M.

Co Ltd (1996) 8 NWLR (Pt 466) 316.

Counsel stated that for improper evaluation or non-evaluation of evidence to have effect on the case of a party, the party alleging same must identify and specify the evidence not evaluated and show that it occasioned a miscarriage of justice and he referred to the cases of Mafulul Vs Takwen (2018) LPELR-45635(CA) and Adeye Vs Adesanya (2001) LPELR-166(SC). ​Counsel stated that this case was conducted on affidavit evidence and that the complaint of the Appellants in this appeal was that the lower Court failed to make proper use of the depositions in counter affidavit in finding that the Appellants did not deny the contents of paragraph 18 of the affidavit in support where it was alleged that the fourth to the sixth Appellants pounced on the Respondent and beat him up and injured him in the mouth.

Counsel noted that in paragraph 5(a) of the counter affidavit wherein the Appellants listed the paragraphs of the affidavit they were denying, paragraph 18 was not mentioned and he referred to paragraph 5(q) thereof wherein the Appellants deposed that they did not beat the Respondent and explained how the Respondent sustained the injury to the lip while he was resisting arrest. Counsel stated that it was obvious from the counter affidavit that paragraph 5(q) was an afterthought and did not constitute a denial of paragraph 18 of the affidavit in support.

Counsel thereafter referred and reproduced portions of the deliberations of the lower Court in the judgment and stated that it was obvious that the lower Court exhaustively appraised the evidence proffered by the parties, attached appropriate probative value to them before making its findings and entering judgment.

Counsel stated that the evaluation of evidence carried out by the lower Court cannot be said to have occasioned a miscarriage of justice to the Appellants and this is because the humiliation and maltreatment meted out to the Respondent amounted to a clear breach of his fundamental rights guaranteed in Section 34 of the Constitution and he referred to the case of Nigeria Customs Service Board Vs Mohammed (2015) LPELR-25938(CA). ​Counsel stated that, contrary to the submissions of Counsel to the Appellants, it is not in every situation where there is a conflict in affidavit evidence that the Court calls for oral evidence and that the Court can use documentary evidence to resolve such conflicts and he referred to the cases Collins Commermex Nigeria Ltd Vs Skye Bank Plc (2019) LPELR-46892(CA), Jev Vs Iyortyom (2014) All FWLR (Pt 747) 749 and APC Vs Agoda (2019) LPELR-47174(CA).

Counsel stated that the seeming conflict in the affidavit evidence of the parties was on whether the fourth to the sixth Appellants beat up the Respondent, injured him and leg-cuffed him and that while the Respondent said they did, the Appellants maintained that they did not. Counsel stated that the Respondent attached photographs of himself with an injured lip and in leg-cuffs and the lower Court was right when it used the photographs to resolve the conflict.

Counsel urged the Court to resolve the first issue for determination in favour of the Respondent and stated further that, should it find there was indeed an improper evaluation of evidence which prejudiced the Appellants, the Court should reevaluate the affidavit evidence of the parties and come to an appropriate decision and he referred to the case of Okomalu Vs Akinbode (2006) LPELR-2470(SC). ​In arguing the second issue for determination, Counsel noted that Counsel to the Appellants expended so much energy on what the Respondent had to prove to be awarded exemplary and aggravated damages and stated that the Respondent did not claim for exemplary and aggravated damages, but simply for general damages for breach of his fundamental rights.

Counsel stated that the lower Court awarded the sum of N5 Million as compensation to the Respondent for the breach of his fundamental rights and that there is a world of difference between a claim for exemplary and aggravated damages and one for general damages and he referred to the case of Aice Investment Company Ltd Vs Fidelity Bank Plc (2015) LPELR-25753(CA).

Counsel stated that the award of damages for breach of fundamental rights is automatic by virtue of the provisions of Section 36(6) of the 1999 Constitution and he referred to the case Jim-Jaja Vs C.O.P., Rivers State (2013) All FWLR (Pt 665) 203. Counsel stated that the award of compensation under the fundamental rights proceedings, which is sui generis in nature, is not knotted by the shackles of common law principles and he referred to the cases of William Vs Usen (2018) LPELR-46163(CA), Ukpai Vs Omoregie (2019) LPELR-47206(CA) and Yahaya Vs NPF, Plateau State Command (2018) LPELR-46045(CA).

Counsel conceded that this Court possesses the power to tamper with and reassess damages awarded by the trial Court where the quantum is manifestly too high or manifestly too low or where it was granted on based on wrong principles of law, but stated that in determining whether a trial Court made a proper assessment in the award of damages in a fundamental rights proceedings, this Court must be guided by some factors including the frequency of the type of violation in recent times, the depreciating value of the Naira, the motivation for the violation, the status of the applicant and nature of undue embarrassment meted to the applicant and he referred to the cases of Attah Vs IGP (2015) LPELR-24656(CA) and NPF Vs Omotosho (2018) LPELR-45778(CA), amongst others. ​Counsel stated that a read through the deliberations of the lower Court on the award of damages shows that some of these factors weighed on the mind of the lower Court in making the award of N5 Million as compensation to the Respondent and that there was no basis for this Court’s interference with the award.

Counsel urged the Court to resolve the second issue for determination in favour of the Respondent. On the third issue for determination, Counsel conceded that where the decision of a lower Court is perverse, an appellate Court can intervene to set it aside, but stated that it is not enough for a party to say that a judgment of the lower Court, which enjoys a presumption of irregularity by virtue of Section 168 of the Evidence Act, is perverse, the party show how it is so and he referred to the case of Amadi Vs Attorney-General, Imo State (2017) LPELR-42031(SC).

Counsel referred to the cases of Udengwu Vs Uzuegbu (2003) LPELR (Pt 3293(SC) and Zock Vs Bawa (2017) LPELR-43227(CA) in asserting the derelictions a trial Court must commit for its decision to be perverse and stated that the Appellants woefully failed to show that the lower Court was guilty of any of the derelictions in coming to its decision. Counsel thus urged the Court to resolve the third issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court. ​Reading through the processes of the parties in the lower Court, the judgment of the lower Court, the notice of appeal and the entire arguments in the briefs of arguments of the parties, all the issues canvassed in this appeal can be subsumed under two issues for determination. These are: i.

Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants. ii. In the case of issue (i) being in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The two issues for determination adequately capture the grievances of the Appellants in this appeal and the appeal will be resolved on the two issues for determination and this will be done seriatim.

Issue One Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants ​Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.

In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary.

Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990.

The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights.

The Respondent predicated his application before the lower Court on his rights to dignity of the human person, to personal liberty, to freedom of movement and to freedom of expression which, he said, are guaranteed by the provisions of Sections 34, 35 and 39 respectively of the 1999 Constitution. ​The lower Court found that, on the affidavit evidence led by the parties, the Respondent made out a credible case to sustain his claim.

In deliberating on the claims of the Respondent, the lower Court, after summarizing the respective cases of the parties, stated thus: “… In the main paragraphs, i.e. paragraph 5(a) to 5(w) the respondents denied most of the averments in the affidavit in support more especially by paragraph 5(a) when they denied paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 of the affidavit in support. However, the Respondents are not denying paragraph 18 of the affidavit in support. This means that they admitted pouncing on him having heard him utter the word ‘useless’.

They also admitted beating the Applicant as well as jacking his gown and punching him on his mouth. The Respondents, i.e. 4th, 5th and 6th Respondents, by paragraph 5(h) admitted that when the Applicant was finally searched, nothing incriminating was found with him in any of his pockets. The three Respondents in the field work emphasized that the sin of the Applicant was that he uttered the word ‘useless’ to them. They also claimed that the Applicant did not introduce himself as an Alkali Judge in the area.

Whether the behavior of the 4th, 5th and 6th Respondents on the 21st day of September, 2018 at Doko Village in Garki Local Government Area of Jigawa State was justifiable in the circumstances of this case?

The Respondents claimed that the Applicant refused to be searched and/or allowed the 3rd man on the motorcycle to escape their search. That he did not introduce himself, etc. All these things are reasonable ground to have pounced on a man who happened to be at their checkpoint unarmed and/or has not used violence on them? I think the answer to the above is that officers have used excessive force over an armless person. To me, the behavior amounts to a violation of the fundamental rights of the Applicant having regard to the fact that they are public officers entrusted to carry arms on duty.

Calling them useless is not enough to have lost their temper and pounced on an innocent man who posed no danger to their lives. This kind of behavior by the 4th, 5th and 6th Respondents under the command of the 2nd and 3rd Respondents is barbaric and therefore uncivilized as it violates fundamental rights of the Applicant … I therefore award reliefs Nos. 1, 2, 3, 4 and 5 as prayed. However, as to relief No 6, I do not believe that somebody in the caliber of the applicant in this kind of litigation can be adequately compensated by monetary compensation, no matter how much.

But payment of damages cannot adequately compensate the applicant, but just to show sympathy and/or mitigate his medical expenses or other expenses, the sum of Five Million Naira (N5,000,000.00) can suffice. So, I award the sum of Five Million Naira (N5,000,000.00) compensation to the applicant to be jointly paid by all the Respondents so as to mitigate the suffering of the applicant.” ​ The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings.

It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation.

A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision.

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria ​(2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.

Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.

By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.

This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1. ​The contention of the Appellants was that the lower Court failed to properly evaluate the entire contents of their counter affidavit and thus fell into error when it held that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless.

The Appellants argued that there were paragraphs in the counter affidavit wherein they frontally denied beating the Respondent and that had the lower Court considered the entire paragraphs of the counter affidavit, it would have found that the Appellants made no such admission and that this would have affected the outcome of the case. ​Reading through the above reproduced excerpts of the judgment of the lower Court, it is correct that the lower Court found that the Appellants made such an admission and that it did so on the ground that, in specifying the paragraphs of the affidavit of the Respondent they were denying in paragraph 5(a) of the counter affidavit, the Appellants omitted to mention paragraph 18 wherein the Respondent deposed to those facts.

There is nothing in the deliberations in the judgment showing or suggesting that the lower Court considered the other paragraphs in the counter affidavit before it came to this conclusion.

The lower Court particularly failed to refer to and consider the contents of paragraph 5(q) of the counter affidavit which reads: “That throughout the exercise of searching, the 4th, 5th and 6th Respondents never beat the Applicant, the Applicant resisted arrest and in the course of the struggle to restrain the Applicant from running away, the Applicant and 4th and 5th Respondents fell down and sustained injuries.

The Applicant was conscious throughout the searching exercise and no beating ever took place.” The Appellants, in this paragraph, not only denied pouncing on the Respondent, jacking his gown and punching him in the mouth, they said the Respondent was never beaten and proceeded to explain how the Respondent sustained the injuries to his mouth and why they leg-cuffed him.

It is elementary that in the determining whether or not a party has made an admission, the entire averments in the pleading or the entire depositions in the affidavit of the party must be read and considered together as a whole, and not just one or some of the paragraphs therein in isolation – Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519, United Bank for Africa Plc Vs Ibafon Chemicals Ltd (2014) 6 NWLR (Pt 1402) 125, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, Social Democratic Party Vs Biem (2019) LPELR-46871(CA), Orubo Vs State (2021) 16 NWLR (pt 1803) 549. ​The lower Court very evidently failed to consider the totality of the depositions in counter affidavit of the Appellants as a whole in coming to the conclusion that the Appellants admitted beating and injuring the Respondent.

A read through the above reproduced excerpt of the judgment shows that it was on the basis of the alleged admission by the Appellants, coupled with the fact that the parties agreed that nothing incriminating was found on the Respondent during the search, that the lower Court entered judgment and granted the claims of the Respondent.

The judgment of the lower Court was thus predicated on an improper evaluation of the totality of the affidavit evidence presented before it by the parties. ​The portion of the counter affidavit of the Appellants that the lower Court failed to consider and evaluate was their case that there were three passengers on the motorcycle that the fourth to the sixth Appellants flagged down for searching and that they first searched the rider of the motorcycle and then the Respondent, and they asked the Respondent to step aside to enable them conduct a search on the third passenger.

The Appellants deposed that rather than step aside, the Respondent starting abusing the officers and created a scene which attracted other persons and in the course of which the officers were prevented from searching the third passenger on the motorcycle and who escaped from the scene of the search. They deposed that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

The Appellants deposed that the Respondent resisted the arrest and that in the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that the officers did not beat the Respondent and that the Respondent was conscious the whole time. The Appellants deposed that when the officers succeeded in arresting the Respondent and he was leg-cuffed to restrain him from running away with the intent of taking him to their office in Hadeija.

They deposed that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent. ​There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s).

Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent.

After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.

What the above translates to is that the portion of the counter affidavit of the Appellants that the lower Court ignored and failed to consider and evaluate was a very material and substantial part of the case of the Respondent and which could have, if properly considered and evaluated, exonerated them from the allegations made by the Respondent. Therefore, the failure of the lower Court to evaluate the entire contents of the counter affidavit of the Appellants amounted to a breach of their right to fair hearing and occasioned them a substantial miscarriage of justice.

The judgment of the lower Court is thus unsustainable and cannot be allowed to stand Arisons Trading & Engineering Company Ltd Vs The Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26, Olanrewaju Vs Oyesomi (2014) LPELR-22695(SC), Union Bank of Nigeria Plc Vs Bear Marine Services Ltd (2018) LPELR-43692(SC), Ojo Vs State (2021) 3 NWLR (Pt 1764) 435. Counsel to both parties have suggested that this Court should, where it finds that the lower Court improperly evaluated the affidavit evidence of the parties, proceed to evaluate the affidavit evidence and enter the appropriate judgment.

It is correct that this Court has the power to so reevaluate evidence and enter appropriate judgment where the lower Court is guilty of improper evaluation of evidence – ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197. Yankey Vs Austin (2021) 1 NWLR (Pt 1756) 130, Ojo Vs State supra.

It is, however, not a power that this Court exercises willy-nilly and its exercise depends on the facts and circumstances of each case. ​In the instant case, when the narration of events by the Respondent in his affidavit in support is put side by side with the story of the events related by the Appellants in their joint counter affidavit, there a clear irreconcilable conflict on germane, significant and material facts that cannot be overlooked by the Court.

It is correct, as stated by Counsel to the Respondent, that such conflict in affidavit evidence may be resolved either by resort to documentary evidence attached to the affidavits or by the calling oral evidence – Ahmed Vs Minister, Internal Affairs (2002) 15 NWLR (Pt 790) 239, Eze Vs All Progressive Grand Alliance (2020) 3 NWLR (Pt 1712) 413, Amatonjie Vs Chisco Transport (Nig) Ltd (2021) 9 NWLR (Pt 1780) 62. ​Only the Respondent attached documentary exhibits to his affidavit and, contrary to the assertion of Counsel to the Respondent, none of them provides any assistance towards the resolution of the identified conflict in the affidavits of the parties.

The only way the conflict can be resolved, therefore, is through the calling of oral evidence. Here lies the handicap of this Court in exercising its power to re-evaluate the affidavit evidence of the parties. This is an appellate Court and the calling of oral evidence is not part of its modus operandi. It is the lower Court that operates in the realm of calling for oral evidence.

This Court thus declines the invitation of Counsel to the parties to reevaluate the affidavit evidence of the parties and will remit the case to the lower Court for a hearing on the full strength of the affidavit evidence of the parties.

The first issue for determination is resolved in favour of the Appellants. ​This takes us to the second issue for determination, which is – in the case of first issue for determination being answered in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case. ​The question that arises is, whether, in view of the resolution of the first issue for determination in the negative, this Court should proceed to resolve the second issue for determination?

One of the most firmly established principles of judging and judgment writing is that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties for adjudication and not select one or some of the issues and decide the case thereon.

The rationale for this is so that if it turns out on a further challenge to a higher Court that its findings on the selected issue or issues are wrong, the higher Court will not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd Vs F. I.

Onwadike Co Ltd (2000) 6 SCNJ 508 at 522, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Honeywell Flour Mills Vs Ecobank Nigeria Ltd (2018) LPELR 45127(SC), Onwe Vs State (2018) 5 NWLR (Pt 1612) 217, Sarki Vs All Progressive Congress (2020) 1 NWLR (Pt 1706) 515 at 546C-F. The rule is however not absolute. It admits exceptions, i.e. situations where, after resolving a determinant issue in a matter, a lower Court need not proceed to resolve other issues in the matter.

These are: (i) where the issue resolved is one of breach of right of fair hearing, which renders the entire proceedings a nullity, the Court need not proceed to resolve the other issues –Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Orugbo Vs Una (2002) 16 NWLR (Pt 792) 175, C. N.

Okpala & Sons Ltd Vs Nigerian Breweries Plc (2018) 9 NWLR (Pt 1623) 16; (ii) where the lower Court is restricted by statute from going forth to determine the other issues; (iii) where an intermediate Court finds that the lower Court acted improperly in such manner that requires the case to be re-heard by the lower Court or by a Court of coordinate jurisdiction, it should not proceed to pronounce on the merit of the issues argued if the same issues would still arise at the fresh hearing of the case – Sanusi Vs Ameyogun (1992) 4 NWLR (Pt 237) 527 at 550-551, Tiga Green Farms Agricultural (Nig) Ltd Vs Mitsui O.

S. K. Lines Ltd (2005) 17 NWLR (Pt 953) 70 at 86-87 and Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA); and (iv) where the issue resolved by the lower Court is one of jurisdiction and it is on a ground which has been settled beyond peradventure by the Supreme Court and on which the Supreme Court has been unanimously resolute, such that the resolution of the other issues will amount to an academic exercise –KLM Royal Dutch Airlines Vs Toba (2014) LPELR-23993(CA). ​The present situation, in this case, comes within the third exception to the rule.

The resolution of this Court under the first issue for determination is that the matter be remitted to the lower Court for a re-hearing of the entire case on the merits, and this includes the award of damages made by the lower Court. It will not be proper for this Court to proceed to pronounce on the second issue for determination in the circumstances. The second issue for determination is hereby declined and struck out. In conclusion, this Court finds merits in appeal and it is hereby allowed.

The judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018 is set aside for having been predicated on an improper evaluation of the affidavit evidence of the parties. The case file is remitted to the lower Court for a re-hearing of the case and the resolution of the obvious conflicts in the affidavit evidence of the parties by another Judge. The matter should be granted accelerated hearing. The parties shall bear their respective costs of the appeal.

These shall be the orders of the Court. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE O. ABIRU, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal meritorious. The appeal is allowed by me too. ​I abide by the consequential orders in the leading judgment.

Judgment

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, coram HON.

JUSTICE ADEGOKE delivered on 5th March, 2018, wherein the lower Court overruled the Appellants’ preliminary objection challenging the jurisdiction of the Federal High Court to entertain the claim over transactions outside Section 251 (1) of the 1999 Constitution (as amended) at the end of which the lower Court renewed orders mandating the Appellants to maintain status quo until the determination of the suit without affording Appellants the opportunity to be heard.

The background fact is that; the 1st–7th Respondents are customers of the 2nd Appellant, the distributor of electricity within the core area of Asaba. ​The 3rd Appellant (who is a servant of the 2nd Appellant) disconnected electricity supply from 2nd Appellant’s substation to all the Respondents. The Respondents were later reconnected to allow for some form of settlement, which meeting held on 3rd November, 2017.

The Respondents’ claim is that the 2nd Appellant issued outrageous and unjustifiable electricity bill of over N2,500,000 to the Respondents and on the same date, 3rd Appellant invaded the premises of the Respondents with a view to compelling the Respondents to pay the bill and threatened disconnection. ​The Respondents at the lower Court claimed the following reliefs; 1.

A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants. 2.

A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants. 3.

A DECLARATION that the claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 4.

THE MODEST SUM OF N500,000 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 5. 21% monthly arrears on the said sum of N500,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case. 6. 10% monthly interest on the said sum of N500,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court. 7.

PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants.

The Respondents by a Motion ex parte dated 5th December, 2017 and filed 6th December, 2017, an order of Interim injunction restraining the Appellants or any of their agents from disconnecting the Respondents from the 200VA, 33/0.415kv substation or tampering with same pending the hearing and determination of the Motion on Notice for interlocutory Injunction. The said motion ex parte was moved and granted on 8th December, 2017.

The 2nd & 3rd Appellants upon being served filed a Motion on Notice praying the lower Court for; (a) an order striking out the suit for lack of jurisdiction; b) an order vacating/discharging the interim orders granted in favour of the Respondents on 8th December, 2017 or in the alternative, varying the said interim order. ​The Respondents opposed the said motion on Notice and filed an eleven– paragraphs counter affidavit. The lower Court after hearing the parties, overruled prayer 1 of the Appellants and granted prayer 2.

It further ordered that the parties however; 1. maintain the status quo existing prior to the institution of the case, which is that the Defendants shall not disconnect the electricity power to the Claimants’ transformer at Teris Table Water Factory, plots 151, phase 1, Block 11, Core Area, G.R.A. Okpanam road, Asaba, Delta State pending the final determination of this suit; 2. The Defendants are hereby ordered to file their statement of defence not later than seven (7) working days from the date of this ruling. 3.

This matter shall be given accelerated hearing.” Dissatisfied, the Appellants filed a Notice of appeal on 6th March, 2018 containing three grounds of appeal. Sequel to the rules of this Court, the parties filed and exchanged their brief of arguments. ​The Appellants’ brief was filed 4th June, 2020 but deemed properly filed on 22nd June, 2020 and their reply brief was filed 8th March, 2021 both were settled by C. A. Ajuyah, SAN FCIArb, C. O. Ugwor, Esq., A. E. Kode (Mrs), Betty Otoboh (Miss) and A. C. Ojukonsin, Esq., of THOMPSON OKPOKO & PARTNERS, ADANE CHAMBERS.

The following issues were distilled by Counsel to the Appellants: 1. Whether by the claim of the Respondents, the Federal High Court has jurisdiction to entertain the suit? 2. Whether the learned trial Judge was right in making the order that the status quo be maintained pending the determination of the suit when? The Respondents on the other hand filed their brief of argument on the 22nd October, 2020 and it was prepared by Chief E. L. Akpofure, SAN, FCIArb and John Okoriko, Esq., of JOHN OKORIKO & CO wherein the following issues were distilled for determination: 1.

Whether from the totality of the averments as contained in the Statement of Claim, the Federal High Court has the jurisdiction to entertain the suit. 2. Whether the learned Trial Judge was right in making the Order that the status quo be maintained pending the determination of the suit.

The Respondents incorporated a preliminary objection in their brief of argument. ​It is a principle of law that the essence and effect of a preliminary objection is to lead quickly to the termination or dismissal of a matter in limine, to avoid the dissipation of energy and also waste of valuable time on matters which are not worthy of the Court’s resources, thus it is taken before delving into the appeal. See; NWOSU v PDP & ORS (2018) LPELR–44386 (SC); EZEWUNWA & ORS v IHEAGWAM (2015) LPELR–25624 (CA). Therefore, I shall consider the preliminary objection first.

PRELIMINARY OBJECTION The Respondents object to the appeal on the ground that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal- Whether the entire argument canvassed by the Appellants in their Brief of Argument is irrelevant and ought to be discountenanced by this Honourable Court; having regard to the fact that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal. ​Respondents submitted that it is trite law that a ground of appeal from which no issue is formulated by an Appellant for the determination of the Court is deemed abandoned.

Counsel further submitted that the issues formulated for determination by the Appellants in their Brief of Arguments are not related to any ground of appeal; therefore, they are irrelevant and ought to be discountenanced. The case of OLAWEPO v SECURITIES AND EXCHANGE COMMISSION (2011) LPELR – 27654 (CA) was cited in aid The case of DR. UMAR ARDO v ADMIRAL MURTALA NYANKO (2013) LPELR–20659 (CA) RATIO 5 was cited to submit that there is no competent appeal for this honourable Court to determine.

The Appellants in response to the preliminary objection, countered that the two issues raised by the Appellants in their brief of argument are tied to the grounds of appeal contained in the Notice of Appeal filed 6th March, 2018. Counsel further countered that issue one is distilled from grounds 1 & 2 and the Appellants are entitled to distill one issue from one or more grounds of appeal as in the cases of A.I.B LTD v I.D.S LTD (2012) 17 NWLR (PT. 1328) 1 AT PAGES 27–28, PARAS H–A and OKEKE v NNOLIM (2015) 5 NWLR (PT. 1453) 444 AT 464 PARAS. A–C.

In addition, Counsel contended that issue two was distilled from ground 3 of the appeal. He further contended that having established the nexus between the issues for determination as contained in the Appellants’ brief and the grounds of appeal contained in the Notice of Appeal, therefore, the appeal is competent; OKOLO v UBN LTD (1998) 2 NWLR (PT. 539) 618 AT 640 PARA B. In conclusion, the Appellants argued that failure to specifically state the relevant grounds against each issue raised does not render a valid issue incompetent.

RESOLUTION OF PRELIMINARY OBJECTION I have taken a cursory look at the Notice of appeal filed on 6th March, 2018 at 437 – 438 of the record. The appeal was filed on the following grounds: 1. The learned trial Judge erred in law in holding that Section 251 sub (1) (p), (q) and (r) of the 1999 Constitution conferred on the Federal High Court jurisdiction to hear and determine Plaintiffs’ case when… 2.

The learned trial Judge erred in law when she held that the approval granted 1st Plaintiff/Respondent by the defendants to install 33 (thirty-three) KVA transformer for its water works and the subsequent disconnection constitutes matters affecting the validity of executive or administrative actions or decision of the Federal Government or its Agency in that… 3. The learned trial Judge erred in law in ordering that the status quo be maintained in her ruling on defendants” application when … See pages 437–439 of the Record.

From the above and the earlier reproduced Appellants issues for determination, it can clearly be seen that issue 1 was formulated from grounds 1 & 2 and issue 3 was formulated from ground 3 of the appeal. Although the Appellant failed to indicate in his brief the grounds from issue(s) was formulated, this does not in any way make the issues incompetent, however, it is preferable and advisable to do so. See ALIMI AKANBI DADA v CHIEF JONATHAN DOSUNMU (2006) LPELR–909 (SC) MOHAMMED & ANOR v DANLADI & ORS (2019) 49138 (CA). The issues formulated by the Appellants arise from the grounds of appeal.

Therefore, the preliminary objection is frivolous and devoid of any merit and is accordingly dismissed. APPELLANTS SUBMISSIONS Appellants’ counsel opined in issue 1 that the lower Court wrongly applied the decision of the apex Court in OBIUWEUBI v CBN (2011) 7 NWLR PT 1247 465 and submitted that the case was correctly decided by the Supreme Court on its own facts wherein the Appellant sued Central Bank of Nigeria, a Federal Government Agency as Respondent for unlawful termination of employment.

He further submitted that in this instant case, the 2nd & 3rd Appellants against whom this case is targeted are not Federal Government Agencies. 2nd Appellant is a private company with whom the Respondents had a contract in distribution of power and 3rd Appellant is an individual and servant of the 2nd Appellant.

In addition, Counsel submitted that from paragraphs 9–11 of the Respondents’ statement of claim, there were no indication that the 2nd & 3rd Appellants were Agencies of the Federal government and from paragraphs 12 to 35, the Respondents did not allude to any fact that the 1st Appellant was involved in the disconnection or issuance of any bill complained about in the suit.

The case of DARU & ORS v UMAR (2013) LPELR–21905 (CA) was cited to submit that the writ and statement of claim is to be examined in determining the issue of jurisdiction and the case of ADEGOKE MOTORS v ADESANYA (1989) 3 (PART 109) 265–266 PARAGRAPHS H–A was cited to opine that application of pronouncement made by Justices of the Supreme Court is unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made was wrong.

Counsel argued that the claim in this suit has its foundation purely on the law of obligations in its contractual and tortuous breaches with no footing in the provisions of Section 251 (1) of the 1999 Constitution (as amended). He opined that the trial Judge was wrong to have considered Section 32 of the Electric Power Reform Act (EPSRA) 2004 because it was not the subject matter of the claim. Counsel further opined that the presence of the 1st Appellant as a party does not ipso facto confer jurisdiction on the Federal High Court to entertain the suit.

He relied on the cases of OMOTESHO & ORS v ABDULLAHI 2007 LPELR–8412; ONUORAH v KRPC LTD (2005) 6 NWLR (PT. 921) 393; OIL & GAS EXPORT FREE ZONE AUTHORITY v OSANAKPO (2019) 6 NWLR (PT. 1668) 224; WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORPORATION ​(2015) LPELR 24833; PENAWOU v ZENITH BANK & ORS (2017) LPELR 42732 in aid of the submission.

On issue 2, Counsel adopting his submissions in issue 1 further submitted that where a Court lacks jurisdiction to entertain a claim, it lacks the power to make any binding order including the order that parties maintain status quo until the determination of the suit. He cited the cases TSOKWA MOTORS LTD v UBA PLC (2008) 1 SC (PT 1); ADIGUN v A.G. OYO STATE (1987) 3 SC; OKAFOR v A.

G ANAMBRA STATE (1991) 7 SC (PT 1) 38; LEADERS & CO LTD v BAMAIYI (2010) 12 SC (PT IV) 55; OMINIYI v ALABI (2015) 2 SC (PT 11) 92 AT 100 ​It was further submitted that none of the parties prayed for an order that status quo be maintained pending the determination He stated that the Court and parties are bound by the prayer in the motion paper that was set down for hearing, COMMISSIONER FOR WORK BENUE v DEVCOM (1988) 3 NWLR (PT. 83) 407 was cited.

Counsel contended that the lower Court’s order to renewing status quo was wrong and perverse because it amounted to the lower Court compensating an indolent party who took no step to extend the life span of the interim order which lapsed on 1st January, 2018, it was not an order sought by the Appellants and it was one of the reliefs sought by the Respondents in their motion for interlocutory injunction.

He further contended that the parties were yet to be heard by the learned trial Judge on the motion for interlocutory injunction; the lower Court consequently violated the right of the Appellants to fair hearing making the decision a nullity. He cited; UDOGU v EGWUATU (1994) 3 NWLR (PT. 330) 120; MFA & ANOR v INONGHA (2005) 7 NWLR (PT. 923) 1; Section 36 (6) of the 1999 Constitution (as amended). In conclusion, Counsel urged this Court to allow the appeal.

RESPONDENTS’ SUBMISSIONS In Issue 1, the Respondents opined that the question of whether or not the lower Court has the jurisdiction to entertain the suit with regard to the principles stated in the cases cited by the Appellants do not represent the true position of the law. ​Citing Section 251 (p), (q) & (r) of the 1999 constitution (as amended), Counsel submitted that the 1st Appellant, National Electricity Regulatory Commission is an agency of the Federal Government of Nigeria. The cases of INEGBEDION v SELO–OJEMEN (2013) 8 NWLR (PT. 1356) SC PAGE 211 AT PG 226, PARAS.

F–G; 227, PARAS C–D, RATIO 1; NEPA v EDEGBERO (2002) 18 NWLR (PT. 798) 79; ABIA STATE INDEPENDENT ELECTORAL COMMISSION (ABIEC) v KANU (2013) 13 NWLR (PT. 1379) SC PAGE 69 AT PAGE 83, PARAS D–H; RATIO 2 were relied to further submit that the Federal High Court has exclusive jurisdiction in all civil causes and matters in which the Federal Government or any of its agencies is a party. Counsel argued that a Court on jurisdiction must consider the totality of the contents of the entire statement of claim.

He further argued that from the entire statement of claim and the reliefs sought by the Respondents clearly shows that the acts complained about by the Respondents were jointly done by the Appellants, while the reliefs (particularly Reliefs 1, 3, 4 & 5) sought are against all the Appellants. ADEOGUN v DR.

ADETUNJI OLUKAYODE AKINYEMI (2013) LPELR–20659 (CA); OBIUWEUBI v CBN (2011) 7 NWLR (PT. 1247) S.C PAGE 465.were cited. ​It is the contention of the Respondents that the lower Court’s reference to Section 23 of the Electric Power Sector Reform Act, 2004 was not out of context because the gravamen of this case border on the administrative and management of the Appellants geared towards achieving the objectives and functions of the 1st Appellant.

AJANAKU v WILLIAMS (2009) 3 NWLR (1129) 617 was cited to submit that the lower Court was at liberty to apply any relevant law in dispensing justice and fairness according to law. Counsel urged this Court to discountenance the legion of authorities cited by the Appellants for being inapplicable and resolve this issue in favour of the Appellants.

On issue 2, Counsel contended that the Respondents did not misrepresent facts in the affidavit in support of the Motion Ex Parte for Interim Injunction because the enabling law governing and guiding the 1st Appellant enjoins the Appellants (particularly the 1st Appellant) to give seven (7) days Statutory Notice of Disconnection to a customer.

Counsel further contended that the Respondents showed to the lower Court vide paragraphs 37, 38, 39, 40, 41, 43 and 44 of the affidavit in support of the Motion Ex parte for interim Injunction that there was real urgency necessary for the grant of the said application. He stated that the lower Court was therefore right to have preserved the res and making the order that the status quo be maintained pending the determination of the suit. Relying on the case of AJANAKU v WILLIAMS (2009) 3 NWLR (PT. 1129) 6217.

In conclusion, Counsel urged this Court to dismiss the appeal for lacking in merit and affirm the ruling of the lower Court.

APPELLANTS’ REPLY In response, the Appellants referred to the case of ABIA STATE INDEPENDENT ELECTORAL COMMISSION v KANU (SUPRA) ROE LTD v UNIVERSITY OF NIGERIA (2018) ALL FWLR (PT. 938) 1924; C.B.N v RAHAMANIYYA GR LTD (2020) 8 NWLR (PT 1726) 314 to submit that the mere inclusion of the 1st Appellant where the claim is founded on alleged disconnection or threatened disconnection of electricity by 2nd and 3rd Appellants is a claim outside the Federal High Court jurisdiction, and that the claim before the lower Court had nothing to do with the administration or management and control of the Federal Government agency. ​Appellants contended finally that the regulation of electricity does not fall within the exclusive list of the 1999 Constitution or within Section 251 of the said constitution but within the Concurrent Legislative List – Part II of the Second Schedule and a matter for the State High Court.

After the close of arguments and judgment reserved, Appellants sent two additional authorities in support of their submissions; MOHAMMED v ABDULKADIR (2008) 4 NWLR (PT 1076) 111 @ 141 CA and OFORKIRE v MADUIKE (2003) 5 NWLR (PT 812) 166 (SC) on the point that Respondents did not comply with Order 10 of the Court of Appeal Rules, 2021 by filing Notice in form 11 and the legal effect of non-compliance. RESOLUTION The issues formulated by the parties are similar on all fours. I would resolve the two issues together.

The gravamen of this appeal is “whether or not the lower Court – Federal High Court lacks the requisite jurisdiction to adjudicate on the matter”. Jurisdiction is the life wire of a suit and where a Court does not have jurisdiction to entertain a suit before it, the proceeding however well conducted will be a nullity. See the cases of OLOBA v AKEREJA (1988) 3 NWLR (PT 84) 508 AT 520; FEDERAL AIRPORTS AUTHORITY OF NIGERIA v OGBONNA ANI (2010) LPELR–4147 (CA).

It is a settled principle of law that to determine the jurisdiction of a Court to entertain a matter, it is pertinent to examine the writ of summons and the statement of claim only.

The Apex Court in NPA v AMINU IBRAHIM & ANOR (2018) LPELR–44464 (SC) per PETER–ODILI, JSC reiterated this principle thus: “It is to be restated at the risk of unlimited repetition that when the jurisdiction of a Court is called to question, the guide is a close look at the plaintiffs claim which is the originating process inclusive of the totality of all that constitute that claim.”(Emphasis Mine) Further see the cases of ISAH v INEC (2016) 18 NWLR (PT. 1544) 175; EGBUONU v BRTC (1997) 12 NWLR (PT. 531) 29; ECOBANK v ANCHORAGE LEISURE LTD & ORS (2018) LPELR–45125 (SC).

Jurisdiction is determined from the writ of summons, it is therefore imperative that we examine the Respondents’ statement of claim and I now add the reliefs, see paragraph 36 of the statement of claim. I shall reproduce the necessary paragraphs hereunder: 9. The 1st Defendant is the Commission or body responsible for the supply and regulation of electricity power supply to consumers in Nigeria.

The 1st Defendant has its corporate headquarters located at Adamawa plaza, plot 1099, first Avenue, off Shehu Shagari way, central business District, F.C.T.- Abuja, a place outside the territorial jurisdiction of this Honourable Court. 13. By a letter dated 12th September, 2013, the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA, 33/0.415kv Substation for Teris Table Water situate at Okpanam Road, Asaba, Delta state.

The said application was approved by PHCN, whereupon the said 200VA, 33/0.415 KV Substation was installed for Teris Table Water. A copy of the letter dated 12th September, 2013, by which the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA 33/0.415KV Substation for Teris Table Water is hereby pleaded as the Claimants shall rely on it in proof of their case at the hearing of this suit. 14.

Upon the installation of the substation, it was later discovered by Power Holding Company of Nigeria (PHCN) that the electricity power being generated from the substation was dangerously too much for the personal consumption of Teris Table water Factory alone. Thus, in order to share and distribute the excessive power energy being generated from the substation, PHCN approved and authorized the sharing of the power energy to the 2nd–7th Claimants who live within the vicinity of the 1st Claimant’s substation. 16.

In furthermore of the approval and authorization given by PHCN to the Claimants as customers and consumers of electricity power, PHCN also supplied and installed Electricity Meters in the premises of the Claimants for the purposes of assessing the bills consumed by the Claimants to enable them pay such bills to PHCN. At the end of every month, PHCN would come and take the meter’s readings, assess them and forward the monthly bills of the electricity consumed by the Claimants to them to the enable them pay.

In keeping with their contractual obligation towards PHCN, the Claimants have been regularly paying their electricity bills consumed by them to PHCN. 17. This has been the cordial relationship existing when the Claimants and PHCN until the 2nd Defendant recently took over the going – concern of PHCN, including but not limited to, the patronage of the Claimants with the consent and authorization of the 1st Defendant. 18.

All the Claimants connected to the said sub–station are prime customers of PHCN duly inherited and taken over by the Defendants with their separate and respective Electricity Meters. Also, the Claimants have been religiously paying their electricity bills up to date. Photocopies of the last electricity bills evidencing the payment of the Electricity bills consumed by the Claimants are hereby pleaded as the Claimants shall rely on them in proof of their case at the hearing of this suit 19.

Surprisingly, on Monday, 23rd October, 2017 or thereabout, the 1st Claimant and his workers were in the Teris Table Water Factory when the 3rd Defendant – Mr Ernest Edgar suddenly and unlawfully invaded the premises of Teris Table Water Factory and disconnected the electricity supply from the said sub–station of all the Claimants. 20. The Defendants do not have the legal right to disconnect a customer who has paid his electricity bills up–to–date.

Even if a customer has to be disconnected at all, before the Defendants can disconnect such a prime customer, like the Claimants, the law enjoins the Defendants to give seven (7) days’ statutory Notice of Disconnection to such a customer before carrying out said disconnection. The law also enjoins the Defendants to state, in clear terms, the reason(s) for the disconnection in the Notice of Disconnection. 21. In the instant case, the Defendants did not serve the Claimants with any Notice of Disconnection as required by law to that effect.

The Defendants did not give any reason for the sudden disconnection of electricity supply to the premises of the Claimants. 22. The Defendants cannot claim that the connection of the Claimants to the said sub–section is an illegal connection to justify their action.

If it were to be an illegal connection, the Defendants could not have installed Electricity Meters in the premises of all the Claimants for the purpose of assessing the quantum of electricity consumed by the Claimants; regularly issuing monthly electricity bills to Claimants and constantly collecting electricity bills from the Claimants. 34.

Aggrieved by the Defendants’ initial act of indiscriminate and arbitrary disconnection of the Claimants’ respective premises/apartment from electricity supply as well as the subsequent and repeated attempts being made by the Defendants to disconnect the Claimants from electricity supply (despite the fact that the Claimants have been paying their electricity bills to the Defendants regularly, without giving their electricity bills to the Defendants regularly; and without giving the Claimants the statutory seven (7) days’ Notice of Disconnection to that effect), the Claimants have instituted the instant action in asserting their legal rights to the quiet and peaceful enjoyment of electricity supply to them by the Defendants. 36.

WHEREUPON the Claimants claim against the Defendants, jointly and/or severally follows: 1. A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Thousand Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants. 2.

A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants. 3.

A DECLARATION that the Claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 4.

THE MODEST SUM OF N500,000,000.00 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 5. 21% monthly arrears on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case. 6. 10% monthly interest on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court. 7.

PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV. Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants. See pages 4–11 of the record.

​A perusal of the reproduced averments reveals a contractual relationship for supply of service by the 2nd Appellant to the Respondents. These services were inherited by the 2nd Appellant being one of the discos distribution company by virtue of the duties and powers under the 1st Appellant (NERC). The NERC is an agency under the Federal ministry of power in Nigeria and it took over the NATIONAL ELECTRICITY POWER AUTHORITY. Now, what are the duties of the 1st Appellant?

Its responsibility is to regulate standards of performance for all electricity licenses and monitor performances to ensure that those standards are met and maintained or even exceeded; also it ensures a peaceful, enjoyment of energy to commercial concerns. ​The 2nd Appellant is one of the distribution companies (discos) who sells and supplies electrical energy to Nigerians and took over that aspect from NEPA which was holistically in charge of all aspects of generation and supply of light energy to the country.

There are 11 (eleven) discos in Nigeria which are in charge of the distribution of light and the 2nd Appellant is in charge of the zone where these Respondents carry on their commercial concerns and utilize the energy supplies.

They had a previous arrangement with the former agency and from the averment therefore having now taken over, the 2nd Appellant committed acts complained of by the Respondents from disconnecting them from the substation and invading the commercial premises in large numbers under the pretext of issuing a higher bill which the Respondents termed outrageous and unjustifiable thereby disrupting normal flow of business and throwing them into financial set back.

The Appellants averred that the Respondents disconnected, without any notice, the electrical supply to the substation which resulted in huge losses and then served an outrageous bill of N2,500,000 (Two million and five hundred thousand naira), which in their view is a breach of the contractual relationship between the Respondents and the Appellants.

See paragraphs 23, 24 & 25 of the claim thereof, also paragraphs 27, 28, 30, 31, 32, 33 and 34 which sums up the grievances of the Respondents. ​In all the above paragraphs, there is no allegation against the 1st Appellant; its duty to the Respondents, omission or commission. I have re-examined the reliefs, there is nothing alleged against it.

It is trite that the action against a Federal government or its agency in its administration, management acts or omission lies in the Federal High Court but it is curious that the application in the lower Court was by the 2nd and 3rd Appellants but the appearance was for all the Appellants. I find this an anomaly except to insinuate that they did not get the consent of the 1st Appellant.

Be that as it is the long and short of the resolution is that there is nothing to urge against the 1st Appellant, therefore its presence makes no impact, it is solely decorative and cannot cloth the action as one against the Federal government and its agencies. I must say there is no cause of action against it at this stage. Does its presence cloth the cause with the garment of an action qualified for the lower Court’s jurisdiction?

The Federal High Court has exclusive jurisdiction over matters as provided under Section 251 (1) a-t of the 1999 Constitution (as amended) thus: 251. (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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters – …: (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 executive or administrative 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 subsection 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.

The 2nd Appellant is a private electricity distribution company who bought the going concern and operations of PHCN (Power Holding Company). Electricity distribution companies in Nigeria are regulated by the NERC (Nigerian Electricity Regulatory Commission).

Section 32 of the Electric Power Sector Reform Act provides that: (1) Subject to this Act, the Commission shall have the following principal objects: (a) to create, promote, and preserve efficient industry and market structures, and to ensure the optimal utilisation of resources for the provision of electricity services; (b) to maximise access to electricity services, by promoting and facilitating consumer connections to distribution systems in both rural and urban areas; (c) to ensure that an adequate supply of electricity is available to consumers;

(d) to ensure that the prices charged by licensees are fair to consumers and are sufficient to allow the licensees to finance their activities and to allow for reasonable earnings for efficient operation; (e) to ensure the safety, security, reliability, and quality of service in the production and delivery of electricity to consumers; (f) to ensure that regulation is fair and balanced for licensees, consumers, investors, and other stakeholders;

and (g) to present quarterly reports to the President and National Assembly on its activities. (2) For the furtherance of the objects referred to in subsection (1)of this section, the Commission shall perform the following functions: (a) promote competition and private sector participation, when and where feasible; (b) establish or, as the case may be, approve appropriate operating codes and safety, security, reliability, and quality standards; (c) establish appropriate consumer rights and obligations regarding the provision and use of electricity services;

(d) license and regulate persons engaged in the generation, transmission, system operation, distribution, and trading of electricity; (e) approve amendments to the market rules; (f) monitor the operation of the electricity market; and (g) undertake such other activities which are necessary or convenient for the better carrying out of or giving effect to the objects of the Commission.

Also by Section 31 (1) of the Electric Power Sector Reform Act, 2005 the role in its preamble is to promote and ensure an investor – friendly industry and efficient market structure to meet the needs of Nigerians for safe, adequate, reliable and affordable electricity.

The Nigerian Electricity Regulatory Commission (NERC) in exercise of the power conferred on it by Section 96 of the Electric Power Sector Reform Act enacted the Nigeria Electricity Regulation Commission Connection and Disconnection Procedures for Electricity Services, 2007. ​Regulation 5 provides that; 5 (1) A Distribution Company may only disconnect supply to a Customer’s address when the Customer has not paid the amount correctly billed for that supply address by the relevant payment date; PROVIDED that – (a) Payment date is clearly shown on the bill;

(b) Payment date is at least 10 working days from the date of delivery of the bill to the supply address or a delivery address provided by the Customer, which is acceptable to the Distribution Company. (c) Payment date has not been superseded by a subsequent payment date issued to the same Customer for the same supply address; (d) Period between the payment date and the date of disconnection is not less than 3 months; (e) Distribution Company has verified from its records that the bill has not been paid;

and (f) Distribution Company has given the Customer a written warning that the electricity supply shall be disconnected if payment is not made by the payment date and the warning contains; (i) The date of its delivery to the supply address or any other address provided by the customer “and” (ii) A telephone number and/or address acceptable to the Distribution Company where the customer request assistance for paying the outstanding bill. ​The issuance of electricity bill to consumers therefore is the normal administration and management of the 2nd Appellant.

The acts of alleged disconnection of the Claimants electricity supply on the 23rd October, 2017 is one of the acts that is regulated by a Federal government agency which falls under the management and control of the Appellants as agency of government which is geared towards achieving the objective and functions of the 1st Appellant as provided in Section 32 of the Electric Power Sector Reform Act, LFN 2004. Alas!!

As stated above, there is no attribution of failure of the duties of NERC to the 2nd and 3rd Respondents/Plaintiffs and therefore failure to make any averment along this line is fatal to the Respondents/Plaintiffs’ choice of Court. I am in agreement with the Appellants that the presence or inclusion of a Federal Government Agency as a party does not ipso facto confer jurisdiction on the Federal High Court. See OMOTESHO & ORS v ABDULLAHI SUPRA; ONUORAH v KRPC LTD SUPRA; CBN v RAHAMANIYYA G.R LTD SUPRA.

In C.B.N v RAHAMANIYYA GR LTD SUPRA, the apex Court clearly spelt out that there is no provision that confers automatic and exclusive jurisdiction on the Federal High Court in every action by or against the federal government irrespective of the subject matter of litigation for the Federal High Court to have jurisdiction the matter must be a civil mater arising from the administration, management and control of the Federal Government or its agencies.

The matter must arise from any action or proceeding or injunction affecting the validity of any executive or administrative action or decision by Federal Government or its agencies. This issue/allegation/act(s) committed by the 2nd and 3rd Appellants and their servants is based on contractual obligations under the contract for service.

This is an action rooted in a case of simple contract, more importantly the Respondents in paragraphs 14, 15, 16, 17, 18 & 19 and 36 (3) of the claim, where the Respondents referred to “deprive the claimants of their contractual rights to quiet and peaceable enjoyment of electricity power supply by the defendants to the claimants”. These are averments of the contractual relationship between them. The breach is against the contract of supply of services of energy by the 2nd & 3rd Appellants.

Therefore, in practical facts, this appeal does not in any way deal with the 1st Appellant’s management and administration of the discos especially the 2nd Appellant in its acts complained about and resultant losses to the commercial concerns, viz a viz the oversight management administration by the 1st Appellant. ​It deals with the 2nd Appellant and 3rd Appellant who disconnected the light of the Respondents who are mostly commercial consumers without notice and issued outrageous.

Section 251(1) of the Constitution has made the lower Court one of enumerated jurisdiction where exclusive jurisdiction is conferred on the Federal High Court See; ANAO v SUN PULISHING LTD (2013) 3 NWLR (PT 1341) 399; AHMED v AHMED 2013 15 NWLR (PT 1377) 274. In C.B.N v RAHAMANIYYA G.R.

LTD (2020) 8 NWLR per PETER – ODILI, JSC held on whether Section 251 (1) (a) (s) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) confers automatic jurisdiction on the Federal High Court: “It follows that in determining the exclusivity of the Federal High Court in an action or proceedings the subject matter as well as the parties must be considered together. …Where the Federal Government or any of its agencies such as the appellant is a party to a suit, unless the subject matter of the suit relates to one of the specified matters upon which the exclusive jurisdiction is conferred in the Federal High Court by Section 251 (1) (a) (s) CFRN, the Federal High Court will lack jurisdiction to entertain the matter and it is the State High Court that will have jurisdiction in such matters.” See also: KOKO v NDIC (2015) LPLER–40401 (CA) ONUORAH v KADUNA REFINING & PETROLCHEMICAL CO LTD (2005) 6 NWLR (PT 1115) 149; AGBULE v WARRI REFINERY (2013) 6 NWLR (PT. 1350) 318 and ADETAYO v FASHOGBON (2008) 17 NWLR (PT. 1215) 169.

It is clear from the statement of claim that neither the Federal Government of Nigeria, nor any of its agencies is a party to the Respondents’ suit pending at the Court below as to come within the range of Section 251(1) p, q & r of 1999 Constitution. See; W.R.P.C LTD v AGBUJE (2005) NWLR (PT 917) 63 AT 90. In SLYVA v PDP (2012) 13 NWLR (PT 1316) 85, the Court classified two factors that determine when that the Federal Government is a party to a suit: a) The party must be the Federal Government or an Agency, b) the subject matter.

In this end, the statement of claim must be carefully examined to determine whether the facts and circumstances to such claims are within the jurisdiction of the Federal High Court.

See: NEPA v EDEGBERO (2002) 18 NWLR (PT.798) 79, CHIEF KENNETH GBAGI & ORS v CHIEF ONOMIGHO OKPOKO (2013) LPELR-20167 (CA) where BAGE, JCA (as he then was) held thus: “…Where the Court held that where the administration, control and management deals with the ordinary routine business of a company the claim is within the jurisdiction of the state high Court.” Both the parties herein and the subject matter which is a simple contract for services are not within the jurisdiction of the Federal High Court and the Court lacks jurisdiction to entertain contractual maters.

See; ADELEKAN V ECU –LINE NV (2006) LPELR – 113 (SC). On whole, this claim falls under the exclusive jurisdiction of the State High Court. I resolve this issue in favour of the Appellants. Issue 2 borders on the renewed order that status quo be maintained pending the determination of the suit by the lower Court. An order to maintain status quo simply means that the situation of things or the state of affairs (res) is to be maintained/preserved until the determination of the substantive suit.

This is mainly to prevent further loss and damages and security issues bearing on social issues for both parties before the conclusion of the matter. ​The Court had earlier made interim orders and after deciding that the Federal High Court had jurisdiction, further extended after noting that it had lapsed. Interim orders are not permanent, they are made to last for a while usually pending the determination of the suit or motion, see KUBOR & ANOR v DICKSON & ORS (2012) LPELR–9817 (SC) and OKECHUKWU v OKECHUKWU (1989) 3 NWLR (PT 108) 234.

The power of a Court to make restrictive orders is also vested in that Court depending on the situation surrounding the case.

The Appellants had filed an application: – “For striking out the suit in that the honourable Court lacks jurisdiction. – An order or this Court vacating/discharging the interim orders granted in favour of the plaintiff in this suit on 7th December 2017 or the alternative. – An order varying the interim orders of injunction by permitting the defendants to have access to the installed transformer and distribution/service network lines and disconnect unauthorized connections and indebted customers from the 200 KVA 33/0.414kv substation sites at Terris water factory, plot 1511, phase 1, block 11 core area GRA…” ​I have perused the parties’ arguments on the motion at pages 395-398 of the record and I find that the Appellants asked for reliefs to be granted or varied while the Respondents replied that the Court could go ahead based on Order 26 Rule 27 of the Federal High Court Rules or may vary to meet the merit of the action.

The Appellants had no reply to this application. The lower Court in its ruling overruled relief 1 and granted relief 2 in part, while stating that the interim order by effluxion of time had lapsed and ordered that the status quo be maintained and that the Appellants shall not disconnect the electricity power to the Claimants’ transformer. ​Now, was this suo moto? The parties had sought orders including varying the orders of the Court, which the Court varied in her own terms in part. I do not find that the order was made suo moto.

When parties had argued and made concessions even the Appellants did not make heavy weather about relief 2 of his application in his submission at page 435 of the record and had asked the Court to vary order.

Respondents had asked the Court to invoke Order 26 Rule 17 of the Federal High Court Rules, 2009 which states: “The Court may either discharge the order or make the same absolute, or adjourn the consideration thereof, or permit further evidence to be produced in support of or against the order and may modify the terms so as to meet the merits of the case” The Court then proceeded to make specific orders against disconnecting the Respondents from the electric power supply. In the light of the scenario, I disagree that the orders were made suo moto.

The lower Court in its wisdom and discretion in Order 27 Rule 17 of the Federal High Court Rules considered the circumstances of the Respondents as stated that; they had to shut down their commercial activities, employees and public/commercial services, for the 1st Respondent who runs a table water company; the 4th Respondent, a hospitality establishment and the 7th Respondent, a clothes store for kids.

Furthermore, the Respondents showed the lower Court in paragraphs 37, 38, 39, 40, 41, 42, 43 and 44 of their statement of claim that threats of disconnection have been made and there has been a prior disconnection of the Respondents’ electric power. ​See paragraph 34 of the statement of claim on allegations that there were threats of re-entry into the premises and social break down of law and order, snowballing into serious breaches. In the case of YAKUBU O. OLAMOYEGUN & ORS v MR.

SALIU EBUN & ORS (2008) LPELR 46108 (CA) this Court held on the meaning and nature of the Latin Maxim Status quo ante bellum per UWA, JCA; “On the grant of the orders prayed until the final determination of the substantive suit, it is a harmless order to ensure that peace reigns and for the safety of lives and property during the pendency of the substantive suit. Even where such application has not been formerly brought, the Court would be at liberty to make such order where harassment, threats or intimidation from either or both parties is envisaged.

The meaning and/or essence of the latin maxim status quo ante bellum is the state of affairs before the beginning of hostilities. Therefore, the status quo that ought to be maintained in this case is the state of affairs that existed before the hostilities between the parties, which should be maintained until the determination of the substantive matter. …On the other hand, the Appellants have nothing to lose by the order granted that the status quo be maintained, whether there was harassment and intimidation of the witnesses or not.” See; CHIEF T. A. L. AKAPO (OJORA OF LAGOS) v ALHAJI H.A.

HAKEEM-HABEEB & ORS (1992) LPELR–325, P. 58, PARAS. E – G. A Court has the inherent power to make any necessary orders in the preservation of the subject matter and most important to prevent anarchy and preserve the peace. See MARDANI NIGERIA LIMITED v GABRIEL BAGUDU GALADIMA & ORS (2015) LPELR – 25762 (CA) per ABIRU, JCA held thus: “Now, it is settled law that a Court of law possesses inherent powers which are indeed very wide to make orders with the primary purpose of preserving the subject matter of litigation between parties.

The Court can make appropriate orders to prevent acts which will destroy the subject matter of the proceedings or foist upon the Court a situation of complete helplessness or render nugatory any judgment of order..” See also; DEDUWA & ORS v OKORODUDU (1974) 6 SC 21; KIGO (NIG) LTD v HOLMAN BROTHERS (1980) 5-7 SC 60; UNITED CEMENT COMPANY OF NIGERIA v DANGOTE INDUSTRIES LTD (2006) 6 NWLR (PT 980) 616; AKINGBOLA v CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (PT 1306) 475.

The lower Court was therefore perfectly right to have made the order of status quo to prevent disruption of peace and violence that would have ensued between the 3rd Appellant and the Respondents. See paragraphs 20-30 of statement of claim, the parties who had already involved the armed forces, when the 3rd Appellant tried to gain entrance into the 1st Respondent’s premises and was being resisted by the employees of the 1st Respondent. There is no telling the level of damages to persons and properties if there is a re-occurrence.

I disagree that the lower Court even if unsure of the jurisdiction ought to have thrown security caution to the winds, a Court though not a father Christmas should know when to hold the aces and balance it. However, having held that the Federal High Court lacked jurisdiction, certainly the order is extinguished. Having resolved the main issue in this appeal in favour of the Appellants, the appeal has merits and is allowed ​In the result, the judgment of the Federal High Court, Asaba Judicial Division, per T. B. ADEGOKE, J. delivered on 5th March 2018 is hereby set aside.

The suit is to be transferred to the Chief Judge of Delta State High Court for reassignment and speedy conclusion thereon. I make no award as to cost.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. I agree with his reasoning and conclusion that this appeal has merit. I too allow the appeal. I abide by the consequential orders made therein.

JOSEPH EYO EKANEM, J.C.A.: The jurisdiction of a Court is determined by the claim of the claimant and the provisions of the statute which donates jurisdiction to the Court. Where the claim of the claimant falls within the jurisdiction of the Court as granted by the enabling law, the Court must assume jurisdiction; where the claim falls outside its jurisdiction, the Court must decline jurisdiction. See Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127, 144. Ufomba v. INEC (2017) 13 NWLR (Pt. 1582) 175, 197, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 1175) 517, 549 and Zakirai v.

Muhammad (2017) 17 NWLR (Pt. 1594) 181, 233-234. It is clear from the claim of the Respondents in the instant matter that the complaint of the Respondents revolves around alleged breach of contract of supply of electricity by the 2nd and 3rd Appellants to the Respondents. The Federal High Court is a Court of enumerated jurisdiction. In the case of Wema Bank Securities and Finance Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93, 131 the Supreme Court held that its exclusive jurisdiction is expressly tied to items enumerated in Section 251 (1) of the Constitution of Nigeria, 1999 amended).

It was further held that in the exercise of its exclusive jurisdiction, it can only orbit within the universe of the enumerated issues and to others as may be conferred upon it by an Act of the National Assembly.

The jurisdiction of the Federal High Court under Section 251 (1) of the Constitution does not include disputes relating to simple contracts as in this instance. See Onuorah v. Kaduna Refining and Petrochemical Co. Ltd (2005) 6 NWLR (Pt. 1115) 49. Ports and Cargo Holdings Service Co. Ltd v. Migfo Nig. Ltd (2013) 18 NWLR (Pt. 1333) 555, 593–600, Wema Bank Securities and Finance Plc v. NAIC supra 131, DEC Oil and Gas Ltd v. Shell Nigeria Gas Ltd (2019) 14 NWLR (Pt. 1692) 273 and Statoil (Nig.) Ltd v. Inducon (Nig.) Ltd (2021) 7 NWLR (Pt. 1774) 1, 50, 52 and 54.

The mere presence of the 1st Appellant as a party in this suit does not change the position that I have taken above. It is not enough to have an agency of the Federal Government as a party in the suit, the subject matter of the suit and the reliefs must also be considered. See Rahman Brothers Ltd v. NPA (2019) 6 NWLR (Pt. 1667) 126, 138 and PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 138. There is no claim in this matter relating to affecting the validity of any executive or administrative decision or action of the 1st Appellant and so the Federal High Court has no jurisdiction over the matter.

See CBN v. Rahaminiyya Global Resources Ltd (2020) 8 NWLR (Pt. 1726) 314, 339. ​On account of the foregoing, I agree with the lead judgment of my learned brother, OBASEKI-ADEJUMO, JCA, that the appeal has merit. I set aside the ruling of the lower Court and abide by the consequential order of transfer of the suit to the Chief Judge of the Delta State High Court.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. FCT/HC/CV/1609/2018: Chukwudi Ngeme.V. Inspector General Of Police & 5 Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed. The Appellant was dissatisfied with the said decision and has appealed against it vide his Notice of Appeal filed on 6/5/2019 on two Grounds of appeal. See pages 98 -101 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on 6/3/2020 and properly deemed on 6/7/2021. With the leave of this Court, an Amended Notice of Appeal was filed on 9/3/2020 on three Grounds of appeal but was deemed as properly filed on 6/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 28/9/2022. The Appellant was represented by M. K. Bielonwu Esq. appearing with U. L. Agada Esq. The 1st – 4th Respondents were represented by Chinyere Moneme Esq.

The 5th Respondent, though he filed his brief, was not represented by counsel at the hearing of the appeal. The Appellant commenced Suit No: FCT/HC/CV/1609/2018 against the Respondents as Respondents before the High Court of the Federal Capital Territory, Abuja seeking the following Reliefs: 1. The prior, present and planned arrest and further detention, summons and harassment of the applicant by the Respondents and their agents on an alleged indebtedness of the Applicant to one Mr. Emeke Ugwu of Kubwa Abuja is unlawful, unconstitutional null and void ab initio. 2.

The respondents by themselves agents or servants be restrained from further threatening and/or infringing on the fundamental rights of the applicant by threatening him with further arrest except in compliance with Section 35(1), 36 (8 and 12,) 37 and 44  of the Constitution of the Federal Republic of Nigeria 1999, as amended. 3.

That unless the leave of this Honourable Court or any other Court of competent jurisdiction is first sought and obtained the 1st, 2nd, 3rd and 4th Respondents either personally or via any of its agents or officers be restrained from further arresting, detaining and harassing the applicant. 4. That the Respondent pay the sum of N10,000,000.00 (Ten Million Naira) only to the Applicant as compensation for the infringement on his fundamental rights.

SUCCINCT STATEMENT OF FACTS The case of the Appellant as Applicant before the lower Court inter alia was that the 1st, 2nd, 3rd, and 4th Respondents violated his fundamental human rights, especially his arrest, detention and threat of further arrest at the behest of the 5th Respondent in a manner contrary to the provision of Sections 35(1), 36 (8 and 12), 37 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.

He sought an Order of the lower Court to restrain them and to pay him compensation in the sum of N10,000,000.00. (Ten Million Naira) only as provided under Section 35 (6) of the Constitution. See pages 1 – 5,17 – 18, 37 – 40, 41 – 45 and 70 – 77 of the Record of Appeal. ​The case of the 1st – 4th Respondents before the lower Court inter alia was that the 5th Respondent made a report to the Police against the Appellant that he introduced the 5th Respondent to one Eric Metins who resides in Port Harcourt Nigeria and deals with the sale of Oil & Gas and Allied products.

On the instruction of the Appellant, the 5th Respondent paid the total sum of N6,400,000.00 to Eric Metins on the agreement that he would supply 36,000 litres of gasoline product to the 5th Respondent, and for which the Appellant travelled to Port Harcourt to oversee the conveyance of the product to Abuja. However, the Appellant later returned to Abuja without the product or the money but gave an excuse that the sum of N1,550,000.00 given to him by Eric Mctius had been collected from him when the vehicle he boarded to Abuja was robbed.

On realizing that he had been defrauded by the Appellant and Eric Metins, the 5th Respondent reported the matter to the Police, which invited the Appellant for investigation. The Appellant reported at about 6. 00pm on 6/3/2018, and the Police investigation revealed a prima facie case of fraud and breach of trust.

However, it was only on 7/3/2018 at about 7. 00am that the Appellant’s wife came to bail him and he was released on bail when the bail bond was signed on 8/3/2018, and the Appellant wrote an undertaking jointly signed by the 5th Respondent and in the presence of a witness agreeing to return the sum of N500,000.00 to the 5th Respondent and to refund the remaining subsequently. It was whilst investigation was still ongoing that on 26/4/2018 the Appellant rushed to Court to institute the action against the Respondents. See pages 51 – 69 of the Record of Appeal.

The case of the 5th Respondent before the lower Court inter alia was that the Appellant and one Emeka who was based in Port Harcourt of River State fraudulently made the 5th Respondent to deposit the sum of N6,400,000.00 into a Bank Account operated by Emeka for the supply of Gasoline product which both Appellant and Emeka do not have. The Appellant later went to Port Harcourt and collected the sum of N1,500,000.00, a part of the N6,400,000.00 fraudulently obtained from the 5th Respondent as his share of the fraud.

The 5th Respondent reported the matter to the Police and the Appellant was subsequently arrested by the Police and a part of the N1,500,000.00 was recovered from the Appellant, who was subsequently granted bail by the Police but before he could be arraigned before the Court, he jumped the administrative bail granted to him by the Police and instituted the action against the Respondents. See pages 19 – 25 and 26 – 29 of the Record of Appeal.

Before the lower Court, the parties filed and exchanged several affidavits, counter affidavits and reply as well as their written addresses and notice of preliminary objection by the 5th Respondent, which were all duly adopted by them at the hearing of the Appellant’s suit. On 30/4/2019, the lower Court delivered its judgment, in which it dismissed the claims of the Appellant against the Respondents, hence the appeal. See pages 85 – 97 and 98 – 101 of the Record of Appeal ISSUES FOR DETERMINATION In the Appellant’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to the contrary, when it concluded in its ruling that the Appellant’s suit was only aimed at stopping the 1st, 2nd, 3rd and 4th Respondents from carrying out their statutory duties provided under the law? (Distilled from Ground 1) 2. Whether one must be arrested before he is investigated to decide whether there is a prima facie case of crime or not? (Distilled from Ground 2) ​In the 1st-4th Respondents’ brief, two issues for determination were also formulated as follows: 1.

Whether the lower Court was right to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st – 4th Respondents from carrying out their Constitutional duties provided under the law? 2. Whether the invitation of the Appellant was necessary during investigation carried out by the 1st – 4th Respondents? In the 5th Respondent’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st, 2nd, 3rd, and 4th Respondents from carrying out their Statutory duties provided under the law? (Distilled from Ground 1) 2.

Whether the arrest of the Appellant was necessary before the investigation to decide if there was prima facia case of crime or not? (Distilled from Ground 2) ​I have taken time to consider the depositions in the affidavit, counter – affidavit and reply affidavit as well as the documentary Exhibits as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court.

I am of the firm view, and since all the two issues apiece as formulated by all the parties are similar, that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the two issues apiece as distilled in the 1st – 4th Respondents and the 5th Respondent’s briefs. However, I shall consider all the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law when it held that even though where the right of an individual has been, is being, or is likely to be infringed the Court are enjoined to protect such individual’s right but however, that should not be interpreted to stop the Police from carrying on their statutory duties provided by the law and thereby refused the meritorious claims of the Appellant against the Respondents and contended that the lower Court was wrong because from the evidence before it, the 1st – 4th Respondents were not out to carry out any other duty than lend themselves to the 5th Respondent as his debt recovery agent and urged the Court to hold that the admitted evidence proved that the Appellant was rather unlawfully arrested, detained and only released when he parted with the sum of N500,000.00 as part of the alleged indebtedness to the 5th Respondent with an undertaking to refund the balance of N1,000,000.00 and to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 4 of the Police Act, CAP. P19, LFN 2004.

It was also submitted that in law the onus is on the 1st – 4th Respondents to prove that their act was strictly done in furtherance of their statutory duties under the Nigerian law and contended that the 1st – 4th Respondent failed to discharge this burden of proof placed on them by law and therefore, the arrest and detention of the Appellant was clearly unlawful, illegal and not justified by law and urged the Court to hold that the Appellant was merely arrested and detained at the behest of the 5th Respondent solely for the purposes of recovery of debt and nothing else as there was sufficient time between the 8/3/2018 when the Appellant was released on bail and 22/6/2018 to have arraigned the Appellant if indeed they carried out any investigative duty under the law and discovered that the Appellant had committed any offence known to law, and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to 35 (1), (2), (3) and (4) of the Constitution of Nigeria 1999 (as amended), and relied on Oceanic Securities International Ltd v. Balogun (2013) All FWLR (Pt. 677) 633 AT p. 662; Ejefor V. Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba V. SSS (1994) 6 NWLR (Pt. 351) 475.

On issue two, learned counsel for the Appellant had submitted that the lower Court erred gravely in law when it held that in law, one must be arrested and investigated before the Police should decide whether there is a prima facie case of crime or not and contended that the arrest of the Appellant was neither for the purpose of his investigation nor for the purpose of bringing him before a Court of law to stand his trial or in execution of an Order of the Court but rather for the mere purpose of recovering from him of his indebtedness to the 5th Respondent and urged the Court to hold that it is not the law that one must be arrested before the Police will investigate to decide whether there is a prima facie case of crime or not but rather the correct procedure is for the Police to investigate and then proceed to arrest if the commission of an offence is established and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 35 (1) (c) of the Constitution of Nigeria 1999 (as amended), and relied on Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447; Fawehinmi V. I.G. Police (2002) All NLR 357 (SC) 374; Usman V. The Executive Chairman, EFCC (2018) LPELR – 44678 (CA); Ogbe V.

Okonkwo & Ors. (2018) LPELR – 43876 (CA). ​1st – 4th RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st – 4th Respondent had submitted inter alia that the lower Court was right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondents from investigating the case reported against him by the 5th Respondent as he failed to prove any breach of any of his fundamental rights and contended that the powers of the Police includes the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others and urged the Court to hold that the 1st – 4th Respondents acted strictly in line with their statutory mandate in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant for which he was duly arrested, detained and released on bail to await his arraignment and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel referred to Section 4 of the Police Act 2020, and relied on Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569 ​It was also submitted that there was no scintilla of evidence to show that the money paid by the Appellant to the 5th Respondent was done under any form of duress or that it was paid as a prerequisite for his bail and contended that the surety to the Appellant, his wife one Mrs.

Hope Ngene Chukwudi voluntarily declared her none payment of any money to secure the bail of the Appellant and urged the Court to hold that the law accords a measure of primacy to documentary evidence, of which the bail bond is one and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106; Osibowale V. Carribcan Finance Ltd (2012) All FWLR (Pt. 627)1; Lamina V. Maidugu (2015) 7 NWLR (Pt. 1458) 323; Udo V. State (2018) LPELR – 46132 (CA); Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. 132) 369.

It was further submitted that from the documentary evidence by way of both the bail application and the bail bond, it is clear that the 1st – 4th Respondent did not at any time act as debt recovery agent of the 5th Respondent as falsely alleged but not proved by the Appellant and contended that whatever settlement took place between the Appellant and the 5th Respondent was out of their own mutual agreement to do so and having nothing to do with the 1st – 4th Respondents and urged the Court to hold that all that the 1st – 4th Respondent did was in line with their statutory duties to confront the Appellant with the allegation of crime reported against him by the 5th Respondent.

Respondents further state that at the station the Appellant was confronted with allegations of crime reported against him and the investigation into his claim of an armed robbery attack on him, which was found to be untrue and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel relied on Hassan V.

EFCC (2014) NWLR (Pt 1389) 630. ​It was also further submitted that the issue of whether the Appellant was charged to Court within any stipulated time was not an issue canvassed before the lower Court and therefore, in law, it cannot be canvased on appeal without the leave of this Court and contended that the Appellant having not sought and obtained the prior leave of this Court this fresh issue is incompetent and must be discountenanced and urged the Court to hold that, at any rate, it is not in every case that the Police must charge a suspect to Court as it may in some cases obtain the legal advice of the DPP to filter and determine which matters should be charged to Court to obviate the possibility of inundating the Courts with all manner of charges and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Akintola & Anor V. Akintola & Anor (2022) LPELR – 57235(CA); Okechukwu V.

FRN (2018) LPELR – 50877 (CA). ​On his issue two. learned counsel for the Respondent had submitted inter alia that although the lower Court had held that arrest was necessary before investigation, the 1st – 4th Respondents showed clearly that based on the complaint of the 5th Respondent the Appellant was never arrested but was only invited and he came on his own and made statement to the Police at about 6/3/2018 and was only detained to provide a surety to take him on bail which he failed to provide until 8/3/2018 when his wife came forward to sign the bail bond and he was released on bail and contended that there is no law that mandates the Police to carry out its investigation in a particular order and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria (as amended), and relied on Ajayi V. State (2013) 9 NWLR (Pt. 1360) 605; Udo.

V Essien (2015) 5 NWLR (Pt. 1451) 103. ​5TH RESPONDENT’S COUNSEL SUBMISSIONS On his issue one, learned counsel for the 5th Respondent had submitted inter alia that what the Police investigated the Appellant for was not for debt but for the offence of fraud, which constitutes the crime of cheating somebody in order to get money or goods illegally and contended that the matter before the lower Court bordered on the fraudulent acts of the Appellant in obtaining money from the 5th Respondent which was reported to the Police for investigation and urged the Court to hold that the Appellant having himself admitted his fraudulent acts, there was no further need for the 1st – 5th Respondents to prove why the Appellant was investigated by the Police in the due performance of their duties and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Atanda V. Iliasu (2013) 18 WRN 1 AT p. 20; APC V. INEC (2015) 3 WRN 1 AT p. 62; Ezeugo V. Agim (2015) LPELR – 24572; Fajemirokun V. CB Nig. Ltd (2009) 5 NWLR (Pt. 11356) 588 AT p. 600.

It was also submitted that the 5th Respondent only made a bona – fide complaint to the Police for the swindling of his N6,400,000.00 by one Emeka in Port Harcourt and the Appellant, out of which the Appellant admitted to have received the sum of N1,500,000.00 swindled from the 5th Respondent and contended that the lower Court having taken to review and evaluate the entirety of the affidavit, counter affidavit and reply affidavit of the parties came to the correct conclusion and finding that the only motive of the Appellant, in the face of his obvious involvement in the swindling of the 5th Respondent, was merely to stop Police from carrying out its statutory duties as the matter had nothing to do with any debt recovery and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the lower Court. ​On his issue two, learned counsel for the Appellant had submitted inter alia that in law that there are no laydown rules on how the Police is to carry out investigation of a complaint of crime made to it by complainant except the Constitutional provision that regulates the period of detention of the Suspect before arraignment and contended that it is at the discretion of the Police on how to carry out the investigation depending on the set of facts of the complaint and urged the Court to hold that what determines the mode of investigating any offence reported to the Police is based on the discretionary powers of the Police over the set of facts of each case and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court.

Counsel referred to Section 4 of the Police Act, 2020 and relied on Olusina Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 AT p. 605; Garuba V. Yahaya (2007) Vol. 145 LRCN 549 AT p. 558; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ezeanuna V. Onyema (2011) WRN 21 (g) pp. 60 – 61; Ayanru V. Mandilas Ltd (2007) Vol. 147 LRCN 1036(g) p. 1058. APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 1st – 4th RESPONDENTS My lords, the reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry.

The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V.

Igbinedion & Ors (2021) LPELR – 55990 (CA) @ pp. 55 – 57, per Sir Biobele Abraham Georgewill JCA. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

Be that as it may, it was submitted inter alia that it was established as fact that the Appellant paid the sum of N500,000.00 to the 5th Respondent at the Police Station before he was released on bail and since in law facts admitted need no further proof, the lower Court ought to have come to the conclusion that all that the 1st – 4th Respondents did was merely to act as debt recovery agents of the 5th Respondent and grant the claims of the Appellant against the Respondents and contended that by their admission it was proved that the 1st – 4th Respondents clearly acted as debt recovery agents for the 5th Respondent in collecting from the Appellant the N500,000.00 as part of the debt of N1,500,000.00 due to the 5th Respondent and urged the Court to hold that the Appellant was made to pay the sum of N500,000.00 to the 5th Respondent by the 1st – 4th Respondents at the Life Camp Police Station under duress before his release on bail and with an undertaking to pay further N1,000,000.00 within a period of time and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the 1st – 5th Respondents.

Counsel referred to Sections 107 and 123 of the Evidence Act 2011, and relied on Offor & Anor. V. State (2012) LPELR – 19658 (SC); UBA V. Jargaba (2007) 31 NSCQR 144 AT p. 166; Ezemba V. Ibeneme (2004) 19 NSCQR 352 AT p. 410; Ajao V. Alao (1986) 5 NWLR (Pt. 45) 802; Onyeresi V. Okorocha & Ors. (2019) LPELR – 49475 (CA) 51; United States V. Alzate (1995) 47; United States Vs Gonzalez ​(2005) 407; Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210; People V. Petznick (2003) 114 CaI.App.4th 663; United States V. Navarro (2010) 608; Ruffin V. State (2008) 992; United States V.

Harris (1997) 104; Yadis Nigeria Ltd. V. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348; Redeemed Christian Church of God (Hagiazo Parish) V. Akadiri & Anor (2019) LPELR – 46780 (CA) 16; Federal Republic of Nigeria V. Mohammed (2014) 19 WRN 1 (a), p. 43; Prince (Dr.) B. A. Onafowokan & Ors V. Wema Bank Plc & Ors (2011) 5 SCNJ 266; Prof. Olufeagba & Ors V. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 SCNJ 349 AT P. 373; Yadis Nig. Ltd V. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig. Ltd V. OMPADEC (2007) 2 S.C.N.J. 218; Saraki V.

Kotoye (1992) 11/12 SCNJ 26 AT pp. 42 – 43. ​It was also submitted that on the issue of the Appellant not being charged to the Court by the Police, in law the Appellant cannot force the 1st – 4th Respondents to prosecute him, therefore such arguments could not have been canvassed by the Appellant before the lower Court and contended that the claim of the Appellant is simply that his fundamental right was infringed upon by the 1st – 4th Respondents as he was arrested and detained not in keeping with the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria but as debt recovery agents of the 5th Respondent as he was only released on bail after he paid part of the alleged indebtedness in the sum of N500,000.00 and urged the Court to hold that the Appellant was therefore, entitled to the enforcement of his fundamental rights against the Respondents contrary to the perverse findings of the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 5th RESPONDENT In his reply, learned counsel for the Appellant had submitted inter alia that the appeal borders on the lower Court’s refusal to enforce the fundamental rights of the Appellant and contended that an appeal is by way of a re-hearing of questions involved in an action as presented before the lower Court and not a new suit altogether and urged the Court to hold that before the lower Court the issue of fraud was never raised and should therefore, be discountenanced and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel relied on Attah V. IGP (2015) All FWLR (Pt. 805) 108 AT p. 146; Osolu V. Osolu (2003) FWLR (Pt. 172) 1777 AT p. 1800; Oloruntoba – Oju V. AG Fed (2017) All FWLR (Pt. 874)965 AT p. 1976; Okoye & Anor V. Ecobank (2019) LPELR – 47350 (CA); Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941)1 AT p. 70; Ali V. NDIC (2014) LPELR – 22422.

RESOLUTION OF ISSUES ONE AND TWO My Lords, consideration of issues one and two would, in my view, involve the evaluation of affidavit, counter affidavit and reply affidavit evidence as led by their parties and the findings reached thereon by the lower Court in the judgment appealed against to see whether or not there was proper evaluation of the evidence and correct findings reached therein by the lower Court? ​By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.

It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.

This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.

COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. ​Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st – 4th Respondents filed a Counter affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp.

Abuja, Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st – 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st – 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018. with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018.

So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1 – 5, 17 – 18, 19-25; 26 -29; 37- 40, 41-45, 51-69, 70 -77 of the Record of Appeal.

In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st – 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended).

To my mind, and to my understanding too, this is the real crux of this appeal.

I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached.

Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46 (1) of the Constitution of Nigeria 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill JCA. ​However, by Section 4 of the Police Act, CAP.

P19, LFN 2004, which provides as follows: “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.” My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law.

See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC).

There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Metius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00.

Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st – 4th Respondents, and for which the 1st – 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent.

I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4. which are the application and bail bonds. Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st – 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondent’s from investigating the case reported against him by the 5th Respondent.

Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR – 25610 (CA) per Sir Biobele Abraham Gcorgewill JCA.

Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st – 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act 2020. See also Atakpa V.

Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt 1389) 630. My lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re – looted, his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja.

The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st – 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st – 4th Respondents.

The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the Society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law.

See Section 4 of the Police Act 2020. ​It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V.

Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus: “No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence” See also Udo V Essien (2015) 5 NWLR (Pt. 1451) 103. ​In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police.

Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.

I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues cither on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so.

These issues are hereby discountenanced as going to no issue in this appeal. ​Now, having held that the 1st – 4th Respondents acted within the limits of the powers conferred upon by them by law in arresting, detaining and releasing the Appellant on bail on the serious criminal allegations of fraud, of which there was prima facie evidence before the Police, including the admission by the Appellant before the Police, I consider issue two for determination as having become merely academic as there was prima facie reason or basis for the arrest of the Appellant. ​However, had there not been a prima facie basis for the arrest and detention of the Appellant, then issue two for determination would have become apposite since it is time the Nigeria Police, and indeed all other Law Enforcement Agencies, should desist from arresting and detaining Citizens accused of one crime or the other in order to look for prima facie evidence to justify that prior arrest and detention, rather than for the Police to conduct discreet investigation upon a complaint, as it is done in other climes, to find reasonable suspicion or prima facie evidence to warrant an arrest.

In other words, an arrest merely for the purpose of looking for prima facie basis for the arrest is wrong. It should rather be prima facie evidence as basis for an arrest. This is what civilized and best practices in good policing entails.

Thus, it is for the Police to investigate at least to ascertain some form of prima facie evidence before proceeding to arrest a suspect if prima facie there is evidence of the commission of an offence, unless the Suspect was caught in action in the alleged commission of the crime. See Fawehinmi V. IG. Police (2002) All NLR 357 (SC) AT p. 374, where the Supreme Court per Uwaifo, JSC had emphatically stated inter alia thus: “I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect.

It is completely wrong to arrest, let alone to caution a suspect, before the police look for evidence implicating him.” My lords, even at the level of this Court in the hierarchy of Courts in this Country, we too have spoken in clear condemnation of the procedure whereby an arrest is made first by the Police before evidence to incriminate the suspect is scavenged for by the Police. See Agbebaku V.

State (2015) FWLR (Pt. 791) 1423 AT p. 1447, where this Court Ogunwumiju, JCA (as he then was but now JSC) had stated inter alia thus: “The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court, either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the Court, a bench warrant is issued.” I think I have said enough!

In the light of all I have stated and found as above, issue one for determination is hereby resolved against the Appellant in favour of the 1st – 5th Respondents. On the whole therefore, having resolved issue one for determination against the Appellant in favour of the 1st – 5th Respondents, and having duly discountenanced issue two for determination as being merely academic, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby dismissed.

In the result, the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. ECT/UC/CV/1609/2018: Chukwudi Ngeme V. Inspector General of Police & Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed. There shall be no Order as to Cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division in Suit No. FCT/HC/CV/1609/2018 delivered on 30/4/2019 is hereby affirmed. I abide by the consequential Orders.

DANLAMI ZAMA SENCHI, J.C.A.: I have read in advance before now, the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed. ​The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 30th April, 2019 in suit No. FCT/HC/CV/1609/2018 by BELLO KAWU, J is hereby affirmed. No Order as to costs.

Judgment

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018. The Respondent commenced the action in the lower Court by a motion brought pursuant to provisions of the Fundamental Right (Enforcement Procedure) Rules 2009.

The Respondent sought for the enforcement of his fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom of expression as guaranteed, according to him, under Sections 34, 35, 39, 41, 44 and 46 of Constitution of the Federal Republic of Nigeria 1999 (as amended), an order of injunction to restrain further breach of his fundamental rights, public apology to be published in two widely read newspapers and the sum of N20 Million as damages. ​The case of the Respondent on the processes filed was that he is an Alkali and had served in various Sharia Courts in Jigawa State and was also an Islamic scholar and preacher in his village, Doko, and in other neighbouring villages in Garki Local Government Area of Jigawa State.

It was his case that on the 28th of September, 2018 while transiting to his farm on a commercial motorcycle, he was stopped by the fourth to the sixth Appellants who were on duty on the Kano/Gumel highway and he and the motorcyclist were asked to dismount for a search to be conducted.

It was his case that they dismounted and that the officers insisted on searching him even after he identified himself as an Alkali and showed them his identification card, and that at the end of the search, nothing incriminating was found on them. ​It was his case that after concluding the search and finding nothing incriminating, the officers still did not allow him to go and that when he insisted on being allowed to go, the officers started abusing him, calling him all sorts of names, and this attracted passer-by who were mainly people from his village and the neighbouring villages where he preached.

It was his case that he reacted to the abuses by telling the officers that their actions were useless acts and whereupon the officers started beating him to the point of unconsciousness, and in the course of which he sustained an injury to his lip and that he was arrested by them, leg-cuffed and detained in the back of their Toyota Hilux vehicle. It was his case that he remained in that position in the scorching sun in the full glare of his village people for more than three hours before people came to plead with the officers to release him.

It was his case that he lost his self-esteem and dignity and that the actions of the officers infringed his fundamental rights. ​The Appellants filed a joint counter-affidavit and they denied the case of the Respondent and it was their case that the fourth to the sixth, while on a lawful routine patrol on the highway, Gumel/Kano highway, on the 21st of September, 2018, flagged down a motorcycle conveying three people.

It was their case that the motorcycle stopped and the rider submitted for a search and was searched, but that the Respondent who was the second passenger on the motorcycle refused to submit to a search. It was their case that they conceded to the Respondent to search himself by bringing out everything in his pocket and that after doing so very reluctantly, and nothing incriminating was found on him, they asked the Respondent to step aside to enable them conduct a search on the third passenger.

It was their case that rather than step aside, the Respondent started abusing the officers and created a scene which attracted other persons and in the course of which they were prevented from searching the third passenger on the motorcycle who escaped from the scene of the search. It was their case that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

It was their case that the Respondent resisted the arrest and that in course of the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that they did not beat the Respondent and that the Respondent was conscious the whole time.

It was their case that the Respondent did not at anytime introduce himself as an Alkali. ​It was their case that when they succeeded in arresting the Respondent, they leg-cuffed him to restrain him from running away with the intent of taking him to their office in Hadeija. It was their case that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent.

It was their case that the Respondent then instigated the youths of the area and who gathered at the scene and threatened to burn the vehicle of the first Appellant and kill the three officers and the officers had to quickly leave the area. It was their case that on their way from the scene of the incident, they were accosted by policemen from the Nigerian Police Force, Garki Station Jigawa State and that they narrated to the policemen all that transpired.

It was their case that it was the Respondent that degraded and inhumanly treated the fourth to the sixth Appellants with his utterances. ​Counsel to the parties filed written addresses in support of the respective cases of the parties and the lower Court heard the matter on the merits and it entered judgment granting all the claims of the Respondent, but awarding him N5 Million as damages, instead of the N20 Million claimed.

The lower Court found in the judgment that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless, and it proceeded from the finding to hold that the Appellants breached the fundamental rights of the Respondent. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 14th of December, 2018 and containing seven grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants presented a brief of arguments dated and filed on the 17th of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 20th of February, 2020 on the 21st of February, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments. ​Counsel to the Appellants distilled three issues for determination in the appeal and these were: i.

Whether having regards to the affidavit evidence and issues canvassed before the lower Court, the lower Court made a proper evaluation of the evidence before coming to the conclusions reached by the Court. ii. Whether the award of N5 Million damages against the Appellant as well as an order of public apology were not arbitrary as they did not follow the principles for award of damages and public apology in cases of this nature. iii. Whether the judgment of the lower Court was not perverse and therefore occasioned a miscarriage of justice.

In arguing the first issue for determination, Counsel to the Appellants referred to the case of Mbonu Vs Nwoti (1991) 7 NWLR (Pt 206) 737 in reiterating that it was the duty of a trial Court to properly evaluate the evidence contained in the depositions in the affidavits filed by the parties in making its findings and stated the trial Court failed to properly do so in the present case.

Counsel stated that in response to the allegation of the Respondent that the fourth to the sixth Appellants pounced on him and beat him, the Appellants stated in paragraph 5(q) of the counter affidavit very clearly that the fourth to the sixth Appellants did not beat the Respondent. Counsel stated that the finding of the lower Court that the Appellants did not deny pouncing on the Respondent was grossly erroneous in law and was a complete misapprehension of the facts placed before the lower Court.

Counsel stated that there was conflict in the affidavit evidence of the parties on whether or not the Respondent was assaulted by the fourth to the sixth Appellants and that instead of calling for oral evidence to resolve the conflict, the lower Court did so suo motu and that this was wrongful and he referred to the case of Asonye Vs Registered Trustees of CAN (1995) 2 NWLR (Pt 379) 623 and Boothia Maritime Inc Vs Far East Mercantile Company Ltd (2001) FWLR (Pt 50) 1713. ​Counsel stated that the failure to call for oral evidence to resolve the apparent conflict in the affidavit evidence of the parties led the lower Court to make perverse finding which occasioned a miscarriage of justice and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such a situation and he referred to the cases of Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1 and Dumez Nigeria Limited Vs Nwakhoda (2008) 18 NWLR 36.

Counsel stated that not only was the decision not borne out by the evidence put forward by the parties, it was obvious that the lower Court acted on irrelevant factors by reason of the sentiments it expressed in the statements it made concerning the status of the Respondent in the award of damages.

Counsel stated that it is settled law that a decision reached on irrelevant factors and considerations cannot be allowed to stand and that the appellate Court is empowered to reevaluate the evidence in such circumstances and he referred to the cases of Ojeleye Vs Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2009) 15 NWLR 520, Ushae Vs Commissioner of Police (2005) 2 NWLR (Pt 937) 499 and Macaulay Vs NAL Merchant Bank Ltd (1990) 6 SCNJ 117.

Counsel urged the lower Court to resolve the first issue for determination in favour of the Appellants. ​On the second issue for determination, Counsel stated that the lower Court did not follow the laid down principles of award of damages in cases of this nature and that the award of exemplary damages is made cautiously and based on established principles and not on the whims and sentiments of the adjudicator and that the Respondent did not place sufficient materials before the lower Court to support the claim for damages and he referred to the cases of Attah Vs Inspector General of Police (2015) All FWLR (Pt 805) 108 and Onagoruwa Vs Inspector General of Police (1991) 5 NWLR (Pt 193) 621.

Counsel stated that the lower Court did not give any legal basis or reasoning for the award of N5 Million as damages and said that it was doing ‘just to show sympathy and mitigate his medical and other expenses’ and that this amounted to speculation which a Court is not allowed to do and he referred to the case of Ushae Vs Commissioner of Police supra. ​Counsel went on a voyage of restating the principles governing the award of aggravated and exemplary damages and he cited case law authorities thereon.

Counsel noted the instances when an appellate Court will interfere with an award of damages by a trial Court and stated that this one of such instances as the N5 Million awarded by the lower Court was very high and excessive in the circumstances of this case. Counsel stated that lower Court awarded the damages to the Respondent ‘just to show sympathy and mitigate his medical and other expenses’, but that the Respondent did not depose that he incurred medical expenses or other expenses and did not put before the Court anything he lost.

Counsel stated that this Court is empowered in the circumstances of this case to either set aside the award of damages or to re-assess the sum of N5 Million awarded and he referred to the cases of Adim Vs Nigeria Bottling Company Ltd (2010) All FWLR (Pt 527) 690 and Attah Vs Inspector General of Police supra. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

On the third issue for determination, Counsel stated that where the decision of a trial is perverse and has occasioned a miscarriage of justice, this Court should interfere and he referred to the cases of Njoku Vs The Registered Trustees of Congregation of Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 139, Uwah Vs Akpabio (2014) LPELR-22311(SC). Counsel stated that all the attributes of a perverse decision are present in the judgment of the lower Court and this Court should thus interfere with the decision.

Counsel urged the Court to resolve the issue for determination also in favour of the Appellants. Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court. Counsel to the Respondent adopted the three issues for determination as formulated by Counsel to the Appellants.

In arguing the first issue for determination, Counsel stated that it is the duty of the trial Court to make findings based on the evidence adduced by the parties and to arrive at a decision granting or dismissing the reliefs sought and that it is only where a trial Court fails to evaluate or improperly evaluates the evidence led that an appellate can intervene and reevaluate the evidence, but not otherwise and he referred to the cases of Sabo Vs Abdul Kadir (2016) All FWLR (Pt 992) 178, Olofin Vs Rasaki (2016) All FWLR (Pt 830) 1281 and Insurance Brokers of Nigeria Vs A. T. M.

Co Ltd (1996) 8 NWLR (Pt 466) 316.

Counsel stated that for improper evaluation or non-evaluation of evidence to have effect on the case of a party, the party alleging same must identify and specify the evidence not evaluated and show that it occasioned a miscarriage of justice and he referred to the cases of Mafulul Vs Takwen (2018) LPELR-45635(CA) and Adeye Vs Adesanya (2001) LPELR-166(SC). ​Counsel stated that this case was conducted on affidavit evidence and that the complaint of the Appellants in this appeal was that the lower Court failed to make proper use of the depositions in counter affidavit in finding that the Appellants did not deny the contents of paragraph 18 of the affidavit in support where it was alleged that the fourth to the sixth Appellants pounced on the Respondent and beat him up and injured him in the mouth.

Counsel noted that in paragraph 5(a) of the counter affidavit wherein the Appellants listed the paragraphs of the affidavit they were denying, paragraph 18 was not mentioned and he referred to paragraph 5(q) thereof wherein the Appellants deposed that they did not beat the Respondent and explained how the Respondent sustained the injury to the lip while he was resisting arrest. Counsel stated that it was obvious from the counter affidavit that paragraph 5(q) was an afterthought and did not constitute a denial of paragraph 18 of the affidavit in support.

Counsel thereafter referred and reproduced portions of the deliberations of the lower Court in the judgment and stated that it was obvious that the lower Court exhaustively appraised the evidence proffered by the parties, attached appropriate probative value to them before making its findings and entering judgment.

Counsel stated that the evaluation of evidence carried out by the lower Court cannot be said to have occasioned a miscarriage of justice to the Appellants and this is because the humiliation and maltreatment meted out to the Respondent amounted to a clear breach of his fundamental rights guaranteed in Section 34 of the Constitution and he referred to the case of Nigeria Customs Service Board Vs Mohammed (2015) LPELR-25938(CA). ​Counsel stated that, contrary to the submissions of Counsel to the Appellants, it is not in every situation where there is a conflict in affidavit evidence that the Court calls for oral evidence and that the Court can use documentary evidence to resolve such conflicts and he referred to the cases Collins Commermex Nigeria Ltd Vs Skye Bank Plc (2019) LPELR-46892(CA), Jev Vs Iyortyom (2014) All FWLR (Pt 747) 749 and APC Vs Agoda (2019) LPELR-47174(CA).

Counsel stated that the seeming conflict in the affidavit evidence of the parties was on whether the fourth to the sixth Appellants beat up the Respondent, injured him and leg-cuffed him and that while the Respondent said they did, the Appellants maintained that they did not. Counsel stated that the Respondent attached photographs of himself with an injured lip and in leg-cuffs and the lower Court was right when it used the photographs to resolve the conflict.

Counsel urged the Court to resolve the first issue for determination in favour of the Respondent and stated further that, should it find there was indeed an improper evaluation of evidence which prejudiced the Appellants, the Court should reevaluate the affidavit evidence of the parties and come to an appropriate decision and he referred to the case of Okomalu Vs Akinbode (2006) LPELR-2470(SC). ​In arguing the second issue for determination, Counsel noted that Counsel to the Appellants expended so much energy on what the Respondent had to prove to be awarded exemplary and aggravated damages and stated that the Respondent did not claim for exemplary and aggravated damages, but simply for general damages for breach of his fundamental rights.

Counsel stated that the lower Court awarded the sum of N5 Million as compensation to the Respondent for the breach of his fundamental rights and that there is a world of difference between a claim for exemplary and aggravated damages and one for general damages and he referred to the case of Aice Investment Company Ltd Vs Fidelity Bank Plc (2015) LPELR-25753(CA).

Counsel stated that the award of damages for breach of fundamental rights is automatic by virtue of the provisions of Section 36(6) of the 1999 Constitution and he referred to the case Jim-Jaja Vs C.O.P., Rivers State (2013) All FWLR (Pt 665) 203. Counsel stated that the award of compensation under the fundamental rights proceedings, which is sui generis in nature, is not knotted by the shackles of common law principles and he referred to the cases of William Vs Usen (2018) LPELR-46163(CA), Ukpai Vs Omoregie (2019) LPELR-47206(CA) and Yahaya Vs NPF, Plateau State Command (2018) LPELR-46045(CA).

Counsel conceded that this Court possesses the power to tamper with and reassess damages awarded by the trial Court where the quantum is manifestly too high or manifestly too low or where it was granted on based on wrong principles of law, but stated that in determining whether a trial Court made a proper assessment in the award of damages in a fundamental rights proceedings, this Court must be guided by some factors including the frequency of the type of violation in recent times, the depreciating value of the Naira, the motivation for the violation, the status of the applicant and nature of undue embarrassment meted to the applicant and he referred to the cases of Attah Vs IGP (2015) LPELR-24656(CA) and NPF Vs Omotosho (2018) LPELR-45778(CA), amongst others. ​Counsel stated that a read through the deliberations of the lower Court on the award of damages shows that some of these factors weighed on the mind of the lower Court in making the award of N5 Million as compensation to the Respondent and that there was no basis for this Court’s interference with the award.

Counsel urged the Court to resolve the second issue for determination in favour of the Respondent. On the third issue for determination, Counsel conceded that where the decision of a lower Court is perverse, an appellate Court can intervene to set it aside, but stated that it is not enough for a party to say that a judgment of the lower Court, which enjoys a presumption of irregularity by virtue of Section 168 of the Evidence Act, is perverse, the party show how it is so and he referred to the case of Amadi Vs Attorney-General, Imo State (2017) LPELR-42031(SC).

Counsel referred to the cases of Udengwu Vs Uzuegbu (2003) LPELR (Pt 3293(SC) and Zock Vs Bawa (2017) LPELR-43227(CA) in asserting the derelictions a trial Court must commit for its decision to be perverse and stated that the Appellants woefully failed to show that the lower Court was guilty of any of the derelictions in coming to its decision. Counsel thus urged the Court to resolve the third issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court. ​Reading through the processes of the parties in the lower Court, the judgment of the lower Court, the notice of appeal and the entire arguments in the briefs of arguments of the parties, all the issues canvassed in this appeal can be subsumed under two issues for determination. These are: i.

Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants. ii. In the case of issue (i) being in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The two issues for determination adequately capture the grievances of the Appellants in this appeal and the appeal will be resolved on the two issues for determination and this will be done seriatim.

Issue One Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants ​Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.

In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary.

Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990.

The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights.

The Respondent predicated his application before the lower Court on his rights to dignity of the human person, to personal liberty, to freedom of movement and to freedom of expression which, he said, are guaranteed by the provisions of Sections 34, 35 and 39 respectively of the 1999 Constitution. ​The lower Court found that, on the affidavit evidence led by the parties, the Respondent made out a credible case to sustain his claim.

In deliberating on the claims of the Respondent, the lower Court, after summarizing the respective cases of the parties, stated thus: “… In the main paragraphs, i.e. paragraph 5(a) to 5(w) the respondents denied most of the averments in the affidavit in support more especially by paragraph 5(a) when they denied paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 of the affidavit in support. However, the Respondents are not denying paragraph 18 of the affidavit in support. This means that they admitted pouncing on him having heard him utter the word ‘useless’.

They also admitted beating the Applicant as well as jacking his gown and punching him on his mouth. The Respondents, i.e. 4th, 5th and 6th Respondents, by paragraph 5(h) admitted that when the Applicant was finally searched, nothing incriminating was found with him in any of his pockets. The three Respondents in the field work emphasized that the sin of the Applicant was that he uttered the word ‘useless’ to them. They also claimed that the Applicant did not introduce himself as an Alkali Judge in the area.

Whether the behavior of the 4th, 5th and 6th Respondents on the 21st day of September, 2018 at Doko Village in Garki Local Government Area of Jigawa State was justifiable in the circumstances of this case?

The Respondents claimed that the Applicant refused to be searched and/or allowed the 3rd man on the motorcycle to escape their search. That he did not introduce himself, etc. All these things are reasonable ground to have pounced on a man who happened to be at their checkpoint unarmed and/or has not used violence on them? I think the answer to the above is that officers have used excessive force over an armless person. To me, the behavior amounts to a violation of the fundamental rights of the Applicant having regard to the fact that they are public officers entrusted to carry arms on duty.

Calling them useless is not enough to have lost their temper and pounced on an innocent man who posed no danger to their lives. This kind of behavior by the 4th, 5th and 6th Respondents under the command of the 2nd and 3rd Respondents is barbaric and therefore uncivilized as it violates fundamental rights of the Applicant … I therefore award reliefs Nos. 1, 2, 3, 4 and 5 as prayed. However, as to relief No 6, I do not believe that somebody in the caliber of the applicant in this kind of litigation can be adequately compensated by monetary compensation, no matter how much.

But payment of damages cannot adequately compensate the applicant, but just to show sympathy and/or mitigate his medical expenses or other expenses, the sum of Five Million Naira (N5,000,000.00) can suffice. So, I award the sum of Five Million Naira (N5,000,000.00) compensation to the applicant to be jointly paid by all the Respondents so as to mitigate the suffering of the applicant.” ​ The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings.

It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation.

A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision.

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria ​(2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.

Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.

By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.

This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1. ​The contention of the Appellants was that the lower Court failed to properly evaluate the entire contents of their counter affidavit and thus fell into error when it held that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless.

The Appellants argued that there were paragraphs in the counter affidavit wherein they frontally denied beating the Respondent and that had the lower Court considered the entire paragraphs of the counter affidavit, it would have found that the Appellants made no such admission and that this would have affected the outcome of the case. ​Reading through the above reproduced excerpts of the judgment of the lower Court, it is correct that the lower Court found that the Appellants made such an admission and that it did so on the ground that, in specifying the paragraphs of the affidavit of the Respondent they were denying in paragraph 5(a) of the counter affidavit, the Appellants omitted to mention paragraph 18 wherein the Respondent deposed to those facts.

There is nothing in the deliberations in the judgment showing or suggesting that the lower Court considered the other paragraphs in the counter affidavit before it came to this conclusion.

The lower Court particularly failed to refer to and consider the contents of paragraph 5(q) of the counter affidavit which reads: “That throughout the exercise of searching, the 4th, 5th and 6th Respondents never beat the Applicant, the Applicant resisted arrest and in the course of the struggle to restrain the Applicant from running away, the Applicant and 4th and 5th Respondents fell down and sustained injuries.

The Applicant was conscious throughout the searching exercise and no beating ever took place.” The Appellants, in this paragraph, not only denied pouncing on the Respondent, jacking his gown and punching him in the mouth, they said the Respondent was never beaten and proceeded to explain how the Respondent sustained the injuries to his mouth and why they leg-cuffed him.

It is elementary that in the determining whether or not a party has made an admission, the entire averments in the pleading or the entire depositions in the affidavit of the party must be read and considered together as a whole, and not just one or some of the paragraphs therein in isolation – Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519, United Bank for Africa Plc Vs Ibafon Chemicals Ltd (2014) 6 NWLR (Pt 1402) 125, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, Social Democratic Party Vs Biem (2019) LPELR-46871(CA), Orubo Vs State (2021) 16 NWLR (pt 1803) 549. ​The lower Court very evidently failed to consider the totality of the depositions in counter affidavit of the Appellants as a whole in coming to the conclusion that the Appellants admitted beating and injuring the Respondent.

A read through the above reproduced excerpt of the judgment shows that it was on the basis of the alleged admission by the Appellants, coupled with the fact that the parties agreed that nothing incriminating was found on the Respondent during the search, that the lower Court entered judgment and granted the claims of the Respondent.

The judgment of the lower Court was thus predicated on an improper evaluation of the totality of the affidavit evidence presented before it by the parties. ​The portion of the counter affidavit of the Appellants that the lower Court failed to consider and evaluate was their case that there were three passengers on the motorcycle that the fourth to the sixth Appellants flagged down for searching and that they first searched the rider of the motorcycle and then the Respondent, and they asked the Respondent to step aside to enable them conduct a search on the third passenger.

The Appellants deposed that rather than step aside, the Respondent starting abusing the officers and created a scene which attracted other persons and in the course of which the officers were prevented from searching the third passenger on the motorcycle and who escaped from the scene of the search. They deposed that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

The Appellants deposed that the Respondent resisted the arrest and that in the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that the officers did not beat the Respondent and that the Respondent was conscious the whole time. The Appellants deposed that when the officers succeeded in arresting the Respondent and he was leg-cuffed to restrain him from running away with the intent of taking him to their office in Hadeija.

They deposed that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent. ​There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s).

Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent.

After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.

What the above translates to is that the portion of the counter affidavit of the Appellants that the lower Court ignored and failed to consider and evaluate was a very material and substantial part of the case of the Respondent and which could have, if properly considered and evaluated, exonerated them from the allegations made by the Respondent. Therefore, the failure of the lower Court to evaluate the entire contents of the counter affidavit of the Appellants amounted to a breach of their right to fair hearing and occasioned them a substantial miscarriage of justice.

The judgment of the lower Court is thus unsustainable and cannot be allowed to stand Arisons Trading & Engineering Company Ltd Vs The Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26, Olanrewaju Vs Oyesomi (2014) LPELR-22695(SC), Union Bank of Nigeria Plc Vs Bear Marine Services Ltd (2018) LPELR-43692(SC), Ojo Vs State (2021) 3 NWLR (Pt 1764) 435. Counsel to both parties have suggested that this Court should, where it finds that the lower Court improperly evaluated the affidavit evidence of the parties, proceed to evaluate the affidavit evidence and enter the appropriate judgment.

It is correct that this Court has the power to so reevaluate evidence and enter appropriate judgment where the lower Court is guilty of improper evaluation of evidence – ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197. Yankey Vs Austin (2021) 1 NWLR (Pt 1756) 130, Ojo Vs State supra.

It is, however, not a power that this Court exercises willy-nilly and its exercise depends on the facts and circumstances of each case. ​In the instant case, when the narration of events by the Respondent in his affidavit in support is put side by side with the story of the events related by the Appellants in their joint counter affidavit, there a clear irreconcilable conflict on germane, significant and material facts that cannot be overlooked by the Court.

It is correct, as stated by Counsel to the Respondent, that such conflict in affidavit evidence may be resolved either by resort to documentary evidence attached to the affidavits or by the calling oral evidence – Ahmed Vs Minister, Internal Affairs (2002) 15 NWLR (Pt 790) 239, Eze Vs All Progressive Grand Alliance (2020) 3 NWLR (Pt 1712) 413, Amatonjie Vs Chisco Transport (Nig) Ltd (2021) 9 NWLR (Pt 1780) 62. ​Only the Respondent attached documentary exhibits to his affidavit and, contrary to the assertion of Counsel to the Respondent, none of them provides any assistance towards the resolution of the identified conflict in the affidavits of the parties.

The only way the conflict can be resolved, therefore, is through the calling of oral evidence. Here lies the handicap of this Court in exercising its power to re-evaluate the affidavit evidence of the parties. This is an appellate Court and the calling of oral evidence is not part of its modus operandi. It is the lower Court that operates in the realm of calling for oral evidence.

This Court thus declines the invitation of Counsel to the parties to reevaluate the affidavit evidence of the parties and will remit the case to the lower Court for a hearing on the full strength of the affidavit evidence of the parties.

The first issue for determination is resolved in favour of the Appellants. ​This takes us to the second issue for determination, which is – in the case of first issue for determination being answered in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case. ​The question that arises is, whether, in view of the resolution of the first issue for determination in the negative, this Court should proceed to resolve the second issue for determination?

One of the most firmly established principles of judging and judgment writing is that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties for adjudication and not select one or some of the issues and decide the case thereon.

The rationale for this is so that if it turns out on a further challenge to a higher Court that its findings on the selected issue or issues are wrong, the higher Court will not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd Vs F. I.

Onwadike Co Ltd (2000) 6 SCNJ 508 at 522, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Honeywell Flour Mills Vs Ecobank Nigeria Ltd (2018) LPELR 45127(SC), Onwe Vs State (2018) 5 NWLR (Pt 1612) 217, Sarki Vs All Progressive Congress (2020) 1 NWLR (Pt 1706) 515 at 546C-F. The rule is however not absolute. It admits exceptions, i.e. situations where, after resolving a determinant issue in a matter, a lower Court need not proceed to resolve other issues in the matter.

These are: (i) where the issue resolved is one of breach of right of fair hearing, which renders the entire proceedings a nullity, the Court need not proceed to resolve the other issues –Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Orugbo Vs Una (2002) 16 NWLR (Pt 792) 175, C. N.

Okpala & Sons Ltd Vs Nigerian Breweries Plc (2018) 9 NWLR (Pt 1623) 16; (ii) where the lower Court is restricted by statute from going forth to determine the other issues; (iii) where an intermediate Court finds that the lower Court acted improperly in such manner that requires the case to be re-heard by the lower Court or by a Court of coordinate jurisdiction, it should not proceed to pronounce on the merit of the issues argued if the same issues would still arise at the fresh hearing of the case – Sanusi Vs Ameyogun (1992) 4 NWLR (Pt 237) 527 at 550-551, Tiga Green Farms Agricultural (Nig) Ltd Vs Mitsui O.

S. K. Lines Ltd (2005) 17 NWLR (Pt 953) 70 at 86-87 and Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA); and (iv) where the issue resolved by the lower Court is one of jurisdiction and it is on a ground which has been settled beyond peradventure by the Supreme Court and on which the Supreme Court has been unanimously resolute, such that the resolution of the other issues will amount to an academic exercise –KLM Royal Dutch Airlines Vs Toba (2014) LPELR-23993(CA). ​The present situation, in this case, comes within the third exception to the rule.

The resolution of this Court under the first issue for determination is that the matter be remitted to the lower Court for a re-hearing of the entire case on the merits, and this includes the award of damages made by the lower Court. It will not be proper for this Court to proceed to pronounce on the second issue for determination in the circumstances. The second issue for determination is hereby declined and struck out. In conclusion, this Court finds merits in appeal and it is hereby allowed.

The judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018 is set aside for having been predicated on an improper evaluation of the affidavit evidence of the parties. The case file is remitted to the lower Court for a re-hearing of the case and the resolution of the obvious conflicts in the affidavit evidence of the parties by another Judge. The matter should be granted accelerated hearing. The parties shall bear their respective costs of the appeal.

These shall be the orders of the Court. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE O. ABIRU, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal meritorious. The appeal is allowed by me too. ​I abide by the consequential orders in the leading judgment.

Judgment

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, coram HON.

JUSTICE ADEGOKE delivered on 5th March, 2018, wherein the lower Court overruled the Appellants’ preliminary objection challenging the jurisdiction of the Federal High Court to entertain the claim over transactions outside Section 251 (1) of the 1999 Constitution (as amended) at the end of which the lower Court renewed orders mandating the Appellants to maintain status quo until the determination of the suit without affording Appellants the opportunity to be heard.

The background fact is that; the 1st–7th Respondents are customers of the 2nd Appellant, the distributor of electricity within the core area of Asaba. ​The 3rd Appellant (who is a servant of the 2nd Appellant) disconnected electricity supply from 2nd Appellant’s substation to all the Respondents. The Respondents were later reconnected to allow for some form of settlement, which meeting held on 3rd November, 2017.

The Respondents’ claim is that the 2nd Appellant issued outrageous and unjustifiable electricity bill of over N2,500,000 to the Respondents and on the same date, 3rd Appellant invaded the premises of the Respondents with a view to compelling the Respondents to pay the bill and threatened disconnection. ​The Respondents at the lower Court claimed the following reliefs; 1.

A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants. 2.

A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants. 3.

A DECLARATION that the claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 4.

THE MODEST SUM OF N500,000 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 5. 21% monthly arrears on the said sum of N500,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case. 6. 10% monthly interest on the said sum of N500,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court. 7.

PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants.

The Respondents by a Motion ex parte dated 5th December, 2017 and filed 6th December, 2017, an order of Interim injunction restraining the Appellants or any of their agents from disconnecting the Respondents from the 200VA, 33/0.415kv substation or tampering with same pending the hearing and determination of the Motion on Notice for interlocutory Injunction. The said motion ex parte was moved and granted on 8th December, 2017.

The 2nd & 3rd Appellants upon being served filed a Motion on Notice praying the lower Court for; (a) an order striking out the suit for lack of jurisdiction; b) an order vacating/discharging the interim orders granted in favour of the Respondents on 8th December, 2017 or in the alternative, varying the said interim order. ​The Respondents opposed the said motion on Notice and filed an eleven– paragraphs counter affidavit. The lower Court after hearing the parties, overruled prayer 1 of the Appellants and granted prayer 2.

It further ordered that the parties however; 1. maintain the status quo existing prior to the institution of the case, which is that the Defendants shall not disconnect the electricity power to the Claimants’ transformer at Teris Table Water Factory, plots 151, phase 1, Block 11, Core Area, G.R.A. Okpanam road, Asaba, Delta State pending the final determination of this suit; 2. The Defendants are hereby ordered to file their statement of defence not later than seven (7) working days from the date of this ruling. 3.

This matter shall be given accelerated hearing.” Dissatisfied, the Appellants filed a Notice of appeal on 6th March, 2018 containing three grounds of appeal. Sequel to the rules of this Court, the parties filed and exchanged their brief of arguments. ​The Appellants’ brief was filed 4th June, 2020 but deemed properly filed on 22nd June, 2020 and their reply brief was filed 8th March, 2021 both were settled by C. A. Ajuyah, SAN FCIArb, C. O. Ugwor, Esq., A. E. Kode (Mrs), Betty Otoboh (Miss) and A. C. Ojukonsin, Esq., of THOMPSON OKPOKO & PARTNERS, ADANE CHAMBERS.

The following issues were distilled by Counsel to the Appellants: 1. Whether by the claim of the Respondents, the Federal High Court has jurisdiction to entertain the suit? 2. Whether the learned trial Judge was right in making the order that the status quo be maintained pending the determination of the suit when? The Respondents on the other hand filed their brief of argument on the 22nd October, 2020 and it was prepared by Chief E. L. Akpofure, SAN, FCIArb and John Okoriko, Esq., of JOHN OKORIKO & CO wherein the following issues were distilled for determination: 1.

Whether from the totality of the averments as contained in the Statement of Claim, the Federal High Court has the jurisdiction to entertain the suit. 2. Whether the learned Trial Judge was right in making the Order that the status quo be maintained pending the determination of the suit.

The Respondents incorporated a preliminary objection in their brief of argument. ​It is a principle of law that the essence and effect of a preliminary objection is to lead quickly to the termination or dismissal of a matter in limine, to avoid the dissipation of energy and also waste of valuable time on matters which are not worthy of the Court’s resources, thus it is taken before delving into the appeal. See; NWOSU v PDP & ORS (2018) LPELR–44386 (SC); EZEWUNWA & ORS v IHEAGWAM (2015) LPELR–25624 (CA). Therefore, I shall consider the preliminary objection first.

PRELIMINARY OBJECTION The Respondents object to the appeal on the ground that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal- Whether the entire argument canvassed by the Appellants in their Brief of Argument is irrelevant and ought to be discountenanced by this Honourable Court; having regard to the fact that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal. ​Respondents submitted that it is trite law that a ground of appeal from which no issue is formulated by an Appellant for the determination of the Court is deemed abandoned.

Counsel further submitted that the issues formulated for determination by the Appellants in their Brief of Arguments are not related to any ground of appeal; therefore, they are irrelevant and ought to be discountenanced. The case of OLAWEPO v SECURITIES AND EXCHANGE COMMISSION (2011) LPELR – 27654 (CA) was cited in aid The case of DR. UMAR ARDO v ADMIRAL MURTALA NYANKO (2013) LPELR–20659 (CA) RATIO 5 was cited to submit that there is no competent appeal for this honourable Court to determine.

The Appellants in response to the preliminary objection, countered that the two issues raised by the Appellants in their brief of argument are tied to the grounds of appeal contained in the Notice of Appeal filed 6th March, 2018. Counsel further countered that issue one is distilled from grounds 1 & 2 and the Appellants are entitled to distill one issue from one or more grounds of appeal as in the cases of A.I.B LTD v I.D.S LTD (2012) 17 NWLR (PT. 1328) 1 AT PAGES 27–28, PARAS H–A and OKEKE v NNOLIM (2015) 5 NWLR (PT. 1453) 444 AT 464 PARAS. A–C.

In addition, Counsel contended that issue two was distilled from ground 3 of the appeal. He further contended that having established the nexus between the issues for determination as contained in the Appellants’ brief and the grounds of appeal contained in the Notice of Appeal, therefore, the appeal is competent; OKOLO v UBN LTD (1998) 2 NWLR (PT. 539) 618 AT 640 PARA B. In conclusion, the Appellants argued that failure to specifically state the relevant grounds against each issue raised does not render a valid issue incompetent.

RESOLUTION OF PRELIMINARY OBJECTION I have taken a cursory look at the Notice of appeal filed on 6th March, 2018 at 437 – 438 of the record. The appeal was filed on the following grounds: 1. The learned trial Judge erred in law in holding that Section 251 sub (1) (p), (q) and (r) of the 1999 Constitution conferred on the Federal High Court jurisdiction to hear and determine Plaintiffs’ case when… 2.

The learned trial Judge erred in law when she held that the approval granted 1st Plaintiff/Respondent by the defendants to install 33 (thirty-three) KVA transformer for its water works and the subsequent disconnection constitutes matters affecting the validity of executive or administrative actions or decision of the Federal Government or its Agency in that… 3. The learned trial Judge erred in law in ordering that the status quo be maintained in her ruling on defendants” application when … See pages 437–439 of the Record.

From the above and the earlier reproduced Appellants issues for determination, it can clearly be seen that issue 1 was formulated from grounds 1 & 2 and issue 3 was formulated from ground 3 of the appeal. Although the Appellant failed to indicate in his brief the grounds from issue(s) was formulated, this does not in any way make the issues incompetent, however, it is preferable and advisable to do so. See ALIMI AKANBI DADA v CHIEF JONATHAN DOSUNMU (2006) LPELR–909 (SC) MOHAMMED & ANOR v DANLADI & ORS (2019) 49138 (CA). The issues formulated by the Appellants arise from the grounds of appeal.

Therefore, the preliminary objection is frivolous and devoid of any merit and is accordingly dismissed. APPELLANTS SUBMISSIONS Appellants’ counsel opined in issue 1 that the lower Court wrongly applied the decision of the apex Court in OBIUWEUBI v CBN (2011) 7 NWLR PT 1247 465 and submitted that the case was correctly decided by the Supreme Court on its own facts wherein the Appellant sued Central Bank of Nigeria, a Federal Government Agency as Respondent for unlawful termination of employment.

He further submitted that in this instant case, the 2nd & 3rd Appellants against whom this case is targeted are not Federal Government Agencies. 2nd Appellant is a private company with whom the Respondents had a contract in distribution of power and 3rd Appellant is an individual and servant of the 2nd Appellant.

In addition, Counsel submitted that from paragraphs 9–11 of the Respondents’ statement of claim, there were no indication that the 2nd & 3rd Appellants were Agencies of the Federal government and from paragraphs 12 to 35, the Respondents did not allude to any fact that the 1st Appellant was involved in the disconnection or issuance of any bill complained about in the suit.

The case of DARU & ORS v UMAR (2013) LPELR–21905 (CA) was cited to submit that the writ and statement of claim is to be examined in determining the issue of jurisdiction and the case of ADEGOKE MOTORS v ADESANYA (1989) 3 (PART 109) 265–266 PARAGRAPHS H–A was cited to opine that application of pronouncement made by Justices of the Supreme Court is unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made was wrong.

Counsel argued that the claim in this suit has its foundation purely on the law of obligations in its contractual and tortuous breaches with no footing in the provisions of Section 251 (1) of the 1999 Constitution (as amended). He opined that the trial Judge was wrong to have considered Section 32 of the Electric Power Reform Act (EPSRA) 2004 because it was not the subject matter of the claim. Counsel further opined that the presence of the 1st Appellant as a party does not ipso facto confer jurisdiction on the Federal High Court to entertain the suit.

He relied on the cases of OMOTESHO & ORS v ABDULLAHI 2007 LPELR–8412; ONUORAH v KRPC LTD (2005) 6 NWLR (PT. 921) 393; OIL & GAS EXPORT FREE ZONE AUTHORITY v OSANAKPO (2019) 6 NWLR (PT. 1668) 224; WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORPORATION ​(2015) LPELR 24833; PENAWOU v ZENITH BANK & ORS (2017) LPELR 42732 in aid of the submission.

On issue 2, Counsel adopting his submissions in issue 1 further submitted that where a Court lacks jurisdiction to entertain a claim, it lacks the power to make any binding order including the order that parties maintain status quo until the determination of the suit. He cited the cases TSOKWA MOTORS LTD v UBA PLC (2008) 1 SC (PT 1); ADIGUN v A.G. OYO STATE (1987) 3 SC; OKAFOR v A.

G ANAMBRA STATE (1991) 7 SC (PT 1) 38; LEADERS & CO LTD v BAMAIYI (2010) 12 SC (PT IV) 55; OMINIYI v ALABI (2015) 2 SC (PT 11) 92 AT 100 ​It was further submitted that none of the parties prayed for an order that status quo be maintained pending the determination He stated that the Court and parties are bound by the prayer in the motion paper that was set down for hearing, COMMISSIONER FOR WORK BENUE v DEVCOM (1988) 3 NWLR (PT. 83) 407 was cited.

Counsel contended that the lower Court’s order to renewing status quo was wrong and perverse because it amounted to the lower Court compensating an indolent party who took no step to extend the life span of the interim order which lapsed on 1st January, 2018, it was not an order sought by the Appellants and it was one of the reliefs sought by the Respondents in their motion for interlocutory injunction.

He further contended that the parties were yet to be heard by the learned trial Judge on the motion for interlocutory injunction; the lower Court consequently violated the right of the Appellants to fair hearing making the decision a nullity. He cited; UDOGU v EGWUATU (1994) 3 NWLR (PT. 330) 120; MFA & ANOR v INONGHA (2005) 7 NWLR (PT. 923) 1; Section 36 (6) of the 1999 Constitution (as amended). In conclusion, Counsel urged this Court to allow the appeal.

RESPONDENTS’ SUBMISSIONS In Issue 1, the Respondents opined that the question of whether or not the lower Court has the jurisdiction to entertain the suit with regard to the principles stated in the cases cited by the Appellants do not represent the true position of the law. ​Citing Section 251 (p), (q) & (r) of the 1999 constitution (as amended), Counsel submitted that the 1st Appellant, National Electricity Regulatory Commission is an agency of the Federal Government of Nigeria. The cases of INEGBEDION v SELO–OJEMEN (2013) 8 NWLR (PT. 1356) SC PAGE 211 AT PG 226, PARAS.

F–G; 227, PARAS C–D, RATIO 1; NEPA v EDEGBERO (2002) 18 NWLR (PT. 798) 79; ABIA STATE INDEPENDENT ELECTORAL COMMISSION (ABIEC) v KANU (2013) 13 NWLR (PT. 1379) SC PAGE 69 AT PAGE 83, PARAS D–H; RATIO 2 were relied to further submit that the Federal High Court has exclusive jurisdiction in all civil causes and matters in which the Federal Government or any of its agencies is a party. Counsel argued that a Court on jurisdiction must consider the totality of the contents of the entire statement of claim.

He further argued that from the entire statement of claim and the reliefs sought by the Respondents clearly shows that the acts complained about by the Respondents were jointly done by the Appellants, while the reliefs (particularly Reliefs 1, 3, 4 & 5) sought are against all the Appellants. ADEOGUN v DR.

ADETUNJI OLUKAYODE AKINYEMI (2013) LPELR–20659 (CA); OBIUWEUBI v CBN (2011) 7 NWLR (PT. 1247) S.C PAGE 465.were cited. ​It is the contention of the Respondents that the lower Court’s reference to Section 23 of the Electric Power Sector Reform Act, 2004 was not out of context because the gravamen of this case border on the administrative and management of the Appellants geared towards achieving the objectives and functions of the 1st Appellant.

AJANAKU v WILLIAMS (2009) 3 NWLR (1129) 617 was cited to submit that the lower Court was at liberty to apply any relevant law in dispensing justice and fairness according to law. Counsel urged this Court to discountenance the legion of authorities cited by the Appellants for being inapplicable and resolve this issue in favour of the Appellants.

On issue 2, Counsel contended that the Respondents did not misrepresent facts in the affidavit in support of the Motion Ex Parte for Interim Injunction because the enabling law governing and guiding the 1st Appellant enjoins the Appellants (particularly the 1st Appellant) to give seven (7) days Statutory Notice of Disconnection to a customer.

Counsel further contended that the Respondents showed to the lower Court vide paragraphs 37, 38, 39, 40, 41, 43 and 44 of the affidavit in support of the Motion Ex parte for interim Injunction that there was real urgency necessary for the grant of the said application. He stated that the lower Court was therefore right to have preserved the res and making the order that the status quo be maintained pending the determination of the suit. Relying on the case of AJANAKU v WILLIAMS (2009) 3 NWLR (PT. 1129) 6217.

In conclusion, Counsel urged this Court to dismiss the appeal for lacking in merit and affirm the ruling of the lower Court.

APPELLANTS’ REPLY In response, the Appellants referred to the case of ABIA STATE INDEPENDENT ELECTORAL COMMISSION v KANU (SUPRA) ROE LTD v UNIVERSITY OF NIGERIA (2018) ALL FWLR (PT. 938) 1924; C.B.N v RAHAMANIYYA GR LTD (2020) 8 NWLR (PT 1726) 314 to submit that the mere inclusion of the 1st Appellant where the claim is founded on alleged disconnection or threatened disconnection of electricity by 2nd and 3rd Appellants is a claim outside the Federal High Court jurisdiction, and that the claim before the lower Court had nothing to do with the administration or management and control of the Federal Government agency. ​Appellants contended finally that the regulation of electricity does not fall within the exclusive list of the 1999 Constitution or within Section 251 of the said constitution but within the Concurrent Legislative List – Part II of the Second Schedule and a matter for the State High Court.

After the close of arguments and judgment reserved, Appellants sent two additional authorities in support of their submissions; MOHAMMED v ABDULKADIR (2008) 4 NWLR (PT 1076) 111 @ 141 CA and OFORKIRE v MADUIKE (2003) 5 NWLR (PT 812) 166 (SC) on the point that Respondents did not comply with Order 10 of the Court of Appeal Rules, 2021 by filing Notice in form 11 and the legal effect of non-compliance. RESOLUTION The issues formulated by the parties are similar on all fours. I would resolve the two issues together.

The gravamen of this appeal is “whether or not the lower Court – Federal High Court lacks the requisite jurisdiction to adjudicate on the matter”. Jurisdiction is the life wire of a suit and where a Court does not have jurisdiction to entertain a suit before it, the proceeding however well conducted will be a nullity. See the cases of OLOBA v AKEREJA (1988) 3 NWLR (PT 84) 508 AT 520; FEDERAL AIRPORTS AUTHORITY OF NIGERIA v OGBONNA ANI (2010) LPELR–4147 (CA).

It is a settled principle of law that to determine the jurisdiction of a Court to entertain a matter, it is pertinent to examine the writ of summons and the statement of claim only.

The Apex Court in NPA v AMINU IBRAHIM & ANOR (2018) LPELR–44464 (SC) per PETER–ODILI, JSC reiterated this principle thus: “It is to be restated at the risk of unlimited repetition that when the jurisdiction of a Court is called to question, the guide is a close look at the plaintiffs claim which is the originating process inclusive of the totality of all that constitute that claim.”(Emphasis Mine) Further see the cases of ISAH v INEC (2016) 18 NWLR (PT. 1544) 175; EGBUONU v BRTC (1997) 12 NWLR (PT. 531) 29; ECOBANK v ANCHORAGE LEISURE LTD & ORS (2018) LPELR–45125 (SC).

Jurisdiction is determined from the writ of summons, it is therefore imperative that we examine the Respondents’ statement of claim and I now add the reliefs, see paragraph 36 of the statement of claim. I shall reproduce the necessary paragraphs hereunder: 9. The 1st Defendant is the Commission or body responsible for the supply and regulation of electricity power supply to consumers in Nigeria.

The 1st Defendant has its corporate headquarters located at Adamawa plaza, plot 1099, first Avenue, off Shehu Shagari way, central business District, F.C.T.- Abuja, a place outside the territorial jurisdiction of this Honourable Court. 13. By a letter dated 12th September, 2013, the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA, 33/0.415kv Substation for Teris Table Water situate at Okpanam Road, Asaba, Delta state.

The said application was approved by PHCN, whereupon the said 200VA, 33/0.415 KV Substation was installed for Teris Table Water. A copy of the letter dated 12th September, 2013, by which the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA 33/0.415KV Substation for Teris Table Water is hereby pleaded as the Claimants shall rely on it in proof of their case at the hearing of this suit. 14.

Upon the installation of the substation, it was later discovered by Power Holding Company of Nigeria (PHCN) that the electricity power being generated from the substation was dangerously too much for the personal consumption of Teris Table water Factory alone. Thus, in order to share and distribute the excessive power energy being generated from the substation, PHCN approved and authorized the sharing of the power energy to the 2nd–7th Claimants who live within the vicinity of the 1st Claimant’s substation. 16.

In furthermore of the approval and authorization given by PHCN to the Claimants as customers and consumers of electricity power, PHCN also supplied and installed Electricity Meters in the premises of the Claimants for the purposes of assessing the bills consumed by the Claimants to enable them pay such bills to PHCN. At the end of every month, PHCN would come and take the meter’s readings, assess them and forward the monthly bills of the electricity consumed by the Claimants to them to the enable them pay.

In keeping with their contractual obligation towards PHCN, the Claimants have been regularly paying their electricity bills consumed by them to PHCN. 17. This has been the cordial relationship existing when the Claimants and PHCN until the 2nd Defendant recently took over the going – concern of PHCN, including but not limited to, the patronage of the Claimants with the consent and authorization of the 1st Defendant. 18.

All the Claimants connected to the said sub–station are prime customers of PHCN duly inherited and taken over by the Defendants with their separate and respective Electricity Meters. Also, the Claimants have been religiously paying their electricity bills up to date. Photocopies of the last electricity bills evidencing the payment of the Electricity bills consumed by the Claimants are hereby pleaded as the Claimants shall rely on them in proof of their case at the hearing of this suit 19.

Surprisingly, on Monday, 23rd October, 2017 or thereabout, the 1st Claimant and his workers were in the Teris Table Water Factory when the 3rd Defendant – Mr Ernest Edgar suddenly and unlawfully invaded the premises of Teris Table Water Factory and disconnected the electricity supply from the said sub–station of all the Claimants. 20. The Defendants do not have the legal right to disconnect a customer who has paid his electricity bills up–to–date.

Even if a customer has to be disconnected at all, before the Defendants can disconnect such a prime customer, like the Claimants, the law enjoins the Defendants to give seven (7) days’ statutory Notice of Disconnection to such a customer before carrying out said disconnection. The law also enjoins the Defendants to state, in clear terms, the reason(s) for the disconnection in the Notice of Disconnection. 21. In the instant case, the Defendants did not serve the Claimants with any Notice of Disconnection as required by law to that effect.

The Defendants did not give any reason for the sudden disconnection of electricity supply to the premises of the Claimants. 22. The Defendants cannot claim that the connection of the Claimants to the said sub–section is an illegal connection to justify their action.

If it were to be an illegal connection, the Defendants could not have installed Electricity Meters in the premises of all the Claimants for the purpose of assessing the quantum of electricity consumed by the Claimants; regularly issuing monthly electricity bills to Claimants and constantly collecting electricity bills from the Claimants. 34.

Aggrieved by the Defendants’ initial act of indiscriminate and arbitrary disconnection of the Claimants’ respective premises/apartment from electricity supply as well as the subsequent and repeated attempts being made by the Defendants to disconnect the Claimants from electricity supply (despite the fact that the Claimants have been paying their electricity bills to the Defendants regularly, without giving their electricity bills to the Defendants regularly; and without giving the Claimants the statutory seven (7) days’ Notice of Disconnection to that effect), the Claimants have instituted the instant action in asserting their legal rights to the quiet and peaceful enjoyment of electricity supply to them by the Defendants. 36.

WHEREUPON the Claimants claim against the Defendants, jointly and/or severally follows: 1. A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Thousand Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants. 2.

A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants. 3.

A DECLARATION that the Claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 4.

THE MODEST SUM OF N500,000,000.00 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants. 5. 21% monthly arrears on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case. 6. 10% monthly interest on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court. 7.

PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV. Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants. See pages 4–11 of the record.

​A perusal of the reproduced averments reveals a contractual relationship for supply of service by the 2nd Appellant to the Respondents. These services were inherited by the 2nd Appellant being one of the discos distribution company by virtue of the duties and powers under the 1st Appellant (NERC). The NERC is an agency under the Federal ministry of power in Nigeria and it took over the NATIONAL ELECTRICITY POWER AUTHORITY. Now, what are the duties of the 1st Appellant?

Its responsibility is to regulate standards of performance for all electricity licenses and monitor performances to ensure that those standards are met and maintained or even exceeded; also it ensures a peaceful, enjoyment of energy to commercial concerns. ​The 2nd Appellant is one of the distribution companies (discos) who sells and supplies electrical energy to Nigerians and took over that aspect from NEPA which was holistically in charge of all aspects of generation and supply of light energy to the country.

There are 11 (eleven) discos in Nigeria which are in charge of the distribution of light and the 2nd Appellant is in charge of the zone where these Respondents carry on their commercial concerns and utilize the energy supplies.

They had a previous arrangement with the former agency and from the averment therefore having now taken over, the 2nd Appellant committed acts complained of by the Respondents from disconnecting them from the substation and invading the commercial premises in large numbers under the pretext of issuing a higher bill which the Respondents termed outrageous and unjustifiable thereby disrupting normal flow of business and throwing them into financial set back.

The Appellants averred that the Respondents disconnected, without any notice, the electrical supply to the substation which resulted in huge losses and then served an outrageous bill of N2,500,000 (Two million and five hundred thousand naira), which in their view is a breach of the contractual relationship between the Respondents and the Appellants.

See paragraphs 23, 24 & 25 of the claim thereof, also paragraphs 27, 28, 30, 31, 32, 33 and 34 which sums up the grievances of the Respondents. ​In all the above paragraphs, there is no allegation against the 1st Appellant; its duty to the Respondents, omission or commission. I have re-examined the reliefs, there is nothing alleged against it.

It is trite that the action against a Federal government or its agency in its administration, management acts or omission lies in the Federal High Court but it is curious that the application in the lower Court was by the 2nd and 3rd Appellants but the appearance was for all the Appellants. I find this an anomaly except to insinuate that they did not get the consent of the 1st Appellant.

Be that as it is the long and short of the resolution is that there is nothing to urge against the 1st Appellant, therefore its presence makes no impact, it is solely decorative and cannot cloth the action as one against the Federal government and its agencies. I must say there is no cause of action against it at this stage. Does its presence cloth the cause with the garment of an action qualified for the lower Court’s jurisdiction?

The Federal High Court has exclusive jurisdiction over matters as provided under Section 251 (1) a-t of the 1999 Constitution (as amended) thus: 251. (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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters – …: (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 executive or administrative 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 subsection 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.

The 2nd Appellant is a private electricity distribution company who bought the going concern and operations of PHCN (Power Holding Company). Electricity distribution companies in Nigeria are regulated by the NERC (Nigerian Electricity Regulatory Commission).

Section 32 of the Electric Power Sector Reform Act provides that: (1) Subject to this Act, the Commission shall have the following principal objects: (a) to create, promote, and preserve efficient industry and market structures, and to ensure the optimal utilisation of resources for the provision of electricity services; (b) to maximise access to electricity services, by promoting and facilitating consumer connections to distribution systems in both rural and urban areas; (c) to ensure that an adequate supply of electricity is available to consumers;

(d) to ensure that the prices charged by licensees are fair to consumers and are sufficient to allow the licensees to finance their activities and to allow for reasonable earnings for efficient operation; (e) to ensure the safety, security, reliability, and quality of service in the production and delivery of electricity to consumers; (f) to ensure that regulation is fair and balanced for licensees, consumers, investors, and other stakeholders;

and (g) to present quarterly reports to the President and National Assembly on its activities. (2) For the furtherance of the objects referred to in subsection (1)of this section, the Commission shall perform the following functions: (a) promote competition and private sector participation, when and where feasible; (b) establish or, as the case may be, approve appropriate operating codes and safety, security, reliability, and quality standards; (c) establish appropriate consumer rights and obligations regarding the provision and use of electricity services;

(d) license and regulate persons engaged in the generation, transmission, system operation, distribution, and trading of electricity; (e) approve amendments to the market rules; (f) monitor the operation of the electricity market; and (g) undertake such other activities which are necessary or convenient for the better carrying out of or giving effect to the objects of the Commission.

Also by Section 31 (1) of the Electric Power Sector Reform Act, 2005 the role in its preamble is to promote and ensure an investor – friendly industry and efficient market structure to meet the needs of Nigerians for safe, adequate, reliable and affordable electricity.

The Nigerian Electricity Regulatory Commission (NERC) in exercise of the power conferred on it by Section 96 of the Electric Power Sector Reform Act enacted the Nigeria Electricity Regulation Commission Connection and Disconnection Procedures for Electricity Services, 2007. ​Regulation 5 provides that; 5 (1) A Distribution Company may only disconnect supply to a Customer’s address when the Customer has not paid the amount correctly billed for that supply address by the relevant payment date; PROVIDED that – (a) Payment date is clearly shown on the bill;

(b) Payment date is at least 10 working days from the date of delivery of the bill to the supply address or a delivery address provided by the Customer, which is acceptable to the Distribution Company. (c) Payment date has not been superseded by a subsequent payment date issued to the same Customer for the same supply address; (d) Period between the payment date and the date of disconnection is not less than 3 months; (e) Distribution Company has verified from its records that the bill has not been paid;

and (f) Distribution Company has given the Customer a written warning that the electricity supply shall be disconnected if payment is not made by the payment date and the warning contains; (i) The date of its delivery to the supply address or any other address provided by the customer “and” (ii) A telephone number and/or address acceptable to the Distribution Company where the customer request assistance for paying the outstanding bill. ​The issuance of electricity bill to consumers therefore is the normal administration and management of the 2nd Appellant.

The acts of alleged disconnection of the Claimants electricity supply on the 23rd October, 2017 is one of the acts that is regulated by a Federal government agency which falls under the management and control of the Appellants as agency of government which is geared towards achieving the objective and functions of the 1st Appellant as provided in Section 32 of the Electric Power Sector Reform Act, LFN 2004. Alas!!

As stated above, there is no attribution of failure of the duties of NERC to the 2nd and 3rd Respondents/Plaintiffs and therefore failure to make any averment along this line is fatal to the Respondents/Plaintiffs’ choice of Court. I am in agreement with the Appellants that the presence or inclusion of a Federal Government Agency as a party does not ipso facto confer jurisdiction on the Federal High Court. See OMOTESHO & ORS v ABDULLAHI SUPRA; ONUORAH v KRPC LTD SUPRA; CBN v RAHAMANIYYA G.R LTD SUPRA.

In C.B.N v RAHAMANIYYA GR LTD SUPRA, the apex Court clearly spelt out that there is no provision that confers automatic and exclusive jurisdiction on the Federal High Court in every action by or against the federal government irrespective of the subject matter of litigation for the Federal High Court to have jurisdiction the matter must be a civil mater arising from the administration, management and control of the Federal Government or its agencies.

The matter must arise from any action or proceeding or injunction affecting the validity of any executive or administrative action or decision by Federal Government or its agencies. This issue/allegation/act(s) committed by the 2nd and 3rd Appellants and their servants is based on contractual obligations under the contract for service.

This is an action rooted in a case of simple contract, more importantly the Respondents in paragraphs 14, 15, 16, 17, 18 & 19 and 36 (3) of the claim, where the Respondents referred to “deprive the claimants of their contractual rights to quiet and peaceable enjoyment of electricity power supply by the defendants to the claimants”. These are averments of the contractual relationship between them. The breach is against the contract of supply of services of energy by the 2nd & 3rd Appellants.

Therefore, in practical facts, this appeal does not in any way deal with the 1st Appellant’s management and administration of the discos especially the 2nd Appellant in its acts complained about and resultant losses to the commercial concerns, viz a viz the oversight management administration by the 1st Appellant. ​It deals with the 2nd Appellant and 3rd Appellant who disconnected the light of the Respondents who are mostly commercial consumers without notice and issued outrageous.

Section 251(1) of the Constitution has made the lower Court one of enumerated jurisdiction where exclusive jurisdiction is conferred on the Federal High Court See; ANAO v SUN PULISHING LTD (2013) 3 NWLR (PT 1341) 399; AHMED v AHMED 2013 15 NWLR (PT 1377) 274. In C.B.N v RAHAMANIYYA G.R.

LTD (2020) 8 NWLR per PETER – ODILI, JSC held on whether Section 251 (1) (a) (s) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) confers automatic jurisdiction on the Federal High Court: “It follows that in determining the exclusivity of the Federal High Court in an action or proceedings the subject matter as well as the parties must be considered together. …Where the Federal Government or any of its agencies such as the appellant is a party to a suit, unless the subject matter of the suit relates to one of the specified matters upon which the exclusive jurisdiction is conferred in the Federal High Court by Section 251 (1) (a) (s) CFRN, the Federal High Court will lack jurisdiction to entertain the matter and it is the State High Court that will have jurisdiction in such matters.” See also: KOKO v NDIC (2015) LPLER–40401 (CA) ONUORAH v KADUNA REFINING & PETROLCHEMICAL CO LTD (2005) 6 NWLR (PT 1115) 149; AGBULE v WARRI REFINERY (2013) 6 NWLR (PT. 1350) 318 and ADETAYO v FASHOGBON (2008) 17 NWLR (PT. 1215) 169.

It is clear from the statement of claim that neither the Federal Government of Nigeria, nor any of its agencies is a party to the Respondents’ suit pending at the Court below as to come within the range of Section 251(1) p, q & r of 1999 Constitution. See; W.R.P.C LTD v AGBUJE (2005) NWLR (PT 917) 63 AT 90. In SLYVA v PDP (2012) 13 NWLR (PT 1316) 85, the Court classified two factors that determine when that the Federal Government is a party to a suit: a) The party must be the Federal Government or an Agency, b) the subject matter.

In this end, the statement of claim must be carefully examined to determine whether the facts and circumstances to such claims are within the jurisdiction of the Federal High Court.

See: NEPA v EDEGBERO (2002) 18 NWLR (PT.798) 79, CHIEF KENNETH GBAGI & ORS v CHIEF ONOMIGHO OKPOKO (2013) LPELR-20167 (CA) where BAGE, JCA (as he then was) held thus: “…Where the Court held that where the administration, control and management deals with the ordinary routine business of a company the claim is within the jurisdiction of the state high Court.” Both the parties herein and the subject matter which is a simple contract for services are not within the jurisdiction of the Federal High Court and the Court lacks jurisdiction to entertain contractual maters.

See; ADELEKAN V ECU –LINE NV (2006) LPELR – 113 (SC). On whole, this claim falls under the exclusive jurisdiction of the State High Court. I resolve this issue in favour of the Appellants. Issue 2 borders on the renewed order that status quo be maintained pending the determination of the suit by the lower Court. An order to maintain status quo simply means that the situation of things or the state of affairs (res) is to be maintained/preserved until the determination of the substantive suit.

This is mainly to prevent further loss and damages and security issues bearing on social issues for both parties before the conclusion of the matter. ​The Court had earlier made interim orders and after deciding that the Federal High Court had jurisdiction, further extended after noting that it had lapsed. Interim orders are not permanent, they are made to last for a while usually pending the determination of the suit or motion, see KUBOR & ANOR v DICKSON & ORS (2012) LPELR–9817 (SC) and OKECHUKWU v OKECHUKWU (1989) 3 NWLR (PT 108) 234.

The power of a Court to make restrictive orders is also vested in that Court depending on the situation surrounding the case.

The Appellants had filed an application: – “For striking out the suit in that the honourable Court lacks jurisdiction. – An order or this Court vacating/discharging the interim orders granted in favour of the plaintiff in this suit on 7th December 2017 or the alternative. – An order varying the interim orders of injunction by permitting the defendants to have access to the installed transformer and distribution/service network lines and disconnect unauthorized connections and indebted customers from the 200 KVA 33/0.414kv substation sites at Terris water factory, plot 1511, phase 1, block 11 core area GRA…” ​I have perused the parties’ arguments on the motion at pages 395-398 of the record and I find that the Appellants asked for reliefs to be granted or varied while the Respondents replied that the Court could go ahead based on Order 26 Rule 27 of the Federal High Court Rules or may vary to meet the merit of the action.

The Appellants had no reply to this application. The lower Court in its ruling overruled relief 1 and granted relief 2 in part, while stating that the interim order by effluxion of time had lapsed and ordered that the status quo be maintained and that the Appellants shall not disconnect the electricity power to the Claimants’ transformer. ​Now, was this suo moto? The parties had sought orders including varying the orders of the Court, which the Court varied in her own terms in part. I do not find that the order was made suo moto.

When parties had argued and made concessions even the Appellants did not make heavy weather about relief 2 of his application in his submission at page 435 of the record and had asked the Court to vary order.

Respondents had asked the Court to invoke Order 26 Rule 17 of the Federal High Court Rules, 2009 which states: “The Court may either discharge the order or make the same absolute, or adjourn the consideration thereof, or permit further evidence to be produced in support of or against the order and may modify the terms so as to meet the merits of the case” The Court then proceeded to make specific orders against disconnecting the Respondents from the electric power supply. In the light of the scenario, I disagree that the orders were made suo moto.

The lower Court in its wisdom and discretion in Order 27 Rule 17 of the Federal High Court Rules considered the circumstances of the Respondents as stated that; they had to shut down their commercial activities, employees and public/commercial services, for the 1st Respondent who runs a table water company; the 4th Respondent, a hospitality establishment and the 7th Respondent, a clothes store for kids.

Furthermore, the Respondents showed the lower Court in paragraphs 37, 38, 39, 40, 41, 42, 43 and 44 of their statement of claim that threats of disconnection have been made and there has been a prior disconnection of the Respondents’ electric power. ​See paragraph 34 of the statement of claim on allegations that there were threats of re-entry into the premises and social break down of law and order, snowballing into serious breaches. In the case of YAKUBU O. OLAMOYEGUN & ORS v MR.

SALIU EBUN & ORS (2008) LPELR 46108 (CA) this Court held on the meaning and nature of the Latin Maxim Status quo ante bellum per UWA, JCA; “On the grant of the orders prayed until the final determination of the substantive suit, it is a harmless order to ensure that peace reigns and for the safety of lives and property during the pendency of the substantive suit. Even where such application has not been formerly brought, the Court would be at liberty to make such order where harassment, threats or intimidation from either or both parties is envisaged.

The meaning and/or essence of the latin maxim status quo ante bellum is the state of affairs before the beginning of hostilities. Therefore, the status quo that ought to be maintained in this case is the state of affairs that existed before the hostilities between the parties, which should be maintained until the determination of the substantive matter. …On the other hand, the Appellants have nothing to lose by the order granted that the status quo be maintained, whether there was harassment and intimidation of the witnesses or not.” See; CHIEF T. A. L. AKAPO (OJORA OF LAGOS) v ALHAJI H.A.

HAKEEM-HABEEB & ORS (1992) LPELR–325, P. 58, PARAS. E – G. A Court has the inherent power to make any necessary orders in the preservation of the subject matter and most important to prevent anarchy and preserve the peace. See MARDANI NIGERIA LIMITED v GABRIEL BAGUDU GALADIMA & ORS (2015) LPELR – 25762 (CA) per ABIRU, JCA held thus: “Now, it is settled law that a Court of law possesses inherent powers which are indeed very wide to make orders with the primary purpose of preserving the subject matter of litigation between parties.

The Court can make appropriate orders to prevent acts which will destroy the subject matter of the proceedings or foist upon the Court a situation of complete helplessness or render nugatory any judgment of order..” See also; DEDUWA & ORS v OKORODUDU (1974) 6 SC 21; KIGO (NIG) LTD v HOLMAN BROTHERS (1980) 5-7 SC 60; UNITED CEMENT COMPANY OF NIGERIA v DANGOTE INDUSTRIES LTD (2006) 6 NWLR (PT 980) 616; AKINGBOLA v CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (PT 1306) 475.

The lower Court was therefore perfectly right to have made the order of status quo to prevent disruption of peace and violence that would have ensued between the 3rd Appellant and the Respondents. See paragraphs 20-30 of statement of claim, the parties who had already involved the armed forces, when the 3rd Appellant tried to gain entrance into the 1st Respondent’s premises and was being resisted by the employees of the 1st Respondent. There is no telling the level of damages to persons and properties if there is a re-occurrence.

I disagree that the lower Court even if unsure of the jurisdiction ought to have thrown security caution to the winds, a Court though not a father Christmas should know when to hold the aces and balance it. However, having held that the Federal High Court lacked jurisdiction, certainly the order is extinguished. Having resolved the main issue in this appeal in favour of the Appellants, the appeal has merits and is allowed ​In the result, the judgment of the Federal High Court, Asaba Judicial Division, per T. B. ADEGOKE, J. delivered on 5th March 2018 is hereby set aside.

The suit is to be transferred to the Chief Judge of Delta State High Court for reassignment and speedy conclusion thereon. I make no award as to cost.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. I agree with his reasoning and conclusion that this appeal has merit. I too allow the appeal. I abide by the consequential orders made therein.

JOSEPH EYO EKANEM, J.C.A.: The jurisdiction of a Court is determined by the claim of the claimant and the provisions of the statute which donates jurisdiction to the Court. Where the claim of the claimant falls within the jurisdiction of the Court as granted by the enabling law, the Court must assume jurisdiction; where the claim falls outside its jurisdiction, the Court must decline jurisdiction. See Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127, 144. Ufomba v. INEC (2017) 13 NWLR (Pt. 1582) 175, 197, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 1175) 517, 549 and Zakirai v.

Muhammad (2017) 17 NWLR (Pt. 1594) 181, 233-234. It is clear from the claim of the Respondents in the instant matter that the complaint of the Respondents revolves around alleged breach of contract of supply of electricity by the 2nd and 3rd Appellants to the Respondents. The Federal High Court is a Court of enumerated jurisdiction. In the case of Wema Bank Securities and Finance Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93, 131 the Supreme Court held that its exclusive jurisdiction is expressly tied to items enumerated in Section 251 (1) of the Constitution of Nigeria, 1999 amended).

It was further held that in the exercise of its exclusive jurisdiction, it can only orbit within the universe of the enumerated issues and to others as may be conferred upon it by an Act of the National Assembly.

The jurisdiction of the Federal High Court under Section 251 (1) of the Constitution does not include disputes relating to simple contracts as in this instance. See Onuorah v. Kaduna Refining and Petrochemical Co. Ltd (2005) 6 NWLR (Pt. 1115) 49. Ports and Cargo Holdings Service Co. Ltd v. Migfo Nig. Ltd (2013) 18 NWLR (Pt. 1333) 555, 593–600, Wema Bank Securities and Finance Plc v. NAIC supra 131, DEC Oil and Gas Ltd v. Shell Nigeria Gas Ltd (2019) 14 NWLR (Pt. 1692) 273 and Statoil (Nig.) Ltd v. Inducon (Nig.) Ltd (2021) 7 NWLR (Pt. 1774) 1, 50, 52 and 54.

The mere presence of the 1st Appellant as a party in this suit does not change the position that I have taken above. It is not enough to have an agency of the Federal Government as a party in the suit, the subject matter of the suit and the reliefs must also be considered. See Rahman Brothers Ltd v. NPA (2019) 6 NWLR (Pt. 1667) 126, 138 and PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 138. There is no claim in this matter relating to affecting the validity of any executive or administrative decision or action of the 1st Appellant and so the Federal High Court has no jurisdiction over the matter.

See CBN v. Rahaminiyya Global Resources Ltd (2020) 8 NWLR (Pt. 1726) 314, 339. ​On account of the foregoing, I agree with the lead judgment of my learned brother, OBASEKI-ADEJUMO, JCA, that the appeal has merit. I set aside the ruling of the lower Court and abide by the consequential order of transfer of the suit to the Chief Judge of the Delta State High Court.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. FCT/HC/CV/1609/2018: Chukwudi Ngeme.V. Inspector General Of Police & 5 Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed. The Appellant was dissatisfied with the said decision and has appealed against it vide his Notice of Appeal filed on 6/5/2019 on two Grounds of appeal. See pages 98 -101 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on 6/3/2020 and properly deemed on 6/7/2021. With the leave of this Court, an Amended Notice of Appeal was filed on 9/3/2020 on three Grounds of appeal but was deemed as properly filed on 6/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 28/9/2022. The Appellant was represented by M. K. Bielonwu Esq. appearing with U. L. Agada Esq. The 1st – 4th Respondents were represented by Chinyere Moneme Esq.

The 5th Respondent, though he filed his brief, was not represented by counsel at the hearing of the appeal. The Appellant commenced Suit No: FCT/HC/CV/1609/2018 against the Respondents as Respondents before the High Court of the Federal Capital Territory, Abuja seeking the following Reliefs: 1. The prior, present and planned arrest and further detention, summons and harassment of the applicant by the Respondents and their agents on an alleged indebtedness of the Applicant to one Mr. Emeke Ugwu of Kubwa Abuja is unlawful, unconstitutional null and void ab initio. 2.

The respondents by themselves agents or servants be restrained from further threatening and/or infringing on the fundamental rights of the applicant by threatening him with further arrest except in compliance with Section 35(1), 36 (8 and 12,) 37 and 44  of the Constitution of the Federal Republic of Nigeria 1999, as amended. 3.

That unless the leave of this Honourable Court or any other Court of competent jurisdiction is first sought and obtained the 1st, 2nd, 3rd and 4th Respondents either personally or via any of its agents or officers be restrained from further arresting, detaining and harassing the applicant. 4. That the Respondent pay the sum of N10,000,000.00 (Ten Million Naira) only to the Applicant as compensation for the infringement on his fundamental rights.

SUCCINCT STATEMENT OF FACTS The case of the Appellant as Applicant before the lower Court inter alia was that the 1st, 2nd, 3rd, and 4th Respondents violated his fundamental human rights, especially his arrest, detention and threat of further arrest at the behest of the 5th Respondent in a manner contrary to the provision of Sections 35(1), 36 (8 and 12), 37 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.

He sought an Order of the lower Court to restrain them and to pay him compensation in the sum of N10,000,000.00. (Ten Million Naira) only as provided under Section 35 (6) of the Constitution. See pages 1 – 5,17 – 18, 37 – 40, 41 – 45 and 70 – 77 of the Record of Appeal. ​The case of the 1st – 4th Respondents before the lower Court inter alia was that the 5th Respondent made a report to the Police against the Appellant that he introduced the 5th Respondent to one Eric Metins who resides in Port Harcourt Nigeria and deals with the sale of Oil & Gas and Allied products.

On the instruction of the Appellant, the 5th Respondent paid the total sum of N6,400,000.00 to Eric Metins on the agreement that he would supply 36,000 litres of gasoline product to the 5th Respondent, and for which the Appellant travelled to Port Harcourt to oversee the conveyance of the product to Abuja. However, the Appellant later returned to Abuja without the product or the money but gave an excuse that the sum of N1,550,000.00 given to him by Eric Mctius had been collected from him when the vehicle he boarded to Abuja was robbed.

On realizing that he had been defrauded by the Appellant and Eric Metins, the 5th Respondent reported the matter to the Police, which invited the Appellant for investigation. The Appellant reported at about 6. 00pm on 6/3/2018, and the Police investigation revealed a prima facie case of fraud and breach of trust.

However, it was only on 7/3/2018 at about 7. 00am that the Appellant’s wife came to bail him and he was released on bail when the bail bond was signed on 8/3/2018, and the Appellant wrote an undertaking jointly signed by the 5th Respondent and in the presence of a witness agreeing to return the sum of N500,000.00 to the 5th Respondent and to refund the remaining subsequently. It was whilst investigation was still ongoing that on 26/4/2018 the Appellant rushed to Court to institute the action against the Respondents. See pages 51 – 69 of the Record of Appeal.

The case of the 5th Respondent before the lower Court inter alia was that the Appellant and one Emeka who was based in Port Harcourt of River State fraudulently made the 5th Respondent to deposit the sum of N6,400,000.00 into a Bank Account operated by Emeka for the supply of Gasoline product which both Appellant and Emeka do not have. The Appellant later went to Port Harcourt and collected the sum of N1,500,000.00, a part of the N6,400,000.00 fraudulently obtained from the 5th Respondent as his share of the fraud.

The 5th Respondent reported the matter to the Police and the Appellant was subsequently arrested by the Police and a part of the N1,500,000.00 was recovered from the Appellant, who was subsequently granted bail by the Police but before he could be arraigned before the Court, he jumped the administrative bail granted to him by the Police and instituted the action against the Respondents. See pages 19 – 25 and 26 – 29 of the Record of Appeal.

Before the lower Court, the parties filed and exchanged several affidavits, counter affidavits and reply as well as their written addresses and notice of preliminary objection by the 5th Respondent, which were all duly adopted by them at the hearing of the Appellant’s suit. On 30/4/2019, the lower Court delivered its judgment, in which it dismissed the claims of the Appellant against the Respondents, hence the appeal. See pages 85 – 97 and 98 – 101 of the Record of Appeal ISSUES FOR DETERMINATION In the Appellant’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to the contrary, when it concluded in its ruling that the Appellant’s suit was only aimed at stopping the 1st, 2nd, 3rd and 4th Respondents from carrying out their statutory duties provided under the law? (Distilled from Ground 1) 2. Whether one must be arrested before he is investigated to decide whether there is a prima facie case of crime or not? (Distilled from Ground 2) ​In the 1st-4th Respondents’ brief, two issues for determination were also formulated as follows: 1.

Whether the lower Court was right to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st – 4th Respondents from carrying out their Constitutional duties provided under the law? 2. Whether the invitation of the Appellant was necessary during investigation carried out by the 1st – 4th Respondents? In the 5th Respondent’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st, 2nd, 3rd, and 4th Respondents from carrying out their Statutory duties provided under the law? (Distilled from Ground 1) 2.

Whether the arrest of the Appellant was necessary before the investigation to decide if there was prima facia case of crime or not? (Distilled from Ground 2) ​I have taken time to consider the depositions in the affidavit, counter – affidavit and reply affidavit as well as the documentary Exhibits as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court.

I am of the firm view, and since all the two issues apiece as formulated by all the parties are similar, that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the two issues apiece as distilled in the 1st – 4th Respondents and the 5th Respondent’s briefs. However, I shall consider all the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law when it held that even though where the right of an individual has been, is being, or is likely to be infringed the Court are enjoined to protect such individual’s right but however, that should not be interpreted to stop the Police from carrying on their statutory duties provided by the law and thereby refused the meritorious claims of the Appellant against the Respondents and contended that the lower Court was wrong because from the evidence before it, the 1st – 4th Respondents were not out to carry out any other duty than lend themselves to the 5th Respondent as his debt recovery agent and urged the Court to hold that the admitted evidence proved that the Appellant was rather unlawfully arrested, detained and only released when he parted with the sum of N500,000.00 as part of the alleged indebtedness to the 5th Respondent with an undertaking to refund the balance of N1,000,000.00 and to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 4 of the Police Act, CAP. P19, LFN 2004.

It was also submitted that in law the onus is on the 1st – 4th Respondents to prove that their act was strictly done in furtherance of their statutory duties under the Nigerian law and contended that the 1st – 4th Respondent failed to discharge this burden of proof placed on them by law and therefore, the arrest and detention of the Appellant was clearly unlawful, illegal and not justified by law and urged the Court to hold that the Appellant was merely arrested and detained at the behest of the 5th Respondent solely for the purposes of recovery of debt and nothing else as there was sufficient time between the 8/3/2018 when the Appellant was released on bail and 22/6/2018 to have arraigned the Appellant if indeed they carried out any investigative duty under the law and discovered that the Appellant had committed any offence known to law, and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to 35 (1), (2), (3) and (4) of the Constitution of Nigeria 1999 (as amended), and relied on Oceanic Securities International Ltd v. Balogun (2013) All FWLR (Pt. 677) 633 AT p. 662; Ejefor V. Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba V. SSS (1994) 6 NWLR (Pt. 351) 475.

On issue two, learned counsel for the Appellant had submitted that the lower Court erred gravely in law when it held that in law, one must be arrested and investigated before the Police should decide whether there is a prima facie case of crime or not and contended that the arrest of the Appellant was neither for the purpose of his investigation nor for the purpose of bringing him before a Court of law to stand his trial or in execution of an Order of the Court but rather for the mere purpose of recovering from him of his indebtedness to the 5th Respondent and urged the Court to hold that it is not the law that one must be arrested before the Police will investigate to decide whether there is a prima facie case of crime or not but rather the correct procedure is for the Police to investigate and then proceed to arrest if the commission of an offence is established and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 35 (1) (c) of the Constitution of Nigeria 1999 (as amended), and relied on Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447; Fawehinmi V. I.G. Police (2002) All NLR 357 (SC) 374; Usman V. The Executive Chairman, EFCC (2018) LPELR – 44678 (CA); Ogbe V.

Okonkwo & Ors. (2018) LPELR – 43876 (CA). ​1st – 4th RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st – 4th Respondent had submitted inter alia that the lower Court was right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondents from investigating the case reported against him by the 5th Respondent as he failed to prove any breach of any of his fundamental rights and contended that the powers of the Police includes the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others and urged the Court to hold that the 1st – 4th Respondents acted strictly in line with their statutory mandate in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant for which he was duly arrested, detained and released on bail to await his arraignment and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel referred to Section 4 of the Police Act 2020, and relied on Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569 ​It was also submitted that there was no scintilla of evidence to show that the money paid by the Appellant to the 5th Respondent was done under any form of duress or that it was paid as a prerequisite for his bail and contended that the surety to the Appellant, his wife one Mrs.

Hope Ngene Chukwudi voluntarily declared her none payment of any money to secure the bail of the Appellant and urged the Court to hold that the law accords a measure of primacy to documentary evidence, of which the bail bond is one and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106; Osibowale V. Carribcan Finance Ltd (2012) All FWLR (Pt. 627)1; Lamina V. Maidugu (2015) 7 NWLR (Pt. 1458) 323; Udo V. State (2018) LPELR – 46132 (CA); Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. 132) 369.

It was further submitted that from the documentary evidence by way of both the bail application and the bail bond, it is clear that the 1st – 4th Respondent did not at any time act as debt recovery agent of the 5th Respondent as falsely alleged but not proved by the Appellant and contended that whatever settlement took place between the Appellant and the 5th Respondent was out of their own mutual agreement to do so and having nothing to do with the 1st – 4th Respondents and urged the Court to hold that all that the 1st – 4th Respondent did was in line with their statutory duties to confront the Appellant with the allegation of crime reported against him by the 5th Respondent.

Respondents further state that at the station the Appellant was confronted with allegations of crime reported against him and the investigation into his claim of an armed robbery attack on him, which was found to be untrue and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel relied on Hassan V.

EFCC (2014) NWLR (Pt 1389) 630. ​It was also further submitted that the issue of whether the Appellant was charged to Court within any stipulated time was not an issue canvassed before the lower Court and therefore, in law, it cannot be canvased on appeal without the leave of this Court and contended that the Appellant having not sought and obtained the prior leave of this Court this fresh issue is incompetent and must be discountenanced and urged the Court to hold that, at any rate, it is not in every case that the Police must charge a suspect to Court as it may in some cases obtain the legal advice of the DPP to filter and determine which matters should be charged to Court to obviate the possibility of inundating the Courts with all manner of charges and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Akintola & Anor V. Akintola & Anor (2022) LPELR – 57235(CA); Okechukwu V.

FRN (2018) LPELR – 50877 (CA). ​On his issue two. learned counsel for the Respondent had submitted inter alia that although the lower Court had held that arrest was necessary before investigation, the 1st – 4th Respondents showed clearly that based on the complaint of the 5th Respondent the Appellant was never arrested but was only invited and he came on his own and made statement to the Police at about 6/3/2018 and was only detained to provide a surety to take him on bail which he failed to provide until 8/3/2018 when his wife came forward to sign the bail bond and he was released on bail and contended that there is no law that mandates the Police to carry out its investigation in a particular order and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria (as amended), and relied on Ajayi V. State (2013) 9 NWLR (Pt. 1360) 605; Udo.

V Essien (2015) 5 NWLR (Pt. 1451) 103. ​5TH RESPONDENT’S COUNSEL SUBMISSIONS On his issue one, learned counsel for the 5th Respondent had submitted inter alia that what the Police investigated the Appellant for was not for debt but for the offence of fraud, which constitutes the crime of cheating somebody in order to get money or goods illegally and contended that the matter before the lower Court bordered on the fraudulent acts of the Appellant in obtaining money from the 5th Respondent which was reported to the Police for investigation and urged the Court to hold that the Appellant having himself admitted his fraudulent acts, there was no further need for the 1st – 5th Respondents to prove why the Appellant was investigated by the Police in the due performance of their duties and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Atanda V. Iliasu (2013) 18 WRN 1 AT p. 20; APC V. INEC (2015) 3 WRN 1 AT p. 62; Ezeugo V. Agim (2015) LPELR – 24572; Fajemirokun V. CB Nig. Ltd (2009) 5 NWLR (Pt. 11356) 588 AT p. 600.

It was also submitted that the 5th Respondent only made a bona – fide complaint to the Police for the swindling of his N6,400,000.00 by one Emeka in Port Harcourt and the Appellant, out of which the Appellant admitted to have received the sum of N1,500,000.00 swindled from the 5th Respondent and contended that the lower Court having taken to review and evaluate the entirety of the affidavit, counter affidavit and reply affidavit of the parties came to the correct conclusion and finding that the only motive of the Appellant, in the face of his obvious involvement in the swindling of the 5th Respondent, was merely to stop Police from carrying out its statutory duties as the matter had nothing to do with any debt recovery and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the lower Court. ​On his issue two, learned counsel for the Appellant had submitted inter alia that in law that there are no laydown rules on how the Police is to carry out investigation of a complaint of crime made to it by complainant except the Constitutional provision that regulates the period of detention of the Suspect before arraignment and contended that it is at the discretion of the Police on how to carry out the investigation depending on the set of facts of the complaint and urged the Court to hold that what determines the mode of investigating any offence reported to the Police is based on the discretionary powers of the Police over the set of facts of each case and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court.

Counsel referred to Section 4 of the Police Act, 2020 and relied on Olusina Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 AT p. 605; Garuba V. Yahaya (2007) Vol. 145 LRCN 549 AT p. 558; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ezeanuna V. Onyema (2011) WRN 21 (g) pp. 60 – 61; Ayanru V. Mandilas Ltd (2007) Vol. 147 LRCN 1036(g) p. 1058. APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 1st – 4th RESPONDENTS My lords, the reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry.

The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V.

Igbinedion & Ors (2021) LPELR – 55990 (CA) @ pp. 55 – 57, per Sir Biobele Abraham Georgewill JCA. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

Be that as it may, it was submitted inter alia that it was established as fact that the Appellant paid the sum of N500,000.00 to the 5th Respondent at the Police Station before he was released on bail and since in law facts admitted need no further proof, the lower Court ought to have come to the conclusion that all that the 1st – 4th Respondents did was merely to act as debt recovery agents of the 5th Respondent and grant the claims of the Appellant against the Respondents and contended that by their admission it was proved that the 1st – 4th Respondents clearly acted as debt recovery agents for the 5th Respondent in collecting from the Appellant the N500,000.00 as part of the debt of N1,500,000.00 due to the 5th Respondent and urged the Court to hold that the Appellant was made to pay the sum of N500,000.00 to the 5th Respondent by the 1st – 4th Respondents at the Life Camp Police Station under duress before his release on bail and with an undertaking to pay further N1,000,000.00 within a period of time and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the 1st – 5th Respondents.

Counsel referred to Sections 107 and 123 of the Evidence Act 2011, and relied on Offor & Anor. V. State (2012) LPELR – 19658 (SC); UBA V. Jargaba (2007) 31 NSCQR 144 AT p. 166; Ezemba V. Ibeneme (2004) 19 NSCQR 352 AT p. 410; Ajao V. Alao (1986) 5 NWLR (Pt. 45) 802; Onyeresi V. Okorocha & Ors. (2019) LPELR – 49475 (CA) 51; United States V. Alzate (1995) 47; United States Vs Gonzalez ​(2005) 407; Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210; People V. Petznick (2003) 114 CaI.App.4th 663; United States V. Navarro (2010) 608; Ruffin V. State (2008) 992; United States V.

Harris (1997) 104; Yadis Nigeria Ltd. V. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348; Redeemed Christian Church of God (Hagiazo Parish) V. Akadiri & Anor (2019) LPELR – 46780 (CA) 16; Federal Republic of Nigeria V. Mohammed (2014) 19 WRN 1 (a), p. 43; Prince (Dr.) B. A. Onafowokan & Ors V. Wema Bank Plc & Ors (2011) 5 SCNJ 266; Prof. Olufeagba & Ors V. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 SCNJ 349 AT P. 373; Yadis Nig. Ltd V. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig. Ltd V. OMPADEC (2007) 2 S.C.N.J. 218; Saraki V.

Kotoye (1992) 11/12 SCNJ 26 AT pp. 42 – 43. ​It was also submitted that on the issue of the Appellant not being charged to the Court by the Police, in law the Appellant cannot force the 1st – 4th Respondents to prosecute him, therefore such arguments could not have been canvassed by the Appellant before the lower Court and contended that the claim of the Appellant is simply that his fundamental right was infringed upon by the 1st – 4th Respondents as he was arrested and detained not in keeping with the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria but as debt recovery agents of the 5th Respondent as he was only released on bail after he paid part of the alleged indebtedness in the sum of N500,000.00 and urged the Court to hold that the Appellant was therefore, entitled to the enforcement of his fundamental rights against the Respondents contrary to the perverse findings of the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 5th RESPONDENT In his reply, learned counsel for the Appellant had submitted inter alia that the appeal borders on the lower Court’s refusal to enforce the fundamental rights of the Appellant and contended that an appeal is by way of a re-hearing of questions involved in an action as presented before the lower Court and not a new suit altogether and urged the Court to hold that before the lower Court the issue of fraud was never raised and should therefore, be discountenanced and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel relied on Attah V. IGP (2015) All FWLR (Pt. 805) 108 AT p. 146; Osolu V. Osolu (2003) FWLR (Pt. 172) 1777 AT p. 1800; Oloruntoba – Oju V. AG Fed (2017) All FWLR (Pt. 874)965 AT p. 1976; Okoye & Anor V. Ecobank (2019) LPELR – 47350 (CA); Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941)1 AT p. 70; Ali V. NDIC (2014) LPELR – 22422.

RESOLUTION OF ISSUES ONE AND TWO My Lords, consideration of issues one and two would, in my view, involve the evaluation of affidavit, counter affidavit and reply affidavit evidence as led by their parties and the findings reached thereon by the lower Court in the judgment appealed against to see whether or not there was proper evaluation of the evidence and correct findings reached therein by the lower Court? ​By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.

It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.

This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.

COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. ​Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st – 4th Respondents filed a Counter affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp.

Abuja, Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st – 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st – 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018. with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018.

So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1 – 5, 17 – 18, 19-25; 26 -29; 37- 40, 41-45, 51-69, 70 -77 of the Record of Appeal.

In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st – 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended).

To my mind, and to my understanding too, this is the real crux of this appeal.

I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached.

Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46 (1) of the Constitution of Nigeria 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill JCA. ​However, by Section 4 of the Police Act, CAP.

P19, LFN 2004, which provides as follows: “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.” My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law.

See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC).

There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Metius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00.

Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st – 4th Respondents, and for which the 1st – 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent.

I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4. which are the application and bail bonds. Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st – 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondent’s from investigating the case reported against him by the 5th Respondent.

Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR – 25610 (CA) per Sir Biobele Abraham Gcorgewill JCA.

Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st – 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act 2020. See also Atakpa V.

Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt 1389) 630. My lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re – looted, his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja.

The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st – 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st – 4th Respondents.

The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the Society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law.

See Section 4 of the Police Act 2020. ​It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V.

Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus: “No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence” See also Udo V Essien (2015) 5 NWLR (Pt. 1451) 103. ​In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police.

Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.

I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues cither on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so.

These issues are hereby discountenanced as going to no issue in this appeal. ​Now, having held that the 1st – 4th Respondents acted within the limits of the powers conferred upon by them by law in arresting, detaining and releasing the Appellant on bail on the serious criminal allegations of fraud, of which there was prima facie evidence before the Police, including the admission by the Appellant before the Police, I consider issue two for determination as having become merely academic as there was prima facie reason or basis for the arrest of the Appellant. ​However, had there not been a prima facie basis for the arrest and detention of the Appellant, then issue two for determination would have become apposite since it is time the Nigeria Police, and indeed all other Law Enforcement Agencies, should desist from arresting and detaining Citizens accused of one crime or the other in order to look for prima facie evidence to justify that prior arrest and detention, rather than for the Police to conduct discreet investigation upon a complaint, as it is done in other climes, to find reasonable suspicion or prima facie evidence to warrant an arrest.

In other words, an arrest merely for the purpose of looking for prima facie basis for the arrest is wrong. It should rather be prima facie evidence as basis for an arrest. This is what civilized and best practices in good policing entails.

Thus, it is for the Police to investigate at least to ascertain some form of prima facie evidence before proceeding to arrest a suspect if prima facie there is evidence of the commission of an offence, unless the Suspect was caught in action in the alleged commission of the crime. See Fawehinmi V. IG. Police (2002) All NLR 357 (SC) AT p. 374, where the Supreme Court per Uwaifo, JSC had emphatically stated inter alia thus: “I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect.

It is completely wrong to arrest, let alone to caution a suspect, before the police look for evidence implicating him.” My lords, even at the level of this Court in the hierarchy of Courts in this Country, we too have spoken in clear condemnation of the procedure whereby an arrest is made first by the Police before evidence to incriminate the suspect is scavenged for by the Police. See Agbebaku V.

State (2015) FWLR (Pt. 791) 1423 AT p. 1447, where this Court Ogunwumiju, JCA (as he then was but now JSC) had stated inter alia thus: “The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court, either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the Court, a bench warrant is issued.” I think I have said enough!

In the light of all I have stated and found as above, issue one for determination is hereby resolved against the Appellant in favour of the 1st – 5th Respondents. On the whole therefore, having resolved issue one for determination against the Appellant in favour of the 1st – 5th Respondents, and having duly discountenanced issue two for determination as being merely academic, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby dismissed.

In the result, the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. ECT/UC/CV/1609/2018: Chukwudi Ngeme V. Inspector General of Police & Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed. There shall be no Order as to Cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division in Suit No. FCT/HC/CV/1609/2018 delivered on 30/4/2019 is hereby affirmed. I abide by the consequential Orders.

DANLAMI ZAMA SENCHI, J.C.A.: I have read in advance before now, the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed. ​The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 30th April, 2019 in suit No. FCT/HC/CV/1609/2018 by BELLO KAWU, J is hereby affirmed. No Order as to costs.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Awka Judicial Division, holden at Enugu and delivered on 3rd September, 2021 wherein the Court below set aside the judgment of O. A. Nwabunike, J of the High Court of Anambra State in suit No. A/230/2021 between Senator Ugochukwu Uba (Appellant herein) v INEC & 2 Ors.

By virtue of the judgment delivered by Nwabunike, J aforementioned on 19th July, 2021, the 1st Respondent herein filed an appeal at the lower Court which culminated in the judgment of the lower Court delivered on 3rd September, 2021 allowing the appeal and setting aside the said judgment of Anambra State High Court. A summary of the facts of the case giving birth to this appeal as captured by the Court below may be stated as hereunder.

​By an originating summons dated the 5th day of July, 2021 and filed same date, the Appellant herein contended that his faction of the Peoples Democratic Party conducted a primary election on the 26th of June, 2021 at Paul University, Awka, Anambra State, pursuant to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 9th of June, 2021 by Honourable Justice O. A. Adeniyi in suit No.

HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 24th of November, 2017 and 1st December 2017, under the supervision of Sir Chukwudi Umeaba (Acting State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors. That the Appellant contended that the primary election by that faction of Peoples Democratic Party produced him as the winner of the primary election.

That the Appellant further contended that the Governorship primary election conducted by the National Executive Committee of the Peoples Democratic Party (3rd Respondent) at the Professor Dora Akunyili Women Development Centre, Awka on the 26th of June, 2021 under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) in which the Appellant won the majority of lawful votes cast and was duly nominated and elected as the candidate of the 3rd Respondent (P.D.P.) and the flag bearer for the forthcoming governorship election scheduled for the 6th of November, 2021 by the 2nd Respondent (INEC) was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O.

A. Adeniyi on 9th of June, 2021 in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting Chairman, State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors.

​That the primary election conducted by the National Executive Committee of the 3rd Respondent in which the Appellant was elected the candidate of the party was conducted in substantial compliance with the 1999 Constitution (as amended), the Electoral Act 2010 (as amended), as well as the Constitution of the 3rd Respondent. The 2nd Respondent (INEC) monitored the exercise and duly issued a report affirming the due conduct of the primary.

It is this primary election that was conducted by the National Executive Committee of the 3rd Respondent under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) that the learned trial Judge in his judgment, held as being in disobedience to the order of O. A. Adeniyi J, of the High Court of the Federal Capital Territory, Abuja.

That based on the foregoing, the Appellant sought the determination of the questions on the originating summons and prayed the High Court as follows:- “i. A declaration that the Governorship Primary Election conducted by the Peoples Democratic Party on 26th June, 2021 at Paul University, Awka, Anambra State, pursuant to: a. Judgment of High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A Adeniyi on 9th of June, 2021 in suit No.

HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward executives who emerged from the Anambra P.D.P. Congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors. b. The Ruling delivered on 23rd June, 2021 in the same suit.

c. The 1st Defendant’s letter dated 22nd June, 2021 (with reference number INEC/LEG/LM/04/T/131) signed by the secretary to the 1st defendant. d. Section 87(7) of the Electoral Act 2010 (as amended). e. And Section 50(1) of the PDP Constitution (as amended), which produced the plaintiff as the winner of the election is valid, lawful, proper and binding on all the defendants and other members of the 2nd defendant’s party. ii.

A Declaration that the alleged Governorship Primary election of the 2nd defendant purportedly held on the 26th of June, 2021 at the Professor Dora Akunyili Women Development Centre, Awka, which was held a. In disobedience to judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A.

Adeniyi on 9th of June 2021 in suit No, HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area chairmen and ward executives who emerged from the Anambra PDP congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (PDP) & 2 Ors. b. In disobedience to the Ruling delivered on 23rd June, 2021 in the same suit. c.

In disregard to the 1st defendant’s letter dated 22nd June, 2021 (with reference number (INEC/LEG/LM/04/131) signed by the secretary to the 1st defendant. d. In violation of Section 87(7) of the Electoral Act 2010 (as amended). e. And Sections 25 & 50(1) of the PDP Constitution (as amended), unlawful, invalid, improper and a violation of Section 87 (7) of the Electoral Act, 2010 (as amended) and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended). iii.

A Declaration that it is unlawful and illegal for the 3rd defendant, whether by himself, agents and or proxies to parade and or continue to parade himself or allow himself to be paraded as the Governorship candidate of the 2nd defendant for the purpose of the Governorship election fixed to hold on 6th November, 2021 in Anambra State, to elect the Governor of Anambra State. iv.

A Declaration that any certificate of return issued by the 2nd defendant to the 3rd defendant as the Governorship candidate of the 2nd defendant, for the purpose of contesting the Governorship election to elect the Governor of Anambra State fixed to hold on 6th November, 2021 is null and void and of no effect whatsoever. v.

An Order compelling the 2nd defendant to forward, send or present the name of the plaintiff to the 1st defendant as the rightful person elected at its Governorship primary election, which was held on 26th June, 2021 at Paul University, Awka, Anambra State, as the Governorship candidate of the 2nd defendant, for the Governorship election fixed to hold in Anambra State on 6th November, 2021, to elect the Governor of Anambra State. vi.

An Order compelling the 1st defendant to recognize, accept, adopt, receive and put the name of the plaintiff as the Governorship candidate of the 2nd defendant’s party in the list of candidates of political parties eligible to contest the Governorship election slated to hold on 6th November, 2021, to elect the Governor of Anambra State. vii.

An Order of perpetual injunction, restraining the defendants jointly and severally whether by themselves, cronies, allies or representatives from parading, holding out or representing the 3rd defendant or any person whatsoever other than Senator Ugochukwu Uba, as the Gubernatorial candidate of the 2nd defendant in the Anambra State Governorship election slated for 6th November, 2021. viii. Cost of this action in the sum of Fifty Million Naira (N50,000,000.00) only.

That the Appellant raised a preliminary objection to the jurisdiction of the learned trial Judge, Nwabunike (J) over the matter and the locus standi of the plaintiff to institute the action. The learned trial Court dismissed all preliminary issues raised and held as follows:- i. That the Honourable Court is imbued with jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended); ii. That the 1st Respondent is an Aspirant under the extant provisions of Section 56 of the Electoral Act 2010 (as amended); iii.

That the 1st Respondent has the requisite locus standi to initiate this action before the trial Court; iv. The suit of the 1st Respondent was properly commenced under the originating summons; v. That the Primary election conducted at Paul University by the State chapter of the People’s Democratic Party in which the 1st Respondent emerged winner was authentic and valid simply because it was conducted in obedience to a Court order; vi.

The learned trial Judge granted all the reliefs sought by the Appellant in the originating summons and consequently ordered the Independent National Electoral Commission to list the 1st Respondent as the candidate of the People’s Democratic Party (3rd Respondent) in the forthcoming Anambra State Governorship election scheduled for the 6th of November, 2021. vii. The learned trial Court awarded the cost of N10,000,000.00 (Ten Million Naira only) against the Respondent.”

Irked by the said judgment of the learned trial Judge, the 1st Respondent appealed against same to the Court of Appeal. The Court below allowed the appeal and set aside the judgment of the trial Court; validated the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka and certified the 1st Respondent as the validly nominated candidate of the 3rd Respondent, the People’s Democratic Party for the governorship election slated for Anambra State on 6th November, 2021.

​Dissatisfied with the judgment of the lower Court, the Appellant filed notice of appeal on 15/9/2021 which said notice contains 21 grounds of appeal out of which appellant has distilled six issues for the determination of this appeal. The six issues are reproduced as follows:- 1. Whether the lower Court was right to have set aside the decision of the trial Court, which struck out the 1st Respondent’s preliminary objection and proceeded to uphold the same preliminary objection in its judgment. 2.

Whether the decision of the lower Court is not contradictory, erroneous, presumptuous, perverse, speculative and against the record. 3.

Whether the lower Court erred in law and acted without jurisdiction when their Lordships failed to abide by the Supreme Court’s decision in SKENCONSULT NIGERIA LIMITED & ANOR V GODWIN SEKONDY UKEY (1981) LPELR – 3072 (SC) page 19 – 20 paragraphs E – A, which requires them to strike out the 1st Respondent’s Notices of Preliminary Objection filed at the trial High Court, for non compliance with the mandatory provisions of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004. 4.

Whether the lower Court ought to have set aside the judgment of the trial Court, endorsed Respondent’s disobedience, reprimand the Appellant and trial Court’s respect for the then valid and subsisting judgments/orders of the FCT High Court in suit No, FCT/HC/CV/774/2021 – Samuel Anyakorah v Peoples Democratic Party and 2 Ors (coram: Adeniyi, J) merely because the said judgment was subsequently set aside by the lower Court. 5. Whether the lower Court erred in law and thereby occasioned a miscarriage of justice, when the Court denied the Appellant’s locus standi to commence the suit. 6.

Whether the lower Court was right to have suo motu, and without any counter claim before it, granted declaratory reliefs and positive orders validating the primary election held at the Professor Dora Akunyili Women Development Centre and awarded exemplary damages of N10,000,000 against the appellant.

In the brief of argument settled by Alex Ejesieme, SAN on behalf of the 1st Respondent, two issues are formulated for determination. I shall reproduce them here as follows:- 1. Whether the learned Justices of the Court of Appeal were correct in holding that the appellant lacks the locus standi to incept this action ab initio. 2. Whether the learned Justices of the Court of Appeal were correct in setting aside the judgment of the trial Court.

The second respondent’s brief was filed by Oluwole Osaze Uzzi, Esq on 18th October, 2021 in which three issues have been crafted thus:- 1. Whether the Court of Appeal was right to have set aside the decision of the trial Court which held that the 1st respondent’s Preliminary Objection was a writ and accordingly struck it out for non compliance with Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004. 2. Whether the lower Court erred when it held that the Appellant had no locus standi to institute this action and that the Court does not have jurisdiction to entertain same. 3.

Whether the lower Court was right in making the consequential order validating the Governorship primary election conducted by the 1st Respondent (sic) and which produced the 1st Respondent (Ozigbo) as the winner and its candidate at the Anambra Governorship election 2021.

For the 3rd Respondent, Emmanuel Enoidem, Esq., settled its brief of argument. In the said brief filed on 18th October, 2021, learned counsel donated four issues for determination. They are:-

1. Whether the lower Court was not right in holding that the Appellant who did not participate in the governorship primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka on June 26, 2021, did not have the locus standi to challenge the said primary election. 2. Whether the lower Court was not right in setting aside the judgment of the trial Court which dismissed the 3rd Respondent’s preliminary objection on the ground that same was a writ of summons within the meaning of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004. 3.

Whether the lower Court was not right in setting aside the judgment of the trial Court for being holistically predicated on the judgment of His Lordship, Adeniji J in suit No. FCT/HC/CV/774/2021: Anyakorah v PDP & Ors and for being delivered in violation of the hallowed doctrine of stare decisis based on the established facts of this case as borne out by the record in this appeal. 4.

Whether the Appellant has made any case against the judgment of the lower Court as being “contradictory, erroneous, presumptuous, perverse, speculative and against the record” in any way and whether such defect(s), if any, is capable, in the circumstances of this case, of invalidating the said judgment.

My Lords, after a careful perusal of the judgment of the Court below, particularly the facts of this case and the case law on the issue of party primaries as espoused by this Court in several cases, and having carefully considered all the issues placed before this Court by all counsel, it is my well considered opinion that this appeal can safely and conclusively be determined based on the two issues as crafted and donated by the learned senior counsel for the 1st Respondent. I propose, in the circumstance to determine this appeal on the said two issues.

Having already reproduced them earlier in this judgment, I do not intend to repeat the exercise except as I may refer to specific aspects in the course of this judgment.

ISSUE ONE:- For clarity, the question in this issue is whether the Court below was right in holding that the appellant lacked the locus standi to incept this action ab initio. This is also Appellant’s issue number five in his brief of argument.

​In his argument, the learned counsel for the Appellant, Adewole Adebayo, Esq, as directed by Assam Assam, SAN, submitted that their Lordships of the lower Court erred in law and thereby occasioned a miscarriage of justice, by upsetting the findings of the trial Court that the Appellant possessed the requisite locus standi to commence the suit.

That the Court below ignored the peculiar facts and circumstances of this case, including the totality of material facts/documentary evidence placed before it, to arrive at the wrong conclusion that the Appellant lacked the locus standi to commence this suit.

​The learned counsel further submitted that the issue of locus standi was considered at an interlocutory stage, and that the Appellant did not at any time rely on the counter affidavit of the 1st Respondent to establish his locus standi, but in opposing the 1st Respondent’s notices of Preliminary Objection to point out the irreconcilable evidence in support of the 1st Respondent’s preliminary objection which shows that Appellant was an aspirant who participated in the said primary election. It was not a case of changing the case of the appellant made as plaintiff before the trial Court.

He opined that the lower Court therefore occasioned a miscarriage of justice when it wrongly concluded that the Appellant changed his case mid-way and relied on the weakness of the defence to prove his case.

The learned counsel for the Appellant submitted further that there is ample affidavit and documentary evidence supporting the Originating Summons that the Appellant complied with the judgment of Adeniyi, J and relevant provisions of the Electoral Act and PDP constitution, in participating in the primary election whereof he emerged winner.

That there is no evidence before the trial Court as presented in the defence of respective Respondents to the Originating Summons that they complied with the judgment of Adeniyi J, or the relevant provisions of the Electoral Act and PDP constitution in participating in the primary election conducted at Professor Dora Akunyili Women Development Centre. Also that the admissions by the PDP of claims in the originating summons only corroborated the sufficiently led evidence by the Appellant that he successfully emerged as candidate of the PDP for the imminent election.

​Learned counsel then urged this Court to resolve this issue in favour of the Appellant and hold that the lower Court ought not to have set aside the judgment of the trial Court which held that plaintiff has established his locus standi as an aspirant.

​In response to this issue, the learned Senior counsel for the first Respondent, Alex Ejesieme, SAN, submitted that from the 30 paragraphs affidavit of the Appellant herein in support of his Originating Summons which incepted this action at the trial Court, it is crystal clear that the Appellant did not participate in the primary election conducted by the National Executive Committee of the PDP and as a result, he cannot be classified as an “Aspirant” imbued with locus standi to challenge the primary election in which he did not participate.

That Section 87 (9) of the Electoral Act, 2010 (as amended) gives a very narrow compass only to an aspirant who participated in the primary election organized by the National Executive Committee of the party.

He stressed that it is the act of participation that gives an aggrieved party the right to challenge the outcome of the primary election and that without evidence of participation; the purported aspirant is a total stranger without the requisite locus standi to challenge the primary election, relying onEze v PDP (2019) 1 NWLR (pt 1652) 23, PDP v Sylva (2012) 13 NWLR (pt 1316) 85, Lado v CPC (2011) 18 NWLR (pt 1279) 689, Shinkafi v Yari (2016) 7 NWLR (pt 1511) 340, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556.

​The learned Silk contended that the argument canvassed by the Appellant to the effect that he participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre on the 26th of June, 2021 does not fly. That appellant’s reliance on the result of the primary election conducted by the 3rd Respondent at the said Women Development Centre which was exhibited by the 1st and 3rd Respondents in their respective affidavits is of no moment.

That the claim was made simply because his name appeared on the said result sheet and based on this, that the appellant has the requisite locus standi to incept this action as an “Aspirant” under Section 87 (9) of the Electoral Act, 2010 (as amended). It is his argument that the appellant made these conscious but futile efforts to change the template of his case at the appellate level especially after the Court of Appeal, Abuja Division in Appeal No.

CA/A/359/2021 delivered on the 29th of July, 2021 set aside the forum shopped judgment of Adeniyi J of the FCT High Court, Abuja which was the stanchion upon which the judgment of the trial Court in this instant appeal was predicated. He submitted that a party is not permitted on appeal to change the case he made at the trial Court since an appeal is simply the continuation of the case he put forward in the Court of first instance, citing and relying on I.M.N.L. v Pegofor Nig. Ltd. (2005) 15 NWLR (pt 947), Oriorio v Osain (2012) 16 NWLR (pt 1327) 560.

Furthermore, that the Respondents did not admit that the Appellant was an aspirant in the vexed primary election. That for an admission to be valid, it must be clear, precise and unambiguous, referring to CAPPA D’ALBERTO v Akintilo (2003) 9 NWLR (pt 824) 68 – 69.

​Again, he contended that bearing in mind that the principal relief sought by the Appellant before the trial Court was a declaratory relief, the Appellant has an onerous duty leading positive evidence to establish his case and not to rely on the weakness of the opponent’s case, citing Bello v Ayoola (1984) 11 SC 72 at 14, Oduah v Okadigbo (2019) 3 NWLR (pt 1660) 460.

Referring to several paragraphs of the Appellant’s affidavit in support of the Originating Summons and the counter affidavit of the 1st Respondent, the learned Silk concluded that the Appellant failed to show that he had locus standi to incept this action, He urged this Court to so hold and resolve this issue against the Appellant.

The second respondent, through her counsel, Oluwole Osaze-Uzzi, Esq, submitted in tandem with the 1st Respondent that the Appellant herein lacked the locus standi to incept this matter at the trial Court and that the Court below was right to set aside the judgment of the trial Court in the circumstance.

Relying on Emenike v PDP (2012) 12 NWLR (pt 1315) 556, Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 51 and Odedo v PDP (2015) LPELR – 24738 (SC), learned counsel stressed that these cases arose out of PDP primaries in Anambra State and wondered why the Appellant has not learnt the simple political lesson that only a primary election conducted by the National Executive Committee of a political party is cognizable by law.

He urged the Court to hold that the Court below was right in holding that the Appellant, having not taken part in the said primary election, lacks the locus standi to institute the action vide Section 87 (9) of the Electoral Act, 2010 (as amended). He also urged this Court to resolve this issue against the Appellant.

For the third Respondent, her counsel, Emmanuel Enoidem Esq, submitted, in the main, that in the determination of the question whether or not a party has locus standi, it is the originating process, as in the instant case, the originating summons and the supporting affidavit that must be interrogated. That throughout the entire gamut of his case as encapsulated in his originating summons and the 30 paragraph affidavit, the Appellant never claimed to have taken part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka.

Learned counsel relied on the cases of Odimegwa & Ors v Ibezim & Ors (2019) LPELR – 46939 (SC), Dopah v Registered Trustees UMCN (2019) 4 NWLR (pt 1663) 520, Nyesom Wike v Peterside & Ors (2016) 1 – 2 SC (pt 1) 37, Eze v PDP (2018) LPELR – 44907 (SC) at page 22 – 23 F-B.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Referring to certain paragraphs of the affidavit in support of the originating summons, learned counsel submitted that contrary to his case at the trial Court, the Appellant through his brief embarked on a summersault and claimed that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. It is his contention that a party must be consistent in stating his case. That Courts will not allow a party to approbate and reprobate, relying on Comptroller General of Customs & Ors v Comptroller Abdullahi B.

Gusau (2017) LPELR – 42081 (SC); Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508 paragraphs A – E.

Learned counsel contended that the appellant, having not taken part in the recognized primary election of the 3rd Respondent, he lacks the locus standi to approach the Court for redress vide Section 87 (9) of the Electoral Act (as amended). He urged the Court to resolve this issue against the Appellant.

RESOLUTION The fulcrum of this appeal, particularly, this issue, as can be gleaned from the Originating Summons which gave birth to this action, is the dispute as to the authenticity of the two primary elections of the Peoples Democratic Party conducted on 26th June, 2021. The Appellant herein obtained a judgment by Adeniyi J of the High Court of the Federal Capital Territory delivered on 9th June, 2021. Armed with that judgment, the appellant proceeded to conduct an illegal and factional primary election at Saint Paul’s University, Awka on the date aforementioned.

The Appellant claimed he won the said primary election which did not have the blessing of the National Working Committee of the 3rd Respondent. It also did not have the supervisory coverage of INEC, the 2nd Respondent herein.

​Contrariwise, even the appellant acknowledged that the 1st Respondent participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre, Awka on the same date in which the 1st Respondent emerged winner.

The 1st Respondent and the evidence show a consistency that it was the National Executive Committee of the PDP (3rd Respondent) that organized the governorship primary election in which the 1st Respondent emerged victorious and was duly nominated and returned as the governorship candidate of the PDP for the forthcoming Anambra State Governorship election scheduled for 6th November, 2021.

However, the Appellant had contended that this primary election organized at the instance of the National Executive Committee of the 3rd Respondent (PDP), was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja.

My Lords, I note that from the affidavit of 30 paragraphs in support of the Appellant’s originating summons, at the trial Court, the Appellant did not in any way whatsoever state that he participated in the primary election conducted at the instance of the National Executive Committee of the 3rd Respondent on 26th June, 2021 held at Professor Dora Akunyili Women Development Centre Awka. In fact he described the said primary election as “illegal” and “unlawful”.

​At the lower Court, the Appellant, contrary to his case at the trial Court decided to use his brief of argument to embark on a summersault by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka.

Having regard to the circumstances of this case, can it be said that the Appellant took part in the 3rd Respondent’s primary election held on 26th June, 2021 at Professor Dora Akunyili Women Development Centre, Awka, so as to imbue him with locus standi to challenge the said election as prescribed in Section 87 (9) of the Electoral Act, 2010 (as amended)?

To this, the Court below, at pages 123 – 125 of the record made the following far reaching findings and conclusion:- “It is no wonder that the 1st Respondent, in full recognition of the impact of the judgment of the Court of Appeal on his position in this case as stated in the Originating Summons before the trial Court has in paragraphs 4.2.7 to 4.2.12 of his Brief of argument tried to embellish the facts averred in the affidavit in support of his originating summons and change the narrative by advancing new facts not contained therein nor in his further affidavit.

Now relying on the result of the primary election conducted by the 3rd Respondent (PDP) at Professor Dora Akunyili Women Development Centre, which was exhibited by the 3rd Respondent to his counter affidavit, he contended for the very first time that in addition to taking part in the primary election at the Paul University, Awka, he also participated in the said Governorship primary election simultaneously held at Professor Dora Akunyili Women Development Centre, Awka, where the Appellant emerged as winner and candidate for the Governorship election of Anambra State.

It is significant that this is the same election which the 1st Respondent had strongly degraded before the trial Court as well as before this Court, contending that it was conducted in flagrant “disobedience” to the judgment of the Federal Capital Territory High Court in Exhibits C1 and C2; and so he had prayed the trial Court to declare it as invalid, improper and a violation of Section 87(9) of the Electoral Act and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended) a prayer which the trial Court acceded to … Thus, the judgment of Adeniyi J, of the Federal Capital Territory High Court having been declared null and void, the 1st Respondent quickly jumped ship to claim that he was actually a contestant who participated in the primary election conducted by the 3rd Respondent (PDP) at the Professor Dora Akunyili Women Development Centre.

This new advocacy is however not borne out by the originating summons and the affidavit in support, which are the only documents that can be examined to determine the locus standi of a party. He is not allowed to rely on the processes of the defendants to the action to establish his locus standi, to approach the trial Court. Thus, the 1st Respondent’s reliance on the result sheet of the primary election exhibited to the counter affidavit of the 3rd Respondent cannot assist him, because by law, it does not avail him in establishing locus standi.”

In agreeing with the Court below as reproduced above, it is my view that the findings are unassailable.

Section 87 (9) of the Electoral Act, 2010 (as amended) is very clear and states thus:- “Notwithstanding the provisions of this Act, or rules of a Political Party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or the FCT for redress.” The above provision of the Electoral Act is very clear and unambiguous.

It is not the business of any Court to select or nominate candidates for any political party for election. The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not have jurisdiction to decide who should be sponsored by a political party as a candidate in an election. See Onuoha v Okafor (1983) 2 SCNLR 244, Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310, Shinkafi & Anor v Yari & Ors (2016) LPELR – 26050 (SC) page 57 paragraphs A – D, Olofu & Ors v Itodo & Anor (2010) 18 NWLR (pt 1225) 545.

The above position has been the law and has not changed because issue of selection and/or nomination of a candidate for an election is strictly within the domestic jurisdiction or power of political parties.

​Notwithstanding the position stated above, Section 87 (9) of the Electoral Act, 2010 (as amended) has created a narrow compass of sort for an aggrieved candidate who took part in a primary election to select a candidate for an election. Under the said provision, where a political party nominates a candidate for an election contrary to its own constitution, rules and guidelines, a dissatisfied candidate who actually participated in the primaries is empowered to approach the Courts enumerated therein for redress.

In such situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party fully complied with relevant laws and guidelines governing the nomination of its candidates.

But before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended), and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form, was screened and cleared to participate in the primaries but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87 (9) of the Electoral Act (supra).

See Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Alahassan v Ishaku & Ors (2016) LPELR – 40083 (SC), Emeka v Okadigbo (2012) 18 NWLR (pt 1316) 553, Shinkafi v Yari (supra), Jev & Anor v Iyortyom & Ors (2014) 14 NWLR (pt 1428) 575, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Eyiboh v Abia & Ors(2012) 16 NWLR (pt 1325) 51, Odedo v PDP & Ors (2015) LPELR – 24738 (SC), Lado v CPC (2011) 18 NWLR (pt 1279) 689, PDP v Sylva & Ors (2012) 13 NWLR (pt 1316) 85.

Let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra), the aspirant must show to the Court that the National Executive Committee of the political party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election. An aspirant who, though he was cleared to participate in the primary election decides to stage a factional primary election, does so at his peril as he is on a frolic of his own.

See Daniel v INEC (2015) 9 NWLR (pt 1463) 152.

In the instant case, the Appellant herein clearly stated in the affidavit in support of his originating summons that he took part in the primary election held at St. Paul University, Awka in obedience to the judgment of Adeniyi J of the Federal Capital Territory High Court and that the said election was conducted by Sir Chukwudi Umeaba who authored and signed the alleged result of the primary election. He is said to be the leader of the State Executive of the 3rd Respondent. That Appellant emerged winner of that contraption he called party primary election.

But from the authorities of this Court cited above, that assemblage at St. Paul University was nothing other than an illegal and an unlawful gathering of party delinquents. The outcome therefore was a sham and a farce. See Emenike v PDP (supra). Not having been conducted by the National Executive Committee 3rd Respondent, the primary election held at St. Paul University on 26th June, 2021 which the Appellant took part is unknown to law and is a nullity. The law is very clear that a State executive of a political party has no vires to conduct party primaries.

It is only the National Executive Committee of the party that is recognized as the proper organ of the party saddled with the responsibility of conducting party primaries.

​The appellant at the Court below made “a very unprofessional somersault and an ignoble acrobatic”, according to learned counsel for the 3rd Respondent, Emmanuel Enoidem Esq, by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. The Court below made far reaching findings in this matter and concluded that the appellant did not take part in the primary election conducted at Professor Dora Akunyili Women Development Centre, Awka.

The law is settled beyond any controversy that a party must be consistent in stating his case at the trial Court up to the appellate Court. A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate.

See Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (pt 639) 1192, Asaboro & Anor v Pan Ocean Oil Corporation (2017) LPELR – 41558 (SC), Comptroller General of Customs & Ors v Comptroller Gusau (2017) LPELR – 42081 (SC), Akaninwo v Nsirim (2008) All FWLR (pt 410) 610, Oliyide & Sons Ltd v Obafemi Awolowo University (2018) LPELR 43711 (SC).

As was observed by the Court below, the fact of the appellant participating in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka, surfaced for the first time in the Appellant’s brief at the lower Court and in this appeal before this Court. As was pointed out by the three counsel for the Respondents, this is another inappropriate introduction by the learned counsel for the Appellant. The law prohibits counsel from introducing evidence that a party did not offer at the trial.

The law is trite that counsel cannot use his address to the Court to introduce evidence which was not adduced by the party during the trial. Such evidence in counsel’s address shall not be used for the resolution of issue in the appeal. Even where such evidence was available but not adduced at the trial of the suit, counsel does not have the province or latitude to introduce it by any stretch of ingenuity in his address. See Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508, Agi v PDP (2017) 17 NWLR (pt 1595) 386.

From all I have endeavoured to say above, it is crystal clear that the Court below was right in holding that the appellant was not an Aspirant in the 3rd Respondent’s primary election held at Professor Dora Akunyili Women Development Centre, Awka and therefore lacked the locus standi to invoke Section 87 (9) of the Electoral Act, 2010 (as amended). I note that most of the authorities cited in this issue emanated from primary elections held by the 3rd Respondent in Anambra State.

One would have thought that members of the 3rd Respondent especially those in Anambra State chapter would have learnt this political lesson. Party primaries are conducted by the National Executive Committee of political parties. Definitely, not by the State executive of the party. The Appellant lacked the locus standi to incept the suit giving birth to this appeal. Counsel ought to advise their clients when requested to file such frivolous suits in Court.

Also, trial Courts should not close their eyes to the well established precedents bordering on the Apex Court’s interpretation of Section 87 (9) of the Electoral Act (supra). Although the learned counsel for the Appellant had termed the judgment of the Court below as being “contradictory”, “erroneous”, presumptuous”, “perverse”, “speculative” and ‘”against the record”, nothing was shown in the brief of argument to that effect. This issue is accordingly resolved against the Appellant.

Having agreed with the Court below that the appellant lacked the locus standi to institute this action at the trial Court; the simple deduction is that the trial Court had no jurisdiction to have entertained the suit. The Court below made this point very clear in its judgment. Thus, at this stage it becomes academic and a waste of the precious time of this Court to consider any other issue. The judgment and orders of the trial Court having been set aside by the Court below, there remains nothing more to be said in this appeal. It is my view that this appeal lacks merit and is hereby dismissed.

The judgment of the Court below, delivered on 3rd September, 2021, is hereby affirmed. Five Million Naira (N5m) costs for the 1st Respondent only, to be paid by the Appellant. Appeal Dismissed.

As agreed by all parties to this appeal at the hearing of same that appeal No. SC.CV/773/2021 shall abide the outcome of the instant appeal, it is hereby ordered that the said appeal No.SC.CV/773/2021 be and is hereby dismissed also.

AMINA ADAMU AUGIE, J.S.C.: My learned brother, Okoro, JSC, addressed all the Issues raised by the parties in the lead Judgment just delivered, and I totally agree with his reasoning and conclusion, which I adopt without hesitation as mine.

However, the issue of the Appellant changing his case on appeal piqued my interest, and I will say a few words to reiterate the point made by my learned brother that he cannot approbate and reprobate.

As first Respondent rightly submitted, a party is not permitted to change his case on appeal since an appeal is a continuation of the case he made at the trial Court – I.M.N.L. V. Pegofor Ltd (2005) 15 NWLR (Pt. 947) 1 SC, Oriorio V. Osain (2012) 16 NWLR (Pt. 1327) 360 SC cited. Simply put, a party will not be allowed to change his position as he moves through the steps of the Court. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248, wherein this Court per Oputa, JSC, cautioned that: A party should be consistent in stating his case and consistent in proving it.

He will not be allowed to take one stance in his pleadings; then turn summersault during the trial; then assume nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seeks. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the – – – Appellant.

In this case, the Appellant described the primaries conducted by the third Respondent as “illegal” and “unlawful,” but he changed his tune on appeal and claimed that he actually took part in the said primaries. As Oputa, JSC, exclaimed in Ajide V. Kelani (supra), “l wonder how any Court of law, equity and justice can decree in favour of such an Appellant as now appeals to this Court.” In this case, I wonder how the Appellant expects this Court to resolve this Appeal in his favour.

The assertion that he participated in the said primaries came up for the first time in the Appellant’s Brief he filed at the Court of Appeal, and since he made out a different case at the trial Court, the rug had certainly been pulled out from under his feet, and the Court of Appeal was therefore standing on firm ground when it dismissed his Appeal. In the circumstances of this case, it is evident that he lacked the locus standi to invoke Section 87(9) of the Electoral Act. Thus, I also dismiss this Appeal and abide by the order as to costs in the lead Judgment.

SC/CV/773/2021 The Parties agreed that Appeal No. SC.CV.773/2021 shall abide the outcome of Appeal No. SC.CV.772/2021, and that Appeal having been dismissed by this Court, Appeal No. SC.CV.773/2021 is also dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now, the draft judgment of my learned brother JOHN INYANG OKORO, JSC. My Lord has treated the issues in controversy exhaustively and I have very little to add by way of elucidation.

Suffice it to say however that an aspirant must have participated at the primary elections conducted and supervised by the National Executive Committee of the political party before such a candidate will have locus standi or legal standing to challenge the outcome of such primaries pursuant to Section 87 (9) of the Electoral Act 2010 (as amended), This issue had been settled by APGA v. Anyanwu & Ors (2014) LPELR- 22182 (SC).

Not only that, a participant at a primary not endorsed by the National Executive Committee but endorsed only by the State Executive of the party has no right of audience in Court.

For this and fuller reasons set out in the lead judgment, this appeal is dismissed. The judgment of the Court below is affirmed. I abide by all consequential orders in the lead judgment.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal is unmeritorious, and ought to be dismissed. It is accordingly dismissed. My Lord JSC, has dealt in extensor in the lead judgment, with the arguments of Counsel on both sides and I shall not repeat them, except when circumstances warrant a reference to them. I only add a few words in support of this stance.

The kernel of the grievance of the Appellant herein, is that the Court below was in error to have upset the findings of the trial Court which held that the Appellant possessed the requisite locus standi to commence the suit. According to the Appellant, the Court below ignored the peculiar facts and circumstances of this case, including the totality of material facts/documentary evidence placed before it, to arrive at the wrong conclusion that the Appellant lacked the locus standi to commence this Suit.

It is beyond dispute that for an Aspirant to invoke the provisions of Section 87(9) of the Electoral Act 2010, as amended, the Primary Elections which he complains of must be conducted by the National Executive Committee of the Political Party, and not by the State Executive of the Party.

This Court, in answer to the question, who can institute an action in Court to complain about the conduct of a party’s primaries, held as follows in the case of APGA vs Anyanwu & Ors (2014) LPELR- 22182 SC: “Who can question conduct of primaries? Section 87(9) of the Electoral Act answers the question.

It reads: “87(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a Political Party has not been complied with in the selection or nomination of a candidate of a Political Party for election may apply to the Federal High Court or the High Court of a State or FCT, for redress. It has been held that the jurisdiction of the Court to entertain a complaint under this Section is very narrow in scope. A complainant must bring himself squarely within the confines of the provision.

He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party. See also: Eze v. PDP (2018) LPELR 44907 SC Daniel v. INEC & Ors (2015) LPELR 24566 SC.

In the instant case, the only recognized Primary Election is the one conducted by the 3rd Respondent, which held at the Professor Dora Akunyili Women Development Centre, Awka. Since the Appellant did not participate in that primary election, he was not a candidate in the said primary election and therefore lacks locus standi to challenge its outcome,

It is for these and the more detailed reasons proffered in the lead judgment of my learned brother, JOHN INYANG OKORO, JSC, that I, too, dismiss the appeal, and affirm the judgment of the Court below. Appeal Dismissed.

SC/CV/773/2021 Parties having agreed that the decision in Appeal No: SC/CV/773/2021, shall abide the outcome of Appeal No: SC/CV/772/2021. Accordingly, Appeal No: SC/CV/773/2021 is also dismissed.

TIJJANI ABUBAKAR, J.S.C.: My lord and learned brother, JOHN INYANG OKORO, JSC, granted me the privilege of reading before today the comprehensive leading judgment prepared and rendered in this appeal. My lord has fully and sufficiently covered the field, I have nothing extra to add. I agree and adopt the entire judgment as my own. I also abide by all consequential orders.

​Parties having agreed that the decision in Appeal No. SC/CV/773/2021, shall abide the outcome of Appeal No. SC/CV/772/2021. Accordingly, Appeal No. SC/CV/773/2021 is also dismissed.

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Respondent was Acting General Manager of Adapalm (Nig.) Ltd., Ohaji, Imo State, before moving to Imo Agricultural Development Programme (ADP).

The Appellant, who was a Director at Adapalm, from August 2006 – June 2007, wrote a 10-page letter dated 31/8/2007, which was addressed to the Chairman Committee Investigating Non-Payment of Workers’ Salaries at Adapalm, Ohaji, and in the said letter titled MEMORANDUM SUBMITTED BY ME IN RESPECT OF YOUR ASSIGNMENT IN ADAPALM OHAJI, he concluded as follows – In conclusion and in a nutshell, the former Ag. GM – Chief Don Okwu could not pay salaries because of the fraudulent practices instituted by him. Thank God that Imo State Government constituted this Committee.

You are at liberty to probe the sale of the 600 tons of SPO in August 2006 which Don Ukwu refused our Auditor from cawing out. His refusal to execute Board Resolutions, including violation of White Paper directives, were all aimed at creating avenues for fraud. The result is the arrears of salaries. You may wish to advise the Government to clamp indefinite suspension on Chief Don Ukwu - and all the cabals mentioned in this Report while the Government institutes either Judicial Panel of Inquiry or Administrative Panel on Adapalm and offenders severely punished.

The Respondent got wind of the letter and asked his Solicitor to demand a “refutal, retraction or apology” from the Appellant.

When that did not yield fruit, he filed an action at the Imo State High Court, wherein he claimed as follows: (i) The sum of Fifty Million Naira being general damages for libel contained in the Defendant’s letter to the Committee investigating the non-payment of salaries at Adapalm (Nigeria) Limited, Ohaji, on the Claimant. (ii) A perpetual injunction restraining the Defendant by himself, his agents, or privies from ever writing, publishing, or circulating such libelous matter of and concerning him.

The Respondent amended the initial Statement of Claim twice and he averred as follows in paragraphs 8-9 of the Further Amended Statement of Claim: 8. The Claimant pleads that surprisingly, apart from the Members of the Committee of Non-Payment of Salaries at Adapalm, the Defendant published and circulated the document to several and diverse persons, including Members of Imo State House of Assembly Committee on Agriculture, Staff of Adapalm Limited, Polycarp Attah and other associations that are associated with Adapalm.

The Claimant claims that on the true construction of the words and expressions complained of the Defendant was actuated by malice and sought to ensure he was relieved of his appointment as Programme Manager of Imo ADP. 9.

The Claimant further claims that by the publication of the unfounded and sweeping allegations, words or expressions of fraud, wickedness, dishonesty, immorality, self-enrichment, and or outright stealing, of and concerning him, he (the Claimant) has been greatly injured in his character, repute and estimation in the eyes of right thinking people of the World in that the Claimant has been exposed to public ridicule, reproach, opprobrium, odium and contempt, or conveyed an imputation on him, which is disparaging or injurious to him in his office, profession, calling, trade or business and these defamatory words and expression have no doubt embarrassed, not only the Claimant, but members of his family, friends and business associates irredeemably.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Appellant, as Defendant, averred in his Amended Statement of Defence that: 3. Save to admit that the Defendant submitted a Memorandum to the Committee investigating Non-payment of Workers’ Salaries at Adapalm (Nigeria) Ltd. It is denied that the said Memorandum bore or was understood to bear or was capable of bearing the meanings and/or effect set out in paragraphs 3(a-b), 4, 4(a), 5(a-c), 6(a-b), 8 and 9 of the Statement of Claim or any defamatory meaning at all.

Apart from the said Committee investigating Non-payment of Workers’ Salaries at Adapalm, Defendant denies publishing and circulating any document defamatory of the Claimant to Polycarp Attah or to any other person. The said Polycarp Attah is not a staff of Adapalm and is unknown to the Defendant.

Trial commenced on 22/9/2010 before Ikpeama, J. In his testimony as CW1, the Respondent stated as follows with regards to the said Letter/Memorandum: In my deposition, I referred to a document written by the Defendant. This is the photocopy of the document. I got this photocopy from one Polycarp Atta, Chairman Landlords Association of Adapalm. The original document is with the Chairman of Committee of Adapalm investigating non-payment of Staff Salaries.

When the Claimant’s Counsel applied to tender the said document in evidence, Defendant’s Counsel objected on the ground that the document is a photocopy, and the learned trial Judge, Ikpeama, J., adjourned the matter to 3/11/2010.

However, Ikpeama, J., got transferred from the Oguta Judicial Division, where the matter was being heard, and the suit commenced de novo before another Judge, Anunihu, J. On 25/6/2012, “Polycarp Attah” testified as CW1, and he identified a copy of the “defamatory document sent to [him] by the Defendant in his capacity as the Chairman of Adapalm Landlords Association”.

The Defence Counsel made the same objection when he sought to tender the document in evidence, and in his ruling thereon, Anunihu, J., stated as follows: “The document written by the Defendant on 31/8/2007 is a personal Memorandum written by him to the Committee investigating the non-payment of workers’ salaries in Adapalm. Unless and until the said document is submitted to the addressee, it remains a private document.

It is only when it comes into the custody of the said Committee that it becomes a public document, and it is the copy delivered or deposited with the Committee that constitutes a public document.. The fact is that the document received or purportedly received by CW1 was adequately pleaded and is relevant to this Suit. I think it is admissible for that reason … I have no reason to doubt that the document sought to be tendered by CW1 is the document allegedly circulated to him by the Defendant.

I also agree with Claimant’s Counsel that since the document sought to be tendered is the one belonging to CW1 as given to him, and CW1 being Claimant’s Witness, there was no need for issuance of Notice to Produce. Even if there was Notice, it will be to CW1 and not necessarily to the knowledge of the Defendant or his counsel. On the above premise, I hold that the Memorandum dated 31/8/2009 as sought to be tendered by CW1, being relevant to this case, is admissible in evidence. I overrule the objection of learned Counsel for the Defendant.”

Dissatisfied with the ruling, the Appellant appealed to the Court of Appeal and in its judgment delivered on 26/5/2016, the Court of Appeal held as follows – “In all practical terms, the document written by the Defendant, who is Appellant in this appeal, on 31/8/2007, is a personal Memorandum written by him to the Committee investigating the non-payment of workers’ salaries in Adapalm. The document only becomes a public document when it comes into the custody of the said Committee.

Paragraph 8 of the Respondent’s Statement of Claim avers that the offending document was circulated and given to this Witness, i.e., CW1, who is the Respondent’s Witness at the lower Court. The said Witness in his evidence stated that he received a copy of the said document from the Appellant as Defendant, presumably when copies were widely circulated by him. There is no gainsaying the fact that the document received by CW1 was adequately pleaded and is, of course, relevant to the suit and, therefore, admissible in evidence.

In agreement with the lower trial Court on the issue, it would be absurd in the least to assume that the same copy of the document given to the Committee is the copy given to the other people to whom the document was circulated, including CW1 who had sought to tender it in evidence in the course of the trial. It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of CW1 was the copy circulated to him. In the final analysis, this appeal fails, and it is accordingly dismissed.

The ruling of the learned trial Judge – delivered on 25/6/2012 is hereby affirmed.”

Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal, which contains one Ground of Appeal, and the complaint therein is as follows: ERROR IN LAW The Court of Appeal erred in law when it held as follows: “The said Witness in his evidence stated that he received a copy of the document from the Appellant as Defendant, presumably when copies were widely circulated by him. There is no gainsaying the fact that the document received by CW1 was adequately pleaded and is of course relevant to the suit and therefore admissible in evidence.

In agreement with the lower trial Court on the issue, it would be absurd in the least to assume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated, including CW1 who had sought it in evidence in the course of trial.

It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of CW1 was the copy circulated to him.” PARTICULARS OF ERROR (a) This holding is contrary to the clear pleading of the Claimant. (b) The Court of Appeal was not entitled to any presumption. (c) The document sought to be tendered is a photocopy of the document in the possession of an Imo State Government Agency, namely the Panel set up by the Government of Imo State to investigate the non-payment of staff salaries of Adapalm, a parastatal of the Government of Imo State. (d) The only admissible copy of the document was the certified true copy. (e) Apart from being relevant, the document must meet other conditions to be admissible. (f) The holding was perverse and occasioned a miscarriage of justice.

​A ground of appeal consists of error of law or of fact that an Appellant sees as a defect in the judgment that he is appealing against, and there is a truly clear distinction between a ground of law and a ground of fact or mixed law and fact. A ground of appeal raising a question of law does not require leave to file it. But, where it involves questions of fact or of mixed law and fact, leave to appeal must be obtained from the Court of Appeal or from this Court, and the failure to obtain the requisite leave renders the appeal filed in this Court incompetent – Irhabor V.

Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337, Akpasubi V. Umweni (1982) 11 SC 113. In other words, the appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Court of Appeal or of this Court, and where question of fact has been brought before this Court without leave, the Court has no jurisdiction – see Akpasubi V. Umweni (supra), Ukpong V. Commissioner for Finance and Econ. Dev. (2006) 19 NWLR (Pt. 1013) 187.

Now, looking at the facts of this case and the decision appealed against, the question that must be determined before anything else is whether the sole Ground of Appeal in the Notice of Appeal is a ground of law or a ground of fact or of mixed law and fact, which requires leave, for this Court to have jurisdiction. ​Let me quickly say that this is not an easy question to determine because there is a thin line that runs between the said categories. However, this Court has laid down guidelines in a number of cases, which set parameters for finding answers to the said question – see Dairo V.

Union Bank (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide: – Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondents was based, such a ground of appeal is a ground of mixed law and fact – Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555. – A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact, is a ground of mixed law and fact- Maigoro V.

Garba(supra). – Where evaluation of facts established by the trial Court before the law is applied is under attack or question, the ground of appeal is one of mixed law and fact – Maigoro V. Garba (supra). – Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter – Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484. – Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to admitted or proved facts, such a ground of appeal is one of law simpliciter- Nwadike & Ors. V.

Ibekwe & Ors. (1987) 12 SC (Pt. 1) 164. – It is a ground of law if the Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors -O’ Kelly v. Trusthouse Forte P.L.C. (1983) 2 All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra). – Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn are grounds of law – Ogbechie V.

Onochie (supra). – It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts – Nwadike V. Ibekwe supra. – Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law – see Ogbechie V. Onochie (supra) wherein Eso, JSC, citing an article by C.

T Emery in Vol. 100 LQR, held that- “If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is question of law”. See also Metal Constr. (W.A.) Ltd. V. Migliore (1990) 1 NWLR (Pt. 126) 299, wherein this Court per Obaseki, JSC, made the distinction clear, as follows – “What are the constituent elements in the concept of question of law and in the concept of question of fact? In other words, what is the definition of a question of law? And also, what is the definition of a question of fact?

A profound knowledge of their meanings is necessary as these questions constitute the entire burden Judges and Counsel must contend with in all litigated matters or controversies. In pleadings and litigation, the facts are “the circumstances deeds, saving, and inferences drawn from them as distinct from the legal consequences, rules applicable thereto and legal conclusions”.

Matters of fact are accordingly matters, circumstances, acts, and events which in legal controversy are determined by admissions or by evidence as distinct from matters of law, which are determined by authority and argument. A question of fact may be any question, which has to be determined by admission or by evidence rather than by authority and argument, and by the Jury or Judge sitting as Jury or any question, which is not determined by a rule of law but depends on the circumstances.

Such a question is distinct from a question of law and from a question of judicial discretion, which is concerned with a decision of what is right and reasonable or just and equitable in the circumstances, There is no doubt that in litigation or legal inquiries, this distinction is frequently involved. A matter of fact or a question of fact concerns the existence or some state at some past time relevant to the enquiry of some person or thing or state of affairs ascertainable by the senses or by inference from conduct or happenings.

Matters of fact include e.g., time, place, weather, light, speed, colour, identification of persons, what was said, done, heard, and so on and such inferred facts as a person’s intention, sanity, state of mind, knowledge, and the like. Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. Matters of law or questions of law, on the other hand, include what are the rules of law applicable to some issues, what their proper formulations are, and what they require or permit.

Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to Parties in the litigation. The interpretation of documents is always a question of law.

An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law.

A decision of a trial Judge is normally a mixed finding.” ​So, in pleadings and litigation, the facts are the circumstances and inferences drawn from them, as distinct from the legal consequences, the applicable rules, and legal conclusions. Matters of fact must be established by competent and relevant evidence from witnesses, etc., and matters of law must be determined by authoritative sources of law aided by argument of counsel in the litigation.

Above all, an appeal on matters of fact makes room for the investigation at the hearing of the appeal of the evidence and the proper inferences from it – see Metal Construction (W.A.) Ltd. V. Migliore (supra). The subject matter of the libel action that led to this appeal is the letter written by Appellant to the Chairman of the Committee investigating non-payment of salaries at Adapalm.

It is clear from their pleadings (reproduced earlier) that the Parties joined issues on the fact that apart from the Members of the Committee, the Appellant published and circulated the letter to other persons, including Polycarp Attah. The Appellant denied publishing and circulating the letter to Polycarp Attah, or to any other person, and denied any knowledge of the said Polycarp Attah.

​The said Polycarp Attah, who testified for the Respondent as CW1, said Appellant sent him “the defamatory document’, and when he applied to tender it in evidence, the Appellant’s Counsel objected to its admissibility because – The document sought to be tendered is a photocopy. The whereabouts of the original has not been explained to make the document admissible as secondary evidence. By paragraph 3 of the Further Amended Statement of Claim, the fact relating to the document was pleaded. The fact so pleaded makes the document a public document.

By Section 91 of the Evidence Act, 2011, the Claimant is required to give Notice to Produce to the addressee of the document, namely, the Chairman investigating non-payment of workers’ salary at Adapalm. So, if the Notice had been given, the only copy that will be admissible of the document will be a certified true copy. A look at the document does not show any nexus with the Witness. It does not show it was copied to him. The Further Amended Statement of Claim describes the Witness as a staff of Adapalm while in his evidence, he claims to be the Chairman of the Landlords Association.

​The trial Court overruled the objection and held that the letter was admissible because it was “a personal memorandum”, written by the Appellant, therefore, it is “a private document”, which does not require certification. In affirming the trial Court’s finding, the Court of Appeal made the comment, which is the crux of the Appellant’s complaint in the Ground of Appeal, particularly, where it said: “The said Witness in his evidence stated that he received a copy of the document from the Appellant as Defendant, presumably, when copies were widely circulated by him.”

In the Particulars of Error, the Appellant specified that “this holding is contrary to the clear pleading of the Claimant”; and the Court of Appeal “was not entitled to any presumption”. The Ground of Appeal is a ground of mixed law and fact, and I am strengthened in this view by the Appellant’s argument in his Brief that: “It is our contention that the Court of Appeal was bound by the facts before it and was not competent to presume the existence of facts or make a case for the Respondent as it did at page 189 of the Records”.

​Obviously, to resolve the issue of whether the said letter is a private document or a public document, this Court would have to carry out an investigation of the pleadings vis-a-vis the evidence to ascertain the exact nature of the said letter, before considering the question of whether it is a private or a public document.

The Ground of Appeal in the Notice of Appeal filed by the Appellant is, without question, a ground of mixed law and fact. He did not obtain leave from the Court of Appeal or this Court before filing it. With no ground of appeal to sustain the appeal, the appeal must be struck out, and it is, hereby, struck out. I make no order as to costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Augie, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship that this appeal should be struck out.

This appeal has, for the umpteenth time, accentuated the importance of ensuring that a suit or an appeal does not raise any issue of Incompetence before the Court when raising Grounds of Appeal. This is with regard to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Section requires that where the questions involve facts or mixed law and facts, the leave of this Court or that of the Court of Appeal must first be sought and obtained.

It has also highlighted the cumbersome business of distinguishing between a ground of law simpliciter and a ground of mixed law and fact, in the process of raising grounds of appeal, as there is a very thin line of disparity between both, Ogbechie v. Onochie (No.1) [1986] 2 NWLR (pt. 23) 484; Nwadike and Ors v. Ibekwe and Ors [1987] LPELR-2087 (SC) 42-42; U.B.A Ltd v. Stahlbau GMBH and Co. [1989] 3 NWLR (pt. 110) 374, 391-392; Ajibade v. Pedro [1992] 5 NWLR (pt. 241) 257; Obatoyinbo and Anor v. Emmanuel Oshatoba and Anor [1996] LPELR-2156 (SC); Kashadadi v.

Noma [2007] 13 NWLR (pt. 1052) 510, 522.

​I have examined the sole ground of appeal against its particulars of error as contained in the Notice of Appeal. I agree that the Ground of Appeal, as contained in the instant Notice of Appeal, has raised at best, a ground of mixed law and facts and, therefore, requires leave of Court (that is, the leave of this Court or that of the Court below) as provided under Section 233 (3) (supra). I, therefore, agree that the sole ground of appeal is not a competent ground of appeal. It is, therefore, liable to be struck out. I hereby enter an order striking it out.

I wish to admonish counsel that it is always better to walk on the path of caution by seeking and obtaining leave of Court before filing a set of Grounds of Appeal. This must be so for there is considerable wisdom in the maxim abundans cautela non nocet – abundant or sufficient caution does no harm, F.B.N Plc v TSA Industries Ltd [2010] 15 NWLR (pt. 126) 247, 292. It follows then that the instant Notice of Appeal is incompetent for not having a competent Ground of Appeal in law.

The said Notice of Appeal must also be struck out, meaning that there is no competent appeal on this matter before this Court. I, therefore, enter an order striking out the appeal accordingly. I abide by all the orders contained in the leading judgment.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my learned brother AMINA ADAMU AUGIE, JSC. I agree with his Lordship’s reasoning and conclusion that the appeal should be struck out.

​This is an appeal against the concurrent findings of facts and conclusions of law of the two lower Courts. The Court of Appeal, Owerri Judicial Division, Coram: Frederick O. Oho (JCA); Raphael Chikwe Agbo (JCA); and Peter Olabisi Ige (JCA) delivered its judgment on the 26th day of May, 2016 wherein judgment was entered for the Respondent affirming the judgment of the trial Court, delivered by Hon. Justice Anunihu of the High Court of Imo State, on the 25th day of June, 2012.

Aggrieved by the decision of the trial Court to admit the document, the Appellant appealed to the Court below which after due consideration of the appeal, dismissed the appeal and upheld the decision of the trial Court and awarded the cost of N100,000.00 against the Appellant.

The facts that led to this appeal are as follows: The Respondent as claimant instituted an action against the Appellant as Defendant for an alleged libel contained in a document, which was a memorandum submitted to the panel set up by the Imo State Government to investigate the non-payment of staff salaries of Adapalm, a parastatal of the Imo State Government.

​At the trial before Justice Ikpeama, the Claimant sought to tender a photocopy of the said memorandum when the Defendant, who is the Appellant in this appeal, raised an objection to the admissibility of the document. That remained the position until the trial Judge was transferred to another Judicial Division from the Oguta Judicial Division. The suit eventually commenced de novo before Hon. Justice Anunihu, after amendments had been made to the pleadings of the parties.

On the 25/06/2012, the Claimant again re-opened his case by calling one Polycarp Attah as C.W.1. and the same photocopy of the memorandum sought to be tendered by the Claimant earlier, was then tendered by the said witness. Learned Defence Counsel as he did before, objected to the admissibility of the document on the ground that the document sought to be tendered was a photocopy for which no foundation had been laid for its admissibility. In addition, that even if such foundation had been laid, that as a Public Document only a certified true copy of the original was admissible.

The learned trial Judge in a considered ruling on the 25/6/2012 dismissed the objection raised by the Appellant and proceeded to admit the document as Exhibit “A”. Dissatisfied with the decision of the trial Court, the Defendant appealed to the Court of Appeal on 2/07/2012. The Appellant at the Court of Appeal settled two issues for determination to wit: a) Whether Exhibit A, a photocopy was admissible in evidence in the circumstances? And b) Whether the learned trial Judge was not wrong when he held that Exhibit A was not a public document.

The Court of Appeal dismissed the appeal; upheld the decision of the trial Court delivered and awarded the cost of N100,000.00 against the Appellant.

Aggrieved by that decision, the Appellant has appealed to this Court vide a Notice of Appeal filed on the 26/07/2016 and settled a lone issue for determination to wit: “was the Court of Appeal right in upholding the decision of the trial Court that Exhibit A was admissible”?

The Respondent adopted the lone issue settled by the Appellant under the following sub-issues: i. What is the document tendered and admitted as Exhibit A by the trial Court? ii. Is the said document pleaded by the Plaintiff? iii. Is it relevant to the case? iv. Is it a public document or a private document? v. Was the trial Court right to have admitted it and was the Court Below right to have upheld that decision?

​All these issues have been addressed by the Court of Appeal. this is an appeal against the concurrent conclusions of law by the two lower Courts to the effect that Exh A was properly admitted. The grounds of appeal filed on 26/7/16 in this Court, stated the following grounds and particulars: GROUND OF APPEAL The Court of Appeal erred in law when it held as follows: The said witness in his evidence stated that he received a copy of the said document from the Appellant as Defendant, presumably when copies were widely circulated by him.

There is no gainsaying the fact that the document received by the CW1 was adequately pleaded and is of course relevant to the suit and therefore admissible in evidence. In agreement with the lower trial Court on the issue, it would be absurd in the least to assume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated including the CW1 who had sought it in evidence in the course of trial.

It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of CW1 was the copy circulated to him. PARTICULARS OF ERROR<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

a) This holding is contrary to the clear pleading of the Claimant. b) The Court of Appeal was not entitled to any presumption. c) The document sought to be tendered is a photocopy of the document in the possession of an Imo State Government Agency, namely the Panel set up by the Government of Imo State to investigate the non-payment of staff salaries of Adapalm, a parastatal of the Government of Imo State. d) The only admissible copy of the document was the certified true copy. e) Apart from being relevant, the document must meet other conditions to be admissible. f) The holding was perverse and occasioned a miscarriage of justice.

My Lords, Section 233(2) and (3) of the 1999 Constitution (as altered) provide thus: An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases. a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person d) Decision in any criminal proceedings in which any person has been sentenced to death by the Court or Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court e) Decisions on any question- i) Whether any person has been validly elected to the office of President or Vice-President under this Constitution. ii) Whether the term of office of President or Vice-President has ceased. iii) Whether the term of office of President or Vice-President has vacant. iv) Whether any person has been validly elected to the office of Governor/or Deputy Governor under this Constitution. v) Whether the term of office of Governor or Deputy Governor has ceased vi) Whether the office of Governor or Deputy Governor has become vacant and f) Such other cases as may be prescribed by an Act of the National Assembly. (3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.

The decision of the Court of Appeal appealed against is not listed in Section 233(2) as one of the decisions of the Court of Appeal, which is appealable as of right. It is clear from the wordings of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the leave to appeal is obtained from either the Court of Appeal or this Court. See ENYIBROS FOOD PROCESSING COMPANY (NIG) Ltd & Anor v. N.D.I.C & Anor (2021) LPELR-55330 (SC); STANBIC IBTC BANK v.

LONGTERM GLOBAL CAPITAL LTD & Anor (2017) 18 NWLR Pt. 1598 Pg. 431; F.B.N. Plc v. T.S.A INDUSTRIES LTD (2010) 15 NWLR Pt. 1216 Pg. 247; MAIGORO v. GARBA (1999) 10 NWLR Pt. 624 Pg. 555. ​I agree with the reasoning in the lead judgment that the Ground of Appeal in the Notice of Appeal filed by the Appellant is, without question, a ground of mixed law and facts. Since the leave of the Court of Appeal or of this Court was not first sought and obtained before commencing this appeal, the notice of appeal and the appeal is unconstitutional and incompetent. The appeal is hereby struck out.

I abide by the order as to costs.

TIJJANI ABUBAKAR, J.S.C.: My lord and learned brother, AUGIE, JSC granted me the privilege of reading in draft, the elaborate leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add.

I also endorse all consequential orders including the order on costs.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, AMINA ADAMU AUGIE, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Judgment

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): In the Local Government elections conducted on 12th March, 2018 by the Oyo State Independent Electoral Commission (OYSIEC) (herein the 7th Respondent), the Appellants were elected for a definite term of 3 years after assuming the respective offices they were each elected into.

Ten (10) months into the terms of 3 years, the Appellants were to remain in office, the 1st Respondent purporting to act pursuant to Sections 11 and 21 of the Oyo State Local Government Law 2001, as amended, dissolved (in May, 2019) the democratically elected Local Government Councils. The Appellants were removed from their offices of, either, the Chairman of the Local Government Council (LGC) or as Councilors in the LGCs.

In anticipation of the intent of the Respondents to dissolve the duly elected LGCs, the Appellants firstly challenged in Court of law, the constitutionality of the powers vested in the 1st, 5th & 6th Respondents by Sections 11 & 12 of the Oyo State Local Government law to dissolve a duly elected LGC and remove democratically elected Local Government Chairman and/or Councilors and replace them with handpicked non-elected Transition/Caretaker Committees for being in violation of Section 7(1) of the 1999 Constitution, as amended. Their challenge came by way of Originating Summons.

The trial Court agreed with them that such power vested on the 1st, 5th & 6th Respondents to dissolve duly elected LGC and remove democratically elected Chairmen and Councilors, and replace them with unelected handpicked Transition/Caretaker Committees were ultra vires and unconstitutional. The trial High Court granted several declaratory reliefs and issued injunctive orders in support of the declaratory reliefs in favour of the Appellants.

On 29th May, 2019, in contempt of the judgment and orders of the Oyo State High Court, the 1st Respondent dissolved the elected LGCs in Oyo State. He then appointed unelected Care-Taker/Transition Committees to run and manage the affairs of the Local Governments throughout the State. Thereafter, just in mere fait accompli, the Respondents, after their contemptuous affront to the decision and orders of the Oyo State High Court, decided to appeal the judgment - apparently (maybe) to fulfil all righteousness.

On 15th July, 2020 the Court of Appeal (hereinafter called “the lower Court”) allowed the appeal, set aside the judgment and the orders made by the High Court, and consequentially struck out the suit for disclosing no reasonable cause of action. The lower Court had, in so doing, allegedly considered only the averments in the Respondents’ counter-affidavit. It is against this decision that the Appellants have appealed on 7 grounds of appeal.

The Respondents, by way of motion on notice filed on 4th November, 2020, raised Notice of Preliminary Objection to the competence of the appeal, which they wanted dismissed “in limine for being incompetent”. The motion was not moved nor was it argued. On the same 4th November, 2020 the Respondents (apparently 1st-6th Respondent, independent of the 7th Respondent) filed their joint brief wherein in paragraph 3 they challenged the competence of some specific grounds of appeal; namely: Grounds 2, 3, 4 and 5; and only particular (II) of Ground 7 of the Appellants’ 7 grounds of appeal.

The purported Preliminary Objection did not challenge the competence of grounds 1 & 6, and ground 7 (except its particular (ii)). The attack on particular (II) of ground 7 is on the ground that it raises a fresh issue. I am yet to see the fresh issue allegedly raised by particular (II) of ground 7 which in substance complains that the lower Court was wrong for, on the principle of stare decisis electing not to be bound by this Court’s decision in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1

I want to believe that the Preliminary Objection, purportedly argued by the Respondents (1st-6th Respondents) in their joint brief of argument, was brought pursuant to Order 2, Rule 9 of the extant Rules of this Court. A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine.

A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which Purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal: ADEJUMO & ORS v. OLUDAYO OLAWAIYE (2014) 12 NWLR (pt. 1421) 252 (SC); (2014) LPELR -22997 (SC).

It is my firm opinion that, since this is a Court of justice as well as law, a respondent cannot by improper procedure complain about the impropriety of the appellant’s process. Afterall, he who comes to justice must come with clean hands. A competent preliminary objection is the one raised in accordance with the due process of law -Order 2 Rule 9(1) of the Rules of this Court in the instant case. The purported preliminary objection, being incompetent, shall be and is hereby discountenanced in the instant appeal.

Let me briefly highlight the basis of the decision of the lower Court that has agitated the filing of this appeal. The Appellants, as Plaintiffs, in their Amended Originating Summons had averred in their supporting affidavit in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 to wit: 9. That the Government of Oyo State in 2016 amended the Local Government Law by creating 35 Local Council Development Areas as contained in the Oyo State of Nigeria Gazette No. 21 Vol. 41 of 20th October, 2016 to be manned by democratically elected individuals.

A copy of the Said Gazette is attached as “Exhibit A”. 10. That sometime in the year 2018 the Oyo State Independent Electoral Commission (OYSIEC) conducted election into the Local Government Councils and 35 Local Council Development Areas in Oyo State. 11. That I and other claimants participated in the said election by contesting for the position of Chairman and Councilors in our respective Local Government Areas. 12.

That I and the other claimants were elected as Chairmen and Executive Officers of Local Government Councils and Local Council Development Areas during the said election conducted by the Oyo State Independent Electoral Commission (OYSIEC) on 12th May, 2018. 13. That I and the other claimants having been declared the winner of our respective Local Government Areas and Local Council Development Areas were issued certificate of return by the Oyo State Independent Electoral Commission (OYSIEC).

Attached herewith as Exhibits B, B1, B2, B3, B4, B5, B6, B7, B8, B9 and B10 are the certificates of returns issued to some of the claimants. 14. That pursuant to our election and issuance of certificate of returns, myself and other claimants were subsequently sworn in as Chairmen and Councilors of our respective Local Government Councils and Local Council Development Areas. 15. That upon assumption of Office, we began to discharge our duties and functions in accordance with the relevant laws. 16.

That after the 9th March, 2019 election into State Houses of Assembly and Governorship election, the 1st defendant and top officers of his political party had a meeting on the political developments in Oyo State. 17. That at the meeting, the 1st defendant informed all the members at the meeting of his plan to remove the Chairman and vice chairman of the 33 Local Government Areas in Oyo State, dissolve the 33 Local Government Councils and appoint a transition Committee comprising loyal members of the party so as to restructure the political landscape of his party in the State. 18.

That the defendants are planning to dissolve all the Local Government Councils and Local Council Development Areas Oyo State and replace them with appointed persons known as transition committee. 19. That in view of the above, we then sought the legal advice of our Counsel, Mr. Kunle Sobaloju, Esq. in respect of the said plans of the defendants to remove the chairmen and vice chairmen and dissolve the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State. 20. That I was informed by our Counsel Mr.

Kunle Sobaloju, Esq., on Friday, 15th March, 2019 at his office at 30, Old Lagos Road, Ibadan and I verily believe him as follows: (i) That the defendants have no power or authority to dissolve any democratically elected Local Government Council in Oyo State or suspend or remove any person democratically elected into any Local Government Council and Local Development Areas in Oyo State. (ii) That Section 11 and Section 21 of the Local Government Law of Oyo State 2001 (as amended) violates Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, ultra vires, null and void. (iii) That any law, order or directive empowering the Governor Of Oyo State or any person whosoever to dissolve Local Government Councils and Local Council Development Areas in Oyo State whose tenure is yet to expire is unconstitutional, ultra vires, null and void. (iv) That the 1st defendant lacks the power to dissolve the executive council of all or any of the 33 Local Governments and 35 Local Council Development Areas in Oyo State. (v) That the 1st, 5th and 6th defendants also lack power to remove a democratically elected Local Government Chairman and Councilor in Oyo State. (vi) That it is necessary to approach this Honourable Court for the determination of the questions raised in our originating summons by which his suit was commenced. 21.

That unless the questions raised in the originating summons is determined and reliefs sought are granted, the unlawful, unconstitutional and wrongful provisions of Section 11 and Section 21 of the Local Government Law of Oyo State, 2001 (as amended) will be employed by the defendants to carry out their plan to dissolve all democratically elected Local Government Council in Oyo State in disregard to the Constitution and to the detriment of myself and other claimants.

​The Defendants, the Respondents herein, filed a joint counter-affidavit wherein in one breath, in paragraph 3 particularly, they denied as false all the averments in paragraphs 2, 16, 17, 18, 20(i), (ii), (iii), (iv) & (v), 21, 22 and 23 of the supporting affidavit. In paragraph 4 of the counter-affidavit the Defendants further aver that “paragraphs 17 and 18 of the supporting affidavit are speculative and futuristic”. In another breath, they averred in paragraph 5 thereof - 5.

That in response to paragraph 20 (i, ii, iii, iv, v) of the claimants’ affidavit in support of the Originating summons, I know as a fact that the Local Government Law of Oyo State empowers the 1st Defendant to dissolve the executive of the Local Government Councils.

In apparent acknowledgment of the unconstitutionality of a similar provision in the Local Government Administration Law of Ekiti State struck down in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1, the Defendants, in paragraphs 6 of the counter-affidavit, wit - 6. That I was further informed by the 2nd defendant at the same time and place. i. That of recent, the defendants have become aware of the decision of the Supreme Court in respect of a similar provision empowering the defendants especially the 1st defendant to dissolve local government councils in the state. ii.

That the defendants are aware that the Supreme Court has in its recent decision against the Government of Ekiti State struck down a similar provision as the ones being challenged in this suit as unconstitutional. iii. That the defendants are law abiding institutions of Government and will always abide by the Rule of Law and lawful judgments of superior Courts of records especially the Supreme Court of Nigeria. iv.

That the defendants acknowledge the Claimants were elected into office on 12th May, 2018 in a validly conducted election and recognize that the Claimants have a 3 year tenure under their enabling Local Government laws of Oyo State. v. That other than as provided by the constitution, and by constitutionality recognized means, the defendants do not intend to summarily dissolve the Councils of Local Government Councils, Local Council Development Areas, nor suspend the Claimants from office as suggested by the claimants. vi.

That the Court remains the arbiter of disputes between parties and the interpreter of statutes, whose interpretation and pronouncement, and the defendants have always sought to abide with and where the defendants disagree, only explore the unconstitutional process of appeal. viii. That it will be in the interest of justice that this Honourable Court resolves the Claimants’ Originating Summons and the reliefs sought therein in favour of constitutionality and the Rule of Law.

It is thus clear that both the claimants and Defendants are ad idem that the matter the claimants were “bringing to the attention of the Court to indicate the rule of law and get the unlawful conduct stopped” - to borrow the words of Lord Diplock in INLAND REVENUE COMMISSIONERS v. NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL SCALE BUSINESSES LTD (1982) A.C. 617 (HL) at 644, is the unconstitutionality of the law permitting or empowering the Governor to dissolve a democratically elected Local Government Council and appoint Caretaker Committee in its place.

​The claimants in their Amended Originating Summons had entreated the trial Court to determine the following questions, that is- 1.

Whether the provision of Section 11 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Executive Governor of Oyo State to nominate Transitional Committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State of which the claimants are democratically elected Chairmen, Councilors and members otherwise than in accordance with relevant constitutional and statutory provisions and which empowers the Oyo State House of Assembly to determine the term of the transitional committee is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever? 2.

Whether the provision of Section 21 Of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of Chairman or Vice Chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever? 3.

Whether in view of the combined effect of Sections 7 and Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st, 5th and 6th defendants have the power to appoint Transition Committee for a term determinable by the 6th defendant contrary to the democratic Local Government System guaranteed by the constitution?

They thereafter sought the following reliefs - 1.

A DECLARATION that Section 11 of the Local Government Law of Oyo State, 2001 (as amended) are in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus unconstitutional, ultra vires, null and void and of no effect to the extent that it empowers the Executive Governor of Oyo State to nominate a Transitional Committee to run the affairs of the Local Government Council and which empowers the Oyo State House of Assembly to determine the term of the transitional Committee contrary to the democratic system of Local Government guaranteed by the constitution. 2.

A DECLARATION that the provision of Section 21 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of a chairman or vice chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever. 3.

A DECLARATION that any law, order or directive empowering the Governor of Oyo State, the Oyo State House of Assembly or any person whatsoever to suspend or remove a Chairman, Vice Chairman or any democratically elected into Local Government Council or Local Council Development Area in Oyo State or to appoint a transition committee or any committee to run the affairs of Local Government in Oyo State before the expiration of the tenure of democratically elected members of the council or for an indefinite period is in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus unconstitutional, ultra vires, null and void. 4.

A DECLARATION that by virtue of the combined effect of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001, the 1st and 6th defendants have no power to suspend or remove a Chairman, Vice Chairman or any other person democratically elected into the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State before the expiration of their tenure. 5.

A DECLARATION that by virtue of the combined effect of Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st and 6th Defendants have no power to nominate or appoint a transitional committee to run the affairs of any local government for any desired term in breach of the aforesaid constitutional provisions which guarantees a democratic system of local government. 6.

A DECLARATION that the tenure of the claimants is statutorily set at 3 years with effect from the date they took their respective oath of office. 7.

AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant, his servants, agents, privies or any person whomsoever from dissolving the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or removing, suspending, terminating and/or doing anything whatsoever to truncate the tenure of the claimants except in accordance with the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 8.

AN ORDER OF PERPETUAL INJUNCTION restraining he Defendants, their servants, agents, privies or any person whosoever from dissolving the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State. 9.

AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, privies or any person whomsoever from withholding or diverting the allocations, funds and resources of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas of Oyo State. 10.

AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, privies or any person whomsoever from appointing a transitional committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.

The lower Court was told by the Counsel for the Claimants (respondents before that Court) that “the cause of action in this case was primarily the application of Sections 11 and 21 of the Local Government Law of Oyo State and the decision of the 1st (Defendant) to dissolve the democratically elected Local Government Chairmen and Councilors. That this is clear from the questions for determination, the accompanying affidavits and the reliefs sought.

In other words, that the issue for the determination in this case before the trial Court boils down to the validity of Sections (11 and 21) of the Local Government Law and nothing more”. That is, whether Sections 11 and 21 of the Local Government Law of Oyo State were not inconsistent with the provisions of Section 7 of the Constitution. From paragraph 6 of the counter-affidavit, the Defendants seemed to agree with the Claimants that the only issue in the Originating Summons is: whether Sections 11 and 21 of the Local Government Law are inconsistent with 7 of the 1999 Constitution, as amended.

The Defendants had prefaced their averments with the acknowledgement that this Court, in GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra), had struck down provisions of the Local Government Administration Law of Ekiti State similar to Sections 11 and 21 of the Oyo State Local Government Administration Law.

In its judgment at pages 562-563, the lower Court seemed to acknowledge “that it may well be so, – that (the) Claimants - had approached the trial Court for the determination of the constitutionality and validity of Sections 11 and 21 of the Local Government Law of Oyo State”. It nonetheless insisted that “before the Court could proceed on the determination of the question(s) presented before it by the (Claimants), there must be facts which will act as trigger for the (Claimants) to exercise their right of action”.

It insisted, even inspite of the Claimants contending, and the Defendants seemingly conceding, that Sections 11 and 21 of the Local Government Law, as enacted by the House of Assembly of Oyo State were ultra vires Section 7 of the Constitution, that there was not enough cause of action shown by them to cloth the Claimants the right to challenge or question the validity and constitutionality of the provisions.

This is coming notwithstanding the Defendants fence-sitting admission that similar provisions in the Ekiti State Local Government Administration Law were struck down by this Court for being unconstitutional and invalid. The lower Court, in my view, had clearly got it wrong here and consequently came to the wrong conclusion that the Claimants’ “claim in the Originating Summons was premised on mere speculation, conjecture and suspicion thereby not disclosing any reasonable cause of action”.

​The existence of Sections 11 and 21 of the Oyo State Local Government Law is as real and factual, as the existence of Section 7 of the Constitution (the grundnorm) that proclaims, in its Section 1, its supremacy to any other law, including the Oyo State Local Government Law, and declares poignantly, in Sub-section (3) thereof that - (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. ​The Claimants, the present appellants, were duly elected as Local Government Chairmen and Councilors in their respective Local Government Areas.

They were incumbents in those their respective offices. The counter-affidavit did not deny these facts. They had the right to remain in and perform their respective offices for the three year tenure the electorates gave them as part of their mandate. They had alleged that unless Sections 11 and 21 of the Local Government Law were nullified, as being ultra vires Section 7(1) of the Constitution and therefore unconstitutional; the Defendants may invoke them to arbitrarily truncate their democratic mandate.

That is the question of the rule of law they had drawn the attention of the Court of law to, and were seeking the Court to stop the alleged unlawful conduct of the Defendants. The Courts, under Sections 6(6)(b) and 17(2)(e) of the Constitution, have been set up to grant to easy accessibility thereto entertain all questions between persons and Government or authority “for the determination of any question as to the civil rights and obligations of that person”.

The general qualification for judicial review of administrative actions is that the Claimant or the applicant must have the standing or locus standi to challenge the administrative action. He must have an interest cognissable in that he has been sufficiently affected by the administrative action; and for the case to be “ripe” for adjudication or judicial consideration the issues involved must be real, present and imminent; and not merely abstract or hypothetical: Cases and Materials on Administrative Law in Nigeria - lluyomade & Eka, 2nd Ed. (1992) page 98.

In the instant case, the enactment of Sections 11 and 21 of the Local Government Law by the House of Assembly (6th Defendant) empowering either the Governor (1st Defendant) or the House of Assembly to truncate the tenure of democratically elected Local Government Councils, and in their place to appoint unelected Caretaker Committees, poses real threat to those elected Local Government Chairmen and Councillors. The issue, viewed particularly viz-a-viz Section 7(1) of the Constitution that guarantees the system of democratically elected Local Government Councils, is real and live.

It is neither hypothetical nor academic. When a party has locus standi to request adjudication he is said to have the right, in law, to seek the adjudication upon a legal grievance or cause of action: ADESANYA v. THE PRESIDENT OF NIGERIA (1981) 2 NCLR 358 at 393. The cause of action discloses the facts from which it could be ascertained whether there is an infringement or violation of the civil rights or obligations of the Claimant which, if established before the Court, entitles him to the relief or remedy sought: FAWEHINMI v.

AKILU & ANOR. (1987) 12 SC 136; (1987) 4 NWLR (pt. 67) 797 (SC); OLORIODE v. OYEBI (1984) 1 SCNLR 390; THOMAS v. OLUFOSOYE (1986) 1 NWLR (pt. 18) 669. The Claimants’ cause of action and their right to approach the Court to seek redress were even more real and imminent than that of the Plaintiff in FAWEHINMI v.

BABANGIDA (2003) 3 NWLR (pt. 808) 604 (SC) who, a lawyer, upon the constitution and appointment of a judicial commission of inquiry called the Human Rights Violations (Investigation) Commission, by the President of the Federal Republic of Nigeria, pursuant to the powers said to have been derived under Section 1 of the Tribunals of Inquiry Act, 1966, challenged the constitutionality and validity of the Act.

He had sought, amongst others, a “declaration that the Tribunals of Inquiry Act No. 41, 1966 is not an enactment on any matter with respect to which the National Assembly is empowered to make laws under the Constitution of the Federal Republic of Nigeria, 1999 and it accordingly took effect as a law (deemed) enacted by the House of Assembly of a State” - the National Assembly not having been empowered by the said Constitution to enact laws in respect of residual matters outside both the Exclusive and the Concurrent Lists under Section 4 of the Constitution.

Recognising his locus standi and right in law to raise the issue of the rule of law this Court held that since every Nigerian has a duty to ensure that we are governed by laws validly enacted, in accordance with the Constitution; a citizen who challenges the constitutionality of a statute, allegedly enacted in a manner inconsistent with the Constitution, has locus standi to raise the issue: his cause of action being the alleged unconstitutionality of such statute.

The alleged unconstitutionality of a provision(s) of a statute gives the citizen the right to direct and a easy accessibility to the Court to be heard by the Judge on the issue: CENTRE FOR OIL POLLUTION WATCH v.

NNPC (2018) LPELR - 50830 (SC). ​The judicial powers of the Court, by virtue of Section 6(6) (b) of the Constitution, after all, “extend to all matters between persons, or between Government and authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” The Claimants, in the instant case, derived their mandate from the electorates (and not the Defendants) to manage the affairs of their respective Local Government Councils for 3 years on behalf of the people who elected them.

Sections 11 and 21 of the Local Government law, which they alleged are inconsistent with Section 7(1) of the Constitution, posed and continue to pose real, imminent and ominous threat to the security of their tenure. Sections 11 and 21 of the Law, unless lawfully quashed, remain a perpetual threat hanging over their heads like the sword of Damacles, thus subjecting them to the whims and caprices of the Governor and the House of Assembly.

The danger, if not hazard, posed by Section 11 and 21 of the Local Government Law to the system of democratically elected Local Government Councils was/is real and imminent.

It was/is not speculative, as the lower Court erroneously held to deny the claimants access to Court. ​It is not enough, the lower Court reasoned, in order to deny the claimants the right of access to the Court, that they merely averred that they heard, by rumour, the intent of the Governor, the 1st Defendant, to dissolve the democratically elected Local Government Councils in the State; remove the Chairmen and Councillors, and replace them with a system of unelected Caretaker/Transition Committees.

The existence in the statute books, or corpus juris, of Oyo State of the provisions in Sections 11 and 21 in the Local Government Law itself poses real, actual and legal threat to the security of tenure, and indeed the existence, of a system of democratically elected Local Government Councils. It is interesting to note that the Defendants, in their counter-affidavit, acknowledged that this Court had struck down a similar provision in Ekiti State Local Government Administration Law (in the OLUBUNMO case (supra)).

The provisions were said to be inconsistent with Section 7 of the Constitution and invalid -a situation analogous to the situation in FAWEHINMI v. BABANGIDA (supra). The lower Court, in the circumstances, should have been more liberal than the stance it took.

In this regard, therefore, a Court, when it has been called upon to decide whether a claimant or an applicant for judicial review has sufficient interest in the matter to which the suit is related, should take into consideration, in exercise of its judicial discretion, the nature of the litigant, the extant of his interest in the issues raised, the remedy he seeks to achieve and the nature of the reliefs sought: R. v. INSPECTORATE OF POLLUTION & ANOR, EXP. P.

GREENPEACE LTD. (No. 2) (1994) 4 All E.R. 329. ​The question the lower Court should have asked itself, but failed to ask, is: whether the claimants were genuine claimants seeking the Court to decide whether Sections 11 and 21 of the Local Government Law were ultra vires Section 7(1) of the Constitution? His Lordship, Pats Acholonu, JSC in LADEJOBI v.

OGUNTAYO (2004) 15 NWLR (pt. 904) 149 (SC) at page 171 stated that it is important to always bear in mind that ready and easy access to the Court for the determination of his civil rights and obligations by a genuine claimant is one of the attributes of civilised legal system. For a genuine Claimant, not a busy-body, easy accessibility to the Court for the determination of his civil rights and obligations is a basic constitutional right, by virtue of Sections 6(6)(b) and 17(2)(c) of the Constitution.

It is for this reason that his Lordship, Pats Acholonu, JSC (supra) warned that limiting the opportunity for citizens to seek redress in Courts of law by rigid adherence to the principle of locus standi (which is whether a person has the standing to sue and seek redress in Court) could be dangerous. ​At the time the claimants (Appellants herein) took out their Originating Summons Sections 11 and 21 of the Local Government Law, in view of Section 7(1) of the Constitution, posed a real, imminent and actual threat to their tenure as elected Chairmen and Councillors.

They were, in my view, genuine claimants seeking an answer as to whether Sections 11 and 21 of the Local Government Law were/are inconsistent with the Constitution. The mere fact that they apparently sought to know and/or insist that they be governed by laws validly enacted in accordance with the Constitution makes them genuine claimants like the plaintiff in FAWEHINMI v. BABANGIDA (supra). In the English case: INLAND REVENUE COMMISSIONERS v.

NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD (HL) (supra) Lord Diplock was of the opinion that the plaintiffs, who requested adjudication on whether a public authority can condone illegality by abdicating or shirking its statutory responsibility, had genuine and real cause of action; and that they had sufficient interest in ensuring that public authorities or corporations submit to the rule of law, and further that no public authority has power to, arbitrarily and with impunity, break the law or the general statute.

This INLAND REVENUE COMMISSIONERS’ case (supra) is almost on all fours with what the claimants (Appellants herein) had sought at the trial Court. They had raised the question: whether the Governor of Oyo State and the House of Assembly of Oyo State, respectively the 1st and 6th Defendants, can, with impunity, breach the Constitution of the Federal Republic of Nigeria and/or whether by outright outlawry they earned a right not to submit themselves to the rule of law? In MILITARY GOVERNOR OF LAGOS STATE v.

OJUKWU (1986) 1 NWLR (pt. 18) 621 (SC); (1986) LPELR-3186 (SC) at 21-22, Obaseki, JSC, speaking about the rule of law stated thus - The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognised rules and principles which restrict discretionary power which Coke colourfully spoke as “golden and straight and of law as opposed to the uncertain and crooked cord of discretion”. See 4 Inst. 41.

More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are independent of the executive.

The suit challenging the near absolute discretion, in the toga of arbitrary powers, given to the Governor and the House of Assembly by Sections 11 and 21 of the Local Government Law, to dissolve duly elected Local Government Councils in democratically conducted Local Government elections, which provisions vesting these powers are said to be ultra vires and inconsistent with Section 7(1) of the Constitution cannot be said to be speculative, as the lower Court erroneously held.

Accordingly, the decision or order of the lower Court striking out the suit and consequentially setting aside the decision and orders of the High Court of Oyo State (in the suit No. 1/347/2019, delivered on 6th May, 2019) made in favour of the claimants for, allegedly, not disclosing any reasonable cause of action/or and sufficient interest for approaching the trial Court, is hereby set aside.

It appears, from page 564 of the records, that the only distinction the lower Court found between the instant case and the GOVERNOR OF EKITI STATE v.

OLUBUNMO & ORS (supra) is the fact that; while in the OLUBUNMO case “the Governor of Ekiti State actually dissolved the Local Government Councils and removed the Chairmen, there is no such claim in this case”, and that “the claim here is that (Governor) planned to dissolve the councils and remove the (claimant) from office” and further that “there is no fact pleaded in the affidavit in support of the Originating Summons that the (Governor) planned to dissolve the councils”. It is on these grounds that the lower Court found that the suit was founded on speculation and mere conjecture.

The Respondents, capitalising on that finding, submitted “that the lower Court rightly distinguished the fact of the case in GOV. EKITI STATE v. OLUBUNMO from the fact of this case herein which is based on speculative apprehension” that the claimants will be removed from their respective offices by the dissolution of the Local Government Councils “without any verifiable facts as to the positive acts from the (Defendants) that threaten their offices”.

I had earlier in this judgment opined that the mere existence in the statute books of Oyo State of the provisions of Sections 11 and 21 of the Local Government Law, enacted in conflict, or inconsistent, with Section 7 of the Constitution, is like the Sword of Damacles hanging over the head of the claimants, and thus constituting or posing a real and imminent threat or danger to the security of the tenure they enjoyed by the fact of the mandate they each received from the electorates in consequence of the democratic elections.

The Respondents’ Counsel seemed to have spinelessly shifted their position. Their clients, the Defendants Counselled by them, had in their counter-affidavit averred that they knew “as of fact that the Local Government Law of Oyo State empowers the Governor to dissolve the executive of the Local Government Councils” and that they know, also as of fact, that “the Supreme Court has in its recent decision against the Government of Ekiti State struck down a similar provision as the ones being challenged in this suit as unconstitutional”.

From this point thenceforth, the honourable thing the defence counsel had to do was to sum up his professional courage and submit to judgment, the issues in GOVERNOR OF EKITI STATE v. OLUBUNMO (supra) and the instant case being substantially the same, on the basis of stare decisis in the principle of judicial precedence. The defence counsel (particularly at the lower Court and here), however, persisted inspite of the admissions in their counter-affidavit above referred.

By so doing they, as officers of the Court, enjoined by Rule 30 of the Rules of Professional Conduct for Legal Practitioners, 2007, “not to do any act or conduct himself in any manner that may - delay or adversely affect the administration of justice, had buckled under. A counsel, when he appears in Court in a matter in his professional capacity, shall not deal with the Court otherwise than candidly or fairly. In presenting a matter to the Court in that capacity, he “shall disclose any legal authority in the jurisdiction known to him to be directly adverse to the position of his client”.

In that capacity, also, counsel before the Court in a matter, shall not “promote a case which to his knowledge is false”. See Rule 32(1), (2)(a) & 3(j) of the same 2007 Rules of Professional Conduct. The counter-affidavit has seriously indicted the defence Counsel in this regard.

Consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue: COMPTROLLER GENERAL OF CUSTOM & ORS v. GUSAU (2017) 4 SC (pt. II) 128; (2017) 18 NWLR (pt. 1598) 353 (SC). No matter how powerful the client is or viable the brief, a counsel should always be worth his professional honour and pride to speak the truth and conduct the matter professionally. It is always right to follow the scripture and the teaching: what does it profit a man to gain the whole world and lose his soul?

The lower Court’s distinction of GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra) from the instant case is just mere distinction without a difference. The issues in both cases are whether the Governor of a State can dissolve a democratically elected Local Government Council and appoint his handpicked lackeys, constituting them as Caretaker or Transition Committee, to administer and manage the affairs of the Local Government in an uncouth and unbridled impudence to Section 7 of the Constitution, providing that “the system of Local Government Council is under this Constitution guaranteed”.

It was held in GOVERNOR OF EKITI STATE v.

OLUBUNMO (supra) that Section 23B of the Local Government Administration of Ekiti State (similar in all intents and purpose to Sections 11 and 21 of the Oyo State Local Government Law) was not intended to ensure the existence of a system of democratically elected Local Government Council, but merely to snap their continued existence by their substitution with caretaker committee; that the provision was enacted in clear breach of Section 7(1) of the Constitution, and further that to that extent it (Section 23B, supra) cannot co-habit with Sections 7(1) and 1(3) of the Constitution read together.

Several other previous decisions of this Court on the same point were cited with approval. They include EZE & ORS v. GOVERNOR, ABIA STATE & ORS (2014) 14 NWLR (pt. 1462) 192 (SC); ATTORNEY-GENERAL, PLATEAU STATE v. GOYOL (2007) 16 NWLR (pt. 1059) 94 (SC); ATTORNEY-GENERAL, BENUE STATE v. UMAR (2008) 1 NWLR (pt. 1068) 311 (CA). The law on this point or issue is now well established, and it is no longer a scholarly secret that a democratically elected Local Government Council does not exist at the pleasure, whims and caprice of either the Governor or the House of Assembly.

The misconception by the State authorities that the constitution does not intend to grant and guarantee autonomy to the Local Government is only a brain wave nurtured by sheer aggrandisement and meglomaniac instinct to conquer and make the Local Government mere parastatals of the State. That is the very mischief Section 7(1) of the Constitution has set out to address, and it must be so read and construed purposefully. The Constitution and its provisions are to be read and construed broadly and liberally to promote their purpose: NAFIU RABIU v. THE STATE (1980) 8-11 SC 130; ONYEMA v.

OPUTA (1987) 6 SC 362 at 371. Thus, as Nweze, JSC, had put it in GOVERNOR OF EKITI STATE v OLUBUNMO (supra), the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically donated to the Local Government Chairman and Councillors EZE & ORS v. GOVERNOR, ABIA STATE (supra).

Finally, I agree with the Appellants, the claimants at trial, that the lower Court was wrong not to follow and be bound by the authoritative pronouncements of this Court in GOVERNOR OF EKITI STATE v. OLUBUNMO (supra) on the core issue before it. That is whether the Governor of Oyo State can dissolve democratically elected Local Government Councils and replace them with unelected Caretaker Committees; which question this Court had previously answered negatively, and firmly too.

I will not conclude this appeal without commenting on the disturbing ugly face of impunity displayed by the Governor of Oyo State, 1st Respondent herein, on 29th May, 2019, tantamounting to executive lawlessness, outrightly and vehemently condemned by this Court in THE MILITARY GOVERNOR OF LAGOS STATE v. OJUKWU (supra). This Court has always insisted that the Nigerian Constitution is founded on the rule of law; the primary meaning of which is that everything must be done according to law.

The trial Court on 6th May, 2019 issued its judgment in the suit of the Appellants, as claimants; and granted to them the declaratory reliefs and the injunctive orders sought in their Originating Summons. In exercise of their inalienable constitutional right of appeal, assured also by Sections 241 and 242 of the Constitution, the Defendants, the Respondents herein which included the Governor of Oyo State, filed their joint Notice of Appeal on 21st June, 2019 to express their dissatisfaction with the decision of the trial Court to the Court of Appeal.

But before then, particularly on 29th May, 2019, the Governor of Oyo State, herein the 1st Respondent, had issued imperial directives dissolving all democratically elected local Government Councils in Oyo State in spite of the subsisting judgment of Oyo State High Court in the suit No. 1/347/2017. I repeat, the Governor of Oyo State was the 1st Defendant in that suit.

Series of applications were filed by the judgment creditors, the present Appellants, to restrain, particularly the 1st Respondent (the Governor), from embarking on the self-help designed to contemptuously frustrate the judgment of the High Court. He was not dissuaded. He proceeded in his imperial omnipotency to continue in his untrammeled, albeit invidious contemptuous, disregard of subsisting judgment of the High Court. It is unthinkable that a democratically elected Governor would embark on these unwholesome undemocratic tendencies.

These tendencies no doubt endanger democracy and the rule of law.

​It is almost becoming a universal phenomena that the democratically elected Governors have constituted themselves a specie most dangerous to democracy in this Country. They disdainfully disregard and disrupt democratically elected Local Government Councils and appoint their lackeys as caretaker committees to run affairs of the Local Governments. It should be reiterated as Abdullahi, PCA and Ndukwe-Anyanwu, JCA did say, respectively in ABUBAKAR v. A. G., FEDERATION (2007) 3 NWLR (pt. 1022) 601 (CA) at 619 and A. G. BENUE STATE v.

UMAR (CA) (supra) at 363, that an elected person is not an employee of anybody except the electorate that voted him in. It is only the electorate that can fire him. Democratic elections should always be sacrosanct in this Country, like in any other Country, for democracy to thrive. Local Government Chairman and Councillors, being persons duly elected by the people cannot just be removed and their councils dissolved whimsically and arbitrarily by any other elected persons in clear abuse of their office and powers. It is not right in law and under the Constitution to do that.

​This is a proper case for invocation of Section 22 of the Supreme Court Act, 2004. The Claimants/Appellants were elected and were to hold their respective offices for 3 years commencing from 12th May, 2018 - the tenure which has since elapsed. Their tenure was summarily, albeit illegally and unconstitutionally, truncated on 29th May, 2019 upon the Governor’s directive. They had, each, at least 23 months to run out their term of 3 years. Since they can no longer be reinstated to complete their respective terms; the Appellants, on the basis of ubi remediurn cannot go without any remedy.

On the authority of A.G. BENUE STATE v. UMAR (SC.199/2007 of 15TH April, 2008); GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra) together with Section 22 of the Supreme Court Act, it is hereby ordered that the Claimants/Appellants be each paid the salaries and allowances they were each entitled to be paid for the balance of the period from 29th May 2019 ending on 11th May, 2021, when the respective tenures they were elected for would end. The 1st Defendant/Respondent, Government of Oyo State, shall forthwith pay the said salaries and allowances of the claimants/Appellants as ordered.

The Attorney-General of Oyo State, the 2nd Respondent herein (being also an authority or person charged mandatorily or obligated by Section 287 of the Constitution to enforce decisions and orders of Courts), shall cause to be filed, on or before 7th August, 2021 an affidavit (under the hand of the incumbent of that office) attesting to the payment of the salaries and allowances hereby ordered to be paid to the Claimants/Appellants in compliance with this order(s).

Costs at N20,000,000.00 shall be paid to the Appellants by the 1st Respondent. Appeal allowed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother, EJEMBI EKO, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal has merit and should be allowed.

The facts of the case have been adequately summarized in the lead judgment. I adopt the summary. His Lordship has also dealt most comprehensively with the issues in contention in this appeal. I can hardly improve on the exercise. I shall however make some brief comments for emphasis and to show my support.

In setting aside, the judgment of the Oyo State High Court delivered on 6/5/2019 and striking out the appellants’ Amended Originating Summons filed on 8/4/2019, the Court below held, inter alia, per Tsammani, JCA: “On that note, I have come to the conclusion that the Respondents’ claim in the Originating Summons is premised on mere speculation, conjecture and suspicion thereby not disclosing any reasonable cause of action.

In the instant case, the affidavit in support of the Originating Summons does not disclose the existence of any legal controversy between the Respondents and the Appellants. … without a reasonable cause of action, the Court cannot exercise jurisdiction over the matter… The suit not having disclosed a reasonable cause of action is incompetent and liable to be struck out.”

​What is a reasonable cause of action?

In the case of Thomas vs Olufosoye (1986) NWLR (Pt. 18) 669 @ 682 His Lordship, Obaseki, JSC stated thus: “Lord Pearson in Drummond – Jackson Vs British Medical Associated (1970) 1 WLR 688; (1970) 1 ALL ER 1094 C4 defined “a reasonable cause of action as meaning a cause of action with some chance of success when only the allegations in the pleading are considered.” The practice is clear, So long as the statement of claim or the particulars disclose some question fit to be decided by a Judge or Jury the mere fact that the case is weak and not likely to succeed is no ground for striking it out… where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination the statement of claim will be struck out and the action dismissed.” A cause of action has also been defined as: “Every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court.

It does not comprise every piece of evidence which is necessary to be proved.” See: S.P.D.C. Nig. Ltd. & Anor. vs X.M. Fed. Ltd and Anor. (2006) LPELR-3047 (SC) 11-14 E-F; (2006) 16 NWLR (Pt. 1004) 189.” See also: Lasisi Fadare & Ors Vs A.G. Oyo State (1982) 1 ALL NLR (Pt. 1) 4 @ 41: Rinco Construction Co. Ltd. Vs VeePee Industries Ltd. & Anor. (2005) LPELR-2949 (SC) @ 14 E-G.

Both parties in this appeal are ad idem as to the fact that, by their Amended Originating Summons, the appellants were seeking a determination as to the validity of Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) vis-a-vis Section 7 of the 1999 Constitution, as amended.

Section 7(1) of the 1999 Constitution, as amended provides: “The system of local government by democratically elected local government councils is under this constitution guaranteed;

and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such councils.” (Underlining mine) Section 1 (1) and (3) of the Constitution provides: “1. (1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency be void.” ​Now, Section 11 of the Local Government Law of Oyo State empowers the 1st respondent to set up a 7-member transitional committee, one of whom shall be the chairman to run the affairs of the Local Government Council where its tenure has expired and no election has been held to reconstitute it or where it has become “impractical to immediately conduct elections” to fill the vacancies thereby created.

Section 21 further empowers the 1st respondent to suspend or remove from office, any democratically elected chairman or vice chairman. The appellants herein were democratically elected chairmen and councillors and represent all other democratically elected chairmen and councillors of the Local Government Areas and Local Government Development Areas of Oyo State, who had been sworn into office and, at the time of the suit, were already discharging the functions of their office.

By their averments in the affidavit in support of their Amended Originating Summons, there was an imminent threat of the dissolution of the Local Government Councils and the imposition of a hand-picked transition committee to run the affairs of the council for an unspecified period. It was the contention of the respondents that the allegation was speculative and unfounded and therefore could not found a cause of action. The lower Court, as observed earlier, agreed with them. ​With the greatest respect to the Court below, this cannot be correct.

In determining whether the suit discloses a reasonable cause of action, the Court must have recourse to the originating processes alone i.e. the Writ of Summons and Statement of Claim or the Originating Summons and support affidavit. What the originating process must show is that there is a question fit to be decided by the Court and that the applicants have a legal right to be protected.

In the circumstances of this case, I am of the considered view, that the mere existence of Sections 11 and 21 of the Local Government Law of Oyo State, as amended, is like the sword of Damocles hanging over the appellants’ heads, waiting to be wielded at the whims and caprices of the 1st Respondent. Section 6(6) (b) of the 1999 Constitution, as amended, provides: “6.

The judicial powers vested in accordance with the foregoing provisions of this Section - (b) shall extend to all matters between persons, or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” ​The Constitution of the Federal Republic of Nigeria, 1999, as amended, is the Grundnorm. It is the fountain from which all other laws derive their legitimacy. It admits of no rivals, as shown in Section 1(1) and (3) thereof.

A determination by the Court as to whether Sections 11 and 21 of the Local Government Law of Oyo State are in violation of Section 7 of the Constitution, is a live issue and certainly constitutes a reasonable cause of action. As I have observed, the mere existence of those provisions and their potential invocation by any governor at any time, to truncate their tenure as democratically elected chairmen and councillors, constitutes a cause of action. Their tenure of office is a right they can protect.

I agree entirely with my learned brother, EJEMBI EKO, JSC, that Sections 11 and 21 of the Local Government Law of Oyo State 2001, as amended, are in clear violation of Section 7 of the 1999 Constitution, as amended. Pursuant to Section 1(3) of the Constitution, the said provisions are null and void to the extent of their inconsistency with Section 7 thereof.

​For these and the more detailed reasoning in the lead judgment, I find merit in this appeal. It is accordingly allowed by me. I adopt all the consequential orders made including the order on costs. Appeal allowed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Ejembi Eko, JSC, afforded me the opportunity of reading before now, the lead judgment just delivered and I entirely agree with his reasons and conclusion. I shall make a few comments of my own in support of the lead judgment.

The main issue in this appeal is whether in the light of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Executive Governor of Oyo State can rely on Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) to dissolve a democratically elected Local Government Council and replace them with Unelected Caretaker or Transitional Committee.

The Supremacy of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is provided in Section 1(1) and (3) thereof to the effect that if any other law is inconsistent with the provisions of the Constitution, such law shall to the extent of the inconsistency be void. See the case of Akpambo-Okadigbo v Chidi (No.1) (2015) 10 NWLR (pt. 1466) 171 at 200; Coca-cola (Nig) Ltd v. Akinsanya (2017) 17 NWLR (pt 1593) 74 at 117-118, Kayili v Yilbuk (2015) 7 NWLR (pt 1457) page 26 at 55 – 56.

The existence and administration of Local Government Councils in Nigeria are guaranteed by Section 7 of the Constitution and their functions enumerated in the Fourth Schedule thereto and such other functions as may be conferred on the council by the House of Assembly of a State. Any law therefore which seeks to limit the full exercise of powers provided under Section 7 of the 1999 Constitution is in contravention of the Constitution and is to the extent of such contravention, void.

In this appeal, Sections 11 and 21 of the Local Government Council Law of Oyo State purports to empower both the Oyo State House of Assembly and the Executive Governor of Oyo State to truncate the tenure of democratically elected Local Government Officials for no reason whatsoever.

They are inconsistent with the provision of Section 7(1) of the Constitution and therefore void to the extent of such inconsistency. ​Consequently, the act or contemplated act of the Governor, relying on these void provisions to dissolve the democratically elected Local Government Councils before the expiration of their tenure is a nullity. This Court cannot allow it to stand.

This appeal succeeds and is hereby allowed by me. I abide by the consequential orders made by my learned brother in the lead judgment. Appeal Allowed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The present appeal is against the judgment, of the Court of Appeal, Ibadan Judicial Division, delivered on July 15th, 2020 in appeal No. CA/IB/300/2019. By the judgment in-question, the Court below, Coram J. O. Dada H. S. Tsammani and F. A. Ojo, JJCA, set aside the judgment of the trial High Court of Oyo State, delivered on and struck out the originating summons filed by the Appellant.

BACKGROUND FACTS The Appellants had been duly elected as chairmen and councillors of Local Government Councils and Local Council Development Areas in Oyo State. The election was duly conducted on May 12th, 2018 by the Oyo State Independent Electoral Commission (the 7th Respondent herein). However, in March, 2019 the 1st Respondent summaries dissolved the said Oyo State Local Government Councils and the Local Council Development Areas and replaced them with appointed caretaker/transition committees pursuant to Sections 11 and 21 of the Local Government Law of Oyo State, 2001, as amended.

Not unnaturally, the Appellants were utterly aggrieved, thus filed the suit vide an originating summons, there seeking against the Respondents the following declaratory and injunctive reliefs: …

The parties having settled their respective pleadings, the suit proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the conclusive effect. In line with the above

Not unexpectedly, the Respondents did not take kindly to the vexed judgment of the trial High Court, thus appealed to the Court of Appeal, Ibadan Judicial Division. On the said July 15th, 2020, the Court below delivered the vexed judgment thereof to the conclusive effect: Having resolved that the Respondents’ claim did not disclose any reasonable cause of action, I am of the view that, it is of no use I delving into issue three (3) distilled for determination by the Appellants (sic).

In any case, I had in the course of resolving issues 1 and 2, considered the case of the Governor of Ekiti State V. Olubunmo (supra) upon which the learned the case before him. I had pointed out the distinction between that case and the case under consideration. I therefore do not see the need in repeating myself there. In any case, having resolved that, the case did not disclose any reasonable cause of action, the Court below had cost the jurisdiction to hear and determine same. It would therefore be a matter of academic exercise to proceed further on the point.

Having thus considered, it is my view that this appeal has merit. It is accordingly allowed. I therefore set aside the judgment of the Oyo State High Court of justice sitting in Ibadan delivered on the 6th day of May, 2019 in suit No. 1/347/2019. Consequently, the Amended Originating Summons filed on the 8th day of April, 2019 is hereby struck out. I make no order as to cost.

The instant appeal, as alluded to above, is against the said judgment of the Court below.

On April 10th, when the appeal ultimately came up for hearing, the learned counsel on both sides of the divide were accorded the opportunity to address the Court and accordingly adopt the articulated argument contained in the respective briefs thereof.

Most particularly, the Appellants’ brief of argument settled by Yusuf Ali, SAN on September 24th, 2020, spans a total of 34 pages. At page 7 thereof three issues have been couched:…

On the part thereof, the 1st-7th Respondents’ unpaginated brief, settled by Samuel Oyadoyin, Esq. On November 4th, 2020, actually spans a total of 46 pages.

At pages 4 to 15 (paragraphs 3.0 to 3.28) of the brief in question, deals with the Respondents’ Notice of preliminary Objection to the competence of the appeal.

Pages 15 to 46 of the said brief, deals with the 3 issues on the merits. DETERMINAION OF THE 1ST-6TH RESPONDENTS’ PRELIMINARY OBJECTION Undoubtedly, the pith of the 1st-6th Respondents’ grouse vide the preliminary objection in question is strictly in regards to on grounds 2, 3, 4, 5 and 7 of the Appellants’ Grounds of Appeal, thereby challenging the competence of the appeal curiously enough, grounds 1 and 6 of the notice of appeal have not been objected to.

Yet, the law is well settled per adventure, that the essence of preliminary objective on is to challenge the competence of an appeal in its entirety. Thus, once a preliminary objection is upheld, the appeal is liable to be truncated and struck out in limine. Contrariwise, however, once there are other grounds that can conveniently sustain the appeal, a preliminary objection ought not be filed. Instead, a notice of motion seeking to strike out the apparently defective grounds need to be filed. See SPDC VS. AMADI (2011) 6 SCN 183 @ per Rhodes Virour, JSC @ 196. In DADA VS.

DOSUNMU (2006) 19 NWLR (pt. 1010) 134; (2006) LPELR 909 (SC), this Court aptly reiterated the trite fundamental doctrine: Failure to file a motion on notice as required by the rules of Court affects the competence of the objection as raised in the respondent’s brief and as such, counsel to the appellant had no obligation to file a reply thereto – the said objection being incompetent. Rules of Court are meant to be obeyed so as to ensure that justice is done to the parties and the Court is saddled with the responsibility of administering same.

Per Onnoghen, JSC (as he then was) @ 17 paragraphs E-F.

In the circumstance, the 1st-6th Respondents’ preliminary objection being adjudged to be grossly incompetent, same is hereby summarily struck by me.

DETERMINATION OF THE APPEAL ON THE MERITS Of the three issues in question, the third issue is most instructive viz: 3. Whether the Court below reached a proper decision by not allowing the decision of the Supreme Court in the case of Governor, Ekiti State Vs. Olubunmo (2017) 3, NWLR (Pt. 1551) whose facts were on all fours with the facts of the present case and there were no valid legal grounds to distinguish the case from the present case.

A critical, albeit dispassionate, consideration of the circumstances surrounding the case of GOVERNOR, EKITI STATE VS. OLUBUNMO (Supra) and the instant case, has made me appreciate that the two cases are arguably on all fours with one another.

Fundamentally, the issues in both cases are whether or not the Governor, as Chief Executive of the State thereof has the power to dissolve, truncate or suspend a democratically elected Local Government Council and unilaterally appoint his cronies, thereby constituting and investing them as Caretaker Committee to administer the affairs of the Local Government Councils. Not unexpectedly, this Court aptly held in GOVERNOR, EKITI STATE VS.

OLUBUNMO ​(Supra), that the system of Local Government Council has been duly guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 as amended: In other words, Section 23B (Supra) is violative of, and in conflict with, Section 7(1) of the Constitution in (Supra). Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution. Section 1(3) thereof Nigerian Army Vs. Yakubu (supra). Per Nweze, JSC @ 34-35 paragraphs E-C.

In the instant case, it is obvious, that the controversial Sections 11 and 21 of the Oyo State Local Government Law (supra) were purportedly designed to sabotage and truncate the democratically elected Local Government System in the State. Undoubtedly, Sections 11 and 21 of the Oyo State Local Government Law (Supra) are violently in conflict with the fundamental provisions of Sections 7(1) and 1(3) of the 1999 Constitution, (Supra).

It is trite, that every arm of Government, be it the Legislature, the Executive, or the Judiciary, has the onerous duty to accord unreserved deference to, comply with, protect, preserve, and defend the grundnorm- the Constitution. As aptly reiterated by this Court: “To act contrary to the provisions of the Constitution will not, if properly brought to the notice of this Court, be condoned but such an act will invite the proper sanctions and reliefs.” See IGBE VS. GOVERNOR OF BENDAL STATE (1983) LPEL-1443. Per Obaseki, JSC @31 paragraphs C-E.

In the circumstances, the third issue ought to be, and same is hereby resolved in favour of the Appellants, against the Respondents.

Hence, against the backdrop of the foregoing postulation, and the well detailed reasoning and conclusion reached in the lead judgment, I too hereby allow the appeal, and set aside the vexed judgment of the Court below. I abide the consequential orders, inclusive of the N20,000,000.00 costs, justifiably awarded in favour of the Appellants, against the 1st Respondent.

ADAMU JAURO, J.S.C.: I have had the advantage of reading in draft, the lead judgment just delivered by my learned brother, Ejembi Eko, JSC. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is meritorious.

The Appellants by their originating summons and accompanying affidavit challenged the provisions of Sections 11 and 21 of the Amended Local Government Law of Oyo State in light of Section 7 (1) of the 1999 Constitution (as amended) and the planned removal from their positions as elected Chairmen and Councillors of Local Government Councils and Local Council Development Areas in Oyo State by the 1st and 6th Respondents. The lower Court held that the case of the Appellants was futuristic and speculative and thus disclosed no reasonable cause of action. I humbly disagree with their lordships.

The Appellants were not only challenging the legality or validity of the provisions of Sections 11 and 21 of the Amended Local Government Law of Oyo State, but the mere enactment of the said provisions of the Local Government Law constituted an imminent threat to their tenure as guaranteed by Section 7 (1) of the Constitution. Hence, I do not see how such an action can be said to be speculative or futuristic. What is more?

The Respondents averred in their counter-affidavit that they are aware that this Court had in a recent decision struck down similar provisions to those being challenged as unconstitutional, ostensibly admitting that the Sections 11 and 21 of the Amended Local Government Law are unconstitutional. The recent decision referred to is the decision of this Court in GOVERNOR OF EKITI STATE V. OLUBUNMO (2017) 13 NWLR (PT. 1551) 1.

In that case, this Court declared Section 23B of the Local Government Administration Law of Ekiti State unconstitutional for empowering the Governor to truncate the existence of elected Local Government Councils. In line with the aforesaid decision of this Court and similar cases such as EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276 (SC), I have no hesitation in holding that Sections 11 and 21 of the Amended Local Government Law of Oyo State are ultra vires, illegal, unconstitutional, null and void.

The Constitution is the organic law of the land and by operation of Section 1(3) of the Constitution, any law that constitutes an affront to it is dead on arrival.

​For the above reasons and of course the fuller ones adumbrated in the lead judgment, I too allow this appeal. I abide by all the consequential orders made in the lead judgment, including the order as to costs. Appeal allowed.

Judgment

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment) : The instant appeal arose as a result of the judgment of the Federal High Court, Abuja, coram A.I. Chikere J, delivered on the 1st day of March, 2019. By the said decision, the Court dismissed the preliminary objection filed by the respondents before it, and thereby entered judgment for the applicants now respondents herein, further awarding damages in the sum of N200,000.00 in favor of each of the respondents.

In brief, the respondents herein by way of an originating motion on notice brought pursuant to Order 1 Rules 2, 3 ,.4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Sections 35, 36, 37, 40, 41 and 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Order II, Order XI, and Order XII of the Fundamental Rights (Enforcement Procedure) Rules, 2009, sought for the following orders: i.

A declaration that the arrest of the applicants in Abuja on January 7th, 20018 at Nera Hotel Abuja by the armed agents of the respondents without a warrant of arrest is illegal and unconstitutional as it violates the applicants fundamental right to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter of Human and Peoples Right (Ratification and Enforcement Act) Cap A10 Laws of the Federation of Nigeria, 2004. ii.

A declaration that the detention of the applicants since January 7, 2018 till date by the respondent in an underground detention center at the defense intelligence agency headquarters at Abuja is illegal and unconstitutional as it violate the applicants fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004. iii.

A declaration that the detention of the applicants since January 7, 2018 till date by the respondent without access to their lawyers and family members is illegal and unconstitutional as it violates the applicant’s fundamental rights to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004. iv.

A declaration that the arrest of the applicants on January 7, 2018 at Nera Hotel, Abuja by the armed agents of the respondent is illegal and unconstitutional as it violate their fundamental rights to freedom of assembly and association, Section 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004. v.

An order of this Honourable Court directing the immediate and unconditional release of the applicants from the illegal custody of the respondent forthwith. vi. An order of this Honourable Court compelling the Respondents to pay each of the Applicants the sum of N200,000,000 (Two million naira) as general and aggravated damages for the illegal violation of their fundamental rights to life, dignity of person, fair hearing, health, freedom of movement and freedom of association. vii.

An order of perpetual injunction restraining the Respondent from further violating the Applicants fundamental rights in any manner whatsoever and however without lawful justification. The grounds upon which the reliefs are sought, the affidavit in support of the motion, and other sundry documents, were hinged on the motion papers. A written address in support of the application was also filed on the 26th day of January, 2018.

On the 26th of September, 2018, Appellants filed a notice of preliminary objection pursuant to Order 29 of the Federal High Court Civil Procedure Rules 2009 and Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended, praying for the following reliefs: i. An order striking out or dismissing the applicant’s suit for being incompetent and for want of jurisdiction. ii. Any other order(s) this Court will make in the circumstance of the case.

In support of the preliminary objection is a five paragraph affidavit deposed to, by one Friday Atu, a litigation officer in the Chambers of the Hon. Attorney–General of the Federation and a written address. The claimants, now respondents, responded by filing a counter-affidavit in opposition to the respondents notice of preliminary objection on the 22nd day of November, 2018 and a written address also filed on the same date. Also attached to the counter affidavit are documents upon which the counterclaimant seeks to place reliance there upon, and on the 28th day of January, 2019, Mr.

Falana of counsel for the applicants introduced the claimant’s claim. The learned senior counsel then referred to the preliminary objection filed, urging the Court to dismiss the preliminary objection and to grant the reliefs sought. Mr. Jubril, the learned counsel for the respondent before the lower Court referred to the preliminary objection filed, praying the Court to strike out the suit. On the 1st day of March, 2019, the lower Court considered all the arguments proffered, dismissed the preliminary objection and conclusively held that: i.

That the arrest of the Applicants in Abuja on January, 7th, 2018 at Nera Hotel, Abuja by the armed agents of the respondents without a warrant of arrest is illegal and unconstitutional and violates the applicants’ fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Article 5 and 6 of the African Charter on Human and Peoples right (Ratification and Enforcement) Act Cap A10 Laws of the Federation of Nigeria 2004. ii.

That the detention of the Applicants since January 7, 2018 by the Respondents in an underground detention center at the Defense intelligence Agency Headquarters at Abuja is illegal and unconstitutional as it violate the Applicants’ fundamental rights to dignity of the person and personal liberty enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 5 and 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004. iii.

That the detention of the Applicants since January 7, 2018 by the Respondents without access to their lawyers and family members is illegal and unconstitutional as it violate the applicants’ fundamental rights to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the federation of Nigeria, 2004. iv.

That the arrest of the Applicant on January 7, 2018 at Nera Hotel, Abuja by the armed agents of the respondents is illegal and unconstitutional as it violates their fundamental rights to freedom of assembly and association as enshrined in Section 39 and 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Article 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP A10 Laws of the Federation of Nigeria, 2004. v.

An order of this Honourable Court compelling the Respondents to pay each of the Applicants the sum of N5,000,000 (Five Million Naira) as general and aggravated damages for the illegal violation of their fundamental rights to life, dignity of person, fair hearing, health, freedom of movement and freedom of association. vi. An order of Perpetual Injunction restraining the Respondents from further violating the Applicants Fundamental Rights in any manner whatsoever and however without lawful justification.

Utterly dissatisfied with the decision of the lower Court, appellants on the 15th day of March, 2019, filed a Notice of Appeal predicated upon twelve grounds of appeal. The appeal having been properly entered to this Court on the 3rd day of June, 2019, appellant filed a brief on the 20th of December, 2019, but deemed filed on the 2nd of February, 2022.

Having received the respondents’ brief filed on the 28th of June, 2021, though properly deemed filed on the 2nd day of February, 2022, with the leave of Court, filed a reply brief on the 1st of February, 2022, consequentially deemed on the 2nd of February, 2022. The appeal having come up for hearing on the same 2nd February, 2022, learned counsel on both sides, identified their processes, adopted the same and urged the Court to grant their respective prayers. The appellants’ brief was settled and argued by T.D.

Agbe, a Principal State Counsel in the office of the Honourable Solicitor General of the Federation, Federal Ministry of Justice. At page two of the brief, learned counsel promulgated the following issues for the resolution of the appeal: i. Whether the learned trial Judge was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage. ii. Whether the respondent suit disclosed a cause of action against the appellants. iii.

Whether the learned trial was right to have held that the respondent’s action was properly constituted. iv. Whether the learned trial judge was right to have held that the affidavit of the respondents in support of the application was competent. v. Whether the learned trial judge was right to have entered judgment in favor of the respondents, grant damages in their favour and restrained the Appellants perpetually from further arresting detaining and deporting the respondents.

And for the respondents, at page 3 of the brief settled and argued by Marshall Abubakar, adopted all the issues formulated by the appellants in the resolution of the appeal which for the avoidance of doubt are as follows: i. Whether the learned Trial (sic) was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage. ii. Whether the respondent’s suit disclosed a cause of action against the appellants. iii.

Whether the learned trial Judge was right to have held that the respondent’s action was properly constituted. iv. Whether the learned trial Judge was right to have held that the affidavit of the respondents in support of the application was competent. v. Whether the learned trial Judge was right to have entered judgment in favor of the respondents, grant damages in their favor and restrained the appellants perpetually from further arresting, detaining and deporting the respondents.

I have in the circumstance, studied the grounds of appeal, the record of proceedings and accorded the submissions of learned counsel a dispassionate consideration, and my humble view agrees with that of the learned counsel for the respondent, that the appeal be determined based upon those issues formulated by the learned counsel for the appellant and adopted by him. In so doing, it is my intention to consider the issues serially even though some of the issues protrude into one another.

Issue One Whether the learned Trial (sic) was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage. I understand the issue as being whether the learned Trial Judge was right to have held that deciding the issue of non-disclosure of cause of action was delving into the substantive matter at an interlocutory stage.

This issue was argued by the learned counsel for the appellant from pages 3 – 6 of the brief, wherein it was contended that the position of the lower Court, to the effect that deciding the issue of non-disclosure of the cause of action against the appellants at the preliminary stage will amount to the consideration of the substantive matter at the interlocutory stage was wrongful.

Counsel then alluded to the holding by the lower Court at pages 108 of the record, submitting that the Court misconceived appellants’ argument, since it never argued that the Court determine the issue on the merit, but rather to determine whether appellants were the right persons to be sued in the face of the allegation against a set of unknown security men. Counsel relying on the pronouncement made in the case of Nworika vs. Ononeze-Madu (2019) 7 NWLR (pt. 1672) 422 AT 437, to the effect that cause of action of necessity touches upon the issue of jurisdiction, as well as the case of Orji vs.

PDP (2009) 14NWLR (pt. 1161) 310 AT 362, contended that in the matter at hand, appellants had no control over any security agency of the Federation and as such the suit of the respondents alleging that respondents were arrested by armed security agencies of the appellants cannot be sustained. He argued that the question on whether the respondents’ application failed to disclose a cause of action against the appellants would have been properly decided without touching or delving into the substantive matter, and thereby urged the Court to settle the issue in favor of the appellants.

The learned counsel for the respondent responded to the issue from pages 4 – 8 of the brief. In so doing, counsel drew the Court’s attention to the finding of the trial Court with regards to the appellants’ affidavit evidence, and contended that the trial Court’s decision was on a strong wicket and cited the case of Mobil Producing Unlimited vs. Lasepa (2002) LPELR (1887) (SC) 30. Also responding on the case of Nworika vs.

Ohoveze-Madu (supra) cited by the appellants, counsel was of the position that in the determination of whether a Court is imbued with the requisite jurisdiction to entertain an action before it, it is the writ and the statement of claim that is looked into and not the statement of defense, nor the interpretation placed on it by the opponent.

Counsel now referred to parts of the respondent’s affidavit in support of the application before the lower Court, which were not countered by the appellants, and further submitted that a respondent cannot use the occasion of disputed applicant’s affidavit evidence to disprove jurisdiction. He emphasized still that where want of jurisdiction is in issue on account of reasonable cause of action, it is the applicant’s originating process that holds sway as against the interpretation given to it by the appellants, and cited the case of Inakoju vs.

Adeleke (2007) 29 NSCQR 958 amongst many others on the point. Responding on points of law, specifically on issue one contended upon, learned counsel submitted that the respondent’s position is unfounded in law and thereby urged the Court to disregard the same. He maintained that the issue as to whether a suit discloses a cause of action or not is a preliminary issue and one touching on the jurisdiction of the Court, and maintained that it’s trite law that jurisdictional issues must first be determined, and the case of Nworika vs. Ononeze-Madu (supra) apt.

Having given serious thought to the submissions of learned counsel on the issue, it seems to me that the substance of appellants’ argument hinges upon the contention that applicants’ affidavit evidence before the lower Court failed to disclose any cause of action against the appellants, thus depriving the Court of the necessary jurisdiction to entertain the same, and therefore the finding by the lower Court at page 110 of the record to the effect that: “The submission of the learned counsel to the respondents that the applicants have failed to identify the nameless and faceless officers is a matter of evidence and so inconsequential because the reasonable cause of action is not dependant on the defense but on the claim of the applicant.

It would seem to the Court that following the line of argument of the learned counsel to the respondents will mean that the Court will determine the merit of the case at this interlocutory stage”, is erroneous. It is evident from the records, as pointed out by the learned counsel for the respondent, that this issue was unsuccessfully canvassed before the trial Court by the appellants, and appellants seemingly poised to raise the issue again.

It should be understood that the term cause of action has been variously defined to mean those factual situation(s) or a combination of facts or acts relied upon by him as entitling him to a remedy against the defendant. Adekoya vs. FHA (2008) LPELR – 105 (SC), Ransome Kuti vs. AG of the Federation (1985) 2NWLR (pt. 6) 211, Savage vs. Uwechia (1972) 3 SC 71, Owie vs. Ighiwi (2005) LPELR – 2846 (SC), Adimora vs. Ajufo (1988) 3 NWLR (pt. 80) 1, Zubair vs. Kolawole (2019) LPELR – 46928 (SC). In the recent case of Zubair vs.

Kolawole (supra), the Apex Court per Kekere Ekun JSC, opined that a cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong, which is the basis of the dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. It is therefore settled, that the statement of claim, and in our case, the affidavit evidence filed in support of the originating process, determines the cause of action between the parties. See Owuru & Anor vs. Adigwu (2017) LPELR – 42763 (SC). In Ibor vs.

Usani & Ors (2015) LPELR – 24670 (CA), this Court per Otisi JCA, relying on AG of the Federation vs. AG Abia State & Ors (2001) 11NWLR (pt. 725) 689, held the view that it is sufficient for a Court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a judge notwithstanding that the case is weak or not likely to succeed. Eko JSC, in the recent case of CIL.R & A.M. Ltd vs.

Ekiti State Government (2020) 12 NWLR (pt. 1738) 203 AT 247 shed more light on the issue having held that: “For so long as the statement of claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some questions fit to be decided by the Court or the judge: a reasonable cause is disclosed thereby: Yusuf & Ors vs. Akindipe & Ors (2000)8 NWLR (pt. 669) 376 (SC).

In my view, a reasonable cause of action is disclosed once the statement of claim sets out the plaintiffs legal rights qua the defendants obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs legal rights or failure of the defendant to fulfill his obligations towards the plaintiff. See Rinco Construction Co. Ltd. v Veepee Ind. Ltd. & Anor (2005) 9NWLR (Pt. 929)85.

Once the statement of claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance in the English decision in Drummond-Jacokson v. British Medical Association (1970) 1 WLR 688; (1970) 1 ALL E.R 1094 (C.A) cited with approval in Thomas & Ors v. Olufosoye (supra). It is not material at this stage whether the case of the plaintiff is strong or weak.

The only thing important at this stage is whether the Court can decipher from the statement of claim if there is a prima facie triable case or issue or there is a reasonable chance of success if no defense were offered.” See also Rinco Construction Co vs. Veepee Ind. Ltd (supra) and Iliyasu vs. Rijau (2019) 16 NWLR (pt. 1697) 1 AT 22-23.

Let me make it clear that for resolution under the issue is whether there is a cause of action, as against whether there is a cause of action against the appellants, which are two different scenarios, and I dare say that the examination of whether there exists a cause of action in favor of the respondents would in no way transmute to determining the substantive case at this stage, as the two are completely different.

I have in that regard, undertaken a critical examination of the originating processes filed by the respondents, and my humble but firm view is that the law is in support of the lower Court’s holding pointing to the fact that in the determination of whether the plaintiff’s suit disclosed a cause of action or not, the Court must find his answer from the statement of claim filed, as well as the reliefs sought, and in the instant case from the supporting affidavit filed.

Looking at the case at hand, it appears evident to me that a close look at the originating processes filed, it would be seen that the originating process filed by the respondents raised some pertinent questions for which the Court is obligated to determine, and going by the guide in Mobil Producing Unltd vs. Lasepa (2002) LPELR 1887 (SC), once the allegations in the pleadings show a real controversy capable of leading to a relief, the pleadings cannot be rightly said to disclose no reasonable cause of action.

In other words, once the process disclose triable issues capable of leading to the grant of the reliefs sought against the wrongs complained of, the Court will hold that a reasonable cause of action has been disclosed, as at this stage of the proceedings, the Court does not look at the statement of defense or as in the instant case, the statement of defense or the affidavit supporting the preliminary objection, and there being no statement of defense filed, must limit itself to the process filed by the respondent, most particularly the affidavit evidence filed in support of the application in reaching that decision.

In any case, having also taken a preliminary examination of the processes filed by the appellants before the Court, particularly, the affidavit supporting the preliminary objection showed that the by preliminary objection filed, particularly paragraph 3 thereof, appellants obviously set out and are shown as making efforts joining issues with the respondents over the salient issues being complained against them, and therefore even though appellants opted not to file any statement of defense to the claim against them, it is fool hardy to state that the statement of claim filed by the respondents failed to or does not disclose any cause of action.

See CIL.R & A.M. Ltd vs. Ekiti State Government (supra) AT 248. The lower Court was therefore on solid ground having rejected the appellants’ submission based on his issue one, emphasized in the reply brief, that respondent’s position was unfounded in law, and this issue accordingly resolved against the appellants. Issue Two Whether the respondent’s suit disclose a cause of action against the appellants.

It was the contention of learned counsel for the appellants that considering the deposition in the respondents’ affidavit in support of their application, taken along with the statutory functions of the appellants, and appellants not being in control of the alleged armed security men, there was no cause of action disclosed against them; and further that respondents failure to pinpoint the particular armed security agency that carried out the alleged act, makes it legally impossible to apportion blame to the appellants. Making reference to the case of SPDC (Nig.) Ltd vs.

XM Fed Ltd (2006) 16NWLR (pt. 1004) 189, on what constitutes cause of action, counsel submitted that from the totality of the affidavit evidence placed before the trial Court and the exhibits attached by the respondents, and there being nothing on record to show that appellants permitted or authorized the alleged arrest or detention of the respondents, appellants cannot be held responsible.

Counsel emphasized the point that respondents having failed to identify the armed men or to establish a nexus between those faceless or unidentified armed security men, appellants cannot be vicariously held liable for the alleged unconstitutional acts. He further argued that there were no factual allegation of wrong done by the appellants, thus urging the Court to hold that no cause of action was disclosed against the appellants and the case ought to have been dismissed as it relates to the appellants.

In their response on the issue, the learned counsel for the respondent, held the view that the instant issue and that earlier argued are two sides of the same coin. While adopting his previous arguments marshaled in respect of issue one in aid of issue two, counsel sought to distinguish the cases of the APC vs PDP (supra) and Ransome Kuti ​& Ors vs. AG of the Federation (1985) 6SC 245, all cited and relied upon by the appellants, and rather placed reliance on AG Ogun, Bendel and Borno State vs.

AGF & 2 Or (1982) vol. 102 (SC) to submit that the failings complained of vested the applicants with a cause of action against the Chief Law Officer of the country. This issue raises the vexed question whether a cause of action was disclosed against the appellants, entitling respondents to seek redress against them.

The appellants had contended before the trial Court that considering the deposition in the respondent’s affidavit in support of the application, Exhibit A attached and going by the statutory functions of the appellants, who are not in control of the alleged armed security men, there was no cause of action disclosed against them.

It was also argued by the appellants that due to the failure of the respondents to pinpoint the particular armed security agency that carried out the alleged act, it cannot be legally possible to apportion blame to the appellants and thereby determine the action against them. It was further contended that from the totality of the affidavit evidence and the exhibits attached, there was nothing to show that appellants permitted and or authorized the alleged arrest and detention of the respondents and or directed any armed security agent or any person to arrest and detain the respondents.

Appellants thus complained that they cannot be held liable for the unconstitutional acts of unknown or unidentified armed security operatives. I agree with the learned counsel in line with the decision of the Assistant Inspector General of Police vs.

Ezeanya (2016) ALL FWLR (pt. 830) 1349 AT 1373; that any question bordering on the infringement of fundamental rights is largely a question of fact, and in that case, the facts disclosed in the affidavit filed in support of the alleged breach will be the determinant factor in discerning whether the fundamental rights of the individual (s) were breached in a manner contrary to the constitutional provisions.

It is true as contended, that neither of the two appellants were mentioned in the supporting affidavit, save where the deponent stated that respondents’ armed agency was mentioned, nor was their involvement in the arrest and detention of the respondents made out, therefore legally impracticable to institute an action against a party without linking the said party to the action or inaction complained of. I think learned counsel is correct in that regard.

It is the law, that a man intends the legal consequence of his acts, and if no act is directly linked to the person accused, he cannot be held liable. This legal preposition applies in respect of statutory bodies and agencies. It is therefore logical that where the respondents before this Court intends to sue the appellants as nominal parties, the actual security agencies that perpetrated the alleged action complained of ought to have been joined as a party, to enable the principle of vicarious liability to flow there from. For instance, if as Mr.

Falana would want us to believe, that respondents were detained in the underground cell of the Defence Intelligence Agency, nothing stops the said agency being made a party. In the same vein, it is only where the complaint is against the Federal Government or a State, which qualifies the Federal Attorney-General being called upon to answer. The case of the AG Kano State vs. AG Federation (2007) 6NWLR (pt. 1029) 164 AT 192 is directly on the point.

I have closely studied the affidavit evidence adduced by the respondents in support of the originating motion deposed to by one Paul Oshayi, at page 11 of the record, wherein it was stated that: i. Apart from the 4th applicant who is a citizen of Cameroon and the United States of America who is on a visit to Nigeria the applicants are Cameroonian nationals who have been in Nigeria for years with valid permanent resident status or on political asylum. ii. That of Saturday 7th January, 2018, the applicants assembled for a meeting at Nera Hotel, Abuja.

However before the commencement of the meeting, a team of armed operatives from the office of the 1st respondent invaded the venue, arrested the appellants and took them away to an unknown destination. iii. The applicants had gathered at Nera Hotel Abuja on 7th January, 2018 for a meeting to discuss the challenges being faced by several Cameroonians who have sought asylum in Nigeria. iv. That before the commencement of the meeting the armed agents of the respondents invaded the venue and arrested the applicants. v.

That no reason whatsoever has been given for the arrest and continuous detention of the applicants. vi. That the respondents have failed to inform applicants’ relatives of the arrest and detention of the applicants. vii. That the 1st respondent has refused the applicant’s access to their families, lawyers, and their medical doctors. viii. That all requests made to the respondents to visit the applicants have been rejected. ix. That the respondents have refused to inform the relatives of the appellants of their arrest and detention. 4.

That the applicants have not committed any offence in Nigeria. 5. The applicants are usually attended to by their doctors on a regular basis but the respondents have refused to allow the applicant’s doctors to visit them. 6. The 12th defendant is pregnant but the defendants have refused to allow her doctor to visit her. 7. That since the arrest of the applicants on 7th January, 2018 they have been held incommunicado by the respondents. 8. The applicants are being detained in an underground cell at the Defense Intelligence Agency Headquarters, Abuja. 9.

That when the 1st respondent refused to release the applicants, the law firm of Falana & Falana’s chambers wrote letter to the Inspector-General of Police to demand for the release of the applicants but the letter was ignored. A copy of the letter is hereby attached and marked Exhibit A. 10. That unless this Honourable Court intervenes by ordering the respondents to release the applicants forthwith and pay them compensation for their illegal detention, the applicants will continue to languish in the respondent’s custody without being charged to Court.

I have equally looked at the paragraphs of the applicants counter-affidavit in opposition to the respondents’ notice of preliminary objection, most particularly paragraphs 5, 6 and 7 thereof, a calm review of the preceding paragraphs not only showed that the perpetrators of the alleged acts being complained of were described as the armed agents of the appellants, but that whereas one Mrs Brigitte Mukang-Eno, The United Nations Commissioner for Refugees visited the respondents on the authorization of the 1st respondent, but denied the deponent a right to such visit, there was no further evidence indicating that it was the appellants and or their agents that were involved in the unconstitutional acts being complained of.

Indeed, one is tempted to ask whether appellants are in possession of armed agents as part of their service, and or whether any action or inaction perpetuated by unnamed armed agents, or unidentified security agents creates a liability for the appellants.

I am swayed by the argument that the affidavit evidence adduced failed to specify which of the Nigerian security agents, arrested the respondents, nor that the alleged agency that carried out the alleged acts against the respondents were actually identified, and that being so, how can the appellants be held liable for acts, alleged to have been committed by armed group of people not so identified.

It is not uncommon, judging from the recent experience of so called security men that had the guts to visit the house of a serving Supreme Court Justice with sinister motives, later found out to be fake agents. I am not unmindful of the contention made by the respondents to the effect that 1st respondent was mentioned as responsible for the arrest and detention of the respondents, and that by the intendment of Exhibit A, attached to the application, the allegations made against appellants was thus corroborated. I do not accept that contention.

The stated Exhibit A, happens to be a letter written to the Inspector General of Police, Police Headquarters, by the lead counsel to the respondents, titled: Request to investigate the abduction of Southern Cameroonian leaders at Abuja by the State Security Service.

If the learned senior counsel is indeed sure that respondents were abducted by the State Security Service, a service that is identifiable with a head of its own, it would then be illogical asserting that the perpetrators of the unconstitutional acts were unknown, described only as agents of the respondents, and whereas it can be said that Exhibit A, is a letter of request to investigate, as against a report of the alleged acts, paragraph (iv) of the deposition which talks of armed agents of the respondents cannot be leveraged upon to tie in the respondents as the perpetuators of the alleged acts committed by unidentified persons, since the law does not admit of any unfounded presumptions.

The ratio in the case of the All Progressive Congress vs. Peoples Democratic Party (2015) 15NWLR (pt. 1481) 1 AT 62, to the effect that: In paragraphs 6 and 7, the status of the 4th and 5th Respondents was stated. In paragraphs 68 to 101, the only reference to the 4th and 5th Respondents was in the phrase “officers and men of the 4th and 5th Respondents”. The said officers and men were alleged to have committed series of acts which are criminal in nature.

The soldiers against whom the allegation of crime were made were unknown and could not therefore be said to be servants of the 4th and 5th Respondents in order to invoke the fiction that the master had impliedly commanded his servant to do what he did. The Appellant did not show the basis of holding the 4th and 5th Respondents vicariously liable for the criminal acts of the un-named soldiers. Iko v. John Holt & Co. (1957) SCNLR 107]” seems apt. With due respect to the learned counsel for the respondent, the cases of Ransome–Kuti & Ors vs.

AG of the Federation (1985) 6 SC 245 AT 276-277, and Mrs. Olufunmilayo Kuti vs. AGF (1985) NWLR (pt. 6) 211, contrary to the contention made for the respondents, can be to have shed more light with regards to the question relating to the identity of the perpetrators of the act complained about, for unlike the instant case, the perpetrators in the cases cited were well known and identified. It flows therefore as indicated in the case of AG, Ogun, Bendel and Borno States vs.

AGF & 2Ors (1982) 102 SC 13 AT 86, cited by the learned counsel for the respondent that, whereas the Attorney–General of the Federation as the Chief Law Oficer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, and can be sued as a defendant in all civil matters in which a claim can be properly made against the Federal Government or any of its authorized agencies, it is a precondition that the acts committed must emanate from the Federal Government or any agency of the Federal Government for the AGF, to have any interest.

Put simply, and mildly, the acts being complained about having been stated as perpetuated by persons unknown, or as casually put armed agents of the respondents, appellants herein cannot be lawfully held liable for the acts of such unidentified agents, and I so hold.

In answer to the question therefore whether the lower Court was right or wrong, having held that a cause of action accrued to the respondents and against the appellants, I firmly hold that no such link whatsoever had been established against the appellants with the perpetrators of the acts complained of, and the lower Court wrong to have so held, and consequently, whereas, it can be said that respondents action disclosed a cause of action, such cause of action was not disclosed against the appellants. The consequence is that the issue is resolved in favor of the appellants.

Issue Three Whether the learned trial Judge was right to have held that the respondent’s action was properly constituted. The contention of the learned counsel is that the respondents’ application before the lower Court was incompetent having been commenced by more than one applicant.

Alluding to the provisions of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, it was contended that the section establishes that the right to approach the Court for the enforcement of the right accrues to only one person, and does not permit or recognize two or more persons commencing an action under the section. Relying on the decisions of the Registered Trustees of FTCN vs. Ikwechegh (2000) 13 NWLR (pt. 42418) (CA) and Archibong Udo vs.

Ibanga Udo Robson & 4 ors (2018) LPELR – 45183 (CA), counsel submitted that fundamental rights enforcement proceedings are a special class of proceedings whose procedure is regulated by the provisions of Section 46 of the Constitution, and the Fundamental Rights Enforcement Procedure Rules 2009, for which respondents cannot enlarge its scope.

He maintained that the action having been commenced by more than one person rendered the suit incompetent and liable to be struck out. ​In reply to the issue canvassed, learned counsel submitted that each case is decided on its own peculiarities, and denied the fact that the decision in Opara vs. SPDCN (supra) cited and relied upon by the appellants constituted a blanket pronouncement on the issue, but that this Court and indeed the apex Court had enforced several fundamental rights actions commenced by more than one applicant.

He alluded to the ruling of the lower Court on the issue captured at page 111 – 113, contending that the 2009 FREP Rules has indeed widened the scope and jurisprudence of fundamental human rights suit in Nigeria. Learned counsel made mention of case law and statute which interpreted person to mean and includes any company or association or body of persons corporate, maintaining that Courts have consistently sustained a joint fundamental right application filed by several applicants who complain of joint infringement, most particularly LCP Bankole Taiwo & 3 Ors vs.

Nigerian Army (unreported) Appeal No. CA/A/10c/2017 per Abubakar Datti Yahaya JCA, amongst many others. Learned counsel then alluded to a portion of the judgment of the lower Court, stating that appellants’ insistence is not based on the issue of substantive justice and or merit of the case, but rather that respondents be denied justice on account of imaginary non-compliance with procedural rules. He urged the Court to pursue substantial justice and to void the dangerous invitation by the appellants to strangle justice.

Evidently, lower Court in appreciating the arguments of learned counsel appeared not to have agreed with the position taken by the appellants as respondents before it. The trial Court rather was of the opinion that by the coming in to force of the current Fundamental Rights (Enforcement Procedure) Rules, 2009 the issue of locus standi was removed, and what he termed technical hiccups hitherto prevalent in the 1979 Rules also removed. The lower Court leaned on what he termed the overriding objectives of the rules, as well as the cases of Odubu vs.

Stephen & Ors (2012) LPELR – 19792(CA) and Sambo & Ors vs. Okon & Ors (2013) LPELR – 20394 (CA) to debunk the assertion by the appellants that the provisions of the rules are in conflict with the almighty Constitution. ​ For consideration, therefore, is whether the action before the lower Court brought as a class action was competently brought in view of the provisions of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended?

Now Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended makes the following provision: “Any person who alleges that any of the provisions of the chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.” What calls for resolution is the definition of the word “any” as contemplated in Section 46(1) of the Constitution. This Court while giving an expansive interpretation to the word “any”, Nweze JCA as he then was greatly influenced by the decision of the Apex Court in Skye Bank vs.

Iwu (2017) LPELR – 42595, per Kekere – Ekun JSC, having stated that in the interpretation of the constitution, the Court must bear in mind as stated in Agbaje vs. Fashola (2008) ALL FWLR (pt. 443) 1302 AT 1337, a liberal approach to the interpretation of the Constitution or statute be adopted, see also AG Bendel State vs. AGF of the Federation & Ors (1981) LPELR – 605 (SC), held that: “Now the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification., Duck vs. Batey 1QBD 79 and indeed has been construed to mean as wide as possible., Beckett vs.

Sutton 51 LJ CH. “some out of many”, an indefinite number, one indiscriminately of whatever kind or Guantity Federal deposit Ins. Corporation vs. Winton CCA Tenn 131, F2 780, 782, Texaco Panama Inc vs. SPDC (Nig) Ltd (2002) LPELR – 3146 (SC).

Put differently the word any has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.” The learned author of Casebook on Human Rights Litigation in Nigeria by Frank Agbedo at page 176, stated therein that by the new rules made to address the procedural pitfalls associated with the 1979 rules, and particularly paragraph 3 of the preamble to the rules, stated thereto no human rights case may be struck out for want of locus standi.

The learned author holds the view that by the stated rules, unfettered access to Court was granted to any person or group seeking judicial intervention for the enforcement of fundamental rights whether in their personal capacity or in any of the above mentioned capacities, i.e: i. Public interest litigation in human rights field. ii. Human rights activists, advocates or groups as well as any non-governmental organizations. iii. Anyone acting in his own interest. iv. Anyone acting on behalf of another v. Any one acting as a member of, or in the interest of a group. vi.

Anyone acting in the public interest. vii. Association acting in the interest of its members or other individuals or group. Mr. Ikechukwu D. Uzo, also in his treatise, Fundamental Rights Litigation, second Edition, page 91, towed the same line. The Court has variously also made pronouncement to the effect that the singular shall include the plural. See also Section 18 (1) and 14 (b) of the Interpretation Act Cap. 192 LFN 2004, as well as Section 318 of the CFRN, 1999 as amended.

I am swayed and therefore in agreement with the learned counsel for the respondent as well as the lower Court, that the pendulum has since departed from that narrow circuit on locus, to a more expansive definition giving class actions as in the instant case legal cover. I reject the contention by the appellant counsel that the action of the respondents having been commenced by 12 of them as applicants at the trial Court rendered the application incompetent. I have in that regard been referred to the decision of this Court in the case of Kporharor & Anor vs.

Yedi & Anor (2017) LPELR- 42418 (CA) per Adah JCA, in support of the respondent’s contention. Contrariwise, numerous cases were cited including the Supreme Court case of Diamond Bank Plc vs. HRH Eze (DR) Peter Opara & Ors (2018) LPELR – 43907 (SC), and the more recent decision of this Court in Alhaji Maitagaran vs. Dankoli & Ors, unreported in appeal with No. CA/KN/289/2019, all to the effect that joint applications allowing litigants to enforce their fundamental rights, thus liberalizing the approach to Court for the enforcement of their fundamental rights by joint or class litigants.

Having said that, I am of the humble view that the decision of this Court in Kporharor & Anor vs. Yedi & Anor (supra) does not reflect the extant state of the law and I so hold. This issue is thus resolved against the appellants. Issue Four Whether the learned trial Judge was right to have held that the affidavit of the respondents in support of the application was competent. The grouse of the appellant herein is against the lower Court’s ruling with regards to the competency of the respondent’s affidavit in support of the application for the enforcement of their rights.

He argued that the appellant’s contention hinged on two grounds was discountenanced by the lower Court on the grounds that the objection was a technicality. He complained that the lower Court refused to decide on the issue of Section 115 of the Evidence Act, and placing reliance on AG Leventis (Nig) Plc vs.

Akpu (2007) LPELR – 5 (SC), argued that his objection on the issue of the incompetence of the respondents’ affidavit in support of their application on the ground that it failed to comply with Section 115 of the Evidence Act, 2011 was not pronounced upon, and thus occasioned a miscarriage of justice against the appellants. In further argument, counsel still submitted that the affidavit of Ochayi Paul in support of the claim of the respondent failed to comply with Section 115 of the Evidence Act, 2011, being hearsay.

This counsel argued is because the entire facts deposed thereto in the affidavit of the respondents were not facts within the knowledge of the informant, Femi Falana SAN, and further argued that the affidavit being incompetent robbed the lower Court of the competence or jurisdiction to entertain the suit. Further still, counsel was of the view that the Chief Justice of Nigeria having made specific provisions on who is permitted under the law to depose to the affidavit in support, referring to the holding of this Court in the case of EFCC vs. Mr.

Oladapo Afolabi & ors (2018) LPELR – 43565 (CA) on who qualifies to depose to an affidavit in support of the enforcement of fundamental rights, contended that Mr. Falana SAN who purportedly gave deponent Mr. Paul Oshayi information did not state the source of his information, nor was there any nexus between the deponent and the applicants. Also referring to the holding in Ukegbu vs.

NBC (2007) 14NWLR (pt. 1055) 551 AT 579 – 580 argued that where the Court process containing the facts or materials upon which the claim is based is defective, or incompetent, that defect affects the substratum of the entire case, rendering the evidence contained therein inadmissible, and the cases of Oyemaizu vs. Ojiako (2010) 4NWLR (pt.1185) 504 and Daminabo vs. Alalibo (2011) LPELR-4525 relied upon.

He then argued that the principle of law contained in the cases cited having not been complied with, the lower Court erred to have held that appellant’s objection was a technicality taken too far, and thereby urged the Court to set aside that finding of the lower Court and to dismiss respondent’s case. ​ Contrariwise, respondents’ counsel argued that the appellant’s allegation is misconceived and does not reflect the judgment and finding of the lower Court evidently seen at pages 14 and 15 of the record.

He submits that the findings of the Court below on the issue put paid to the contention on the competence of the affidavit, also positing that the contention by the appellants to the effect that the entire facts in the affidavit of the respondents are not facts within the knowledge of the informant unavailing, and the cases cited inapplicable.

He referred to documents filed which were not countered or opposed to, stating that fundamental right proceedings are sui generis, in that even a busy body or meddlesome interloper can institute an action on behalf of the person whose rights has been infringed upon, and the deponent can depose to facts fed him by a person who is aware of the facts and circumstances of the case. On this, counsel relied on Nosiru Bello vs. AG Oyo State (1986) 5 NWLR (pt. 45) 828 and Gani Fawehinmi vs. Akilu (supra).

Still alluding to the findings of the lower Court on the issue, learned counsel referred the Court to Exhibits 2, 3 and 4, as well as the depositions made with regards to the arrest of the respondents, positing that where a deponent merely deposes to facts led by him by someone fully aware of the facts and circumstance of the case, the FREP rules would accommodate it, as the affidavit deposition is permissible. Salami vs. OlaOye (2019) 13 WRN 73 (CA). He also submitted on the authority of Bello vs. Gov.

Gombe State (2016) 8NWLR (pt. 1514) 280, that where further documentary evidence are exhibited to corroborate the affidavit depositions already on oath, and same is neither challenged nor discredited, a trial Court is at liberty to act on same. He argued that the supporting affidavit religiously complied with the above provisions of the Fundamental Rights Enforcement Procedure Rules, and relied on UBA Plc vs. Adigwu (supra) to posit that a Court may permit an affidavit to be used, notwithstanding some defects in form.

Counsel further drew the Court’s attention to the provision of Order IX Rule 1 of the 2009 Rules on non-compliance, contending that technicalities and frivolities have no pride of place in our legal jurisprudence, and thereby urged the Court to discountenance the submissions of the appellants’ counsel. Now Section 115 of the Evidence Act 2011, provides as follows: i. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. ii.

An affidavit shall not contain extraneous matters by way of objection, prayer or legal judgment or conclusion. iii. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. iv. When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.

The substance of the appellants’ complain with regards to this issue, is to question the credibility of the affidavit evidence adduced by the respondents in support of their application.

The lower Court gave consideration to the question whether the affidavit in support of the originating summons was defective as contended, and in that regard looked at the contents of Order II Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, which stipulated that: “The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts by the applicant, stating that the applicant is unable to depose personally to the affidavit.” And relying on the case of EFCC vs.

Chukwurah (2018) LPELR – 43972, held that such is a mere irregularity which does not render the affidavit incompetent, but failed and or shied away from pronouncing on the second arm of the submission pertaining to the credibility of the affidavit itself. The learned counsel for the appellant did argue and rightly too, that a Court has a duty to pronounce on all material issues raised before it. See Okonji vs. Njokanma (1991) NWLR (pt. 202) 131, Adesina vs. Ojo (2012) 10NWLR (pt. 1309) 552.

This onerous duty placed on the Court, was unfortunately not done by the lower Court, leaving us with no choice other than to delve into the consideration of the issue. I have earlier in the judgment produced the provisions of Section 115 (1) – (4) of the Evidence Act, 2011. From the intendment of the section, it is clear that where deposition contained in the affidavit are not facts within the knowledge of the deponent, and the deponent fails to supply the necessary information as mandatorily required by the section, then such paragraphs are liable to be struck out. Abiodun vs.

CJ Kwara (2007) 18NWLR (pt. 1065), Orji vs. Zaria Industry Ltd (1992) 1NWLR (pt. 216) 124. This Court in the case of Alhaji Gidado Ba’a vs. Adamawa Emirate Council & ors (2013) LPELR – 22068 (CA) held that: “Section 115 stipulates the form of facts that ought to be contained in affidavit evidence… Where the facts deposed to in an affidavit by a person is derived from information received from another person, the name of his informant must be stated and reasonable particulars given in respect of the information and the time and the place and circumstance of the information.

In effect, the deponent must disclose the source of his information and knowledge of the averment when he has no personal knowledge of the facts.” See also Sambo & Ors vs. The Nigerian Army Council & Ors (2015) LPELR – 40636 (CA). Learned counsel now argued that the deponent in the case at hand failed to satisfy the mandatory legal requirements of Section 115 of the Evidence Act, 2011. For instance, counsel argued that paragraph 3 (1) – (X) of the deposition cannot stand, because the informant himself, had no personal knowledge of the facts deposed to.

He argued also that there was no paragraph stating that the learned senior counsel was at the meeting, wherein applicants were arrested, and or that respondent’s relatives briefed him. I have no hesitation agreeing with the learned appellants’ counsel in that regard, being correct.

A critical perusal of the affidavit evidence failed to show, and at nowhere was it stated that the Senior Counsel, who purportedly supplied the information now being deposed to by the deponent was in fact an actor or part of the acts or witnessed the acts being complained about, nor did he state where the information passed to the deponent was derived from. If such information was derived from his clients being their lead counsel, which was not so stated anyway, that information to my understanding would amount to hearsay.

The contention therefore that the affidavit evidence is defective is well made. Further still, it seems clear to me that Order II Rules 3 and 4 was observed in the breach. This Court, in EFCC vs. Mr. Oladapo Afolabi & Ors (2018) LPELR 43565 (CA) per Ogakwu JCA, held that: “The quiddity of the Appellant’s submission calls for a construction of provisions ofOrder II Rules 3and 4 of the Fundamental Human Rights (Enforcement Procedure) Rules. They read: “3.

An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made. 4. The affidavit shall be made by the Applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit”.

The Respondents’ application before the lower Court was a joint application for the enforcement of their fundamental rights. Order II Rule 3, which is set out above requires that the application shall be supported by an affidavit. There is nothing therein requiring each applicant in the case of a joint application for enforcement of fundamental rights to depose to an affidavit.

Therefore in keeping with the trite principle of law that a party need not testify in an action if he can prove his case through his witnesses, there was no obligation on the 3rd respondent to depose to an affidavit. See OJUAWO vs. UBA PLC (2013) LPELR (22180) 1 AT 20 and PDP vs. NWANKWO (2015) LPELR (40568) 1 AT 15. Now, Order II Rule 4 provides for three distinct persons who can depose to an affidavit in support for an application for enforcement of fundamental human rights. The first is the applicant himself.

Secondly, where the applicant is in custody or for any reason cannot personally swear to the affidavit, then the affidavit can be deposed to by a person who has knowledge of the facts.

Thirdly, the deponent of the affidavit in circumstances where the applicant cannot depose to the affidavit personally, can be a person who the applicant informed of the facts and who would state that the Applicant is unable to depose to the affidavit personally, in the instant case, the supporting affidavits were deposed to by persons who had personal knowledge of the facts, so there was no need of the affidavit to state that it was being deposed on behalf of the 3rd respondent or that the 3rd respondent could not personally depose to the affidavit.

The conflating of the foregoing is that I am unable to agree with the appellant that there is no evidence adduced by the 3rd respondent and that the 3rd respondent had no claim before the lower Court.

There is no legal requirement for the 3rd respondent to personally depose to the affidavit, if he can otherwise establish his case by other evidence.” This position of the law amplified in the case cited, agrees with the extant established legal position to the effect that: “Where a special procedure is prescribed for enforcement of a particular right or remedy such as the one under the Fundamental Human Rights (Enforcement Procedure) Rules, non-compliance with or departure from such a procedure is incurably fatal to the enforcement of the remedy or right. See [Unegbu v.

Unegbu (2004) 11 NWLR (pt. 884) 332, Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (pt.717) 132;] In Re: Udo (1987) 4 NWLR (pt. 63) 120 referred to (Pp. 177-178, paras. H-B).” I have carefully studied the affidavit under consideration as earlier said, and my humble conclusion is that the affidavit being defective, there was no legally competent affidavit in support of the respondent’s application, and the lower Court was in error, holding otherwise. This issue is similarly determined in favor of the appellants.

Issue Five Whether the learned trial Judge was right to have entered judgment in favor of the respondents, grant damages in their favor and restrained the appellants perpetually from further arresting, detaining and deporting the respondents. Learned counsel for the respondent argued this issue extensively from pages 23 – 33 of the brief.

His contention is that the trial Court wrongly entered judgment in favor of the respondent based on hearsay and inadmissible affidavit evidence, and while of the opinion that it is the party that asserts that has the burden of proof, Section 137 of the Evidence Act 2011, and that in Fundamental Rights matters, affidavit evidence is used by the applicant in discharging that burden of proof; Fort Royal Homes Ltd & Anor vs.

EFCC & Anor (2017) LPELR – 42807 (CA), the trial judge seems to have been overwhelmed by the principle of law that facts not controverted or challenged in an affidavit are deemed admitted and thereby failed to evaluate the affidavit evidence placed before it. Learned counsel then drew the Court’s attention to the affidavit of Paul Ochayi, and in particular, paragraphs 1 – 10 thereof, contending that the entirety of the affidavit is not credible and the lower Court wrong in failing to evaluate it. Also adopting his argument in respect of issue four, and the case of Josien Holdings Ltd & Ors vs.

Lornamead Ltd & Anor (1995) LPELR – 1634 (SC), submit that since the deponent has to depose to facts within his personal knowledge, in case he receives the information from a third party, that third party can only do so within the informant and not from information coming from an undisclosed source. On this, counsel cited and relied on the decision of this Court in NDIC vs. Chief Elder Ita Onoyom Ette (2015) LPELR – 40607 (CA). He argued that Mr. Falana (SAN). from the records was not at the hotel where the alleged arrest took place, and further relying on Ahmed & Ors vs.

CBN (2013) LPELR – 20744 (SC) stated that there was nothing supporting the source of the information which the trial Court relied upon, and contended still that it is not in all cases that a counter affidavit needs to be filed, calling in aid the decisions of Mohammed vs. Wammako & Ors per Nweze JSC, and Ogunbiyi JSC, submitting that to be entitled to the reliefs sought, it is incumbent on the respondent to exhibit or to discharge the high proof required in establishing entitlement to those declaratory reliefs.

It is the conclusion of learned counsel that the trial judge’s statement that the Court is bound to take that averment in the respondents supporting affidavit as the truth does not represent the position of the law where declaratory reliefs are being sought. The learned counsel for the respondent holds the view that what was in issue was whether the learned judge was availed with sufficient facts and evidence to justify the grant of the reliefs awarded.

He made reference to the counter-affidavit filed by the appellants as well as the further affidavit of the respondents to which exhibits Ambazonia 1 – 4 were attached, contending that since no further evidence was forthcoming from the appellants, disproving those assertions, the pendulum tilts in favour of the appellants, and the case of Forson vs. Calabar Municipal Government (2003) LPELR – 7273 (CA) and State vs. Commissioner for Boundaries (1996) 37 LRCN 603 AT 613 were cited in that regard.

With regards to the offices of the two respondents sued, counsel argued that the office of the NSA is a creation of the National Securities Act and coordinator of national security, and irrespective of whether the men were officers of the Nigerian Army, Navy, Air force or police or any other security network of government that carried out the abduction, the 2nd respondents as Attorney–General of the Federation and Chief Law Officer of the federation can competently be joined. It needs to be mentioned at the outset that the reliefs sought by the applicants are declaratory reliefs.

It is the law as variously held, that a declaratory judgment is discretionary, granted only where the Court is of the opinion that the party seeking it is, when all the facts of the case are taken together and into account, it can be said that they are entitled to the grant of the discretion in their favor. See Egbunike & Anor vs. Simon Muonweokwu (1962) LPELR – 25051 (SC), Ogundairo & Ors vs. Okanlawon & Ors (1963) LPELR – 25403 (SC), Atunrase & Anor vs. Alhaji Abdul Mojid Sunmola & Anor (1985) LPELR – 634 (SC), Obi vs. INEC & Ors (2007) LPELR – 24347 (SC) per Aderemi JSC.

The evidence with respect to the case at hand is that borne at pages 11 -12 of the record, most particularly the affidavit of Paul Ochayi, a senior litigation clerk in the law office of Falana and Falana, the lead counsel handling the matter. There is also the counter-affidavit filed to the preliminary objection deposed to by Mr. Falana (SAN). That affidavit deposed to in support of the application as contended was not opposed by way of a counter-affidavit, and learned counsel for the respondent right in asserting that those depositions not having been challenged are deemed admitted.

The cases of Magnusson vs. Koiki (1993) 12 SCNJ 114, Obumseli vs. Uwakwe (2019) ALL FWLR (pt. 1013) 826 AT 847, State vs. Commissioner for Boundaries (1996) 37 LRCN 603, NDIC vs. Ette (2015) LPELR – 40607 (CA), amongst many others.

But as stated in the case just cited, this Court threw a caveat to the effect that: “That general rule notwithstanding, the law expects that for such a preposition to be correct, the facts on the affidavit must have properly been put before the Court… it follows therefore that the absence of a counter-affidavit does not ipso facto amount to a conclusive exercise of a favorable discretion. There is still the burden of proof on the applicant which same could only be discharged on the satisfaction to the Court of material facts placed before it.

In other words, an unfettered burden lies on the applicants affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not on the weakness of the defense.” Totally voicing its agreement to the above statement, the Apex Court per C.C. Nweze JSC, in Mohammed vs.

Wammako & Ors (2017) LPELR – 42667 (SC), opined that: “With respect, I entirely endorse the submission of the learned senior counsel for the 1st and 2nd respondents that, since the appellant sought for declaratory reliefs, he had an obligation to advance evidence in proof thereof. The reason is not farfetched, Courts have the discretion to either grant or refuse declaratory reliefs. Indeed their success largely, depends on the strength of the plaintiffs case, it does not depend on the defendants defense. See Maja vs. Samouris (2002) 7NWLR (pt. 765) 78, CPC vs.

INEC (2012) 1NWLR (pt. 1280) 106 AT 131. This must be so for the burden on the plaintiff in establishing declaratory reliefs is often guide heavy.” Emphasizing the point further, Ogunbiyi JSC, in her contribution went further to state that: “It is further settled and well established that declaratory reliefs are not granted even on admission. The plaintiff who sought for such relief must prove and succeed on the strength of his case and not rely on the weakness of the defense. See the case of Emenike vs.

PDP (2012) 50 NSCQR 94 AT 130 per Fabiyi JSC where it was held:- the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.” From the above state of the law, the lower Court from pages 116 – 118, having noted that the respondents’ counsel before him, now appellants failed to file a counter-affidavit to the originating motion on notice, but rather relied on the preliminary objection, further relying on the case of Omnia Ltd vs.

Dyktrade Ltd (2007) 15NWLR (pt. 1058) 576 AT 628 and Digal vs. Nanchang (2005) ALL FWLR (pt. 240) 41 AT 46, and to conclude that since the applicants averments in the affidavit in support were not challenged by way of a counter-affidavit, same is deemed admitted and thereby proceeded on that basis to take the averments as true and acted on same, is totally in error.

The all important question is, did the learned trial Judge evaluate the affidavit evidence before him in ascertaining whether it was cogent and strong enough, and to ensure its veracity and or authenticity? the sad answer is that he didn’t. Appellants now complain that had the trial Court evaluated the affidavit evidence, a different verdict would have been reached, as the affidavit evidence is lacking in authenticity and also lacking in merit.

I agree with the statement that affidavit evidence is not sacrosanct, and just like any other evidence, whether oral or documentary, must undergo the rigours of being evaluated and probative value to such evidence apportioned, for as stated in Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) LPELR – 2505 (SC), some affidavits tell a lie. I have carefully in the instant studied the affidavit evidence adduced by the applicants, with a view to seeing whether it satisfied the legal criteria established, and thereby supporting the conclusion reached by the lower Court.

In doing so, I have studied the affidavit, having in mind the submission of the learned counsel for the parties, and do agree with the appellants’ counsel, that the entirety of the affidavit deposed to by Mr. Ochayi Paul offended the provisions of Section 115 of the Evidence Act, 2011, in that same was in dire conflict most particularly with the provisions of Section 115 (1) (3) and (4) of the Evidence Act 2011. The learned counsel for the appellants in my humble view was correct in asserting that the entirety of the affidavit reproduced by Mr.

Ochayi, the deponent who deposed to facts in paragraphs 5 – 10 of the affidavit under consideration without disclosing and or conforming with the mandatory requirements set out by Section 115 (1) – (4) of the Evidence Act, 2011, divested the lower Court of any evidence upon which the exercise of his discretion, which ought to be exercised judicially and judiciously could be exercised. I also agree that even the deposition of the Learned Silk himself and the documents attached thereto failed to add value to the evidence before the lower Court.

From all the permutations made above, it seems clear to me that the lower Court was wrong to have entered judgment for the respondents based solely on the fact that the affidavit evidence, which is in any case defective, having not been countered, is an enabling factor for the Court to enter judgment in favor of the respondents. That holding in my view is a slight on standing legal principles, and the law cannot allow the decision to stand. I also resolve this issue in favor of the appellants.

Having determined all the issues, save for issues one and three in favor of the appellants, and the determinant issues being issues 2 and 5, this appeal succeeds and it is hereby allowed. In the event, the judgment of Chikere J., of the Federal High Court, Abuja Judicial Division in suit with No. FHC/ABJ/CS/85/2018, between Mr. Sisiku Ayuk Tabe and 11 Ors and The National Security Adviser and 1 Or, delivered on the 1st of March, 2019 is hereby set aside. I make no order as to costs.

APPEAL ALLOWED. HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Hamma Akawu Barka, JCA gave me the benefit of reading in advance the judgment just delivered. My learned brother has admirably and exhaustively considered and resolved the issues the parties have raised for the determination by this Court. Particularly, I agree with my learned brother that the affidavit evidence deposed to in support of the originating process discloses a cause of action. However, the facts as deposed to, indicate that, the rights alleged to have been violated, were done by armed agents.

It must be judicially noticed that, Nigeria has more than one armed security agency but the affidavit evidence failed to indicate whether it was one or a combination of the security agents that committed the acts complained of. It is also not unreasonable to take judicial notice of the fact that none of the Appellants has direct control over any armed security agency. That is moreso when the said armed security agents were not identified. It is for the above reason and the detailed reasons commendably heralded in the lead judgment that I agreed that this appeal be allowed in part.

However, with the resolution of issues 2, 4 and 5 in favour of the Appellants the judgment of the Court below, cannot be sustained. It is accordingly set aside. I abide by the order on costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Hamma Akawu Barka, JCA which has just been delivered was made available to me in draft and I agree with his reasoning and conclusion that save for issue numbers one and three, the other issues in the appeal ought to be resolved in favour of the Appellants.

I however wish to say a few words on issue number three, which was resolved against the Appellants, since the contention raised therein is presently of contemporary legal interest. ​ The said issue number three interrogates the competence of the Respondents’ application for the enforcement of their fundamental rights, on the grounds that several applicants cannot bring a joint application for the enforcement of fundamental rights. Now, there have been some conflicting decisions of this Court on the point, the recent decisions include GOVT OF ENUGU STATE vs.

ONYA (2021) LPELR- 52688 (CA) delivered by the Enugu Division on 28th January, 2021, which held that joint applicants can bring an application to enforce fundamental rights. Au contraire, in AEDC vs. AKALIRO (2021) LPELR – 54212 (CA) which was delivered by the Makurdi Division on 31st 2021, it was held that an application by joint applicants was incompetent. The other decisions of this Court which reached a similar decision as was reached in GOVT OF ENUGU STATE vs. ONYA (supra) include UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT. 200) 708 at 761, IHEJIOBI vs. IHEJIOBI (2013) LPELR-21957, UBOCHI vs.

EKPO (2014) LPELR-23523, ORKATER vs. EKPO (2014) LPELR-23525 and MAITANGARAN vs. DANKOLI (2020) LPELR-52025. On the other hand, some other decisions on this Court that decided along the same line as AEDC vs. AKALIRO (supra) include – KPORHAROR vs. YEDI (2017) LPELR-42418, UDO vs. ROBSON (2018) LPELR-45183, FINAMEDIA GLOBAL SERVICES LTD vs. ONWERO (NIG) LTD (2020) LPELR-511429, ABUBAKAR vs. DAUDA (2020) LPELR-51417 and CHIEF OF NAVAL STAFF, ABUJA vs. ARCHIBONG (2020) LPELR-51845.

The right to seek redress for evisceration of fundamental rights is by Section 46 (1) of the 1999 Constitution vested in any person. The said stipulation reads: “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which is similarly worded for any person to seek redress.

The critical question is whether the phrase any person as used in the provision can be construed to include more than one person or whether it is limited to only one person. Where it is wide enough to include more than one person, then it necessarily follows that joint applicants can bring an application but where it cannot be so construed then an application by joint applicants will be incompetent.

Let me hasten to state that even if the phrase any person denotes singular, by Section 14 of the Interpretation Act, in construing enactments, words in the singular include the plural and words in the plural include the singular. See COKER vs. ADETAYO (1996) 6 NWLR (PT 454) 258 at 266, UDEH vs. THE STATE (1999) LPELR (3292) 1 at 16-17 and APGA vs. OHAZULUIKE (2011) LPELR (9175) 1 at24-25. Furthermore, the adjective employed in the provisions of Section 46 (1) of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 is any.

It qualifies the noun person. The Merriam-Webster Online Dictionary defines the word any as an adjective which could be one or more, an undetermined number and when used as a pronoun, the word any can be singular or plural in construction. See also the online dictionary, Dictionary.com. So the word any and the phrase any person cannot be construed as referable and restricted to an individual. No. It conduces to more than one individual.

In the circumstances, it is my considered and informed view that in so far as the Respondents have a common grievance and common interest, and that it is on the same factual situation that they predicate the evisceration of their fundamental rights, they can bring a joint application for redress. The joint application filed by the Respondents is therefore competent. See INCORPORATED TRUSTEES OF DIGITAL RIGHTS LAWYERS INITIATIVE vs. NIMC (2021) LPELR-55623 (CA) at 51-64 and 67-70 decided by the Ibadan Division of this Court on 24th September, 2021.

It is for the foregoing reason and the more elaborate and comprehensive reasoning and conclusion in the leading judgment of my learned brother, that I avow my concurrence that issue number three must perforce be resolved against the Appellants. This however does not affect the successful destination of the appeal, since the Appellants succeeded on the more pivotal issue numbers two and five, on the disclosure of a cause of action against the Appellants and whether the lower Court was correct in entering judgment in favour of the Respondents, respectively.

Ineluctably, I join in allowing the appeal and on the same terms as set out in the leading judgment.

Judgment

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Honorable Justice B.A Adejumo, Honorable Justice B. B Kanyip and Honorable Justice M.B Dadda of the National Industrial Court sitting in Lagos in Suit No NIC/8/2002 on the 5th of February 2008, as seen on Pages 107 – 118 of the Records of Appeal. The Appellant (then Plaintiff) instituted this suit by filling an Application dated and filed 28th of May 2002 and 30th of May 2002 respectively.

The Appellant is a Trade Union with Members who are Employees of the 1st Respondent who was the 1st Defendant in the suit. The Appellant went into series of discussions and negotiations with the 1st Respondent on settlement, further to which the Parties mutually agreed to lay off the workers with an undertaking on the 1st Respondent to pay salaries, allowances, and terminal benefits amounting to N45 Million (Forty-Five Million Naira) payable to the Appellant’s Members.

In furtherance to this Agreement, 1st Respondent wrote the Appellant on the 10th of October 2001 promising, “to make all payments not later than January 31, 2002”.

The 1st Respondent delivered a Tripartite Deed of Assignment dated 19th of February 2002, which was earlier, executed between the 1st & 2nd Respondent and Shell Petroleum Development Company Limited to the Appellant alongside a Tripartite Deed of Loan and Transfer between the 1st Respondent & 2nd Respondent and ESI Engineering International Limited to the Appellant. ​It further wrote a letter dated 6th of March 2002 informing the Appellant that arrangements had been made with the 2nd Respondent regarding the payment of its liabilities and advised the Appellant to liaise and cooperate with the 2nd Respondent for the payment of their terminal benefits.

The Appellant claimed to have met with the 2nd Respondent unsuccessfully until when in April 2002, the Managing Director of the 2nd Respondent, reported to the Police claiming that some of the affected workers threatened breach of the peace further to which they were arrested and charged to the Magistrate Court. Consequently, by its conduct, it has made further discussions impossible thereby making the enforcement of the Agreements mutually reached by the parties impossible. The Appellant’s questions for determination at the lower Court were as follows: 1.

That by the Agreements executed by the Plaintiff and the 1st Defendant’s Minutes of Meetings on the 23/2/2001 and 6/4/2001, 19/9/2001 and 5/3/2002 together with the two Separate Agreements executed by the Defendants respectively on the 19th of February 2002, the Defendants are liable jointly and severally to pay to the Plaintiff for their workers the terminal benefits and arrears of unpaid salaries and allowances amounting to N45 Million. 2.

A DECLARATION that by the Agreements or Understanding between all the Parties particularly by the Tripartite Deed of Assignment dated 19/2/2002 and Tripartite Deed of Loan and Transfer, the 2nd Defendant assumed joint-liability for the debt of the 1st Defendant and the Plaintiff became entitled to be paid the sum of N45 Million by both Defendants being terminal benefits and arrears of salaries allowances in respect of its 159 workers laid off by the 1st Defendant 3.

AN ORDER directing the Defendants to pay over forthwith to the Plaintiff the total sum of N45 Million, being terminal benefits and unpaid arrears of salaries and allowances for its Members listed in the documents attached to the Accompanying Affidavit in Support, who the defendants laid off on a mutual agreement to pay the benefits together with the costs of this action. The 1st and 2nd Respondents reacted to the Appellant’s Motion by filing separate Preliminary Objections challenging the jurisdiction of the trial Court to hear the application.

Arguments on the Preliminary Objections were taken and on the 6th of February 2007, the trial Court ruled that it had jurisdiction to hear the matter. Subsequently, the 1st Respondent applied for an Extension of Time to file its Counter Affidavit in opposition to the Appellant’s Motion. The Application was granted and the 1st Respondent filed its Counter Affidavit and Written Address. Arguments on the Appellant’s Application was taken.

The 2nd Respondent did not file any Counter Affidavit or Written Address. ​The Appellant’s Application was dismissed on the grounds that it did not make out any case to warrant the granting to it of the reliefs it seeks. Consequently, the Appellant, dissatisfied with the judgment of the trial Court, filed a Notice of Appeal dated 9th of April 2008 as seen on Pages 119 – 125 of the Record of Appeal.

The Appellant challenged the whole decision of the trial Court on Four (4) Grounds: GROUNDS OF APPEAL GROUND ONE The lower Court erred in law when it held that the “Applicant has not made out any case to warrant the granting to it the reliefs it seeks” as such “the Application must fail; and we so order” thereby exceeding its jurisdiction.

In this regard, three (3) Particulars of Error were listed out as contained in the Notice of Appeal GROUND TWO The lower Court erred in law, as much as exceeded as jurisdiction, and denied the Appellant a fair hearing when it held that: “Even assuming that Exhibits G-Gs and H-H6 are applicable to the matter at hand, their contents are such that raise doubts to their efficacy. In the first place, Exhibit H-H6 in the recital talks of N45,000,000; but in schedule III, it talks of N55,000,000.00.

Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the transferee ‘To pay and discharge into the Transferee the Sum of N420, 000, 000.00…which sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein’. Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make payments that the Applicant is praying for.” In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.

GROUND THREE The lower Court erred in law when it failed to exercise its discretion to call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as oral evidence before making a finding on the matter raised in the Exhibits, thereby failing to afford the Appellant the opportunity of being heard. In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.

GROUND FOUR The lower Court erred in law when it failed to act on the unchallenged evidence or properly assess and evaluate the Affidavit Evidence including the Exhibits before the Court and grant the reliefs sought. In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal. The Appellant sought for the following Relief as contained in the Notice of Appeal as follows: “Allow the appeal, set aside the decision of the lower Court, access the evidence and make order appropriately”. The Appellant filed its Brief of Argument on the 2nd of September 2008.

The 1st Respondent on the 20th of November 2009, filed a Notice of Preliminary Objection dated 29th of October 2009. In addition to the Notice of Preliminary Objection, it also filed its Respondent’s Brief of Argument dated 29th of October 2009 and filed on the 20th of November 2009 also incorporating the Preliminary Objection to the Brief. Same was deemed filed on the 5th of October 2018. The Appellant neither filed a Reply to the Preliminary Objection nor an Appellant Reply Brief. The Appellant in its Brief of Argument raised Four (4) issues for determination namely: 1.

Whether the lower Court was right when it held that the Appellant did not make out any case and dismissed the Appellant’s case. This issue relates to Ground One of the Grounds of Appeal. 2. Whether the lower Court was right and did not exceed its jurisdiction and deny the Appellant a fair hearing in its approach to and conclusion on the Appellant’s Exhibits G-G5 and H-H6 relating to the discrepancy in the figures N45,000,000.00. This issue relates to the Ground 2 of the Grounds of Appeal. 3.

Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as call oral evidence before making a finding of conflicting figures in the Exhibits. This issue relates to Ground 3 of the Grounds of Appeal. 4. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence and give judgment accordingly. This issue relates to Grounds 4 of the Grounds of Appeal.

Dwelling on the issues for determination, the 1st Respondent raised two Issues for Determination as follows: (i) Whether the lower Court was wrong in holding that Interpretative Jurisdiction should not be used to settle Triable Issues. (ii) Whether the lower Court was wrong in refusing to hold that Exhibits G-G2 and H- H6 take the character of Collective Agreements. ​The 2nd Respondent did not file any Brief of Argument. The Appellant also did not address the issues arising from the Preliminary Objection.

Now, after a thorough perusal of the Notice of Appeal, the adopted Brief of Arguments, as well as the Records of Proceedings, this Court observed that the 1st Respondent raised a Notice of Preliminary Objection, which borders on the competency of the appeal. The Court will now examine the Preliminary Objection to determine if it has merits.

The 1st Respondent premised his Notice of Preliminary Objection on One (1) Ground which is reproduced as follows: GROUND OF THE OBJECTION Section 9 of the National Industrial Court Act 2006 stipulates the appeal that shall lie as of right from the decisions of the National Industrial Court to the Court of Appeal. This appeal as presently constituted does not fall under that category.

In his submission on the Preliminary Objection, the Learned Counsel to the 1st Respondent placed reliance on Section 9 of the National Industrial Court Act, 2006, which provides that an appeal from the decision of the National Industrial Court can only lie as of right to the Court of Appeal only on questions of Fundamental Rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria.

He submitted that the facts of this instant case from the National Industrial Court, indicates that the question before the National Industrial Court was definitely not based on Fundamental Human Rights Issues as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria and as such going by the provisions of Section 9 of the National Industrial Court Act 2006, the Appellant is duty bound to seek and obtain the Leave of Court before filing any appeal against the decision of that Court.

The Learned Counsel added that the Processes filed before this Court showed that leave was neither sought nor obtained before the Appellant filed this appeal before this Court, and as such having not obtained the requisite leave, this Court does not have the Jurisdiction to entertain this Appeal. The issue of obtaining leave of Court is a condition precedent specifically laid down by Statutes. He relied on MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587.

He urged this Court to strike out the appeal forthwith. ​Now, it has been observed that the Learned Counsel to the Appellant did not file a Reply to the 1st Respondent’s Notice of Preliminary Objection. The law is trite that silence can sometimes mean yes and what is admitted needs no further proof. It is settled that where a Party fails to reply to a Point of Law raised by an opposing party, he is deemed to have conceded to the points raised. See OKESUJI VS LAWAL (1991) 1 NWLR 662 AT 674; CHUKWU VS CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR-23813(CA).

In this instant case, the Appellant did not respond to the Respondent’s Preliminary Objection and as such he is deemed to have admitted the Objections raised by the Respondent. Now, the Issue as to whether Leave of Court is required to file an appeal against the decision of the National Industrial Court will be examined. The Right of Appeal is a Constitutional Issue and they are of two categories. The first one is appeal as of right and appeal with leave of Court.

It is clear that this appeal emanated from the National Industrial Court and as such there can be only two categories of appeal that can arise from the Court below. ​Civil appeals from the National Industrial Court are governed by the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria.

Section 243 (2) and (3) provides as follows: “(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of Fundamental Rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.” Appeals to the Court of Appeal as of Right are formed on Grounds touching on Fundamental Rights and appeals with Leave on other Grounds.

With particular reference to this Appeal, Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended is relevant. It governs the jurisdiction of the Court of Appeal over appeals arising from the decisions of the National Industrial Court and specifically on when an appeal as of right arises and when Leave to Appeal must be sorted and obtained. In the same vein, Section 9(1) and (2) of the National Industrial Court Act, 2006 also make identical provisions to that of Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria.

It provides as follows: “(1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and Subsection (2) of this Section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other Court excepts as may be prescribed by this act or any other Act of the National Assembly. (2) An appeal from the decision of the Court shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999” ​The provisions of Section 243 (2) and (3) of the 1999 Constitution are very clear and unambiguous Also the provisions of Section 9(2) of the National Industrial Court Act, 2006 are also very clear.

It is trite that the object of interpreting a Statute or the Constitution is to discern the intention of the Legislature and that can only be determined through the language used in the Statute or Constitution. Hence, where words used in the Constitutional Provisions or Statute are clear, plain, and unambiguous, they are to be construed in their literal and ordinary meaning. Reference is made to the decided Case Authorities GANA VS SDP & ORS (2019) LPELR-47153 (SC), MARWA & ORS VS NYAKO & ORS (2012) LPELR-7837 (SC) ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).

The understanding is that except for the Right of Appeal as provided under Section 243 (2) of the 1999 Constitution and Section 9(1 – 2) of the National Industrial Court Act 2006, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any matter in which jurisdiction is conferred on the National Industrial Court, it shall be as prescribed by an Act of the National Assembly.

Provided however that where such Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any matter, such appeal shall be by Leave of Court.

Therefore, in other words, except for the provisions of Section 243 (2) where an aggrieved Party can appeal as of right as far as it relates to questions of Fundamental Rights as contained in the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as it relates to matters under which the National Industrial Court has jurisdiction, an appeal on any other matter shall be as prescribed by an Act of the National Assembly.

In SKYE BANK PLC VS IWU (2017) 16 NWLR (PART 1590) SC PAGE 24 AT PAGE 147, the Supreme Court Per KEKERE–EKUN, JSC held as follows: “The combined provisions of Sections 36(2) (b), 240, 243 and 254C(5), (6) of the 1999 Constitution (As Amended) creates a right of appeal from a decision of the National Industrial Court to the Court of Appeal.

Such an appeal is as of right in fundamental rights cases and criminal matters, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction.” ​From the foregoing, it is clear that it is only in questions relating to Fundamental Right Cases and Criminal Matters that an appeal as of right will arise. Leave of Court is only required in other Civil Matters where the National Industrial Court has jurisdiction.

Similarly, Section 243 (2–4) of the Constitution as introduced by Section 5 of the Third Alteration Act deals with the manner in which an appeal from the National Industrial Court to the Court of Appeal is to be dealt with. Subsection 2 is very clear – only an appeal on questions relating to Fundamental Human Rights, as it relates to matters on which the National Industrial Court has Jurisdiction are as of Right. It suffices to state that there is no doubt that there are only two categories of appeals that can emanate from the National Industrial Court to the Court of Appeal.

The question that arises in this appeal is whether the Grounds of Appeal are Grounds complaining of Fundamental Human Rights breaches or Grounds other than Fundamental Human Right breaches. The complaints must be against the decision of the trial Court and not the claim against the Respondents. ​It is pertinent to note that the suit was not initiated under Fundamental Rights Enforcement Rules as it is only the High Court and the Federal High Court that has the jurisdiction to hear such matters. Any Fundamental Right Issue must arise from the trial Court’s omission or commission.

Upon the holistic interpretation of Sections 240, 243 (2 – 4) of the 1999 Constitution, all decisions from the National Industrial Court can be appealed as of right provided it borders on questions relating to Fundamental Rights and with leave of the lower Court on other civil matters where the National Industrial Court has exercised its jurisdiction.

See GOVERNING BOARD OF RUGIPOLY, ONDO STATE VS OLA (2016) 16 NWLR (PART 1537) PAGE 1 AT PAGE 21 – 29; UITHMB VS ABDURAHAMAN (2017) 15 NWLR (PART 1589) PAGE 397 AT PAGE 419; LAGOS SHERATON HOTEL VS HPSSSA (2014) 14 NWLR (PART 1426) PAGE 45 AT PAGE 65; NESTOIL PLC VS NUPENG (2018) LPELR-50094 (CA), AKOSHILE V NIMC & ANOR (2020) LPELR-51362 (CA); NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION VS BPE (2019) LPELR-48725 (CA).

Having examined the fact that appeal from the National Industrial Court to the Court of Appeal can be as of Right if it borders on questions relating to Fundamental Rights and for other Civil Matters in which leave of the lower Court is required on which the National Industrial Court has exercised jurisdiction, the next step is to examine the Grounds of Appeal to determine if there is a Ground touching on Fundamental Right that can sustain the competence of this appeal from the National Industrial Court.

From the Grounds of Appeal reproduced above, it appears that the only Ground that has any semblance to the issue touching on Fundamental Right is Ground Two (2) where the Appellant alleged that the trial Court erred in law as much as exceeding jurisdiction by denying it fair hearing in respect of the Exhibits tendered at the lower Court by holding that the Appellant failed to address the Court as to whether the Exhibits tendered can be part of the Collective Agreement. As such, it concluded that the Appellant has failed to make a case to warrant the grant of the Reliefs sought.

However, a closer review of Ground Two (2) would indicate that there was no question of Fundamental Rights raised in the lower Court. In OPARA VS SPDCN [2015] 14 NWLR 319. ​

The Supreme Court has given a well-considered position on this in this manner: ‘’The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedures) Rules.

However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject matter of the action. Enforcement of the Right per se cannot resolve the substantive claim, which is in any case different. In the instant case, the appellants’ main grouse was about pollution generated from gas flaring.

This is a matter that cannot be knighted as a fundamental right action under Chapter IV of the Constitution and under the African Charter on Human and Peoples Rights.’’ This Court had reeled out the reliefs sought by the Appellants in this suit at the trial Court earlier in this judgment. The reliefs can be found on Pages 1 – 2 of the Record of Appeal.

After a careful review of the reliefs sought by the Appellant, this Court found out that the Reliefs sought by the Appellants at the lower Court borders on the interpretation of Agreements and enforcement of Monetary Claim and has nothing to do with Fundamental Rights. It is worth noting that the question of Fundamental Rights was not raised and determined at the lower Court, it was only set down for the first time as Ground 2 in the Notice of Appeal.

From the facts before the lower Court, the issues were not premised on Fundamental Rights as contained in Chapter IV of the 1999 Constitution For an action to be qualified as a Fundamental Right Action, the central question or the main claim must be for Enforcement of Fundamental Right or the securing of the Enforcement of Fundamental Right. It must not be the consequential human right issue or question which emanates or seeks to unravel another question. The Fundamental Right claim involved must not be a claim that is an offshoot of the main claim.

The Fundamental Right Claim must be the main or principal claim in the suit. See GAFAR VS KWARA STATE GOVT (2007) NSCQR VOLUME 29 PAGE 34; UNILORIN VS OLUWADARE (2006) NSCQR VOLUME 27 PAGE 18; EGBUONU V BOMO RADIO TELEVISION CORPORATION (1991) 2 NWLR 81 AT P.90; SEA TRUCKS NIGERIA LIMITED VS ANIGBORO (2001) NSCQLR VOLUME 5 PAGE 120.

In LAGOS SHERATON HOTEL VS HPSSSA (SUPRA), His Lordship, Per OSEJI, JCA (as he then was) admonished Litigants to refrain from trying to circumvent the provisions of Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria under any guise to appeal the decision of the National Industrial Court in matters they are not allowed to appeal against. His warning is endorsed and he stated thus: “….

Litigants who seek to circumvent or evade the provisions of Section 243(2) and of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope, should be advised not to underestimate the sharp sense of perception and wisdom of the Appellate Courts to sift the wheat from the chaff.

Undoubtedly, in deserving cases, the Court will not relent in defending the course of justice, given its Status as the dynamic Agency for the protection of the Rule of Law.” However, the other three (3) Grounds of Appeal stated on the Notice of Appeal, have no semblance of Fundamental Right and as such require the leave of the lower Court to appeal. A perusal of the Records of Appeal shows that there was no Application for leave to appeal that was filed and granted, and as such no leave of Court to appeal the decision of the lower Court is part of the Records of Appeal.

Thus there is no leave to appeal the Grounds listed in the Notice of Appeal. Failure to seek the leave of the lower Court to appeal these Grounds have grave consequences. Thus it is trite that where there is no leave of Court to appeal a decision of the lower Court, when it is required to obtain before appeal, such appeal is incompetent and liable to be struck out. That is the consequence of the failure to seek the leave of Court to appeal when leave is required.

See EHINLANWO VS OKE & ORS (2008) LPELR-1054 (SC), IKWEKI & ORS VS EBELE & ANOR (2005) LPELR-1490 (SC); NWADIKE VS IBEKWE (1987) 4 NWLR (Pt. 67) Where a statute specifies that leave of Court is required to file an appeal, failure to obtain the leave of Court to appeal robs the Appellate Court of jurisdiction and jurisdiction is fundamental to in every adjudication. In ABDULKARIM VS INCAR (NIG) LTD. (1992) LPELR-26 (SC), the Supreme Court per UWAIS JSC held: “As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent.

The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void. There is therefore no appeal before this Court.” Further reference is made to the Supreme Court Authorities of SAMPSON UKPONG & ANOR VS COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) 12 SCNJ AT 129 AND DR. ABDUL VS CPC & ORS (2013) 5 SCNJ AT PAGE 378.

From the foregoing, this appeal cannot be considered as an appeal based on questions relating to Fundamental Rights and as such, there is no valid appeal before this Court with respect to the Grounds as they are incompetent. There is also no pending Application for leave to appeal before this Court and therefore, this Court lacks the jurisdiction to determine the appeal as presently constituted. The objections being fundamental and jurisdictional, it would be an academic exercise to venture into the substance of the main appeal.

Consequently, the Preliminary Objection raised by Learned Counsel representing the 1st Respondent is Upheld and resolved in favour of the 1st Respondent and against the Appellant. The appeal is hereby struck out for want of jurisdiction having been filed without the leave of the lower Court. On the off chance that the appeal is proper before this Court, the merit of the Substantive Appeal will be examined.

ISSUES FOR DETERMINATION Now having perused the Issues for Determination raised by the Learned Counsel across the divide, this Court will subsume the Four (4) issues raised by the Appellant with the Two (2) Issues raised by the Respondent to determine the appeal in the following manner: – 1.

Whether the lower Court was right and did not exceed its jurisdiction to deny the Appellant a fair hearing in its approach to the conclusion it reached in respect of the Appellant’s Exhibits G – G2 and H – H6, which related to the discrepancy in the figures N45,000,000.00, N55,000,000.00 and N420,000,000.00 2.

Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H – H6 as well as call Oral Evidence before making a finding of the conflicting figures in the Exhibits and further whether it was right to refuse to hold that these Exhibits take on the character of Collective Agreements. 3. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence to give judgment dismissing the Appellant’s case on the ground that the Appellant did not make out a case. 4.

Whether the lower Court was wrong in holding that its interpretative jurisdiction should not be used to settle triable Issues. ​For the purposes of a consistent flow in the analysis, this Court will treat Issues 1, 2 and 3 initially and then proceed to determine Issue Four (4).

Arguments of Counsel on Issues 1, 2 and 3 It is worthy of note that Learned Counsel representing the Appellant, in his Written Address argued his Issues 1, 2 and 3 in one steady stream and separately argued his Issue 4, while the Learned Counsel representing the Respondents, submitted on his own Issues seriatim. On Issues 1, 2 and 3, Learned Counsel to the Appellants submitted that the lower Court went into the contents of Exhibits G-G2 and H – H6 and doubted their efficacy, due to the conflicting figures.

Having found out that its interpretative jurisdiction could not be used to settle triable Issues, it ought to have struck out the case for want of jurisdiction. He then submitted that the trial Court ought to have called the Appellant to orally explain the conflicting figures of N45,000,000, N55,000,000 and N420,000,000 it spotted in the documents. Further, by going through the merit of the Affidavit Evidence, it failed to determine the issues raised because of the discrepancies in the Exhibits and therefore, acted erroneously by dismissing the suit.

He relied on CHIEF JAMES NTUKIDEM & ORS VS CHIEF OKO & ORS (1986) 12 SC 126 AT 127. He further stated that the trial Court failed to evaluate the Affidavit Evidence and the Exhibits before it, relying on the Authorities of NKPA VS NKUME (2001) 6 NWLR (PART 710) PAGE 543 AT 559; COLLINS VS VESTRY OF PADDINGTON (1880) 5 QBD 380. According to Counsel, the trial Court undermined the Affidavit Evidence by doubting the names of the workers, despite the fact that the 1st Respondent did not dispute the details of the workers.

Finally, he submitted that the Procedure adopted by the lower Court deprived the Appellant of fair hearing when it failed to invite them to address it on the conflicting figures and urged this Court to resolve Issues 2, 3 and 4 in his favour. Conversely, Learned Counsel to the 1st Respondent submitted that some of the members of the Appellant were at one time in the employment of the 1st Respondent until it encountered difficulties. He further submitted that the question before the Court was whether Exhibit G – G2 and H – H6 take the character of a Collective Agreement.

He relied on Section 48 of the Trade Dispute Act and the Case Law Authority of RECTOR, KWARAPOLY VS ADEFILA (2007) 15 NWLR (PART 1095) PAGE 42 AT 92 to argue that Exhibits G – G2 and H – H6 do not take the form of Collective Agreement. Learned Counsel further submitted that the documents fall within the realm of the Law of Contract since the 1st Respondent entered into a contract with the 2nd Respondent. The Appellant was not a Party to the Agreements and as such, cannot enforce it due to the doctrine of Privity of Contract.

He relied on BORISHADE VS NBN LTD (2007) 1 NWLR (PART 1015) PAGE 217 AT 249. RESOLUTION OF ISSUES 1, 2, and 3. Now, fair hearing means trial of a case or conduct of proceedings according to all relevant Rules for ensuring Justice. Therefore, fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. The true test of fair hearing is the impression a reasonable person present at the trial would form that justice was done in the case.

In MOHAMMED VS ABU ZARIA (2014) 7 NWLR (PART 1407) PAGE 500 AT PAGE 531, this Court per ORJI-ABADUA JCA explained the concept of Fair Hearing as follows: “Fair hearing entails giving somebody an opportunity to explain his actions. It is one in which authority is fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Fair hearing contemplates the right to present evidence, to cross-examine and to have findings supported by evidence. It can be likened to a fair and impartial Trial.

It is a proceeding which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, consideration of evidence and facts as a whole.

Where principles of fair hearing are observed, there is, invariably, an atmosphere of calm in which witnesses can deliver their testimony without fear and intimidation, in which counsel can assert the accused’s rights freely and fully, and in which the truth may be received and given credence without fear of violence.” See also ANPP VS INEC (2004) 7 NWLR (PART 871) 16; SALEH VS MONGUNO (2003) 1 NWLR (PART 801) 221; EZECHUKWU VS ONWUKA (2006) 2 NWLR (PART 963) 151.

In this instant appeal, one of the grievances of the Appellant was that the trial Court exceeded its jurisdiction by denying it fair hearing due to its failure to ask the Appellant to explain the discrepancies in regard to Exhibits G-G2 and H – H6, before it made its findings thereby breaching its right to fair hearing.

The Learned Trial Judges held as follows: “The Applicant was expected to address the Court on the Issue of whether Exhibits G – G2 and H – H6 can be said to be part of the Collective Agreement in issue, given that what the Applicant did was to activate the Interpretation Jurisdiction of the Court. Unfortunately, the Applicant failed to do this. Instead, it assumed that the two documents are necessarily applicable without more and took the character of a Collective Agreement for which this Court should hold the Respondent liable.

Even assuming the Exhibits G–G2 and H–H6 are applicable to the matter at hand, their contents are such that raised doubts as to their efficacy. In the first place, Exhibit H – H6 in the recital, talks of 45,000,000; but in Schedule III, it talks of N55, 000,000.

Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the Transferee ‘To pay and discharge unto the Transferee the sum of N420,000,000.00… which the sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein.’ Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make the payments that the Applicant is praying for” The Appellant argued that trial Court raised doubts to the efficacy of Exhibits G – G2 and H – H6 without asking the Appellants to explain the discrepancies.

It is pertinent to note that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the Parties, particularly the Party that may be adversely affected by the Issue raised See MOJEKWU VS IWUCHUKWU (2004) 11 NWLR (PART 883) PAGE 196; LEADERS & COMPANY LTD VS BAMAIYI (2010) LPELR 1771; INAIFE VS DAUKURO & ORS (2019) LPELR – 48669 CA; OMOTOSO VS AKOGUN & ORS (2018) LPELR 46368 CA. Now, the trial Court perused Exhibits H – H6; G-G2 from the Originating Processes, which constitutes evidence for consideration.

However, the presence of these pieces of evidence will not detract from the fact that they must be established as the correct state of facts. The trial Court is empowered and must evaluate, assess the credibility and veracity of each and every piece of Evidence adduced before him. In CPC VS INEC & ORS (2011) LPELR – 8257 (SC), the Supreme Court Per ADEKEYE, JSC held as follows: “The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence.

The Court must ensure that it holds the string or scale of justice evenly balanced between the parties, so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence.

It is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion.” See also AYUYA & ORS v. YONRIN & ORS (2011). LPELR-686(SC); SHA & ANOR VS KWAN (2000) 8 NWLR (PART 670) PAGE 685; ADAMU & ORS v. STATE (1991) LPELR-73(SC); AJAGBE v. IDOWU (2011) LPELR-279(SC).

From the foregoing Judicial Authorities, it can be seen that where documentary evidence is in issue, the Court is duty bound to evaluate the evidence before it, as the judgment must be confined to facts and issues raised by the Parties. It should be noted that the Parties relied on the Tripartite Deed of Assignment and Tripartite Deed of Loan as well as the Transfer Agreement, all marked as Exhibits G – G2 and H – H2 respectively for the determination of the question on whether the said Exhibits can be said to be part of the Collective Agreements.

The effects and implication of the Exhibits were one of the questions for determination by the trial Court and the lower Court was duty bound to determine the effects of these Agreements. Reviewing the contents of the judgment above, it is clear that the trial Court did not raise an issue suo motu, it only evaluated the said Exhibits relied on by the Parties, and interpreted the Agreements, drawing inference from them to determine whether, they indeed took on the character of a Collective Agreement.

In ENEKWE VS IMB (NIG) LTD (2006) 19 NWLR (PART 1013), the Supreme Court Per NIKKI TOBI JSC held as follows: “Learned counsel heavily descended on the expressions: ‘infinitesimally insubstantial tenuous, maliciously dubious and transitory in nature.’ To learned counsel, the expressions are tantamount to raising new issues suo motu by the Court of Appeal. While I agree that counsel is free and at liberty to attack dictum or dicta in a judgment, he has a duty to read the entire judgment very carefully before he embarks on a tirade on words used by the Judge.

A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings.

In other words, the Court of Appeal cannot be accused of raising issues suo motu, if the issue was canvassed at the Trial or on Appeal. The trial Court only raised its observation about the contents of the Agreements to determine the efficacy of the Agreement and whether they took on the character of a Collective Agreement. Thus the observations of the trial Court in this regard cannot be said to be an Issue raised suo motu.

Furthermore, the Appellant in his adoption of his Written Address as seen in Page 105 of the Record of Appeal, failed to address the trial Court on the question of whether the stated Exhibits could be said to be part of the Collective Agreement. Rather, he countered the Written Address of the 1st Respondent, asking the trial Court to discountenance the arguments therein on the Grounds that it was a way of re-opening issues that had already been resolved in its favour by the trial Court.

Further still, he argued that by the Agreements entered into between the two Respondents, they are jointly and severally liable to the Appellant. According to him, the Appellant had the opportunity of addressing the Court on the efficacy of the said Exhibits G – G2 and H – H6 as part of the Collective Agreement but failed to do so. Consequently, it cannot turn around and complain that it was denied the right of fair hearing.

His Lordship Per NIKI TOBI, JSC in ADEBAYO VS AG OGUN STATE (2008) LPELR (80) warned Counsels to refrain from misusing fair hearing to divert the attention of the Courts from the main issues in a suit as follows: “Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there.

They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage.

On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.

Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.” From the foregoing, it is clear that Learned Counsel to the Appellant had the opportunity to explain to the trial Court whether or not the Agreements could be classified as a Collective Agreement but slept on his rights. He cannot therefore complain that he was denied the right to fair hearing, when he had the opportunity to explain the relevance of the Agreements.

It is not the responsibility of a trial Court to ensure that a Party takes advantage of the environment by involving himself in the Proceedings. A Party who had the opportunity to explain the relevance of the Exhibits he attached to his pleadings cannot turn around and accuse the trial Court of denying him fair hearing. See BELLO VS THE STATE (2020) LPELR–50287 CA; MUTUAL BENEFIT ASSURANCE VS ACCESS BANK (2021) LPELR–52791 CA; PAX EDUCATION RESOURCES VS FRN (2020) LPELR–51181 CA; ORIENTAL ENERGY RESOURCES VS HERCULES OFFSHORE (NIG) LTD (2020) LPELR–50873 CA.

Furthermore, the trial Court is not under any obligation to call Counsel to the Parties to address it on whether Exhibits admitted should be ascribed probative value. In REVEREND KING VS THE STATE (2016) LPELR–40046 (SC), the Supreme Court Per NGWUTA, JSC held as follows: “The exhibits and oral evidence were received by the trial Court.

The trial Court did not need address from Counsel to the parties to decide whether or not a piece of evidence and exhibits admitted should be ascribed probative value, nor are Counsel to the parties entitled to be heard in the evaluation of the evidence before the Court” Thus from the foregoing, the trial Court has not breached the Appellant’s right to fair hearing as it is not under any obligation to call the Parties to address it in its evaluation of evidence before it. The Court did not exceed its jurisdiction in its conclusion on the Agreements.

Now having resolved that the trial Court had not breached the Appellant’s right to fair hearing, the next question is to determine if the trial Court was in error for refusing to hold that Exhibits G – G2 and H – H6 take the character of Collective Agreements.

Section 48 (1) of the Trade Disputes Act defined Collective Agreements as follows: “(1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say- “collective agreement” means any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between- (a) An Employer, a Group of Employers or one or more Organizations representative of employers, on the one hand; and (b) One or more Trade Unions or Organizations representing Workers, or the duly appointed Representative of any Body of Workers, on the other hand;” From the foregoing definition, the ingredients of a Collective Agreement are that: 1.

The Agreement must be in writing. 2. The Agreement must be for settlement of disputes.

3. The Agreement must relate to terms of Employment as well as physical working conditions.

4. It must be between an Employer or a Group of Employers or their Representatives on one hand and on the other hand one or more Trade Unions representing the Workers or an Appointed Representative of Workers. The four ingredients must co-exist for it to be termed as a Collective Agreement.

Furthermore, in OSOH & ORS VS UNITY BANK PLC (2013) LPELR – 19968 (SC), the Supreme Court per CHUKWUMA-ENEH JSC, further explained the features of a Collective Agreement as follows: “The provisions of Section 47(1) (supra) however require collective agreements to be in writing so as to formalize the agreements.

What has further emerged from the definition with respect to many cases of “collective agreements” is that where they have created legal relations giving rise to contractual obligations between the parties, they are enforceable by the immediate collective parties (i.e. between an employer or an employers’ organization and a trade union or Unions) but as between the employers and the workers as the respondent and appellants here, it is only so where they have been incorporated into the contracts of employment of the employees so as to be actionable for any breaches arising therefrom at the suit of either party to the contractual relationship.

Otherwise, they are no more than mere vague inspirational terms which are bound to present practical problems of enforcement and the best method being to use political or trade union pressure to bring about their enforcement.

The other notable, crucial feature of collective agreements arising from their being the products of the joint negotiating bodies of workers’ representatives and the employer’s representatives and in that regard being in writing is raising the presumption of being legally enforceable provided the agreements have created contractual obligations arising out of legal relations as between the parties.” ​Exhibits G – G2 is a Tripartite Deed of Assignment between the 1st Respondent, 2nd Respondent and Shell Petroleum Development Company Limited.

Exhibit H – H6 is a Tripartite Deed of Loan and Transfer Agreement between the 1st Respondent, 2nd Respondent and ESI Engineering International Nigeria Limited. A perusal of both Agreements shows that the Appellant is not a Party to the Agreements. Both Agreements are Contractual Agreements entered by the respective Companies in their own capacities. The workers are not represented in the Agreement. The Terms of the Agreement have nothing to do with settlement of disputes relating to terms of Employment and physical working conditions.

From the foregoing, Exhibits G – G2 and H – H6 do not fall under the definition of Collective Agreements as defined in Section 47 of the Trade Disputes Act. The Agreements falls under the realm of Law of Contract as the 1st Respondent entered into a contract with the 2nd Respondent assigning its liabilities to the 2nd Respondent. The question is whether the Appellant is entitled to enforce the Agreements?

In BASINCO MOTORS VS WOERMANN – LINE & ANOR (2009) LPELR – 756 (SC), the Supreme Court Per ADEKEYE, JSC explained the Doctrine of Privity of Contract as follows: “From the forgoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it.

In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his… him liable upon it. Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract.” See NEGBENEBOR VS NEGBENEBOR 1971 1 ALL NLR 210; IKPEAZU VS A.C.B LTD 1965 NMLR 374; K.S.O.

ALLIED PRODUCTS LTD VS KOFA TRADING CO LTD (1996) 3 NWLR PART 436 PAGE 244 ALFOTRIN LTD VS A.G. 1996 NWLR PART 475 PAGE 634. In this instant case, the Contractual Agreement is only enforceable between the Respondents. The Appellant in this instant case is not a Party to the Tripartite Agreement and as such cannot enforce the Contract due to the doctrine of Privity of Contract. ​Consequently, the Appellant cannot enforce the Contract Agreement entered between the 1st and 2nd Respondents in respect of Exhibits G – G2 and H – H6.

The trial Court was therefore right in refusing to hold that the said Exhibits took the character of a Collective Agreement. Issues 1, 2 and 3 are hereby resolved in favour of the Respondents and against the Appellant. ARGUMENTS OF COUNSEL IN RESPECT OF ISSUE 4 In arguing Issue 4, Learned Counsel summarized the Claim before the lower Court and the Preliminary Objection on the jurisdiction of the lower Court.

He relied on the Case Law Authorities of NATIONAL UNION OF HOTELS AND PERSONAL SERVICE WORKERS VS WHASSAN EUREST NIGERIA LTD (2005) 2 NWLR (PART 4) PAGE 145 AT 154; CHEMICAL & NON-METALLIC PRODUCTS SSA VS BCC (2005) 2 NWLR (PART 6) PAGE 446 AT 470.

He submitted that the summary of the Respondents’ Defence to the Appellant’s claim was that there was ‘no cause of action’ relying on KALANGO VS DOKUBO (2003) 15 WRN 3 PAGE 32 AT 78; SONA BREWERIES PLC VS SIR SHINA PETERS & ANOR (2005) 1 NWLR (PART 908) PAGE 478 AND CBN VS SYSTEMS APPLICATIONS PRODUCTS NIG LTD (2005) 3 NWLR (PART 911) 153. ​Learned Counsel to the Appellant argued that based on the Common Grounds between the Appellant and the 1st Respondent, which was unchallenged by the 2nd Respondent, the lower Court had enough materials to interpret the Collective Agreement, make a declaration and an order for payment of the said N45 Million or decline both reliefs for stated reasons.

However, after holding that it had the jurisdiction to hear the matter, failed to interpret Exhibits G-G1 and H-H6 as a Collective Agreement and also failed to make an Order as to the Liability of the Respondents to pay the said N45 Million. On the contrary, the lower Court held that the Appellant assumed that the two documents are necessarily applicable, without more and took the character of a collective agreement for which the Court should hold the Respondents liable.

Learned Counsel to the Appellant contended that the Respondents did not raise any Issue as to the applicability of the Exhibits attached. Therefore, the lower Court erred when it expected the Appellants to address it on the undisputed Exhibits as to their efficacy but failed to do that. Finally, he submitted that the Court contradicted itself by holding that the Appellant failed to make out a case and yet held that it cannot through its interpretative jurisdiction try triable issues. Therefore he urged this Court to find in their favour on this Issue.

Conversely, the Learned Counsel to the Respondents relied on Section 20 of the Trade Dispute Act and Case Law Authority of ADESOYE & 5 ORS VS GOVERNOR OF OSUN STATE & ANOR (2005) 16 NWLR (PART 950) PAGE 1 AT 21 – 22 to state that the National Industrial Court has the jurisdiction to determine questions relating to Collective Agreements. Further reliance was placed on ABDULRAHEEM VS OLORUNTOBA –OJU (2006) 15 NWLR (PART 686) PAGE 581 AT 624 He submitted that the jurisdiction of the National Industrial Court lies only with the Interpretation of a Collective Agreement and nothing more.

The Reliefs sought by the Appellant at the lower Court are therefore ultra vires the powers of the National Industrial Court as provided for by Section 20 of the Trade Disputes Act, LFN 1990. He cited and relied on the Case Authority of ATTORNEY GENERAL OF OYO STATE VS NIGERIA LABOUR CONGRESS & ORS (2003) 8 NWLR (PART 821) PAGE 1 AT 28. ​Finally, Learned Counsel to the Respondent argued that the Appellant attempted to get the lower Court to grant declaratory reliefs under the guise of interpreting a Collective Agreement and to make an Order, which is outside the jurisdiction of the trial Court.

Reference was made to KALANGO VS DOKUBO (2003) 15 WRN PAGE 32 AT 78. He urged this Court to hold that the lower Court was right to restrict itself to its interpretative jurisdiction and not to go ultra vires its jurisdiction in granting the declarations and order sought by the Appellant and urged this Court dismiss the appeal of the Appellant on this Issue.

RESOLUTION OF ISSUE 4 Now, Section 48 of the Trade Dispute Act defines Trade Disputes as follows: “Trade Dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person;” Thus for a dispute to come under the definition of a Trade Dispute, the following ingredients must be present: 1. There must be a dispute 2. The dispute must involve a trade 3. The dispute must be between a. Employers and Workers b. Workers and Workers 4.

The dispute must be connected with: a. Employment or Non-employment b. Terms of Employment c. Physical conditions of work of any persons. See NURTW VS NWEKE OGBODO & ORS (1998) 2 NWLR (PART 537) PAGE 191. All these four conditions must coexist to cloth the National Industrial Court with the jurisdiction to entertain the matter. In this instant case, there is a dispute between the 1st Respondent and the Appellant with some of its members working as employees with the 1st Respondent.

The dispute relates to the employment of the Appellant and as such, it falls under the provisions of Section 48 and Section 15 of the Trade Disputes Act. This now leads to question as to whether or not the National Industrial Court can hear Applications seeking Declaratory Reliefs or Injunctive Orders. The importance of jurisdiction in the adjudication of a matter cannot be over-emphasized. Without it, the Court will operate in futility. It is the power of the Court to adjudicate on a matter. It cannot be underrated for the purpose of litigation.

See SALISU V MOBOLAJI (2014) 4 NWLR (PT 1296) 1 AT 6; NSL LTD V ATTORNEY GENERAL OF LAGOS STATE (2009) 11 NWLR (PT 1152) PAGE 304 AT 306, KURMA V SAUWA (2019) 13 NWLR (PT 1659) PG 247; GT INVESTMENT LTD V WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500. The fundamental principle in determining whether a Court has the jurisdiction to hear a matter is to examine the claim as stated in the Writ of Summons or endorsed in the Statement of Claim.

See ADETAYO & ORS VS ADEMOLA (2010) LPELR – 155 SC, WAMBAI VS DONATUS & ORS (2014) LPELR 23303 – SC, OBI VS INEC (2007) LPELR 24347-SC, ADETONA & ORS VS IGELE (2011) LPELR – 159 SC. To successfully determine whether the National Industrial Court had the requisite jurisdiction to entertain the matter at hand, recourse must be had to the enabling Statute, which is the National Industrial Court Act of 2006.

Section 7 (1 A and C) of the National Industrial Court Act 2006 provides for the jurisdiction of the National Industrial Court as follows: “(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters- (a) relating to- (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and (c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union constitution, and (v) any award or judgment of the Court.” From the interpretation of Section 7 (1C), the National Industrial Court only has the jurisdiction to entertain matters relating to questions as regards the interpretation of Collective Agreements, any award made by an Arbitral Tribunal, Terms of Settlement of any Labour Dispute, Trade Union Constitutions and Award or Judgment of the Court.

There is nothing in the said Section that gives the National Industrial Court the jurisdiction to make declaratory reliefs or injunctive orders. It is settled law that the express mention of specific things is to the exclusion of other things. That is Expressio Unius Est Exclusio Alterius – Thus things not mentioned in a Statute is a clear intention that they are not intended to be included.

Reference is made to the decided Case Authorities of PDP & ANOR VS INEC & ORS (1999) LPELR-24856 (SC), SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC), PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS VS MIGFO (NIG) LTD & ANOR (2012) LPELR-9725 (SC), BUHARI & ANOR VS YUSUF & ANOR (2003) LPELR-812 (SC). This Principle is applicable to the interpretation of Section 7 of the National Industrial Court Act 2006.

The fact that the jurisdiction of the National Industrial Court does not include the Powers to make Declaratory Reliefs and injunctive orders, shows that the Drafters of the National Industrial Court Act never intended to include such powers in the provisions of the National Industrial Court Act. Thus from the foregoing, the National Industrial Court does not have the jurisdiction to make declaratory reliefs and injunctive orders.

In OLORUNTOBA OJU VS ABDULRAHEEM (2009) 13 NWLR (PART 1157) PAGE 83 AT 127, the Supreme Court Per ADEKEYE, JSC held as follows: “Section 15 of the Trade Dispute Act, 1976 which confers jurisdiction on the National Industrial Court does not include jurisdiction to make declarations or to order an injunction.

In other words, considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, the Court lacks the competence to make Declarations and Orders of Injunction” See also WESTERN STEEL WORKS VS IRON STEEL WORKERS (1987) 1 NWLR (PART 49); AG OYO STATE VS NLC (2003) 8 NWLR (PART 821) PAGE 1.

Therefore, this Court, in compliance with the dictum of Her Lordship, would hold that the National Industrial Court only has the jurisdiction to interpret Collective Agreement and does not have the competence to make declarations or order an injunction. The Appellant hid under the cover of Interpretation and Fundamental Rights to seek a declaration that the Respondents are indebted to it and also wanted the trial Court to order the Respondents to pay it. The trial Court was right in holding that its interpretative jurisdiction should not be used to settle triable issues.

On the strength of the foregoing analysis, coupled with the fact that this Court has upheld the Preliminary Objection raised by the 1st Respondent against this suit, this appeal is incompetent and is accordingly dismissed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Adebukunola Adeoti Banjoko, JCA. I endorse in toto the legal reasoning and conclusion in it. l, too, strike out the appeal for being incompetent. I abide by the consequential orders decreed in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft, the judgment just delivered by my learned Brother ADEBUKUNOLA ADEOTI BANJOKO, JCA. I uphold the Preliminary Objection and also dismiss the appeal.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellants, as plaintiffs instituted an Originating Summons against the respondents at the High Court of Enugu State for the determination of the following questions: 1.

Whether upon a proper interpretation of the provisions of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 3(1) and Section 4(3) of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004; the existence of a democratically elected Government System in the Seventeen Local Government in Enugu State is guaranteed. ​2.

Whether the provisions of Section 12(1)(2) of the Local Government Law CAP 109, Revised Law of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provision Law, C4P 110, Revised Law of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee or Transition Committee or however called for a defined or undefined period of time to the position of Chairman of each of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section 7(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional null and void. 3.

Whether by the provisions of the Constitution of Nigeria, 1999, the 1st set of defendants have powers to appoint or select, a transition committee or Caretaker Committee to the position of the Chairmen of each of the Seventeen (17) Local Government Councils in Enugu State without conducting a Local Government election. 4. Whether the defendants have powers to extend and elongate the tenure or term of 9th to 25th democratically elected Seventeen Local Government Council in Enugu State without a law validly passed by the 5th and 6th defendants. 5.

Whether the 1st and 2nd defendants are in violation of Section of the Local Government Law (supra) as amended Section 2 of the Local Government Law (amendment No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in the Enugu State of Nigeria Official Gazette No. 3, Vol. 19, 2010 for failure to appoint a date for Local Government election. 6. Whether the claimants are entitled to an Order of Injunction against the Defendants in this case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

7. Whether the 2nd to 18th claimants are entitled to be issued a Certificate of Return as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State.

In the event that the questions were answered in their favour, they sought the following reliefs: 1. A DECLARATION that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 3(1) and 4(3) and 59 of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (Seventeen) Local Government Councils in Enugu State, by democratically elected Local Government Council is guaranteed. 2.

A DECLARATION that the provisions of Section 12(1) (2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law, CAP 110, Revised Laws of Enugu State, 2004 which allows the Defendants to appoint a Caretaker Committee, Transition Committee or however called for an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils’ in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void. 3.

A DECLARATION that the defendants’ appointment, and selection, or plans, arrangements to appoint or select a Transition Committee and/or a Caretaker Committee to the position of the Chairman of the Seventeen (17) Local Government Councils in Enugu State is a violation of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 3(1) and 4(3) of the Local Government Law, CAP 109, Revised Laws of Enugu State of Nigeria, 2004. 4.

A DECLARATION that by virtue or Section 4(1) (2) and Section 18(3) of the Local Government Law, CAP. 109, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amendment No. 5) Law of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010, the tenure of office of a Local Government Council Chairman is two (2) years commencing from the date of the first siting of the Council. 5.

A DECLARATION that the defendants have no power to elongate/extend the tenure or term of Office of the 9th to 25th Defendants being a democratically elected Local Government Chairmen without a law validly passed by the 5th and 6th Defendants. 6.

A DECLARATION that the plans, arrangement and preparations to continue in the occupation of the office of the Chairman of the Seventeen (17) Local Governments Councils by the 9th to 25th Defendants after January 4th, 2016 is illegal and a violation of Section 4(1)(2) and 18(3) of the Local Government Law, CAP 109, Revised Law of Enugu State of Nigeria, 2004 as amended by Section 2 of the Local Government Law (amended No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010. 7.

A DECLARATION that the 5th and 6th Defendants have no powers to confirm the appointment of Transitional Committees or Caretaker Committee appointed by the 3rd and 4th Defendants for the Seventeen Local Government Councils in Enugu State. 8. AN ORDER OF PERPETUAL INJUNCTION restraining the 9th to 25th Defendants or any other person appointed by the 7th, 8th and 9th Defendants from further occupation of the office of the Chairman of the Seventeen (17) Local Governments after the expiration of their tenure/term of office on 4th January, 2016. 9.

A DECLARATION that the failure, refusal and neglect of the 1st and 2nd Defendants to appoint a date for the 2015 Seventeen Local Government election and to conduct the said election is a breach of Section 11(1)(2) of the Local Government Laws, CAP 109, Revised Law of Enugu State, 2004 and Section 1(1)(a)(b)(2) of the Fifth Schedule thereto and Section 2 of the Local Government Law (amendment No. 5) Law No. 6 Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010. 10.

A DECLARATION that the 1st and 2nd Defendants have no powers to lawfully conduct the 2015 elections into the Local Government Chairmanship Council of the Seventeen Local Government Councils in Enugu State outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109, Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereto. 11.

AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd, 4th, 5th, 6th, 7th and 8th Defendant (1st Set of Defendants) whether by themselves, their servants, agents, privies, surrogates, staff, appointees, officers of the Peoples Democratic Party and Members thereof or however called or any person acting through the Defendants and/or on the instructions or directives of the Defendants from appointing or selecting any person as Chairman and Members of the purported Transition Committee or Caretaker Committee to occupy the Office of the Chairman of the Seventeen Committee to occupy the office of the Chairman of the Seventeen (17) Local Government Councils in Enugu State. 12.

AN ORDER of Court directing and compelling the 1st and 2nd Defendants to issue Certificate of Return to the 2nd to 18th claimants being the deemed elected Candidates at the close of period of nomination for the 2015 Local Governments Area in Enugu State. 13.

AN ORDER directing that the 2nd to 18th Claimants tenure/term of office as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State shall be two (2) years commencing from the date of the first sitting of the Council in compliance with Section 4(2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State 2004 (as amended) by Section 2 of the Local Government Law (Amendment No. 5) Law No. 6, 2004, Enugu State of Nigeria Official Gazette No. 1 Supplements to the Revised Laws of Enugu State, 2010. 14.

AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, whether by themselves, their servants, agents privies, surrogates, staff, appointees, officers, ad hoc staff or however called or any person acting on their behalf on their instructions or directives from conducting any other 2015 Local Government Council election outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109 Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereof. ”

​After the filing and service of the Originating Summons, there were series of interlocutory applications filed by the parties, including a motion ex-parte for interim injunction and a motion on notice for interlocutory injunction to restrain the 2nd-7th Respondents from appointing the second set of respondents as Caretaker Committee Chairmen in the 17 Local Government Councils (hereinafter referred to as LGCs) in Enugu State. Upon the hearing of the motion ex-parte, the parties were ordered to be put on notice and the motion for interlocutory injunction was adjourned for hearing.

During the pendency of the motion for interlocutory injunction, the 2nd set of respondents (i.e. 8th-24th respondents) were sworn in as Caretaker Committee Chairmen and members for the 17 LGCs. The appellants filed a motion to set aside the appointment.

​The 6th and 7th respondents herein, as 7th and 8th respondents at the trial Court filed a preliminary objection seeking to have their names struck off the suit for failure to disclose a cause of action against them. R.O. Odugu, J. upheld the objection and struck out their names. This led to an appeal filed by the appellants at the lower Court. The appeal was allowed. The ruling striking out the names of the 7th and 8th respondents (now 6th and 7th respondents) was set aside and it was ordered that the suit be remitted to the High Court to be tried de novo by a different Judge of that Court.

The 6th and 7th respondents were dissatisfied with the decision and filed an appeal before this Court which was assigned Appeal No. SC.891/2017. The appeal is still pending.

During the period that the suit was awaiting re-assignment by the Hon. Chief Judge, the 1st respondent announced and published a time-table to the effect that it would conduct elections into the 17 LGCs in Enugu State on 4/11/2017. The 6th and 7th Respondents announced dates for the 6th respondent’s primaries in line with the published time-table. It is the appellants’ contention that the steps were taken during the pendency of the application for injunction as well as subsisting judgment of the Court of Appeal in CA/E/558/2016 and the appeal before this Court in SC.891/2017.

The election was held on 4/11/2017. The candidates of the 7th respondent, the PDP i.e. the 6th and 8th-24th respondents were declared winners.

The case was eventually reassigned to F.I.N. Ngwu, J. Upon the reassignment, the two sets of respondents filed their counter-affidavits to the Originating Summons and the appellants filed a further affidavit in support of their Originating Summons. The parties filed written addresses. The written addresses were adopted in open Court and the case adjourned for judgment.

Before the date for the delivery of the judgment, the parties were invited back to address the Court on certain issues it had raised suo motu concerning the jurisdiction of the Court and the competence of the suit. Written addresses were filed and exchanged.

The issues raised suo motu were, inter alia: (a) Whether the Originating Summons was competent and the effect of an Originating Summons not properly signed or filed as required by Rule 10 (3) of the Rules of Professional Conduct for Legal Practitioners, 2007; (b) whether, in view of the contentious nature of the dispute, an Originating Summons is the appropriate process for commencing the suit; (c) whether some or all the reliefs sought had become academic as a result of effluxion of time and (d) the right of a National Party to sue in a state where the position of the State Chapter is at variance with the National Party over the subject matter.

​The Court held (a) that the Originating Summons was incompetent, not having been properly signed in compliance with the Rules of Professional Conduct; (b) that Originating Summons is not the appropriate originating process for initiating the suit having regard to the issues in contention therein; (c) that some of the reliefs claimed are no longer viable, having become spent or having lapsed by effluxion of time.

On the substance of the suit, the Court held that even if it were to proceed and find in the appellants’ favour, they could not be placed in the positions they seek, their tenure having already lapsed by effluxion of time. The suit was accordingly dismissed on 24/1/2019.

​The appellants were dissatisfied with the judgment and appealed to the Court below. Briefs of argument were duly filed and exchanged between the parties, except the 6th and 7th respondents who did not file any process. On 10/9/2019, the Court raised suo motu, the issue as to whether the Court still had jurisdiction to hear and determine the appeal relating to the 2015 Enugu State Local Government Election, long after the expiration of the tenure of those elected and invited the parties to address it.

By its judgment delivered on 18/9/2020, the Court held as follows: “A relief could be justifiably described as otiose and academic if the grant thereof does not affect the legal rights of any of the parties to the dispute. Where a successful party to the dispute cannot benefit from the grant of such relief, then it is spent and bereft of any life whatsoever.

Such a relief has become academic and is undeserving of valuable judicial attention… A dispassionate appraisal of the questions sought for determination in the Originating Summons of the appellants as well as the reliefs sought by them leave the inescapable conclusion that they have been rendered otiose and academic. They are accordingly undeserving of further judicial attention. It is my strong view that this Court has no jurisdiction to proceed further with this appeal. In the entire circumstances therefore, this appeal is struck out. Parties shall bear their respective costs.”

​The appellants are dissatisfied with the judgment and filed the instant appeal vide their Notice of Appeal dated 12th October, 2020 containing 8 grounds of appeal. In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument.

At the hearing of the Appeal on 10/2/2021, GEORGE OGARA ESQ, adopted and relied on the Appellants’ brief filed on 19/11/2020, their reply to the 1st Respondent’s brief filed on 9/2/2021 and deemed filed on 10/2/2021 and their Reply to 6th and 7th respondents’ brief filed on 9/2/2021 and also deemed filed on 10/2/2021 in urging the Court to allow the appeal.

G. OFODILE OKAFOR, SAN, adopted and relied on the 1st respondent’s brief filed on 4/2/2021 but deemed filed on 10/2/2021 in urging the Court to dismiss the appeal. Chief M.E. Eze, the Hon. Attorney General of Enugu State adopted and relied on the 2nd-5th and 8th-24th respondents’ brief filed on 10/2/2021 and deemed filed on 10/2/2021 in urging the Court to dismiss the appeal.

​C.J. CHIME ESQ adopted and relied on the 6th and 7th Respondents’ brief filed on 9/10/2021 and deemed filed on 10/2/2021. He drew the Court’s attention to the preliminary objection raised and argued therein, and urged the Court to strike out Grounds 3, 4, 5, 6, 7, and 8 of the Notice of Appeal for being incompetent, having not arisen from the judgment appealed against. He further urged the Court to dismiss the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Preliminary Objection The 6th and 7th Respondents argued their preliminary objection at pages 10-11 of their brief at paragraphs 2.1- 2.7. The essence of a preliminary objection is to challenge the competence of the entire appeal. A preliminary objection is filed where it is intended to truncate the appeal in limine on the ground that there is a fundamental defect that would affect the Court’s jurisdiction to entertain it. It forecloses the hearing of the matter to save the Court’s valuable time and to avoid an exercise in futility.

The rationale for this procedure was explained by Nnaemeka-Agu, JSC in Mohammed & Anor. Vs Olawunmi & Ors. (1990) 4 SCN J 23, thus: “By the preliminary objection, he is saying that the suit or motion before the Court ought not to be heard at all because it is incompetent or is bedeviled by some other fundamental vice.” See also: Nwosu vs P.D.P & Ors. (2018) LPELR-44386 (SC) @ 11 D-G: Yaro vs Arewa Construction Ltd. & Ors. (2007) LPELR-3516 (SC) @ 14 E-F: APC vs INEC (2014) LPELR-24036 (SC) @ 18-19 A-B.

​It has been held severally by this Court that where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice, the reason being that the success of the objection would not terminate the hearing of the appeal. See: KLM Royal Dutch Airline vs Jemilat Aloma (2017) LPELR-42588 (SC) @ 6-7 A-D: Odunukwe vs Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 F-C Ndigwe vs Nwude (1999) 11 NWLR (Pt. 626) 314. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper procedure.

Where there are valid grounds that can sustain the appeal, the respondent is required to file a motion seeking to strike out the incompetent grounds of appeal. See:Kente vs Ishaku & Ors. (2017) 12 NWLR (Pt. 1578) 94: Bank of Industry Ltd. vs Awojugbagbe Light Ind. Ltd. (2018) LPELR-43812 (SC) @ 7-8 B-F: Adejumo vs Olawaiye (2014) 12 NWLR (Pt. 142) 252 @ 279.

The preliminary objection does not challenge the competence of the entire appeal. It only challenges Grounds 3-8, leaving Grounds 1 and 2. Grounds 1 and 2 are sufficient to sustain the appeal. The preliminary objection is therefore discountenanced.

MAIN APPEAL The appellants have distilled 3 issues for the determination of the appeal as follows: 1. Whether the Court below has jurisdiction to hear and determine appeals arising from the Appellants’ complaint of violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, by the Respondents. 2. Whether the Court below denied the Appellants fair hearing by failing to determine the issues validly raised by the parties at the Court below. 3.

Whether the Court below was right in upholding the conduct of election by the 1st Respondent and the declaration of the 6th and 7th Respondents’ candidate as winners during the pendency of the 6th and 7th Respondents’ appeal No. SC.891/2017: & Chief Ikeje Asogwa & Anor. Vs All Progressives Congress & 39 Ors. between the same parties in this appeal.

The 1st Respondent adopted the issues formulated by the Appellants. The 2nd-5th and 8th-24th Respondents distilled a single issue to wit: “Whether the Court of Appeal was right to hold that it no longer has jurisdiction to hear and determine the Appellants’ appeal which arose from the 2015 Enugu State Local Government election long after the expiration of the tenure of those elected.”

The 6th & 7th Respondents also submitted a lone issue for determination thus: “Whether the Court of Appeal was wrong to have struck out Appeal No. CA/E/483/2019: All Progressives Congress (APC) & 17 Ors Vs Enugu State Independent Electoral Commission & 23 Ors on the ground that the Court has no jurisdiction to proceed further with the appeal?”

The sole issue formulated by the 2nd-5th and 8th-24th Respondents and the 6th and 7th Respondents respectively, is the same as the appellants’ issue 1. I must observe here that appellant’s issue 3 which is predicated on ground 6 of the Notice of Appeal did not arise from the judgment appealed against. The issue as to whether the Local Government elections which took place on 4th November 2017, were validly conducted or not, was not one of the issues for determination before the Court and no pronouncement was made in respect thereof.

The Court merely observed in passing that elections had already taken place, that the 1st appellant sponsored candidates and participated fully therein and therefore as at 23/6/2020 when the appeal was heard, the situation had moved beyond the Local Government elections of 2015, as there were now democratically elected LG Chairmen in place since 2017. There is nowhere in the judgment that a pronouncement was made upholding the election that was conducted in 2017.

An issue for determination in an appeal must be predicated on a ground (or ground) of appeal, which in turn must be predicated on the ratio decidendi of the decision appealed against. Where a ground of appeal or an issue for determination does not meet this requirement, it is liable to be struck out. See: Fasuyi Vs P.D.P (2018) NWLR (Pt. 1619) 426: Egbe vs Alhaji (1990) 1 NWLR (Pt. 128) 546: Babalola vs The State (1989) 4 NWLR (Pt. 115) 264: Abdullahi Ors. vs The State (2013) 4-5 SC (Pt. IV) 141. The appellant’s issue 3 is therefore incompetent and hereby struck out.

The appellants’ issues 1 and 2 will be adopted in the resolution of the appeal, for there cannot be an appeal against what has not been decided.

Issue 1 Whether the Court below had jurisdiction to hear and determine appeals arising from the Appellants’ complaints of violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by the Respondents.

In support of this issue, learned counsel submitted that the questions for determination in the Originating Summons, (set out earlier in this judgment) are constitutional and statutory in nature.

He submitted that the appellants are seeking the interpretation and explanation of the legality, nature, extent and validity of the non-conduct of the Enugu State Local Government elections by the 1st Respondent and the powers/rights of the 2nd-5th respondents to appoint the 8th-24th respondents (members of the 6th and 7th Respondents’ political party) as Caretaker Committee Chairmen under the 1999 Constitution, as amended. Learned counsel submitted that in a previous judgment between the parties to this appeal and arising from suit No. E/362/2015, the lower Court in Appeal No.

CA/E/558/2016: APC & 17 Ors. vs Enugu Independent Electoral Commission & Ors. recognized the constitutional nature of the questions for determination in that suit which are similar to the questions for determination in the instant suit and the fact that any decision would affect the 2nd-25th respondents therein. He submitted that the holding of the lower Court to the effect that the appeal is academic and would not affect the rights of any of the parties to the dispute, was in error.

Learned Counsel submitted that Section 6(6) (b) of the 1999 Constitution, as amended, confers powers on the Court to hear and determine the legality, extent, nature and validity of the actions of the respondents under Section 7(1) of the said Constitution.

Relying on A.G. Ondo State Vs A.G. Federation and 36 Ors. (2002) FWLR (Pt. III) 1972 @ 2167 B–C, he submitted that the lower Court had the jurisdiction to interpret Section 7(1) of the Constitution, as amended, the said Constitution being the grundnorm from which all other laws are made, rights created and powers conferred. He argued further that the 1999 Constitution, as amended, is the foundation upon which the democratic system of government in Nigeria is founded.

He submitted that the lower Court failed to follow its previous decisions in the Registered Trustees of Conference of Secondary School Tutors Vs Hon. Commissioner for Education, Kogi State (2006) ALL FWLR (Pt. 299) 1549 @ 1561 A-C and Hon. Sunday Obi- Akejule & 5 Ors. Vs Delta State Govt. & Anor. (2009) ALL FWLR (Pt. 466) 2009 @ 2021 A to the effect that the right to claim a constitutional right takes precedence over any other claim and that where a law is contrary to any of the provisions of the Constitution, it can be challenged at any time.

See also Rabiu Vs Kano State (1980) LPELR-2936 (SC). He submitted hat the appellants’ claims being declaratory, injunctive and accessory claims, are reliefs which the lower Court is empowered to grant. He argued that the power of the Court to grant such reliefs cannot be restricted. He referred to Ewarami vs. A.C.B. Ltd (1978) 4 SC 72 @ 78 Lines 5–10. He submitted that the powers of the Court to determine the rights of the parties on appeal based on a declaratory relief can be exercised even when there is no cause of action. He relied on Ikine & Ors.

Vs Edjerode (2002) FWLR (Pt. 92) 1775 @ 1814 F. He submitted that the lower Court also failed to follow or be bound by its previous decision in Bisimillahi Vs Yagba-East L.G. & ORS. (2003) FWLR (Pt. 141) 1923 @ 1966-1967 G-H, where the Court held, inter alia: “A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried if at the time the action was brought, it raised substantial issues of law.”

He referred to Nobis-Elendu Vs INEC & Ors. (2015) LPELR-25127 (SC), where this Court reiterated the principle that a Court is bound by its previous decisions.

Learned counsel further submitted that having regard to the questions for determination in the suit, which relate to the non-conduct of the Enugu State Local Government elections and the validity of the proposed appointment of Caretaker Committees in the 17 Local Government Councils in the State, it qualifies as a pre-election matter. Relying on the decision of this Court in Odedo vs INEC & Ors. (2008) LPELR-2204 (SC) per Tobi, JSC, he submitted that a pre-election matter cannot be said to be an academic exercise.

He also cited: Dahiru & Anor. vs APC & Ors. (2016) LPELR-42082 (SC); Nobis-Elendu vs INEC (Supra): Wambai vs Donatus (2014) LPELR-23303 (SC) and submitted that having filed the suit on 8/12/2015, prior to the expiration of the statutory period for the nomination of candidates for the election, the lower Court had the requisite jurisdiction to hear the appeal.

Learned counsel observed that all the respondents except the 1st respondent raised the issue of jurisdiction at the trial Court. He noted that the trial Court upheld the preliminary objection of the 7th and 8th defendants (now 6th and 7th respondents), which gave rise to Appeal No. CA/E/558/2016 wherein the ruling of the learned trial Judge was set aside and the matter remitted to the Hon. Chief Judge for reassignment to another Judge. The 6th and 7th respondents’ appeal against the judgment is Appeal No. SC.891/2017, pending before this Court.

It is learned counsel’s contention that in view of the pending appeal on the issue of jurisdiction, the Court below no longer had the power to raise the same issue again, suo motu, and rehear it all over again. He submitted that the lower Court was estopped from reopening the issue. He referred to: Ogbogu Vs Ndiribe & Ors. (1992) LPELR-2283 (SC) per Karibi-Whyte, JSC; Sharing Cross Educational Service Ltd Vs Umaru Adamu Enterprises Ltd & Ors. ​(2015) LPELR-24661 (CA).

He submitted that the parties and subject matter in CA/E/558/2016 are the same as in the instant appeal and the issue of jurisdiction had been settled to finality by the lower Court in CA/E/558/2016. Relying on Oloba Vs Akereja (1988)7 SC (Pt. 1) 1 @ 12 Lines 1-5, per Obaseki, JSC, he submitted that once the issue of jurisdiction is raised, it must be considered in all its ramifications and pronounced upon once and for all and not piecemeal.

He argued that the lower Court failed to follow its previous decisions in Njokanma (JP) & Ors. vs Mowete & Ors. (2002) FWLR (Pt. 108) 1536 @ 1552 B-C: Nigeria Agip Oil Co. Ltd vs Nkweke & Anor. (2016) ALL FWLR (Pt. 845) 1 @ 38 G; Kassim vs The State (2017) LPELR-42586 (SC): Ogwe & Anor. vs I.G.P. & Ors. (2015) LPELR-24322 (SC); Rossek vs A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 @ 497-498 H-A.

​In response, Learned Senior Counsel for the 1st respondent conceded that the issue of jurisdiction is fundamental to adjudication. He submitted that Section 240 of the 1999 Constitution, as amended, gives the Court of Appeal jurisdiction to hear and determine appeals from the Federal High Court, the State High Courts, Sharia Court of Appeal and the Customary Court of Appeal. He submitted that the jurisdiction so conferred is not a licence to the Court to determine appeals that are more or less an academic exercise, as the Court does not act in vain. He referred to Ecobank (Nig). Ltd.

Vs Honeywell Flour Mills Plc (2019) 2 NWLR (Pt. 1655) 35 @ 95. F-G. On what amounts to an academic exercise, he referred to Dahiru Vs APC (2017) 4 NWLR (Pt. 1555) 218 @ 244 E-F. He submitted that a suit becomes academic when there are no more live issues to be determined. He submitted that the appeal is concerned mainly with the non-conduct of the Enugu State LG elections. He submitted that the said election was later conducted in 2017 and the 1st appellant fully participated therein by sponsoring candidates.

He submitted that the 1st appellant’s participation in the election showed that it had accepted the said election and could not be heard to complain thereafter, as it would amount to approbating and reprobating. He referred to Ecobank Nig Plc Vs Honeywell Flour Mills Plc (Supra). He submitted that those elected in the 2017 election had already concluded their tenure. He argued that even if the appellants succeeded on appeal, any pronouncement in their favour would be an exercise in futility, as the fruit of the judgment is spent.

In reaction to the appellants’ contention that the lower Court has jurisdiction to determine appeals arising from declaratory reliefs, he submitted that the declaratory relief must relate to a live issue.

On issue estoppel, learned Senior Counsel submitted that although Appeal Nos. CA/E/558/2016 and CA/E/403/2019 arose from the same suit and between the same parties, the subject matter of the two appeals is not the same. He noted that appeal No. CA/E/558/2018 is an interlocutory appeal in which some of the parties sought to have their names struck out and for the suit to be dismissed against them, whereas the instant appeal is in respect of the final judgment in the substantive matter.

He submitted, relying on FRN Vs Borisade (2015) 5 NWLR (Pt. 1415) 155 @ 169 C-F, that the law is trite that a Court is not expected to delve into the substantive matter at the interlocutory stage. He submitted that issue estoppel arises where an issue has been adjudicated upon in an earlier suit by a Court of competent jurisdiction and the same issue comes in question in a subsequent proceeding between the same parties or their privies.

He referred to the case of Esuwove Vs Bosere (2017) 1 NWLR (Pt. 1546) 256 @ 304 E-F, where this Court stated the preconditions for the application of the doctrine of issue estoppel, to wit: 1. The same question must have been decided in both suits. 2. The judicial decision relied on to create issue estoppel must be final; and 3. The parties to the judicial decision or their privies must be the same in both proceedings.

Learned Senior Counsel submitted that although the parties in both appeals are the same, the decision in CA/E/558/2016 is not a final decision, whereas the decision in CA/E/403/2019 is a final decision. As observed earlier, he also contended that the issues are not the same. He argued that all the elements must co-exist for the doctrine to apply. He urged the Court to resolve the issue against the appellants.

On behalf of the 2nd-5th and 8th-24th respondents, learned counsel submitted that the lower Court made specific findings at page 1612 vol. 3 of the record to the effect that the tenure of LG Chairmen is two years pursuant to the extant Local Government law, that the 1st respondent successfully conducted elections into the LGCs of Enugu State in which the 1st appellant participated and sponsored candidates different from the 2nd-18th appellants and that in the circumstances, democratically elected LG Chairmen have been in place since 2017.

He observed that none of the grounds of appeal complain about these findings. He submitted that the legal consequence of failure to challenge those findings is that they are accepted as correct, valid and binding and therefore neither party can be heard to complain. He referred toDabup Vs Kolo (1993) 12 SCNJ 1: Chijioke Ugwu Vs The State in Appeal No. SC.196/2015 delivered on 24/1/2020.

He submitted further that the tenure of the 8th to 24th respondents, whose appointment as Transition Committee Chairmen for the Local Government councils that triggered the suit and who were sued in their personal capacities, had long expired and that the tenure of the democratically elected council, inaugurated in 2017, had equally expired in 2019, with another set of democratically elected Chairmen and Councilors elected and inaugurated in 2019. He noted that the 1st appellant participated actively in all the processes and sponsored candidates different from the 8th-24th respondents.

He submitted that the chairmen and councilors who succeeded the 8th-24th respondents were never made parties to the suit at the lower Courts or this appeal. He submitted that any order made by the Court in the circumstances would be of no utilitarian value to the appellants since it would affect persons who are not parties before the Court. He submitted, concurring with the submissions made on behalf of the 1st respondent, that the Court does not act in vain.

Examining the 14 reliefs sought by the appellants, he submitted that reliefs 3, 5, 6, 7, 8, 9, 10, 11, 11, 12, 13 and 14 are no longer viable, having become spent and overtaken by events. On the point that there is no live issue to be determined, he referred to A.G. Federation vs A.N.P.P. (2004) LRCN 2671. He submitted that every Court has a duty to decline further jurisdiction when it notices that the matter before it has become academic. He relied on the persuasive authority in Ugba & Anor. vs Suswam & Ors. (2012) LPELR-8635 (CA) per Onyemenam, JCA.

Referring to Section 4 (2) of the Local Government Laws Cap. 109, Revised Laws of Enugu State of Nigeria, 2004, he submitted that the tenure of office of chairmen and councilors is 2 years and that by their own averment in paragraph 22 of the affidavit in support of their Originating Summons, the appellants averred that their tenure was due to expire on 4th January 2016. He reiterated that not only had the appellants’ tenure lapsed by effluxion of time, several elections had been conducted thereafter in which the 1st appellant fully participated. He referred to A.C.

Vs INEC (2007) LPELR-8988 (CA). He submitted that the remaining reliefs 1, 2 and 4 are not anchored on any live dispute or controversy between the parties and are therefore hypothetical and academic. He submitted that a determination of those issues would not confer any right or benefit on the appellants. He submitted that in such circumstances, the Court has a duty to terminate the appeal. He referred to: Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 215: PPA vs INEC (2012) 13 NWLR (Pt. 1317) 413; Plateau State vs A.G. Federation (2006) 3 NWLR (Pt. 967) 346.

In response to the appellants’ contention that being a pre-election matter, it is a live issue and not merely academic, he submitted that the case does not fall within the definition of pre-election matter as defined under Section 285 (14) of the 1999 Constitution, as amended.

He submitted that the appellants are neither complaining about the selection or nomination of candidates nor of preparation for any election but rather the failure of the respondents to conduct Local Government elections and the appointment of Caretaker Chairmen in place of democratically elected Local Government Councilors.

He also argued that issue estoppel is not applicable in this matter, as the issues in CA/E/558/2016 and CA/E/403/2019 are not the same.

The submissions on behalf of the 6th and 7th respondents are substantially in line with those made on behalf of the 1st respondent and the 2nd-5th and 8th-24th respondents. I shall only refer to those arguments that touch on an issue not already addressed.

For instance, learned counsel, after reviewing the reliefs sought, observed that it is antithetical and contradictory for the appellants, on one hand, to contend that the respondents have failed to conduct LG elections, while on the other hand, they are seeking an order of this Court that a certificate of return be issued in their favour in respect of a tenure which has since lapsed. He submitted, in reaction to the contention that a pre-election matter remains a live issue, that a pre-election matter cannot remain alive after the tenure of the office in issue has elapsed.

He contended that the appeal had become spent even before the Notice of Appeal was brought before the lower Court. He maintained that there was nothing left to be decided between the parties.

I have read the Appellants’ reply brief to the 1st respondent’s and 6th and 7th respondents’ briefs. As far as the issue under consideration is concerned, the submissions are a re-argument of the issues already canvassed in the appellant’s main brief. I shall not dissipate energy on them.

Resolution of Issue 1 Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See:Shitta-Bey Vs A.G. Federation & Anor. (1998) 10 NWLR (Pt. 570) 392: Aribisala Anor. vs Ogunyemi & Ors. (2005) 6 NWLR (Pt 921) 212: Utih VS Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166: Umanah vs Attah (2006) 17 NWLR (Pt. 1009) 503.

Where the Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings amounts to an exercise in futility. It is null and void. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 387 @ 594, Utih vs Onoyivwe (supra): IDISI vs Ecodril Nig. Ltd. & Ors (2016) ALL FWLR (Pt. 850) 1016: Gwede vs INEC & Ors. (2014) 18 NWLR (Pt. 1438) 56.

Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides: “6(6) The judicial powers vested in accordance with the foregoing provisions of this Section- (b) shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

The jurisdiction of the Court of Appeal is conferred by Section 240 of the 1999 Constitution, as amended, which provides: “240.

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory Abuja, High Court of State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the State, Customary Court of Appeal of the FCT Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.”

The law is quite settled that being a creation of the Constitution or a Statute, a Court of law can only exercise such jurisdiction as is conferred on it by the law that created it. See National Bank & Anor. Vs Shoyoye (1977) 5 SC (Reprint) 110: Mobil Producing Nig. Ltd. vs L.A.S.E.P.A. & Ors (2002) 14 SCM 167 @ 179: Nduul vs Wayo (2018) LPELR-4515 (SC) @ 29-30 E-D.

There is no doubt that it is the duty of a Court of law to interpret and declare the law in accordance with the intention of the lawmaker. See: Eperokun Vs University of Lagos (1986) LPELR-1150 (SC) @ 38A: Dahiru vs The State (2018) LPELR-44497 (SC) @ 10 A-D: Marwa VS Nyako (2012) LPELR-7837 (SC) @ 171 A-C.

The purpose of this forary into the jurisdiction and function of a Court of law is to determine whether the lower Court was correct when it held that it no longer had jurisdiction to determine the appellants’ appeal.

In Madukolu Vs Nkemdilim (supra) it was held that a Court is competent when: 1. It is properly constituted as regards 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 3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

​The issue raised suo motu by the Court below was whether it still had jurisdiction to entertain the appeal, which arose from the 2015 Local Government elections in Enugu State long after the tenure of those elected had lapsed. It is important to note that one of the issues for determination in the appeal was whether the trial Court was right to have dismissed the suit after making declarations in the appellants’ favour.

In my view, the issues before the lower Court were two-fold. Firstly, whether it had jurisdiction to hear the appeal and secondly, whether the reliefs being sought by the appellants were still viable. It is the appellants’ contention in this appeal that the Court below erred in raising the issue of jurisdiction a second time, as it had been raised and determined by the trial Court and an appeal still pending before this Court on the issue.

​It is pertinent to observe at this stage that the appeal NO. CA/E/558/2016, which has given rise to Appeal No. SC.891/2017 before this Court, was an interlocutory appeal. At the trial Court, the 7th & 8th respondents (now 6th & 7th respondents) had urged the Court to strike out their names on the ground, inter alia, that the Originating Summons disclosed no reasonable cause of action against them. The Court agreed with them and struck out their names.

On appeal to the Court of Appeal, their names were ordered to be restored to the suit, on the ground that any decision reached in the matter would affect their rights/interests. It is against this decision that the 6th & 7th respondents have filed their appeal in SC.981/2017. The issue in that appeal is as to whether the 6th and 7th respondents are proper parties. The instant appeal arose from an appeal against the final judgment in the substantive suit.

It would not be correct to contend, as the appellants have done, that the lower Court has reopened an issue that is already pending before this Court.

Returning to the appeal before the lower Court, a careful perusal of the questions for determination in the Originating Summons, shows that the appellants were seeking, inter alia, the interpretation and application of Sections 12(1) and (2) of the Local Government Law of Enugu State vis-a-vis Section 7(1) and (4) of the 1999 Constitution, as amended and whether, in the circumstances, the said provisions which allow the defendants to appoint Caretaker or Transition Committees for a defined or undefined period of time in respect of the 17 LG Councils in the State, was not unconstitutional, null and void.

They were also seeking a determination as to whether the failure of the 1st and 2nd respondents to appoint a date for the conduct of the Local Government election was not a violation of Section 11 (1) and (2) of the Local Government Law. The trial Court dismissed the entire suit on the ground that the reliefs sought were no longer viable.

However, not being the final Court and in the event of being overruled on appeal, the Court rendered its opinion on the substantive case and held that the appellants were entitled to the declarations sought on the validity of Section 12(1) and (2) of the LG Law. The appellants contended at the Court below that the trial Court erred in doing so.

By their pleading in the affidavit in support of the Originating Summons, the appellants they had averred that: (a) The 2nd-18th appellants were candidates nominated and sponsored by the 1st appellant for the 2015 Enugu State LG Council election, suing for themselves and as representatives of the 260 Councillorship Candidates. (b) That the 8th-24th respondents were members of the 7th respondent (PDP) and were the democratically elected LG Council Chairmen whose 2 years tenure commenced on 5/1/2014. (c) That in accordance with the LG Law, the 1st and 2nd respondents were mandatorily required to appoint a date for the 2015 election not later than 90 days but not earlier than 60 days to the expiration of the current tenure of the 2nd-18th respondents. (d) That they failed, refused and/or neglected to fix a date. (e) That the 1st set of respondents (1st-7th respondents) decided among themselves not to undertake, conduct or participate in any democratic election to enable the 4th defendant (3rd respondent) appoint members of the 7th respondent as Caretaker Committee or Transition Committee for an arbitrary period. (f) That some of the 8th-24th respondents had been promised appointments as LG Chairmen. (g) That the appointment of a Caretaker Committee is inconsistent with the intentions of a Constitution to ensure a democratically elected Local Government Council in Enugu State. (h) That the law empowering the 3rd respondent to unilaterally appoint his party members alone as Caretaker Committee or Transition Committee members is undemocratic. (i) That by their arrangements, the 3rd, 6th and 7th respondents would have unlawfully extended the tenure of the LG Council to more than the two years provided by law, which they have no power to do.

As observed earlier, the interpretation and application of the provisions of the Constitution, or of a statute, as it affects the civil rights, interests or obligations of any person in Nigeria, is the function of the Court.

By their pleadings, the appellants had alleged that Section 12(1) and (2) of the Local Government Law not only infringe on their rights, as sponsored and nominated members of their political party, to be democratically elected into the positions of chairmen and councilors of the Enugu State LGCs, it was also unconstitutional for being in conflict with Section 7(1) and (4) of the 1999 Constitution, as amended.

Notwithstanding the fact that the Local Government Election had taken place in 2017 and that the tenure of those elected had expired, the constitutionality of Section 12(1) and (2) of the Local Government Law remained a live issue. It was held in  A.G. Kaduna State Vs Hassan (1985) LPELR-617(SC) @ 26 B-D, that the Court may make binding declarations of right whether or not any consequential reliefs is or could be claimed. See also: Dantata vs Mohammed (2000) LPELR-925 (SC) @ 10-1 F-A: Ikine & Ors Vs Edjerode & Ors. (2001) LPELR-1479 (SC) @ 56 C- E; A.G. Ondo State vs A.G.

Federation & Ors. (2002) FWLR (Pt. 111) 1972 @ 2167 B-C: Nafiu Rabiu vs Kano State (1980) LPELR-2936 (SC).

It has been held by this Court that a declaratory judgment is complete in itself since the relief is the declaration. See: Akunnia Vs A.G. Anambra State (1977) 5 SC 161 @ 177; Okoya vs Santilli (1990) 2 NWLR (Pt. 131) 172.

What is required for the Court to exercise its discretion to grant or refuse a declaratory relief is that the applicants or claimants must establish their legal right to the subject matter of the claim. The appellants had shown the interest they sought to protect See: Ayida Vs Town Planning Authority & Anor. (2013) 10 NWLR (Pt. 1362) 226; Chukwumah vs Shell Petroleum (1993) 4 NWLR (Pt. 259) 512; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This brings me to the question whether the entire appeal was academic, as held by the Court below. In Ardo vs INEC (2017) LPELR - 41919 (SC), this Court per Augie, JSC gave an in-depth analysis of what an academic or hypothetical suit is, to wit: “What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question.

See Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma Eneh further explained that- ‘An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when the determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt, that has lost its seasoning.

And like salt in that state, it has no practical value to anybody and so also a suit in that state has none.” In simple terms an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party.”

In the instant case, it cannot be said that the declaratory reliefs seeking a pronouncement on the validity or constitutionality of some provisions of the Enugu State Local Government Law is academic or that a resolution would amount to bare legal postulations. The Constitution is the grundnorm from which all other laws derive their legitimacy.

Section 1(1) and (3) of the 1999 Constitution, as amended, provides: 1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Re public of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail; and that other law, shall to the extent of the inconsistency, be void.”

Thus, the Court below had the requisite jurisdiction to entertain the appeal and determine whether the appellants were entitled to be heard in respect of the live issues in the appeal i.e. Reliefs 1, 2 and 4 of the Originating Summons.

​I am, however, in agreement with the respondents that some of the reliefs sought had become spent or no longer viable. The basis for instituting the action was, inter alia, to compel the 1st and 2nd respondents to fix a date for the conduct of the 2015 Local Government elections, for which they had been nominated and sponsored by their political party and to seek a pronouncement as to the validity of Section 12(1) & (2) of the Local Government Law, which empowered the 3rd respondent to set up caretaker/transition committees with an arbitrary tenure.

It is not in dispute between the parties that the Local Government elections were conducted in 2017. That the tenure of those elected had expired and a fresh election conducted in 2019. It is also not in dispute that the tenure of the 8th-24th respondents as Chairmen of the Local Government Areas had long expired upon the inauguration of democratically elected Local Government Chairmen and Councilors in 2017 and 2019. It is also not in dispute that not only did the 1st appellant participate in the said elections, it fielded candidates other than the 2nd-18th appellants herein.

The present occupants of those offices were not parties at the Court below nor before this Court.

The Court below held, inter alia: “A perusal of the entire originating processes discloses that the dispute arose from the 2015 Local Government Elections in Enugu State.

It is undisputable between the parties that the tenure of Local Government Chairmen is two years pursuant to the extant Local Government law, that candidates to Local Government elections must be sponsored by registered political parties and that on 4th November 2017, the 1st respondent successfully, conducted an election into the Local Government Councils of Enugu State in which the 1st Appellant took part and sponsored candidates different from the 2nd to 18th Appellants as contained in the deposition of the 1st respondent and attached exhibits on pages 703 to 708 of the record of appeal.

This development implies that the situation in Enugu State as regards Local Government chairmen has moved beyond the Local Government Elections of 2015 and that instead of Caretaker Committees complained against, democratically elected Local Government Chairmen have been put in place since 2017. ”

​I agree entirely with the lower Court in this regard. Consequently, I agree that reliefs 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 have become spent and any pronouncement thereon would be of no value.

This issue is therefore resolved partly in the appellants’ favour only to the extent that the lower Court ought to have heard and determined the questions relating to the constitutionality of Section 12(1) and (2) of the Local Government Law vis-a-vis Section 7(1) and (4) of the 1999 Constitution, as amended. As it were, the Court threw away the baby with the bath water.

I am of the considered view that this is a proper circumstance for the invocation of Section 22 of the Supreme Court Act, which empowers the Court, to exercise full jurisdiction over the proceedings in the same manner as the lower Court would have done. This would best serve the interest of justice in this case by eliminating further delay that would arise if the Court were to remit the case to the lower Court for rehearing. All the materials necessary to adjudicate in the matter are before the Court.

See:Mato Vs Hember & Ors (2017) LPELR-42765 (SC) @ 31-33 B: Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 427 @ 691-692: University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt. 1) 156.

​For ease of reference, the following questions for determination are live issues: 1. Whether upon a proper interpretation of the provisions of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 3(1) and Section 4(3) of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004; the existence of a democratically elected Government System in the Seventeen Local Government in Enugu State is guaranteed. 2.

Whether the provisions of Section 12(1)(2) of the Local Government Law CAP 109, Revised Law of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provision Law, CAP 110, Revised Law of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee or Transition Committee or however called for a defined or undefined period of time to the position of Chairman of each of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional null and void. 3.

Whether by the provisions of the Constitution of Nigeria, 1999, the 1st set of defendants have powers to appoint or select, a transition committee or Caretaker Committee to the position of the Chairmen of each of the Seventeen (17) Local Government Councils in Enugu State without conducting a Local Government election.

Similar questions arose and were determined by this Court in: Governor of Ekiti State Vs Olubunmo (2017) 13 NWLR (Pt.1551) 1 @ 30-31 F-H, 33 C-D. The law in contention in that case was the Local Government Administration Law, 1999 Cap L11, Laws of Ekiti State, as amended by Section 23B (i) and (ii) of the Local Government Administration (Amendment) Law, 2001 of Ekiti State, which empowered the Governor of Ekiti State to dissolve democratically elected Local Government councils and replace them with unelected caretaker committees appointed solely by the Governor.

​It was contended, just as in the instant case, that the said provisions were in conflict with Section 7(1) of the 1999 Constitution, as amended and therefore null and void.

With reference to Section 7(1) of the 1999 Constitution, as amended, ​ this Court, per Nweze, JSC, (supra) held: “Now, 7(1) (supra) provides thus: The system of Local government by democratically elected Local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law, which provides for the establishment, structure, composition, finance and functions of such council. (Emphasis by His Lordship) … Having thus guaranteed the system of Local government by democratically-elected Government councils, the Constitution confers a toga of sacra-sanctity on the elections of such officials whose electoral mandates derive from the will of the people freely exercised through the democratic process.

Put differently, the intention of the Constitution is to vouchsafe the inviolability of the sacred mandate, which the electorate at that level, democratically donated to them.

Eze & Ors. vs Governor, Abia State & Ors. (2014) 14 NWLR (Pt.1426) 192.” ​His Lordship stated further at 34-35 H-A (supra): ‘By employing the auxiliary verb “shall”) the draftsperson of Section 7(1) (supra), surely intended to impose (and actually imposed) an obligation on the States to ensure the continued existence of Local Government councils which are democratically elected.” My Lords, the erudite reasoning above is a complete answer to the first question posed by the appellants.

It has been settled beyond any equivocation that the continued existence of democratically elected local government councils is sacrosanct, non-negotiable and cannot be tempered with by any authority whatsoever. It follows therefore, that any law made by the Enugu State House Assembly, which attempts to impose non-democratically elected persons on the citizens of the State is the antithesis of the existence democratically elected local government councils constitutionally guaranteed.

In other words, the provisions of Section 12(1) and (2) of the Local Government Law Cap 109 Revised Laws of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law Cap 110 Revised Laws of Enugu State, 2004, as amended by Section 2 of the Local Government Area (Amendment No.5) Law of Enugu State, 2010 ​published in Enugu State of Nigeria Official Gazette No.3 vol.19, 2010, which allows the 3rd respondent to appoint Caretaker or Transition Committees out of which chairmen shall be appointed, for an arbitrary period of time, is in violent conflict with Section 7(1) of the 1999 Constitution, as amended and is therefore null and void.

By Section 4(1) and (2) and Section 18(3) of the Local Government Law, Cap 109 of 2004, as amended by Section 2 of the Local Government Area (Amendment No.5) Laws of Enugu State, 2010, the tenure of office of a Local Government Council Chairman is two years commencing from the date of the first sitting of the council. Nigeria is a Country governed by the rule of law. No tenure can be extended beyond the period stipulated at the whims and caprices of the Governor, without an amendment to the existing law.

​A Governor who occupies his office as a result of a democratic exercise has a bounden duty to preserve, in all its ramifications, the existence of democratically elected Local Government councils. It boggles the mind that the product of a democratic exercise would seek to deny others the benefit of the same process.

Having resolved questions 1, 2 and 3 of the Originating Summons in the appellants’ favour, they are entitled to the declarations sought in reliefs 1, 2 and 4 thereof. This issue is resolved partly in the appellants’ favour.

The resolution of issue 1 to my mind, is sufficient to dispose of this appeal. No useful purpose would be served by delving into issue 2.

In conclusion, the appeal succeeds in part. The part of the judgment of the lower Court wherein it held that the reliefs touching and concerning the 8th-24th respondents and the 2015 Local Government Election in Enugu State are spent and have become academic, is upheld.

The part of the judgment declining jurisdiction to hear the appeal as regards the issues touching and concerning the validity of Section 12(1) and (2) of the Local Government Law Cap 109 Revised Laws of Enugu State 2004, as amended vis-a-vis Section 7(1) of the 1999 Constitution, as amended, is hereby set aside. Consequently, I make the following declarations in the appellants’ favour. 1.

It is hereby DECLARED that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), ​Section 3(1) and 4(3) and 59 of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (Seventeen) Local Government Councils in Enugu State by democratically elected Local Government Council is guaranteed. 2.

It is also DECLARED that the provisions of Section 12(1) (2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law, CAP 110, Revised Laws of Enugu State, 2004 which allows the Defendants to appoint a Caretaker Committee, Transition Committee or however called for an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils’ in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void. 3.

It is further DECLARED that by virtue of Section 4(1) (2) and Section 18(3) of the Local Government Law, CAP. 109, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amendment No. 5) Law of Enugu State, 2010 ​ published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010, the tenure of office of a Local Government Council Chairman is two (2) years commencing from the date of first sitting the Council

The parties shall bear their respective costs in the appeal. Appeal allowed in part.

JOHN INYANG OKORO, J.S.C.: I read the draft of the lead judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, and I totally agree with his reasons and conclusion reached therein. My learned brother has meticulously dealt with the issues submitted for determination and I adopt what he has done as mine. I shall only add a few comments in support and appreciation of the judgment.

The position of the law is very explicit that by virtue of the provision of Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Constitution which is the grundnorm and fountain of all laws in Nigeria is supreme. Any other law which is inconsistent with the provision of the Constitution is, to the extent of such inconsistency, void. See Egbuchu v. Continental Merchant Bank Plc (2016) 8 NWLR (pt. 1513) 192: Ochala v. Federal Republic of Nigeria (2016) 17 NWLR (pt 1591) 169.

In the instant appeal, Section 12 (1) and (2) of the Local Government Law, Cap 109, revised Laws of Enugu State 2004 and Section 6 (1) of the Local Government Area, (Creation and Transition) Provisions Law, Cap 110, Revised Laws of Enugu State which purportedly empowers the Governor to appoint caretaker or Transition Committees out of which Chairmen shall be appointed to oversee the affairs of the seventeen (17) Local Government councils of the State for an arbitrary period of time, is inconsistent with the express provision of Section 7 of the 1999 Constitution which guarantees the tenure of democratically elected Local Government Council officials.

It is, to the extent of the inconsistency, void and I so hold.

​Having said that, this Court cannot restore the Appellants to the position which they were as at 2015 to compel the 1st Respondent to fix a date for the conduct of Local Government Council Elections same having been long overtaken, by events However, this Court can make pronouncement regarding the validity of laws guiding the administration of Local Government Council to forestall further violent violation of the provisions of the Constitution.

I therefore abide by the declaratory orders made by my learned brother in the lead judgment. Appeal allowed in part.

EJEMBI EKO, J.S.C.: I had the privilege to read in draft, the judgment just delivered by my learned brother, K. M. O. Kekere-Ekun, JSC. I hereby adopt the judgment, as I agree entirely with the reasoning and conclusions including all consequential orders made therein.

On the question: whether the House of Assembly of Enugu State can enact the provisions of Section 12(1) & (2) of the Local Government Law, Cap 109 of the laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition/Provision Law, Cap 110 of the Laws of Enugu State, 2004 empowering the dissolution, by the Governor of Enugu State, of a democratically elected Local Government Council and in its stead, appointing a Caretaker or Transition Council to manage the affairs of the Local Government is in conflict with Section 7(1) of the 1999 Constitution, and therefore unconstitutional; it is my firm view that the House of Assembly acted ultra vires in enacting such provisions.

In so doing, the House of Assembly of Enugu State failed, neglected and/or refused to be bound and/or guided by numerous authoritative judicial declarations and pronouncements on the issue. This Court in 1992, in AKAN v. ATTORNEY-GENERAL, CROSS-RIVER STATE (1982) 3 NCLR 881, had declared similar provisions unconstitutional and antithetic to the system of democratically elected Local Government council guaranteed by Section 7(1) of the Constitution. Other decisions rendered in this refrain include: AKPAN v. UMAH (2002) 2 NWLR (pt. 767) 710; A.G. PLATEAU STATE v.

GOYOL (2007) NWLR (pt. 1059) 59; A.G. BENUE STATE v. HON. MUSA UMAR & ORS. (2008) 1 NWLR (pt. 1068) 311; EZE v. GOVERNOR, ABIA STATE (2014) 5-7 SC (pt. 1) 171, etc. This Court, on 9th December, 2016, had another occasion, in GOVERNOR, EKITI STATE v. PRINCE SANMI OLUBUNMO & ORS (2017) 13 NWLR (pt. 1551) 1 at 30-31 to further reiterate the point.

In view of the powerful and authoritative pronouncements of the Court of Appeal and this Court on this same point; I should think the option available to the Respondents’ Counsel, as officers of the Courts, was to have, guided by Rule 32(2)(j) & (k) of the Rules of Professional Conduct for Legal Practitioners, 2007, tried fervently and honourably, in aid of administration of justice not be seem to promote a case which to their knowledge was false.

Such display of professional courage and candour would have saved costs to all concerned, including the Courts (from the trial High Court through the Court of Appeal to this Court).

The law reports are there for every counsel in litigation to source and bring out judicial precedents on every point in dispute. The peculiarity of this issue, as I demonstrated earlier, is that there are no dearth of binding judicial precedents on the point. The law on it has almost become trite. On these available authorities on the point, I also allow the appeal.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Kekere-Ekun, JSC has accorded me the privilege of a preview of the judgment just delivered. I am whole heartedly in concurrence with the reasoning reached therein, to the conclusive effect that the instant appeal succeeds in part.

​By the originating summons thereof (08/2/2015), the Appellants therein had urged upon the Enugu State trial High Court a total of 14 declaratory and injunctive reliefs of the 14 reliefs sought by the Appellants, the 1st, 2nd and 4th are most instructive: 1.

A DECLARATION that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 3(1) and 4(3) of the Local Government Laws CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (seventeen) Local Government Councils in Enugu State, by democratically elected Local Government Councils is guaranteed. 2.

A DECLARATION that the provisions of Section 12(1), (2) of the Local Government Law, CAP, 102, Revised laws of Enugu State, 2004 and Sections 6(1) of the Local Government Area Created and Transition, Provisions Law CAP 110, Revised Laws of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee, Transition committee or howsoever called an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void. 3.

A DECLARATION that the defendant’s appointment, and selection, or plans, arrangements to appoint or select a Transition Committee and/or a Caretaker Committee to the position of the Chairman of the seventeen (17) Local Government Councils in Enugu State is a provision of Section 7(1) and 94(3) of the Local Government Law CAP. 129, Revised Laws of Enugu State of Nigeria, 2004. 4.

A DECLARATION that by virtue of Section and Section 18(3) of the Local Government Law, CAP, 09, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amended No. 5) Law of Enugu State 2010 published in Enugu State of Nigeria official Gazette No. Vol. 19, 2010, the tenure of once of a Local Government Council Chairman is two (2) years commencing from the date of the 1st sitting of the Council.

​By the said originating summons, the Appellants had equally urged upon the trial Court for the determination of a total of 7 questions. By the judgment thereof (pages 893-964 of volume 1 of the Record of Appeal), the trial Court held to the conclusive effect: … In view of the foregoing and for detailed reasoning in all the issues conversed before me inclusive of the ones I raised suo motu, I see no room and no reason to dance around this suit than to dismiss it. Suit is hereby dismissed.

Not unexpectedly, the Appellants appealed to the Court of Appeal, Enugu Judicial Division.

The Court below heard the appeal and delivered the vexed judgment thereof on September 18, 2020, to the following conclusive effect: A dispassionate appraisal of the questions sought for determination in the originating summons of the Appellants as well as the relief sought by them hears the inescapable conclusion that they have been rendered otiose and academic, they are accordingly underserving of further judicial attention and it is my strong view that this Court has no jurisdiction to proceed further with this appeal. In the entire circumstances therefore, this appeal is struck out.

Parties shall bear their respective costs.”

​Not unnaturally, in keeping faith with their further appeal to this Court, cherishingly provided by the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Appellants have deemed it expedients to file the instant appeal.

In my considered opinion, of the three issues raised by the Appellants at pages 14-15 of the brief, thereof, the 1st and 2nd issues are most instructive: 1. Whether the Court below has jurisdiction to hear and determine appeals arising from Appellants’ complaints of violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by the Respondents. 2. …”

Invariably, the term jurisdiction denotes a Court’s delineated power to adjudicate or decide a matter or issue an order (Decree). Also termed competent jurisdiction; adjudicatory jurisdiction. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1017.

​Any challenge to jurisdiction of a Court or Tribunal is not merely important, but most fundamental to adjudication process. Thus, it can be raised at any material stage of the proceeding, by the parties, or even suo motu by the Court. As such, once raised, the question or issue of jurisdiction must be resolved by the Court or Tribunal before proceeding, if at all necessary, to determine the action or appeal on the merits. It was aptly reiterated in DADA VS SIKUADE (2014) 17 NWLR (Pt. 1435) 72: (An issued) Jurisdiction should be determined at the earliest opportunity.

This is because if a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. Per Saulawa, JCA (as he then was) @ 114 paragraphs C – F. See also TUKUR VS GONGOLA STATE GOVT. (1989) 4 NWLR (Pt. 117); SKEN CONSULT VS UKEY (1981) 1 SC 6; MADUKOLU VS NKEMDILIM (1962) 2 SC NLR 374.

Most interestingly, jurisdiction has been characterised as a threshold, live-wire, blood et al of an action. In the case of UTIH VS ONOYIVWE (1991) LPELR-SC.160/1988, this Court had aptly postulated: Jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. Per Bello, CJN @ 46 paragraphs C- D.

Fundamentally, the Constitution of the Federal Republic of Nigeria, 1999, as amended, has provided for three distinct branches of Government: (i) The Legislature; (ii) The Executive; and (iii) The Judiciary. And to each of the formidable arms of Government, the Constitution has assigned well defined, distinctive roles and responsibilities. To the Legislature, the distinguished role of enacting laws for the peace, order and good governance of the nation.

To the Executive, the eminent responsibility and duty for execution and implementation of all laws enacted by the legislature and orders of Courts. While to the Judiciary, the Constitution has equally assigned the prestigious and most honourable judicial powers to thereby arbitrate and settle disputes vis-a-vis conflicts arising from the interplay of powers and forces between the Federal and State Governments, between the Government and the citizen, and between individuals and institutions vis-a-vis other feuding parties. See Sections 4, 5 and 6 of the 1999 Constitution.

The term Constitution denotes: The fundamental and organic law of a Country or State that establishes the instructions and apparatus of government, defines the scope of governmental sovereign powers and guarantees individual civil and civil liberties; a set of basic laws and principles that a Country, State, or organization is governed by. See BLACK’S LAW DICTIONARY 11th edition 2019 op cit @ 388. Arguably, the evolution of constitutionalism could be said to have predated democracy. As aptly attested to by J. M. Colomer: Constitutions came earlier than democracy.

During the late middle ages and early modern times, Constitutions were mainly devices for establishing rights and limiting powers, functions that are still emphasized in certain academic literature on constitution. But as the old powers to be limited were autocratic, Constitutionalism advanced almost naturally together with the expansion of suffrage rights and democratization. A Constitution is usually defined as ‘a set of rules’ for making collective decisions made by means of rules can solve human coordination and cooperation dilemmas. ​See JOSEPH M.

COLOMER: “COMPARATIVE CONSTITUTIONS” IN THE OXFORD HANDBOOK OF POLITICAL SCIENCE (2009) @ 179; ​ copiously alluded to in BLACK’S LAW DICTIONARY 11th edition 2019 @ 388-389.

Indeed, under Section 6(6) (b) of the 1999 Constitution (supra), the judicial powers duly vested in the Courts are far-reaching: 6(6). The judicial powers vested in accordance with the provisions of this Section: – (b) shall extend to all matters between persons or between government or authority and to any person in Nigeria and to actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that persons.

In the locus classicus, SENATOR ADESANYA VS PRESIDENT OF NIGERIA (1981) 2 NCLR 358, this Court, in laying a firm foundation for the jurisprudence locus standi, aptly postulated: The section material to the issue is Section 1979 Constitution (which is in pari materia with Section 6(6)(b) of the extant 1999 Constitution. This Sub-section expressed the scope and content of the judicial powers vested by the Constitution in the Courts, within the purview of the Sub-section.

Although, the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings “for the determination of any question as to the civil rights and obligation of that person. It seems to me that upon the construction of the Sub-section, it is only when the civil rights and obligation of the person, who involves the jurisdiction of the Court, are in issue for determination that the judicial power of the Courts may be invoked. Per Bello, JSC (as the learned Lord then was) @ 385.

Cherishingly, with tacit interpretation of Section 6(6)(b) of the 1979 Constitution (Supra) as the fundamental rule on locus standi; this Court had laid a formidable foundation for the future development of the law. In the latter case following ADESANYA VS PRESIDENT OF NIGERIA (Supra), this Court appeared to have taken a much more liberal approach. SeeFAWEHINMI VS AKILU IN RE: ODUNEYE (1987) 4 NWLR 797. Perhaps, the decision of this Court in ADESANYA VS.

PRESIDENT OF NIGERIA (Supra), would for long time to come, remain a reference point on the fundamental issues of locus standi, rule of law, the doctrine of interpretation of statutes, et al. This Court’s approach to construction and interpretation of the constitution has remained to be of liberalism. This is absolutely so, because anything contrary thereto would tantamount to defeating the very end which the Constitution was enacted. As aptly reiterated by this Court in NAFIU RABIU VS.

KANO STATE (1980) LPELR -2936 (SC): It is the duty of this Court which has the ultimate responsibility of declaring and interpreting provisions of the Constitution always to bear in mind that the constitution itself is, a mechanism under which laws are to be made by the Legislature and not merely an Act which declares what the law is.

Accordingly, where the question is whether the constitution has used an expression in the wider or in the narrower sense, the Court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. Per Idigbe, JSC @ 31 paragraphs C- F. In the course of interpreting the Constitution, it then behooves the Court to consider the Constitution in its entirety – as a whole.

That’s to say, the provisions of the Constitution ought to be construed in such a way as to justify the aspirations and hopes of the framers thereof vis-a-vis the laudable objectives of promoting the good Government and welfare of the citizens on the principles of freedom, equality, justice, peace and unity of the people.

Now, coupled with the far-reaching power under Section 6(6) (b) of the 1999 Constitution (supra), the Court below has specifically been cloaked with jurisdiction under Section 240(1) of the Constitution (supra) to the exclusion of any other Court of law: to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, High Court of a State, the Sharia Court of Appeal, FCT Abuja, Sharia Court of Appeal of a State, customary Court of Appeal of the FCT, Abuja, Customary Court of Appeal of a State, and from any other decisions of a Court martial or other Tribunal as may be prescribed by an Act of the National Assembly.

​By the combined effect of the provisions of Section 6(6) (b) and 240(1) of the 1999 Constitution, as amended (supra); the Court of Appeal is undoubtedly cloaked with the jurisdiction to hear and determine the appeal before it.

The provisions of Section 7(1) of the 1999 Constitution (supra) and Section 12(1) & (2) of the Local Government Law of Enugu State are to the following effect: 12(1) where an emergency or any other situation arises which made impracticable, impossible or unreasonable holding of local Government election within the period stipulated in this law.

The Governor shall upon the expiration of a serving council administration, appoint for each Local Government a Transitional committee of not more than six persons (one of whom the chairman) from the local Government areas. (2) The Transitional committee appointed under (sub) Section shall oversee the affairs of their respective local Government councils for a period of three months subject to re-appointment, but such committee shall be dissolved immediately after newly elected members of the council are sworn in.

Afortion, the powers of the Governor of a State are as circumscribed under Section 5(2) of the 1999 Constitution as amend (supra): 5(2) subject to the provisions of this constitution, the executive powers of a State:- (a) shall be vested in the Governor of a State and may subject as aforesaid and to the provisions of any law by a House of Assembly, be exercised by him either directly or through the Deputy Governor, Commissioners of the Government of that State or officers in the public service of the State, shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all makers with respect to which the House of Assembly has for the time being, powers to make laws.

By the provisions of Section 7(1) of the 1999 Constitution (supra), the Local Government system, as democratically established, has been duly guaranteed.

The provisions of Section 12 of the Enugu State Local Government Law (Supra) is retrogressively in violent confrontation and conflict with the unequivocal provisions, of Section 7 of the 1999 Constitution (supra), and therefore null, void and effect, what so ​In my considered view, it tantamounts to a great disservice for the Enugu State House of Assembly to enact the Enugu State Local Government law (supra), and for the Enugu State Governor to assent same, knowing that the said law was in violent conflict with the unequivocal provisions of the 1999 Constitution, most especially Section 7(1) thereof.

In BAR. ENYINNA ONUEGBU VS. AG IMO STATE (2012) LPELR- 19691 It was aptly held: There is nothing that subordinates democratic system under Section 7(1) of the 1999 Constitution on Local Government system to the whims and of the creative arm of the State or the legislative powers of the State House of Assembly. See ATTORNEY GENERAL OF PLATEAU STATE VS. HON CHIEF ANTHONY GOYOL (2007) 16 NWLR Pt. 1059 page 57. ATTORNEY GENERAL OF ABIA STATE V.

ATTORNEY GENENAL OF THE FEDERATION (2006) 16 NWLR pt. 1005 P. 265… It is hereby declared that pursuant to Section 7 (1) of the 1999 Constitution (as amended) and Section 23 (1) of the Local Government Administrative Law No 15 of 2000 (as amended) the 2nd respondent by himself, or through any person has no competent (sic) or power to set up or constitute Transition Committee to replace… democratically elected Chairmen of the 27 Local Government Councils in Imo State. Per Abba-Aji, JCA (as the learned Lord then was).

​It ought to be reiterated, for the avoidance of any lingering doubt, that by virtue of the provision of the 1999 Constitution, as amended (supra), the Constitution is supreme. And the provisions thereof shall have absolutely binding effect upon all authorities and persons throughout the Federal Republic of Nigeria. Thus, if any law is inconsistent with the provisions thereof, the Constitution shall prevail; and that other law so called, shall to the extent of the inconsistency, be void. And I so hold.

See Section 1(1) (3) of the 1999 Constitution, (Supra): 1-(1) The Constitution is Supreme and its provision shall have binding force on all authorities and person throughout the Federal Republic of Nigeria. (3) if any other law is inconsistent with the provisions of this Constitution, this shall prevail, and that other law shall to extent of the inconsistency be void.

Hence, against the backdrop of the foregoing postulates, and the comprehensively detailed reasoning in the lead judgment, I am of the considered view that the instant appeal ought to succeed in part, and it is allowed by me.

I abide by the consequential orders made in the lead judgment.

ADAMU JAURO, J.S.C.: I have before now read in draft, the lead judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC. I am in complete agreement with the reasoning contained therein and the conclusion arrived at.

The provisions of 12 (1) and (2) of the Local Government Law of Enugu State empower the Governor to appoint Caretaker or Transition Committees for the Local Government Areas of the State. By the combined effect of Section 7(1) and Section 1(3) of the 1999 Constitution (as amended), any legislation that empowers the Governor of a State or any other person or authority to truncate a democratically elected Local Government Council is unconstitutional, null and void. See GOVERNOR OF EKITI STATE V. OLUBUNMO (2017) 13 NWLR (PT. 1551) 1; EZE & ORS V.

GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276 (SC). I therefore hold that Section 12 (1) and (2) of the Local Government Law of Enugu State is inconsistent with the provisions of Section 7 (1) and (4) of the 1999 Constitution (as amended) and are therefore unconstitutional, null and void.

​Flowing from the foregoing, questions 1, 2 and 3 as contained in the Appellants’ originating summons are hereby determined in favour of the Appellants and against the Respondents. Consequently, reliefs 1, 2 and 4 sought by the Appellants in their originating summons are hereby granted.

However, it is evident from the originating summons that and affidavit in support that the other reliefs sought by the Appellants are centered on the 2015 Local Government election in Enugu State. Since then, two different Local Government elections have been held in the State. Those reliefs have therefore been rendered academic and otiose.

​For the reasons set out above and of course, the more elaborate ones enunciated in the lead judgment, I join my learned brother in allowing the appeal in part. I abide by the consequential orders made in the lead judgment.

Judgment

It is obvious from those provisions that their legislative intention or objective is to ensure that the freedom of expression is exercised in good faith and in the interest of the public. Section 391 of the Penal Code Law that defines the offence of defamation in Sub-section (1) expressly lists in Subsection (2) publications that do not constitute the offence of defamation.

These publications include publication of the truth for the public benefit, criticism of public servants, opinion on the conduct of any person touching on a public question and respecting his character so far as his character appears in that conduct and no further publication of substantially true report of a judicial proceeding, comments on cases already decided in Court, opinions on literacy and dramatic works, censure passed by a person in authority, accusation preferred to a person who has lawful authority over the person accused with respect to the subject matter of the accusation, imputation on the character of a person in self defence or defence of another, caution in good faith for the good of the person cautioned or of another in whom that person is interested or for public good.

EMMANUEL AKOMAYE AGIM, J.S.C.: HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Coram A. D. Yahaya, M.A.A Adumein and T. A Wilson JJCA delivered on 16/5/2014.

The Hon Justices of the Court of  appeal had upheld that part of the judgment of the High Court of the FCT in its appellate jurisdiction which had upheld the ruling of the trial Chief Magistrates’ Court on the issue of the jurisdiction of the trial Court to entertain the criminal proceeding initiated by a First Information Report at the trial Court against the Appellant. My Lords, it is important to set out the undisputed facts which led to this appeal copiously.

One Mr. Femi Otedola, the Chairman of African Petroleum PLC at every material time to this appeal filed a direct criminal complaint against the Appellant herein, then a Director of Finance in African Petroleum PLC, at the Chief Magistrates’ Court, Wuse Zone II, Abuja, on the 19th day of October, 2010 and same was referred to the Police by the trial Court for investigation.

​The officers of the Inspector General of Police, Special Investigation Unit, Force Headquarters Abuja were directed by the Inspector General of Police to investigate the complaint. At the conclusion of the investigation, the Appellant and the 2nd Respondent were indicted and consequently arraigned before the Hon. Chief Magistrates’ Court Wuse Zone II, Abuja on a First Information Report FIR as a direct criminal complaint.

The Appellant and the 2nd Respondent applied for bail which was granted by the trial Chief Magistrates’ Court and the case was adjourned for hearing.

On the 10th February, 2011 when the case came up for hearing at the trial Chief Magistrates’ Court, the prosecution applied to withdraw the First Information Report earlier filed and to substitute same with a new First Information Report (FIR) which application was granted after argument had been made by both the prosecution and defence counsel and the old First Information Report was struck out.

The new First Information Report was read and explained to the Appellant and the 2nd Respondent as provided in the Criminal Procedure Code. The Appellant and the 2nd Respondent both denied the charges contained in the new First Information Report.

The Appellant and the 2nd Respondent having taken their plea on the new First Information Report (FIR), the Appellant’s counsel Chief Mike Ozekhome, SAN, leading other counsel moved his notice of preliminary objection challenging the jurisdiction of the trial Chief Magistrates’ Court to try the case, the prosecutor Simon Lough Esq., opposed the objection.

In a ruling delivered on 18th March, 2011, the learned trial Chief Magistrate overruled the Appellant’s preliminary objection.

The Appellant and the 2nd respondent being dissatisfied with the decision of the learned trial Chief Magistrates’ Court appealed to the High Court of the FCT Abuja in its Appellate jurisdiction.

The judgment of the High Court of the FCT, Coram: Hon. Justice M. E Anenih and Hon. Justice S. B Belgore delivered on the 24th May, 2012, unanimously dismissed the Appellant’s appeal.

The Appellant appealed to the Court of Appeal, Abuja Division.

In the judgement of the Court of Appeal Coram: Hon. Justice A. D. Yahaya, Hon Justice M.A.A Adumein and Hon. Justice T.A. Wilson JJCA, delivered on the 16th May, 2014, their Lordships unanimously dismissed the Appellant’s appeal. The Appellant has further lodged this appeal to this Court to challenge the judgment of the Court below vide a Notice of appeal dated 15th day of June, 2017 and filed on the s  ame day.

The three issues distilled for determination by Chief Mike Ozekome SAN et al in the brief signed by Godwin lyinbor Esq., were adopted by the learned 1st Respondent’s counsel. I will also adopt them for the determination of this appeal. They are set out below: 1. Whether the Court below was right in law by its holding that the First Information Report (FIR) upon which the Appellant was arraigned before the trial Court and the entire proceedings conducted thereat were not unconstitutional, illegal, null and void (distilled from grounds 1 and 3). 2.

Whether the Court below was right in law in the absence of any Respondent’s notice duly filed by the 1st Respondent to uphold the judgment of the High Court of the Federal Capital Territory sitting in its appellate jurisdiction on grounds other than those relied upon by the said Appellate High Court of the Federal Capital Territory (distilled from ground 2). 3.

Whether the First Information Report upon which the Appellant was arraigned before the trial Court is not unconstitutional for being in conflict with the provision of Sec. 39 of the 1999 Constitution of the Federal Republic of Nigeria, (as Altered), as it relates to the constitutionally guaranteed freedom of expression. (Distilled from Grounds 4).

ISSUE 1 My Lords, the Appellant’s Counsel insisted that the trial was a nullity because the charges were unknown to law since the Appellant was charged under certain sections of what the prosecution called Laws of the Federation 1990. Learned counsel urged the view that any attempt by the prosecution to cure the defective charge by way of amendment, substitution or withdrawal of same cannot stand as something cannot be placed on nothing in accordance with the principle established in Macfoy vs. UAC (1962) A.C P9152 at 160 which still holds good.

Counsel expended a lot of energy on whether the Court of Appeal should have taken a decision on the issue of the withdrawal/substitution of the charge or not. Counsel submitted that the Court below had no business dealing with the issue and making it a basis for its decision as the issue was not properly placed before it.

Counsel pursued the argument that the FIR was predicated on S.79, 392, 393, 394 and 395 of the Penal Code Cap 531, Laws of the Federation 1990, a non-existent law at the time the charge was laid, thus the FIR and the subsequent trial based on a non-existing law would be unconstitutional null and void. Counsel argued that with the coming into effect of the Laws of the Federation 2004, the previous laws ceased to exist. Counsel cited Lucky Jacob Akpan v. The State (2014) LPELR-22740 (CA), George v. FRN (2013) LPELR-21895 SC.

Learned 1st Respondent’s Counsel on this issue submitted that the Appellant was not arraigned on the Laws of the Federation 1990, but on the Penal Code Law simpliciter. Thus, Counsel argued, the reliance by the Appellant’s counsel on a violation of S. 36(8) and (12) of the 1999 Constitution to prevent the trial of the Appellant is misconceived. Counsel also referred to the record of proceedings at trial wherein the previous FIR was withdrawn and a fresh FIR was laid against the Appellant upon which he was sought to be tried.

OPINION My Lords, the argument of the learned Appellant’s counsel is misconceived both in fact and law. This issue as argued is just an unnecessary storm haphazardly brewed in a tea pot.

The main thrust of the complaint is a matter of fact which is whether or not the previous FIR under which the Appellant was proceeded against at the trial Court had been substituted by the prosecution or not. A consideration of this factual issue shows clearly that on Pages 28-36 of the record, the first FIR was withdrawn on 10/2/2011 and the extant FIR on which the appellant was charged was substituted. The Court below dealt extensively with this issue on page 296-298 of the record and found no factual basis for the argument of the Appellant’s counsel.

I agree with the Court below that there is no factual basis for the complaint by the Appellant’s counsel that the Appellant was charged on a non-existing law.

On page 5, Paragraph 4.4 of the Appellant brief, Appellant’s counsel insisted that it was erroneous of the Court below and the High Court to have considered and determined the issue of withdrawal and substitution of a fresh charge and that no substitution can be made for an incompetent charge. The Appellant’s counsel on Page 10 para 4, 16 complained in an about face that the High Court and the Court of Appeal did not consider the Appellant’s argument on the charges which he argued had violated S.36(8) and (12) of the Constitution. Counsel speaks from two sides of his mouth.

It is one thing for the prosecution to charge Defendant with an incompetent charge which does not exist in any law, and another to charge with reference to a wrong law. Any charge or process can be withdrawn and another charge or process substituted at any time in a criminal trial so long as the defendant’s attention was drawn to the substituted charge, he was given opportunity to make a fresh plea to the new charge and all opportunities are given to the defendant to recall witnesses or call fresh witnesses to defend the new charge. See FRN V. Adewunmi (2007) LPELR-1273 (SC).

No doubt, an incompetent charge cannot be substituted. A new charge with a fresh number must be brought after the incompetent charge has been struck out. An incompetent charge is different from an irregular charge. The charge initially filed is not incompetent and the amendment was in order. This is because filing a charge pursuant to a wrong law does not render the charge incompetent in so far as the offences are actually known to some other law which is extant. The extant law is the 2004 Laws whereas the Appellant was charged under the 1990 Laws.

Since the Appellant understood the charge, even if the charge had gone to trial, no appellate Court would have set aside the judgment on that ground. See Oyem v. FRN (2019 LPELR- 47392 (SC); David v. C. P. Plateau State Command (2019 2 NWLR Pt. 1655 Pg. 178 at 188-189; Okpa v. The State (2017) LPELR -42205(SC). This issue had been settled in Ogbomor v. The State (1985) IN SCC 224 where it was held that mere misdescription of an existing law as long as such a law existed at the time of the commission of the offence does not make the charge incompetent. See Boniface Adonike v.

The State (2015) LPELR – 24281(SC) Pt. 22. Thus, the misdescription of the law in the charge does not make it invalid or incompetent. This issue is resolved against the Appellant.

ISSUE 2 ​Learned Appellant’s counsel argued that whereas the 1st Respondent had argued at the Court below that the Appellant had been properly prosecuted on a substituted FIR, and the Court below agreed with that argument, the lower Court’s judgment had been based on a different premise, to wit: that the laws under which the FIR was brought was in existence and that the laws were not in conflict with the rights of freedom of expression as guaranteed by the 1999 Constitution.

Appellant’s counsel argued that in upholding the judgment of the High Court, the Court of Appeal was in error since there was no Respondent’s notice filed by the 1st Respondent to activate the exercise of the power of the appeal Court to consider that point.

In reply, the 1st respondent’s counsel argued that the attention of the Court of Appeal was drawn to the fact that the High Court in its appellate jurisdiction had in determining the issue in controversy which was whether the Appellant had been charged upon a non-existent charge taken into consideration the fact that the first FIR based on the Penal Code “Laws of the Federation of Nigeria 1990″ was withdrawn on oral application of the prosecutor and substituted with another one which was pursuant to the Penal Code Law and concluded that the FIR upon which the Appellant was proceeded against was valid.

Counsel argued that the 1st Respondent never raised any issue or ground different from the one raised by the Appellant at the Court below. The 1st respondent’s counsel argued that he adopted the issues as formulated by the Appellant at the Court below and responded to them seriatim. There was therefore no need for the 1st Respondent to file a Respondent’s notice since the 1st Respondent did not desire to contend at the Court of Appeal that the decision of the High Court of the Federal Capital Territory should be affirmed on grounds other than those relied upon by that Court.

OPINION My Lords, I agree with learned 1st respondent’s counsel that the Appellant’s arguments are highly misconceived on this issue for want of a stronger word. It is clear from the record that the 1st Respondent did not urge the Court of Appeal to affirm the judgment of the High Court on the ground that there was a substitution of the FIR but rather on the ground that the FIR upon which the Appellant was proceeded against was valid and constitutional.

The insertion of the issue of Respondent’s failure to file a Respondent’s Notice into the discourse in this appeal is unwarranted given the fact that this issue had always been raised by the Appellant at the High Court and the Court of Appeal. There was absolutely no need for the 1st Respondent to file a Respondent’s notice in order to respond to issues raised at the lower Court or Court below by the Appellant which issues as distilled were from his grounds of appeal. This issue is resolved against the Appellant.

ISSUE 3 Learned Appellant’s counsel argued that the First Information Report on which the Appellant was arraigned is unconstitutional for being in conflict with Section 39(1) of the Constitution of the Federal Republic of Nigeria (as altered) bordering on freedom of expression.

Appellant’s Counsel submitted that the offences provided for under Sections 79, 392, 393, 394 and 395 of the Penal Code bordering on joint acts of defamation of character injurious falsehood, printing or engraving matters known to be defamatory matters for which the Appellant was sought to be prosecuted constitute an elevated statute designed to stultify, muzzle and interfere with the constitutionally guaranteed freedom of expression.

Appellant’s counsel argued that the Court of Appeal ought to have declared the said Sections of the Penal Code null and void for being inconsistent with the clear and unambiguous provisions of Sec. 39(1) of the Constitution (As Altered). The Appellant’s Counsel argued that the Court of Appeal like every other Court has a duty to protect human rights. Counsel cited African Continental Bank Plc v. Losada Nigeria Ltd & or (1995) LPELR 205 (SC) and National Union of Electricity Employees & Anor V. Bureau (2010)LPELR- 1966 (SC).

Learned appellant’s counsel also commended to this Court the ratio in Nwankwo v. The State (1983) NCR 366 and the principle settled therein relating to the sanctity of the constitutional provisions in respect of human rights.

Counsel argued that the lower Court was in grave error from the entire circumstance of this appeal to have relied on Sec. 45 of the Constitution to arrive at its determination that the said Section of the Penal Code which are in conflict with Sec. 39(1) of the Constitution as it relates to freedom of expression are not unconstitutional null and void. ​ Learned Respondent’s counsel argued that although the 1999 Constitution of the Federal Republic of Nigeria in Section 39(1) guarantees citizens the right to freedom of expression and opinion, the same constitution also qualified that right to freedom of expression and opinion, which recognize the rights of others against defamatory expression.

Learned 1st Respondent’s counsel argued that in view of the Sec. 45(1) of the Constitution of Nigeria (as Altered), it will be absurd to interpret Section 39(1) of the same Constitution as invalidating the provisions of the Penal Code relating to the offence of defamation of character, when the Constitution clearly preserved the rights of others against defamatory expressions.

Learned 1st Respondent’s counsel submitted that Sec. 79, 392, 393, 394 and 395 of the Penal Code Laws, upon which the Appellant was arraigned before the trial Chief Magistrates’ Court are not in conflict with the provisions of Sec 39 of the Constitution, rather the Constitution has re-enforced them by virtue of Sec 45(1) of the same Constitution. Counsel cited DPP V. Chike Obi (1961) 1 All N L R Pg. 186 where the Supreme Court held that no government criticism should disturb public order. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

OPINION My Lords, this issue is the one on which this appeal turns. The extant FIR on which the Appellant was charged is on Pg. 39 of the record and it states as follows: Joint act, defamation of character, injurious falsehood, printing or engaging matter known to be defamatory and sale of printed or engraved substance containing defamatory matter, contrary to Section 79, 392, 393, 394, 395 of the Penal Code Law.

That on 19th October, 2010 Femi Otedola, Executive Chairman of African Petroleum through a direct criminal complaint to the Chief Magistrate Court, Abuja which was referred to the Inspector General of Police for investigation reported that in July and August, 2010, you Aviommoh Clement “m” and Sunday Esan “m” while acting. In concert and in furtherance of a common intention to defame, embarrass, and maliciously cause serious harm to the reputation of the Executive Chairman of African Petroleum, Mr.

Femi Otedola, published in the News Star of Monday 2nd to Tuesday 3rd August, 2010 at page 10-13, the Compass News Paper of 1st August, 2010 at Page 4-7, News of the People of August 16-23, 2010 Edition at page 13-16, First Weekly Newspaper of August 15th, 2010 at page 29-32, The Guardian Newspaper of July 13th, 2010 page 7, Daily Independent of July 13th, 2010 at page 4 with the caption AP Lost N50 billion to Otedolas sharp practices and in page 2-6 of a book with the caption “How Otedola is killing AP”. Under the above captions, you published that Mr.

Femi Otedola has been milking African Petroleum for his private gains for the past two years. You published further that Mr. Femi Otedola has been using his companies Zenon Petroleum and Gas Company Limited, Platinum Fleet Limited and Fineshade Energy Limited to sell product to African Petroleum at high prices than the retail prices. In the said publication, you portrayed Mr. Femi Otedola as a corrupt and fraudulent person. The above publication attracted the attention of many Nigerians and foreigners both at home and abroad.

The said publication which you knew or had reasons to believe to be false, the copies of which were sold to several persons in Nigeria and same posted on the internet for wide publicity. You thereby committed the above-mentioned offences.

As can be seen from above, the Appellant was charged for crimes contrary to S. 79, 392, 393, 394 and 395 of the Penal Code Law. The specific letters of these Sections are set out below: S. 79 When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. S.392- Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or both.

S.393(1)- Whoever, save as herein excepted, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government or any Local Government Council in the state shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

S.394 – Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

S-395 – Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both S.39(1)- of the 1999 Constitution which is the relevant portion for this appeal states thus: 1) Everybody shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference.

Sec 45 (1) of the 1999 Constitution states as follows: 1) Nothing in Section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably, justifiable in a democratic society- a) in the interest of defence, public safety, public order, public morality or public health or b) For the purpose of protecting the rights and freedom of other persons.

The Court of Appeal had this to say at Pg. 301-302 of the record in respect of the watering down of the right to freedom of expression contained in S.39(1) in favour of the proviso in S.45(1) of the 1999 Constitution: “What the above means, is that Section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.

So, when Section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right. it must not be utilised or invoked in such a way, that it offends public safety, order, morality and health and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin.

He has to behave according to the norms of that society, otherwise his conduct will be injurious to the well-being and continued existence of that community. He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society. He must not act in such a way, that he defames their character or endanger their safety, health, order or morality.

The Constitution recognizes the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act and the whole society has to be involved to protect itself. Hence, criminalizing such conduct of the individual. That is why Section 45(1) of the Constitution was promulgated. The FIR filed against the appellant is in respect of the offences of defamation of character, injurious falsehood printing or engraving such matter.

These are offences that are against public morality, health and order of the society. They, if proved, would have injured the rights and wellbeing of the appellant in his character and reputation. They are therefore within the ambit of Section 45(1) of the 1999 Constitution. So, the said offences alleged against the appellant in the FIR, as contained in the Penal Code, are not unconstitutional, and have not constituted a flagrant violation and subjugation by criminal process of the constitutionally guaranteed freedom of expression and opinion of the appellant.”

Apart from bald assertions, no serious arguments were advanced by learned Appellants counsel to convince this Court to declare unconstitutional, the provisions of the Penal code which are ostensibly saved by S.45 of the Constitution. The cases cited by learned senior counsel for the Appellant only relate to the general proposition of the law that the Courts must protect human rights and resist any attempt or legislations that would directly or indirectly erode the efficacy of the inalienable fundamental rights donated by the 1999 Constitution.

Be that as it may, the resolution of this issue gave me some anxious moments. The judicial instinct to protect the citizenry from any incursion into their fundamental rights must be weighed against the mischief sought to be prevented by the legislation and the concomitant saving provisions of the Constitution.

My Lords, the main purpose of the criminal law is to protect the interests of the public at large by punishing those found guilty of crimes, generally by means of imprisonment or fines, and it is those types of conduct which are most detrimental to the society and to the public welfare which are treated as criminal. A conviction for a crime is obtained by means of criminal prosecution, which is usually instituted by the State through the agency of the police.

A tort on the other hand is a purely civil wrong which gives rise to civil proceedings. The purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give an individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.

Another important difference between tort and crime in Nigeria is that the entire criminal law has been codified in the form of the Criminal Code of the Southern States and the Penal Code of the Northern States, whereas the law of torts remains a creation of judicial precedent modified here and there by statute. A Tort may be defined broadly as a civil wrong involving a breach of duty fixed by law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages.

In the light of the above definition, civil wrongs include: trespass, defamation, malicious prosecution, negligence, nuisance, strict liability, deceit, passing off, vicarious liability, enticement and harbaoury.

My Lords, the misuse of the criminal law machinery for getting reliefs in disputes that are civil in nature, by using the instruments of State has become dangerously rampant in recent times. This practice leads to vexatious and oppressive litigation and is contrary to Sec. 36(12) of the 1999 Constitution (as amended). Sometimes, the filing of criminal proceedings is used as a bargaining chip to pressurize and threaten the Defendant to enter into a settlement.

Even though these cases involve civil liability, they are given criminal contours with the object of expediting the civil recovery mechanism or to apply pressure on the Defendant or out of enmity towards the Defendant or to subject the Defendant to harassment. My Lords, it is important that criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. The rule of law allows everyone with a legitimate cause or grievance to avail remedies available in criminal law.

However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable in law for pursuing misconceived criminal proceedings. My Lords, I would strongly deprecate the initiation of false criminal proceedings in cases having the elements of a civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentivizes the litigant to initiate false and vexatious proceedings.

My Lords, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement.

Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.

My Lords, permit me to give a historical perspective of the law of criminal libel. Punishment of slanderers was provided by the early common law through the prosecution of those who maliciously spread false tales. Although it is not clear whether truth of the defamatory matter was regarded as a defense, it is certain that malice was conclusively presumed. The law of criminal libel, however, owes its origin not to the early common law but rather to an innovation in Star Chamber whereby elements of roman law were employed as the basis for prosecuting the publishers of defamatory statements.

Star Chamber reasoned that such defamations tended to cause breaches of the peace. Since the tendency to provoke a breach of the peace was regarded as the gist of the crime, whether the “libel” was true or false was considered immaterial. In fact, it was reportedly said that “the greater the truth the greater the libel,” the statement being justified on the ground that persons whose faults had been exposed were more likely to assault the publisher than were the victims of fictitious accusations. “every libel is made either against a private man, or against a magistrate or public person.

If it be a private man, it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience.” (culled from De Libellis famosist 5 Co. Rep 125a, 77 Eng. Rep. 250,251 (1606). In the latter part of the seventeenth century, following the abolition of Star Chamber, jurisdiction over criminal libel devolved upon the common law Courts.

The laws requiring strict licensing of the press having been repealed, criminal libel prosecutions became a potent weapon of political oppression in England. The jury system however presented a potential curb to such abuse. Proponents of freedom of the press argued that in a criminal libel action the jury, in addition to its ordinary fact-finding capacity, should have the right to decide the legal question of whether or not the writing constituted a libel. After a bitter struggle, the jury’s right to decide this vital question was recognized by the adoption of Fox’s Libel Act of 1792.

The broad power of the jury in criminal libel cases, was then accepted in the UK where we derived our common Law and some states in the USA. In the U.S.A., the general and I daresay current position of the law is as stated in Chaplinsky v. New Hampshire 315 U.S. 5681 571 (1942) as follows: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem.

These include the lewd, the obscene, the profane the libelous and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace… it has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by social interest in order and morality.” The present trend globally seems to be more tilted towards abolition of criminal defamation although a significant number of jurisdictions still retain the offence in their statute books.

There are international human rights documents from the African Union and The Commonwealth calling for decriminalisation of defamation and akin offences. The arguments in favour of abolition substantially rest on the compatibility of criminal defamation offences with the human/constitutional right to freedom of expression and many pro-abolition advocates point to use of criminal defamation for repression of journalists in many countries across the world. It needs be noted however also that the arguments in favour of retention also rest on human rights claims.

While some countries that have gone all out to abolish it, others have been more cautious. Section 73 of the English Coroners and Justice Act 2009 abolished the common law offences of sedition, seditious libel, obscene libel and defamatory libel. Ghana did by way of legislation – The Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act 2001 repealed the offences of criminal libel for being unconstitutional.

Sierra Leone also abolished criminal defamation in 2020 with the enactment of the Independent Media Commission (IMC) Act 2020 which repealed Part 5 of the 1965 Public Order Act which criminalised any publication that is deemed defamatory or seditious. Defamation was decriminalised in the Criminal Law of Lagos in 2011 and Edo State Criminal Law Bill 2020. There is a global move in the direction of decriminalising defamation. In England, Section 73 of the Coroners and Justice Act 2009 decriminalised defamation. The Council of Europe is also committed to decriminalizing defamation.

The Parliamentary Assembly of the Council of Europe (PACE) further affirmed its determination to stand for the decriminalisation of defamation in its Resolution 1577 towards decriminalisation of defamation (2007) and the corresponding Recommendation 1814 (2007).

PACE called on the Council of Europe’s member states to abolish prison sentences for defamation without delay, to guarantee that there is no misuse of criminal prosecution for defamation and to safeguard the independence of prosecutors in these cases, to define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law, and to ensure that civil law provides effective protection of the dignity of persons affected by defamation.

Secondly, PACE called on the member states to set reasonable and proportionate maximum amounts for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk, and to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury. Lesotho abolished criminal defamation through judicial decision (Peta v.

Minister of Law, Constitutional Affairs and Human Rights (CC11/2016) 120181 LSHC 3 (18 May 2018); BY S.373 - 381 of the Nigerian Criminal Code Act 2004; By S.500 of the Indian Penal Code, S.499 and S.500 & 501 Pakistan Penal Code, S.436, 437 & 438 of the Sudan Penal Code S.380 Australian Criminal Code all these countries still retain the offences in the statute books. The Lesotho High Court struck down criminal defamation for breaching the constitutional freedom of speech using criteria such as:

(i) Test for impairment (ii) Objective of proscribing defamation and its importance (iii) Proportionality (iv) Rational connection (v) Minimum impairment (vi) Issue of vagueness and over-breadth (vii) International human rights standards It is instructive that Courts are increasingly reluctant to allow public authorities to claim even in the case of the tort of defamation. For example, in the English case of Derbyshire Council v.

Times Newspaper Ltd. (1993)1 ALL ER 101 (HL), the Court held that: ‘Since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation, and that, accordingly, the plaintiff was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out.” My Lords, I need to re-emphasise that defamation is both a tort and a crime.

Any person aggrieved by any defamatory publication has the right to pursue an action for civil remedies of damages etc. Some countries have decriminalised defamation for several reasons. First, the wrong occasioned by defamation can be adequately remedied by a civil action with the award of damages and other ancillary reliefs to ensure that the particular defamatory act is not repeated. Secondly, the criminal law is an instrument of last resort because of its potential to interfere with the liberty of the citizen.

A citizen found liable for breach of the criminal law is convicted and sentenced to a term of imprisonment or fine. The liberty of the citizen is interfered with. The argument is that where other branches of the law or administrative remedies can adequately address the wrong sought to be criminalised there is no overarching public interest in punishing the act through the criminal law. Allied to this is the argument that there is currently a phenomenon of overcriminalisation.

This is the use of the criminal law to address problems which can adequately be addressed through other branches of the law or through an administrative process.

Another concern that also provide a basis for decriminalizing defamation is its potential to unduly interfere with the constitutionally guaranteed right to freedom of expression. This argument while recognising that the right to freedom of expression is not absolute argues that criminalisation may unduly restrict the exercise of the right. This argument supports the use of less coercive civil remedies of damages and others ancillary reliefs as sufficient safeguards against abuse of the right to freedom of expression. The remedy of damages and other ancillary reliefs is considered sufficient.

The right to freedom of expression guaranteed by Section 39 of the Constitution is by Section 45(1)(b) subject to any law reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons.

Although Section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in Sections 37, 38, 39, 40 and 41, derogations must be legal, that is, made under a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others.

In Cheranci v Cheranci (1962) N.R.N.L.R. 29, Bates J., identified the principles that govern whether a restriction of rights is reasonably justifiable in a democratic society, namely: (a) The law must be necessary for the interest of public morality or public order, etc. (b) It must not be excessive or out of proportion to the objective which it sought to achieve.

It may be argued that punishing defamation with criminal conviction and pain of imprisonment is excessive and out of proportion to the objective of protecting the reputation damaged by defamation when the civil law provides sufficient remedy to the person aggrieved. The phrase ‘necessary in a democratic society’ has also been interpreted by the European Court of Human Rights, which held that for an interference to be necessary, it must be justified by a “pressing social need” relating to one or more of the legitimate aims (Observer and Guardian v.

The United Kingdom, judgment of 26 November 1991, A216 paragraph 71). In determining whether such a need exists: i) Attention must be paid to the particular facts of the case and to the circumstances prevailing in the given country at the time (Lingens v. Austria, judgment of 8 July, 1986, A 103 paragraph 43). ii) The state’s action must also be based upon “an acceptable assessment of the relevant facts.” (Oberschlick v Austria, judgment of 23 May, 1991, A 204, paragraph 60).

Although the phrase used in the European Convention on Human Rights is different from “reasonably justifiable” used in the Nigerian Constitution, there is no material difference in the meaning of the phrases; the essence being to provide parameters for justifiable State action restricting human rights. The Siracusa Principles on the Limitation and Derogation provisions in the International Covenant on Civil and Political Rights also enumerate guiding principles in assessing whether a restriction or limitation of fundamental rights is permissible or not.

Specifically, that the restriction or limitation is: (i) Provided for and carried out in accordance with the law; (ii) Directed toward a legitimate objective of general interest; (iii) Strictly necessary in a democratic society to achieve the objective; (iv) The least intrusive and restrictive available to reach the objective; (v) Based on scientific evidence and neither arbitrary nor discriminatory in application; and (vi) of limited duration, respectful of human dignity, and subject to review.

The application of the above principles to the criminalization of defamation will yield the following conclusions: (i) the criminal law provides for defamation; (ii) the criminalization of defamation is directed toward a legitimate objective of general interest – viz protecting reputation; (iii) it appears that the third principle does not support criminalization of defamation. This is because criminalizing defamation is not strictly necessary in a democratic society to achieve the objective.

The tort of defamation already provides adequate remedy for anybody aggrieved by defamation; (iv) also applying the fourth principle the criminal law is not the least intrusive and restrictive approach to achieving the objective of providing a remedy for defamation. The civil law approach is the least intrusive and less restrictive approach yet providing adequate and sufficient remedy for defamation.

Based on the application of the last two principles above, it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional.

My Lords, having demonstrated current conventional position on the criminalization of defamation, let us address the issue before us. In India, with legislation similar to those under review, the Supreme Court has held that a High Court can exercise its inherent power to quash criminal proceedings for disputes that are essentially civil in nature between two or disputing parties. However, the Courts in India have always refused to quash the offensive charge at the pre-FIR stage and it should only be done after the trial of the FIR before a Magistrate. In the case ofState of Andhra Pradesh v.

Golconda Linga Swamy and Ors. (2004) 6 SCC Pg. 522. The Supreme Court observed that the mere allegation of mala fides against the informant are of no consequence and that alone could not be the basis for quashing the proceedings. The High Court was not required to enter into a meticulous analysis of the case for the conduct of the trial to find out whether the case would end in conviction or acquittal. Interference at the threshold with the FIR is made only if the complaint does not disclose any offence or is frivolous, vexatious or oppressive. In another case, State of Kerala and Ors v. O. C.

Kuttan and Ors. (1999) 2SCC 651, the Supreme Court held that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. The Court observed that it was a well settled position that an FIR is only an initiation to move the machinery and to investigate into a cognizable offence.

Thus, while exercising the power under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.), to decide whether the investigation itself should be quashed utmost care should be taken by the Court and at that preliminary stage, it is not possible for the Court to sift the materials or to weigh the materials and then to come to a conclusion one way or the other. A three Judge Bench of the Supreme Court of India in the case of State of U.P. v. O. P.

Sharma ​(1996) 7 SCC 705 indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be and should allow the law to take its own course. The inherent powers should be exercised sparingly and cautiously only if the Court is of the opinion that it would otherwise lead to a gross miscarriage of justice.

My Lords, I am relying on these afore quoted cases from similar jurisdiction to urge that the charges based on the FIR be continued, investigation carried out and that the investigation not be quashed at the threshold. While the Courts should be alert to the abuse inherent in the criminalization of civil wrongs the law as it stands is the law. A crime is what the legislature calls a crime no matter how archaic or unpalatable. It is left to the Courts adjudicating on these laws to ensure that no miscarriage of justice occurs in its enforcement.

The rule of law today allows everyone with a legitimate cause or grievance to avail himself of remedies available in criminal law. However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable by the law in punitive damages for pursuing misconceived criminal proceedings. I think it is important for this Court to set guidelines for the lower Courts to ensure safeguards in this regard.

The Police investigating a criminal complaint must ensure that the complaint is one that has no ready defence. The Court conducting an FIR must verify all facts to ensure that the ingredients of the offence can be proved and that there is no legal defence to the charge. My Lords, at this stage in the proceedings at the Magistrates’ Court, I do not see my way to declaring the law unconstitutional being one unjustifiable in a democratic society. The law itself cannot be viewed in isolation of a live issue.

I am aware my Lords that in some instances, where the charge is eventually quashed, the Defendant would have suffered untold damage. However, the facts of each case must be considered before the Court quashes a charge as one that would cause gross miscarriage of justice. In the circumstances, the 3rd issue is resolved against the Appellant. The appeal is dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I had the privilege of reading in advance a draft copy of the leading judgment delivered by my learned brother, OGUNWUMIJU JSC, and the reasons given, I too dismiss the appeal.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU JSC just delivered. I entirely agree with the reasoning and conclusion in the said judgment which I hereby adopt as mine to dismiss the unmeritorious appeal. I abide by the consequential order made in the lead judgment.

ABDU ABOKI, J.S.C.: I have read in draft, the judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, just delivered. I agree with him that the appeal is unmeritorious and deserves to be dismissed.

My learned brother has given a comprehensive summary of the facts that gave rise to this appeal. I adopt the summary and add a few words in support of the lead judgment.

As rightly held by the Court below, the freedom of expression and freedom to hold opinions are rights accruing to Nigerian citizens. Section 39(1) of the 1999 Constitution as amended provides: – “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” It is also correct as submitted by learned counsel to the Appellant, that Section 39(3) of the Constitution does not diminish the rights in Section 39(1) of the Constitution.

However, Section 45(1) of the Constitution is very clear in its limitations.

It states thus “Nothing in Sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.” What the above means is that Section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.

So when Section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right. It must not be utilised or invoked in such a way, that it offends public safety, order, morality and health, and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin. He has to behave according to the norms of that society, otherwise his conduct will be injurious to the wellbeing and continued existence of that community.

He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society. He must not act in such a way that he defames their character or endanger their safety, health, order or morality. The Constitution recognizes the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act. The whole society has to be involved to protect itself. Hence, criminalising such conduct of the individual.

That is why Section 45(1) of the Constitution was promulgated. The FIR filed against the Appellant is in respect of the offences of defamation of character, injurious falsehood, printing or engraving such matter. These are offences that are against public morality, health and order of the society. The offences, if proved, would have injured the rights and well-being of the Appellant to his character and reputation. They are therefore within the ambit of Section 45(1) of the 1999 Constitution.

So, the said offences alleged against the Appellant in the FIR, as contained in the Penal Code, are not unconstitutional, and have not constituted a flagrant violation and subjugation by criminal process, of the constitutionally guaranteed freedom of expression upon which the Appellant was proceeded against was constitutional and opinion of the Appellant.

Endorsing the above adumbrated decision of the Court below, my learned brother in his lead judgment, opined thus: “The right to freedom of expression expressed by Section 39 of the Constitution… Section 45(1)(b) subject to any law reasonably justified in a democratic society for the purpose of protecting the rights and freedom of other persons.

Although Section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in Sections 37, 38, 39, 40 and 41, derogations must be legal, that is, made under a law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others…” I agree entirely with this reasoning of my learned brother and adopt same as mine.

It is for these and the more elaborate reasons stated in the lead judgment that I too dismiss the appeal.

I abide by the consequential orders as made in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment read by my learned brother, Lord Justice Helen Moronkeji Ogunwumiju. I agree completely with the reasoning, conclusion and orders.

​Let me add my views on the constitutionality of the provisions of Sections 391 to 395 of  the Penal Code Law creating the offences of defamation.

Learned counsel for the appellant argued that these provisions are in conflict with the provisions of Section 39(1) of the Constitution of the Federal Republic of Nigeria which provides thusly – (1) “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference.” Section 391 of the Penal Code Law provides that: (1) “Whoever by words, either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning a person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save in the cases hereinafter excepted, to defame that person.” (2) It is not defamation – (i) to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published; whether or not it is for the public good is a question of fact;

(ii) to express in good faith any opinion whatever, respecting the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further: (iii) to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character so far as his character appears in that conduct and no further; (iv) to publish a substantially true report of the proceedings of a Court of Justice or of the result of any such proceedings;

(v) to express in good faith any opinion whatever respecting the merits of any cay civil or criminal which has been decided by a Court of Justice or respecting the conduct of any person as a party, witness or agent in any such case or respecting the character of such person as far as his character appears in that conduct and no further; (vi) to express in good faith any opinion respecting the merits of any performance which its author has submitted for the judgment of the public or respecting the character of the author so far as his character appears in such performance and no further;

(vii) in a person having over another any authority either conferred by law or arising out of a lawful contract made with that other to pass in good faith any censure on the conduct of that other in matters to which lawful authority relates; (viii) to prefer in good faith an accusation against any person of those who have lawful authority over that person with respect to the subject matter of the accusation;

(ix) to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person or for the public good; (x) to convey a caution in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed or of some person in whom that person is interested or for the public good.

Section 392, 393, 394 and 395 of the Penal Code Law provide as follows- 392- “Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or with both. 393(1) Whoever, save as hereinafter excepted, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government authority in the Northern Region shall be punished with imprisonment for a term which may extend to two years or with fine or with both. (2) It is not an offence under this section to make or publish in good faith a false statement of fact which the accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused. 394 – Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.” Section 391 defines what constitute defamation and what is not defamation.

It is obvious that the above provisions of the Penal Code Law interfere with, curtail or restrict the exercise of the fundamental right to freedom of expression given to every person by Section 39(1) the 1999 Constitution. By virtue of Section 45(1) of the 1999 Constitution, Sections 391 to 395 of the Penal Code Law can survive its clash with Section 39(1) of the 1999 Constitution and not be rendered void, if they are in the interest of the public or for the purpose of protecting the rights and freedom of other persons.

Section 45(1) of the 1999 Constitution reads thusly: “(1) Nothing in Sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) In the interest of defence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons.

So the question to be determined at this point is if Sections 391 to 395 of the Penal Code Law are in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. It is obvious from those provisions that their legislative intention or objective is to ensure that the freedom of expression is exercised in good faith and in the interest of the public.

Section 391 of the Penal Code Law that defines the offence of defamation in Sub-section (1) expressly lists in Subsection (2) publications that do not constitute the offence of defamation.

These publications include publication of the truth for the public benefit, criticism of public servants, opinion on the conduct of any person touching on a public question and respecting his character so far as his character appears in that conduct and no further publication of substantially true report of a judicial proceeding, comments on cases already decided in Court, opinions on literacy and dramatic works, censure passed by a person in authority, accusation preferred to a person who has lawful authority over the person accused with respect to the subject matter of the accusation, imputation on the character of a person in self defence or defence of another, caution in good faith for the good of the person cautioned or of another in whom that person is interested or for public good.

Section 393 of the Penal Code Law provides under Subsection (2) that it is not an offence under the section to make or publish in good faith a false statement of fact which accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused. What the Penal Code Law has done is to attach to the right of freedom of expression, the duty or responsibility to exercise the right in good faith, reasonably and for the public good. It has not eroded the right to freedom of expression.

It has merely prevented the unbridled exercise of the right maliciously, unreasonably and to the detriment of the public good or interest. I think that such a restriction on the exercise of that right is reasonably justified in a democratic society. There is no country in the world that has not made some law placing some restriction on the exercise of the right to freedom of expression within constitutionally permitted limits for the well-being of the country. Even international conventions on human rights accept the need for some justifiable restrictions.

Example Article 19(3) of the ICCPR provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring respect for the rights and reputations of others. That is why Section 45(1) of the 1999 Constitution prescribes that such a restriction would be allowed, if it is reasonably justified in democratic society in the sense that it protects the proper functioning of the society democratically.

S.45(1) of the 1999 Constitution operates to exclude the operation of S.1(3) of the Constitution where the restriction and resulting inconsistency is reasonably justified in democratic society in the sense that it is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others.

Another effect of S. 45(1) of the Constitution is that the rights in Sections 37, 38, 39, 40, and 41 are not absolute and can be restricted by law so far as the restriction is reasonably justified in a democratic society in the public interest and for the protection of the rights of other persons. See Osawe & Ors v Registrar of Trade Union (1985) 5 SC. 343. Only the Courts have the power to determine if a restriction is reasonably justified in a democratic society.

Judgment

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned as 4th defendant along with 5 other defendants before the High Court of Ogun State in a five count Charge for the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

At the end of the trial, the Appellant was convicted of conspiracy to commit armed robbery and armed robbery as charged in counts 1, 2 and 3 by the trial Court and sentenced to death by hanging. The judgment of the trial Court delivered on 24th August, 2020 is at pages 85–133 of the Record of Appeal. Dissatisfied with the said judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on 11th September, 2020. The Notice of Appeal is at pages 136–137 of the Record of Appeal.

However, the extant Notice of Appeal is the Amended Notice of Appeal filed on 30th March, 2021 and deemed properly filed by this Court on 2nd of November, 2021. The Record of Appeal was duly transmitted to this Court on the 27th of October, 2020. The Appellant’s Brief of Argument which was filed on the 30th of March, 2021 was similarly deemed properly filed on the 2nd of November, 2021. ​The record of this Court shows that the Respondent who was served with the Appellant’s Brief of Argument since the 1st of April, 2021 did not file any Brief of Argument in response to the appeal.

Again, on the 20th of January, 2022 when the appeal came up for hearing, the Respondent who was duly served with a hard copy of hearing notice on the 11th of January, 2022, through the Office of the Hon. Attorney-General of Ogun State was absent.

The learned Counsel for the Appellant, who had earlier filed an application under the old Court of Appeal Rules, 2016 praying the Court to hear the appeal on the Appellant’s Brief alone, withdrew the application and urged the Court to invoke its powers under the new Court of Appeal Rules, 2021 and proceed to hear the appeal on the Appellant’s Brief alone. Thereupon, this Court invoked Order 19, Rule 10(3) of the new Court of Appeal Rules, 2021 and proceeded to hear the appeal on the Appellant’s Brief of Argument alone. In the Appellant’s Brief of Argument adopted by R. U.

Ezeani Esq, the following four issues were distilled for determination: 1. Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? (Ground 14) 2. Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? (Grounds 2, 6 & 16) 3. Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged? (Grounds 1, 3, 4, 5, 9, 10, 11, 12, 15 & 17) 4.

Was the alibi raised by the Appellant investigated or considered by the learned trial Judge? (Grounds 7, 8 & 13). Since there is no Respondent’s brief, I shall decide the appeal based on the above four issues raised by the Appellant.

ISSUE ONE: Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? ​SUBMISSIONS OF THE APPELLANT ON ISSUE 1: Learned Counsel for the Appellant had submitted that Count 1 of the Information charged the Appellant with the offence of conspiracy to commit armed robbery punishable under S. 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act. He argued that the Act did not define the offence of conspiracy but the Appellant was convicted nevertheless.

He submitted that the only provision of the Act that refers to or mentions conspiracy is Section 6(b) of the Robbery & Firearms Act. He further stated that the ingredients of the offence are thus unknown and that the Constitution prohibits conviction for an offence not defined in a written law. He cited Section 36(12) of the 1999 Constitution as amended.

He stated that the failure to define conspiracy or ‘to conspire’ may be contrasted with the treatment of the offence of armed robbery which is well and clearly defined in the said Act under Sections 1 and 11 of the Robbery and Firearms (Special Provisions) Act. In concluding the arguments on this issue, Counsel relied on the case of HARUNA v THE STATE (1972) 8–9 SC 174 at 200–201, wherein the definition of conspiracy under the English common law was adopted.

He contended that since Section 36(12) of the Constitution forbids the trial of any person for an offence not defined in a written law and Section 1(1), (3) of the same Constitution makes null and void any law which is contrary to the Constitution, this Court should hold the provision purporting to create the offence of conspiracy to commit armed robbery as void and set aside the conviction of the Appellant and acquit him of the said offence. He relied on AOKO v FAGBEMI (1961) All NLR 400. He urged the Court to resolve this issue in favour of the Appellant.

RESOLUTION OF ISSUE 1: The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN).

Section 36(12) of the CFRN relied upon by the Appellant provides: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that: “It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality.

It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).” ​In essence, what Section 36(12) of CFRN stipulates is that an offence is only an offence if it is so provided in a written law and its penalty also so prescribed, and no one shall be convicted of an offence which is not provided for and its penalty not prescribed in a written law.

By the established judicial authorities, the requirement for the legal provision of an offence in a written law before a person can be tried and convicted for it, will be generally satisfied where the act or omission which constitutes the offence is made an offence and a penalty for its commission or omission is provided in a written law. It is however pertinent to point out that ordinary English words are used in stating the nomenclature of the act or omission which is made an offence.

For instance, the word “conspiracy” is actually a noun for the verb “conspire” which means to agree to do something or forbear from doing something. It is, in essence, an agreement to undertake a course of action or to refrain from acting. Thus, in criminal law jurisprudence, it can only mean an agreement to commit a crime (whether by act or by omission).

In STATE v YUSUF & ANOR (2006) LPELR-11802(CA), this Court, per Ngwuta, JCA (as he then was) had observed that even as the offence of conspiracy had been provided for in the Criminal Code, neither the Criminal Code nor the Criminal Procedure Law, has defined conspiracy, and that in the case of MAJEKODUNMI v R (1952) 14 WACA 64, the West African Court of Appeal had to apply the definition of conspiracy made by Willes, J. in Mulcahy v.

R (1868) L.R. 3 H.L. 306 at 317, thus: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable.

When two agree to carry it into effect, the very plot is an act in itself … punishable if for a criminal object or for the use of criminal means.” ​Although the Criminal Code has only criminalized conspiracy in Section 516 but has failed to define same, the Penal Code has in Section 96(1) provided that “when two or more individuals agree to commit or cause to be committed (a) an unlawful act, or (b) a lawful act through an unlawful means; such an arrangement is referred to as a criminal conspiracy.

Thus, contrary to the assertion of the learned Counsel for the Appellant in paragraph 4.6 of the Appellant’s Brief of Argument that there is no definition of conspiracy in any written law in Nigeria, the word “criminal conspiracy” has been defined in the Penal Code Law as shown above.

Now, in KAZA v THE STATE (2008) LPELR-1683(SC), the Supreme Court, per Tobi, JSC had while considering the definition of conspiracy, referred to Black’s Law Dictionary and held as follows: Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.

See Black’s Law Dictionary (Sixth edition) page 309. This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved. While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act.

While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds.

The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.” In essence, the offence of conspiracy in our criminal jurisprudence has come to be legally defined as an agreement by two or more persons to do an unlawful act, or a lawful act by unlawful means: ADEPOJU v STATE (2018) LPELR-44355(SC), per Eko, JSC at pages 7–8, para. E; SMART v STATE (2016) LPELR-40827(SC), per 27–28, para. F; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Peter-Odili, JSC at pages 28–29, para.

G; and WISDOM & ANOR v STATE (2013) LPELR-21451(CA), per Dongban-Mensem, JCA (as he then was, now PCA), at pages 20–21, paras. C. On the specific offence of conspiracy to commit armed robbery for which the Appellant was convicted, the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria has provided in Sections 1–5 the offences and penalties for robbery, attempted robbery, illegal possession of firearms, sheltering and treating armed robber and receiving property obtained by means of any of the offences created under the Act.

The Act then proceeds to provide in Section 6(a), (b) and (c), the offences and punishment for aiding, abetting or procuring the commission of any of those offences; conspiring to commit any of those offences; or supplying, procuring or providing any person with firearms for use in committing any of those offences.

Specifically, paragraph (b) of Section 6 states that: Any person who – (a) … (b) conspires with any person to commit such an offence; or (c) … whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

It is therefore clearly discernible from the above provision and the judicial authorities cited supra, that the offence of conspiracy to commit armed robbery has been duly provided for in Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004. As I said earlier, all that is required to satisfy the stipulation in Section 36(12) of the Constitution which is relied upon by the Appellant is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The literal definition of the nomenclature of the act or omission which was made an offence may not necessarily be provided in the law, and that failure, in my considered view, does not make or render the offence created under the law inconsistent with the provision of Section 36(12) of the Constitution. ​Given the trite legal position on the definition of conspiracy as contained in numerous judicial decisions of the appellate Courts, some of which I have cited above, I find the contention of the Appellant under this issue grossly misconceived; one which did not take cognizance of the state of the law relating to the offence of conspiracy.

I therefore, have no hesitation in resolving this issue against the Appellant. It is hereby so resolved. ISSUE 2: Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? SUBMISSIONS OF THE APPELLANT ON ISSUE 2: On this issue, learned Counsel for the Appellant submitted that the purported confessional statement made by the Appellant in Exhibit G1 is absolutely inadmissible.

Relying on the cases of ADELANI v STATE (2018) 5 NWLR (Pt. 1611) SC 26; and POPOOLA v STATE (2018) 10 NWLR (Pt. 1628) SC 485, where it was held that when an extra judicial statement is obtained with the aid of an interpreter, he must subscribe his name and signature on the statement and must testify at the trial before the statement can be admitted in evidence. He also cited Section 17(3) & (4) of the Administration of Criminal Justice Act, 2015 (ACJA), to the effect that the interpreter must write his name and sign the statement.

He pointed out that Exhibit G1, the Appellant’s statement was made in Yoruba and recorded in English, but the interpreter did not write his name and sign same as required. Counsel submitted that Sections 1(2) and 3 of ACJA enjoin strict compliance with its provisions. He further argued that going by the answer PW1 gave during cross-examination, he did not append his name or sign the statement. He added that the fact that I.P.O. was written on it as referring to PW1, does not aid the Respondent.

He submitted that by virtue of Sections 5, 129 & 130 of Evidence Act 2011, evidence is not allowed in a criminal trial to explain the meaning of an abbreviation in a document. He pointed out that the interpreter did not testify at the trial and as such Exhibit G1, the purported confessional statement of the Appellant is not admissible. He argued that being absolutely inadmissible hearsay evidence, it is immaterial that the Appellant’s Counsel at the trial did not object to the documents being tendered, since such evidence is absolutely prohibited by statute.

He relied on POPOOLA v STATE (supra). ​Learned Counsel submitted that the Appellant and the other co-accused persons have denied making the statements which raised the questions of fact as to whether each of them had made the statements in Exhibits G1, D, E & F. He submitted that the Respondent was bound to prove that Exhibit G1 was made by Appellant. He relied on Section 93(1) of the Evidence Act, 2011 and Section 18 of the Interpretation Act, 2004.

The Respondent was bound to establish beyond reasonable doubt, that the mark or thumb impression on Exhibit G1 purported to be that of the Appellant, was indeed his. However, the Respondent (prosecution) failed to prove that the thumb print on Exhibit G1 was made by the Appellant other than rely on the viva voce testimony of PW1 which is unreliable. He highlighted other facts that make Exhibit G1 unreliable and not credible.

These are; (1) As unsigned extrajudicial statement, Exhibit G1 is worthless. (2) The learned trial Judge relied on evidence of co-accused to find Exhibit G1 credible. (3) Exhibit G1 is inconsistent with other facts ascertained and proved. (4) It was not proved that the Appellant had opportunity to commit the crime charged. RESOLUTION OF ISSUE 2: This issue challenges the admission and reliance by the trial Court of Exhibits E, F and G1 on the ground that the statements were not signed.

With regard to the said Exhibits E, F & G1, it is pertinent to observe that before the trial Court, Exhibits E and E1; F and F1; and G1 and G2 were confessional statements made by the 2nd, 3rd and 4th Defendants (who is the Appellant herein), respectively, which were tendered by the Prosecution and admitted by the trial Court. Specifically, Exhibit E is the confessional statement of the 2nd Defendant (Festus Edegwa), while Exhibit E1 is an attestation for the said confessional statement in Exhibit E.

Similarly, Exhibit F is the confessional statement of the 3rd Defendant (Owolabi Idowu), while Exhibit F1 is its attestation.

As for the 4th Defendant who is the Appellant herein, he made two statements, first at the Ogijo Police Station which was admitted as Exhibit G, and second, which is the confessional statement he made at the Special Anti-Robbery Squad (SARS), Ogun State, which was admitted as Exhibit G1, while its attestation is Exhibit G2. ​The Record of Appeal shows at page 37 that when these confessional statements of the 2nd, 3rd and 4th Defendants as well as their respective attestations were tendered by the Prosecution through PW1 (Cpl.

Jamiu Salawudeen), the learned Counsel for the 2nd, 3rd and 4th Defendants did not object to the admissibility of the confessional statements. They only indicated that the 2nd, 3rd and 4th Defendants have denied making the said statements. The 4th Defendant only admitted making the non-confessional statement in Exhibit G which he made at Ojigo Police Station.

It is therefore clear from the printed record that at the point of the tendering the confessional statements in Exhibits E, F and G1 as well as their respective attestations in E1, F1 and G2, the learned Counsel for the 2nd, 3rd and 4th Defendants never raised any objection as to the admissibility of the said statements, other than denying that the said Defendants have made the statements. However, as rightly observed by the learned trial Judge at pages 117–118 of the record, the fact that a defendant has denied making a confessional statement does not render same inadmissible.

See: HARUNA v A.G. FEDERATION (2012) LPELR-7821(SC), per Galadima, JSC at page 16, para. A; IBRAHIM BATURE v THE STATE (1994) LPELR-760(SC), per Onu, JSC at pages 20–21, para. D; OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 22–23, para. F; and C.O.P. v ALOZIE (2017) LPELR-41983(SC), per Nweze, JSC at page 19, para. A. I am conscious of the fact that the Appellant has made the contention that the statements should not have been admitted and relied upon because according to him, they are not signed.

As it relates to the admissibility of the documents, I have already pointed out that the 2nd and 3rd Defendants and the 4th Defendant (Appellant) raised no objection to the admissibility of the said confessional statements tendered and admitted as Exhibits E & E1, F & F1 and G1 and G2 by the trial Court.

Hence, they made no protest that the said statements were not signed and there was no pronouncement or decision of the trial Court on that issue. ​ Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E.

Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence. This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that: “Let me first take the issue of signing a document. In Ojo v.

Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v. Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed.

It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.” See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A.

The question then is whether the said confessional statements of the 2nd, 3rd and 4th Defendants admitted by the trial Court are unsigned and therefore inadmissible in law. As earlier shown above, the confessional statements admitted as Exhibits E, F and G1 were actually admitted together with their attestations which were admitted as Exhibits E1, F1 and G2, respectively.

A look at the confessional statements in Exhibits E, F and G1 shows as follows: Exhibit E: Exhibit E, which is the confessional statement of the 2nd Defendant Festus Edegwa, was recorded in English language and it was actually signed by the 2nd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 5th June, 2017 and stated to be taken between 3:30 pm to 5:20 pm.

Exhibit E1: However, Exhibit E1 which is titled ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, shows that the 2nd Defendant has endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, read over to him and that he signed same. After the 2nd Defendant signed same, the attestation was then endorsed by Cpl. Jamiu Salaudeen as the Interpreter and dated the 5th of June, 2017. Exhibit F: Exhibit F, is the confessional statement of the 3rd Defendant Owolabi Idowu.

It was recorded in English language and translated to the 3rd Defendant in Yoruba language. The statement was also signed by the 3rd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 12th June, 2017.

Exhibit F1: However, in Exhibit F1 which is the ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, it shows that the 3rd Defendant has also endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the 3rd Defendant signed the attestation, it was then endorsed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated.

Exhibit G1: Exhibit G1, which is the confessional statement of the 4th Defendant Idowu Mathew, who is the Appellant herein, shows that the Appellant was cautioned in Yoruba language and his statement was recorded in English language and interpreted to him in Yoruba language. The statement was thumb-printed by the Appellant both at the cautionary column and at the end of the statement and dated 4th April, 2017. At the column for endorsement by the recorder/intepreter of the statement the letters I.P.O. were written and dated 4th April, 2017.

Exhibit G2: In Exhibit G2 however, which is titled: ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, that the Appellant (4th Defendant) has endorsed (thumb-printed) that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the Appellant (4th Defendant) signed same, the attestation was then endorsed/signed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated the 4th of April, 2017.

As stated earlier, the record of proceedings of the trial Court contained at page 37 of the printed record of this appeal shows that the confessional statements of the 2nd, 3rd and the Appellant (who is the 4th Defendants) which were admitted as Exhibits E, F and G1, were tendered with their respective attestation forms for confessional statements (Exhibits E1, F1 and G2), which, as also shown above, were duly signed/endorsed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant) and duly signed by PW1, Cpl. Jamiu Salaudeen.

While giving his evidence and tendering these confessional statements, PW1 had stated that he was the I.P.O. who investigated the case and recorded the said confessional statements of the 2nd, 3rd and 4th Defendants and had executed each of the attestation forms together with the said Defendants. ​From the forgoing therefore, it is evident that the argument of the learned Counsel for the Appellant that the confessional statements of the 2nd, 3rd and 4th Defendants in Exhibits E, F and G1 were not signed by the recorder/interpreter is incorrect, in that PW1, the Investigating Police Officer, Cpl.

Jamiu Salawudeen who recorded/interpreted those statements had not only duly signed the Confessional Statement Attestation Forms tendered with those statements they were also duly signed by the 2nd, 3rd and 4th Defendants, and he had given evidence in Court as to how he recorded the said statements of the 2nd, 3rd and 4th Defendants.

Interestingly, and not surprisingly, the learned Counsel for the Appellant has obscured the fact that the each of those confessional statements in Exhibits E, F and G1 was tendered with its Confessional Statement Attestation Form duly signed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant), respectively and duly signed/endorsed by PW1, Cpl. Jamiu Salaudeen, as the recorder/interpreter. It is therefore clearly evident that contrary to the contention of the Appellant, the confessional statements in Exhibits E, F and G1 were duly signed.

I so find and hold. ​Since it is evident from Exhibits E, E1, F, F1 and G1 and G2 that the confessional statements of the 2nd and 3rd Defendants and the 4th Defendant (Appellant) were duly signed, I hold that the said statements (including Exhibit G1, the Appellant’s confessional statement) were properly admitted and acted upon by the trial Court. I thus resolve issue 2 against the Appellant. ISSUE 3: Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged?

SUBMISSIONS OF THE APPELLANT ON ISSUE 3: It was submitted on behalf of the Appellant that the Appellant did not adopt Exhibits D, E & F, contrary to what the learned trial Judge held. It was pointed out that the learned trial Judge had held that the Appellant adopted the incriminating facts stated against him by his co-accused in their purported statements in Exhibits D, E & F. But the learned Judge failed to realize that the matter of adoption of evidence of co-accused by the Appellant was a matter exclusively governed by the Evidence Act.

It was further argued that by virtue of Sections 29(4) & 199 of the Evidence Act, 2011, the Court should not have considered the evidence of co-accused against the Appellant unless the confession was made in his presence and he adopted it by words or conduct, while the latter Section allows incriminating evidence of an accomplice to be considered against an accused person; it provides that a person tried jointly with the accused, i.e. his co-accused must not be considered as an accomplice for the purposes of the Section.

It was further submitted that the Appellant is not guilty as found by the trial Judge for the following reasons: (a) the items tendered in evidence as stolen items were not proved to belong to the alleged victims of the armed robbery, i.e. PW2 and PW3; (b) there are material contradictions in the evidence of Prosecution witnesses and their evidence was unreliable; and (c) the learned trial Judge misdirected himself on the evidence. It was argued that there were contradictions in the testimonies of PW1 and between the testimonies of PW2 and PW3.

It was similarly argued that the evidence and extrajudicial statement of PW4 were also contradictory and the learned trial Judge believed and relied solely on the testimony of PW1. Reference was made to page 118, lines 17–18 and 25–27 of the Record of Appeal. As for PW2 and PW3, it was argued that the totality of PW2’s evidence showed that he knew the Appellant prior to the armed robbery and yet could not identify the Appellant as one of the armed robbers, while PW3 identified the Appellant as one of the robbers.

And while PW4 testified that PW2 was there when Sanni and the Appellant were arrested and that Sanni told the Police it was one Uche who sold the phone to him and that the Appellant got arrested at Uche’s house, PW2 and PW3 stated that the Appellant is neither Uche nor the one who sold the phone to Sanni, and that the house where the Appellant was arrested was not the Appellant’s house but Uche’s. He further argued that the above contradictions are material contradictions which relate to the ingredients of the offences charged.

He cited ORISA v THE STATE (2018) 11 NWLR (Pt. 163) SC. 453, where the Court held that where a witness made an extra-judicial statement to the police which is inconsistent on a material point with his testimony in Court, the testimony is to be regarded as unreliable while the extra judicial statement is not evidence on which a Court can act. RESOLUTION OF ISSUE 3: It is settled law that a confessional statement of an accused person is only evidence against him. It cannot be evidence against other accused person(s).

In other words, the confessional statement of an accused person implicating another accused person is only deemed to be relevant for the person who made it. It cannot be used as evidence against that other accused person unless he adopts it. See: Section 29(4) of the Evidence Act, 2011 and the cases of GBADAMOSI & ANOR v STATE (1992) LPELR-1313(SC), per Ogundare, JSC at page 29, para. D; IBRAHIM v STATE (2014) LPELR-23291(CA), per Galinje, JCA at pages 26–27, para. D; EMMANUEL v STATE (2015) LPELR-41676(CA), per Gumel, JCA at page 33 para.

C; and AHMED v KANO STATE (2017) LPELR-43224(CA), per Daniel-Kalio, JCA at pages 14–15, para. C. ​At page 119 of the printed Record of Appeal, the learned trial Judge started by restating this trite position when he held that: “It is the evergreen position of the law that a confessional statement made by one accused person is only evidence against him and not constitute evidence against a co-accused except he adopted it.

See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, See aslo YUSUF & ANOR VS STATE (2019) LPELR-46945 SC.” However, after restating the above trite principle of law as stated in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, the learned trial Judge proceeded to hold as follows: “In this instant case I wish to bring out a distinction which the facts in this case reveal which contain a variant on the facts from the decisions cited above.

While the 1st, 2nd and 4th Defendants in Exhibit E, G1 and F gave evidence incriminating each other as part of those who robbed the PW2 and PW3 while armed with offensive weapon as charged they all now including the 3rd Defendant in each of those statements credited to them confessed each to being participis criminis in committing the armed robbery on PW2 and PW3 thus in this case their participation in the robbery in those statements credited to them as stated by their other co-accused as they themselves confessed in their statements to the police as committing the armed robbery charged.

Thus in this case, as it were it is not only a matter of giving incriminating facts against B and C but B and C also confessing to commit the offences they are incriminated of being a part of.

Thus I find that those statements Exhibit E, F and G1 if proved against each of them in (sic) good evidence against each of the 2nd, 3rd and 4th Defendants who are charged on counts 2 and 3 of the Amended Charged (sic).” There is no doubt that the above holding of the learned trial Judge which attempts to use the incriminating evidence contained in the confessional statements of each of the accused persons against their co-accused, runs counter to the trite principle in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, which he had earlier cited.

The point must be made that the import of this trite principle of law is such that even if there are a hundred accused persons in a joint trial and each of them makes a confessional statement incriminating the others, such incriminating evidence cannot be used against those others unless each of them adopts same. A confession is therefore, only relevant evidence for the accused person who made it and same will be assessed independent of whatever incriminating evidence may exist against him in the confessions of other co-accused persons.

As rightly observed by the learned Counsel for the Appellant, before incriminating evidence in the confessions of the other accused persons can be used against the Appellant it must have been made in the presence of the Appellant and the Appellant must have adopted it. Section 29(4) of the Evidence Act, 2011 is very explicit on this.

The Section expressly provides: Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct. (underlining mine for emphasis). ​In this case, there was no evidence led before the trial Court that each of the 2nd, 3rd and 4th Defendants made the confessional statements in Exhibits E, F and G1, respectively in the presence of one another and that each of them adopted the incriminating evidence against them contained in the confessional statements of their co-defendants.

In the absence of such evidence, the attempt by the learned trial Judge to use the incriminating evidence in the confessional statement of each of the Defendants as corroborating evidence of the confessional statement of the other Defendants clearly runs counter to the established legal principle expressly provided in Section 29(4) of the Evidence Act, 2011 and reiterated in GBADAMOSI & ANOR v STATE (supra); IBRAHIM v STATE (supra); as well as OZAKI & ANOR VS STATE (supra); and YUSUF & ANOR VS STATE (supra), referred to by the learned trial Judge.

His holding is therefore clearly perverse and I so hold.

The issue then is whether apart from the incriminating evidence in the other confessional statements which the learned trial Judge wrongly regarded as corroborating the Appellant’s confessional statement in Exhibit G1, there are other evidence upon which the trial Court could find the Appellant guilty as charged. ​The essential argument of the Appellant is that since the Appellant had denied making the confessional statement in Exhibit G1, the learned trial Judge failed to resolve whether the Appellant actually made the statement before applying the rule relating to weight as stated in OGUNDIPE v QUEEN (supra), and thus had occasioned miscarriage of justice.

It is settled law that when a confessional statement which is admitted in evidence is retracted as was done by the Appellant in this case, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it.

In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: R v SKYES (1913) 1 Cr. App. R. 233; ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para.

A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40 – 41, para. G; AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A; and OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 24–25, para. E.

A look at the Record of Appeal shows that apart from the finding of the trial Court that the confessional statements credited to the 2nd, 3rd and 4th Defendants have corroborated each other which I have found to be perverse to the established principle of law, the learned trial Judge had indeed considered how the evidence of the prosecution witnesses had corroborated the confessional statements of the Defendants, including Exhibit G1 credited to the Appellant.

Specifically, the learned trial Judge held at pages 121–123 of the Record as follows: “A look at the contents of the confessional statements credited to the 2nd, 3rd and 4th Defendants Exhibit E, F and G1 reveal certain facts which were also the highlights of the evidence of the PW2 and PW3. The 3rd Defendant in Exhibit F stated that the house where they i.e. himself and other robbers robbed is at Eyita Zone III and they stole his Lexus 330 Jeep. The PW2 and PW3 testified unequivocally that PW3’s Lexus Jeep was stolen on the night of the incident of the armed robbery on them.

PW1 testified that the Lexus Jeep was traced to Cross River State only to discover one George a car dealer had sold it in Cameroon. In fact, George is at large; his brother was charged before the Magistrate Court over the matter. PW1s evidence was also not shaken under cross-examination as to how he arrested the 2nd, 3rd and 4th Defendants. His evidence was not shaken that it was a girlfriend of the 2nd Defendant who assisted in getting him arrested.

The evidence of PW1 was not also contradicted that PW1 got 2nd Defendant arrested when his phone number was tracked and his girlfriend’s number was gotten… The 4th Defendant in Exhibit G denied committing the armed robbery charge however in Exhibit G1 he gave the number of persons who went to rob PW3 as six and they went to rob in PW3’s house with a gun. The PW2 and PW3 also led evidence the number of robbers who came to rob them as five or six. The PW2 and PW3 also led evidence the robbery was carried out with a gun, this the 2nd Defendant has confirmed.

Learned Counsel for the 4th Defendant had suggested that 4th Defendant’s statement in Exhibit G was exculpatory, hence Exhibit G1 credited to him which is a confessional statement is suspect as to the 4th Defendant’s confession of the armed robbery. I wish to state that the facts in Exhibit G1 seem to tally with PW2 and PW3’s testimony as to how many people robbed PW3 and the fact that the robbers were armed.

I find that the evidence of PW1, PW2 and PW3 serve as corroboration for Exhibits E, F and G1.” It is therefore clear from the above holding of the learned trial Judge that he had duly evaluated the confession of the Appellant in Exhibit G1 and found the evidence of PW2 and PW3 to have corroborated same. Thus contrary to the submission of the Appellant under this issue, the conviction of the Appellant was not solely based on the trial Court’s finding that the confessions of the 2nd, 3rd and 4th Defendants corroborate each other.

It is consequent upon this, that I resolve this issue against the Appellant and hold that, even as the trial Court’s finding that the Appellant had adopted the confessional statements of his co-accused was perverse, it was not the sole reason upon which the Appellant was found guilty of the offences charged, as his confessional statement in Exhibit G1 was found to have been credible, having been corroborated by other evidence of the Prosecution witnesses. ISSUE 4: Was the alibi raised by the Appellant investigated or considered by the learned trial Judge?

SUBMISSIONS OF THE APPELLANT ON ISSUE 4: The Appellant began by stating that the Court of Appeal has the duty to examine the grounds for the conclusions and inferences of the trial Court. He cited AGBANYI v THE STATE (1995) 1 NWLR (Pt. 369) 1 at 22 B–G to back up the above point.

In the course of the learned trial Judge’s judgment, he held that: “All of the above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the Armed Robbery Charge, E. g Exhibit G1 and the evidence of PW 1” the Appellant stated that there was no basis for the learned trial Judge to have found the Appellant to be an untruthful witness; as there was nothing contradictory of Appellant’s oral testimony (where he did not deny knowing Uche) from Exhibit G. Both are reconcilable.

In Exhibit G as well, he did not deny knowing Uche”. He continued by stating that Appellant’s alibi was not investigated by the police or considered by the learned trial Judge. In Exhibit G, the Appellant stated that he did not partake in the armed robbery as he was at home on the fateful day. This was made immediately after he was arrested by PW4 at the Divisional Police Station, Ogijo. The arrests of the Appellant by PW4 and carting away property or conducting search on the Appellant’s house are not ways of investigating alibi.

PW4 did not testify that he made any enquires from anyone about the Appellant’s where about on the night of the robbery. Also, when the case was transferred to Federal SARS, they also failed to investigate the alibi. He went further to state that the learned trial Judge did not also consider the alibi as he dismissed the defence in one sentence as “balderdash or baloney and pure nonsense”.

He cited ESANGBEDO v THE STATE (1989) 4 NWLR (Pt. 113) SC 57 to back-up the fact that learned trial Judge had a duty to test that the defence of alibi against the evidence led by the prosecution and make a finding one way or the other. He stated that the effect of the failure of the learned trial Judge to test the defence is that he did not resolve all reasonable doubts in the Appellant’s favour. OKONKWO v THE STATE (1998) 4 NWLR (Pt. 544) 142 CA.

He finally concluded that this Honorable Court is respectfully urged to allow this appeal and set aside the conviction and sentence against the Appellant. RESOLUTION OF ISSUE 4: The essential contention of the Appellant under this issue is that the alibi raised by the Appellant in his Exhibit G that he was at home and did not participate in the robbery was never investigated or considered by the trial Court.

It is settled law that for a defence of alibi to be successfully raised, it must be raised at the earliest opportunity when the defendant is confronted with the commission of the crime, in order to afford the Police the opportunity of investigating and debunking same is they could: DAWAI v STATE (2017) LPELR-43835(SC), per Okoro, JSC at pages 15–16, para. C; ADEYEMI v STATE (2017) LPELR-42584(SC), per Peter-Odili, JSC at page 16, para. A; EBENEHI & ANOR v STATE (2009) LPELR-986(SC), per Ogebe, JSC at page 13, para. A; and MOHAMMED v STATE (2015) LPELR-24397(SC), per Nweze, JSC at page 46, para.

D. In the instant case, the argument of the Appellant is that he had stated in his first statement admitted as Exhibit G that he was at home and the Police did not investigate same and the learned trial Judge never considered same. In his statement made at the Ojigo Police Station on the 1st of April, 2017, the Appellant stated inter alia that: “I know one Uche at Sawmill Ojigo through his younger brother Joseph that is during scrap business at Camalo. I don’t know where Uche is living. I also know one Okafor a friend of Uche.

I know how to get Okafor and I believe if we can get Okafor to get Uche it will be very easy. On the 25/26-03/2017 I was at my house behind Sawmill Ojigo. I did not aware (sic) that Uche and his friend went and rob (sic) at Giyta Zone IV. I did not followed (sic) Uche and his friend to any robbery operation because I am not an armed robber. I never rob (sic) in my life. That is all about my statement now.” ​ In the case before the trial Court, the Prosecution presented PW1 (Cpl. Jamiu Salawudeen) and PW4 (Sgt.

Michael Julius) who investigated the case at the Special Anti-Robbery Squad (SARS), Magbon, Abeokuta and at Ojigo Police Station respectively. Going through their testimonies, PW1 had stated at page 42 of the Record that he never visited the 4th Defendant’s (Appellant’s) house.

But PW1 who investigated the matter at the Ojigo Police Station stated at pages 52–53 of the Record that when the complainants (PW2 and PW3) who had earlier reported that they were robbed, came back to inform him that they have seen one of the handsets stolen from them at a Ojigo Sawmill where it was being charged, he led a team to the place where they arrested one Sanni who stated that he bought the handset from one man called “Yellow” and led them to the 4th Defendant (Appellant) whom he said is also called “Yellow”.

PW4 also stated that after arresting the Appellant at his house, he executed a search warrant in the Appellant’s house and recovered one Plasma TV with remote control. On cross-examination, PW4 reiterated that the said Sanni had stated that the Appellant was also known as “Yellow”.

Even as there is no indication from the evidence of the police officers (PW1 and PW4) who investigated the matter that they have investigated the Appellant’s assertion that he was at his house on the 25-26/03/2017, the settled law is that even if the Prosecution has failed to investigate same, the burden is on the Appellant who asserted the alibi to substantiate same with credible evidence. In NNAMDI OSUAGWU v THE STATE (2013) LPELR-19823(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this settled position when he held at page 22, para.

D–D, that: “It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.” Also, in ATTAH v THE STATE (2010) LPELR-597(SC), the Apex Court, per Adekeye, JSC, held at pages 33–36, para. F, that: “The onus of establishing alibi, being a matter within the personal knowledge of an accused person, lies on him.

That it is not enough for the accused person to say to the Court that he was at a particular place away from the scene of this crime. That he has to prove his assertion. That even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi. In effect, it does not automatically mean that failure of the police to investigate will result in failure of the prosecution’s case.

The onus is on the accused person to establish the plea of alibi raised by him on the balance of probabilities.” In the instant appeal, the Appellant’s defence is at pages 64–66 of the printed Record of Appeal. In his testimony before the trial Court, the Appellant had stated that while he was in his Shop on the 30/03/2017 a Toyota Camry vehicle parked in front of his shop and three men came out and asked him if he knew Uche because they were looking for him and they were told he lived in the area. He said he told them that he was new in the area and had just started trading in the area.

He said he referred them to a woman who sells near his shop who told them that Uche was one of the men who issued tickets to traders in the area. He said the three men suddenly grabbed him and told him he was lying when he said he did not know Uche. He stated that he was slapped and beaten by the three men who handcuffed him and took him to the police station. He said at the Police Station he made a statement at Ojigo Police Station which he identified as Exhibit G. He said he was later transferred to SARS Office Magbon Abeokuta.

He denied knowing PW1 or volunteering any statement at SARS Office at Magbon, Abeokuta, claiming that one Mr. Gboye was the officer who attended to him at the Magbon SARS Office. He also denied knowing any of the co-Defendants. In essence, the Appellant led no evidence to establish his claim that he was in his house on the 25-26/03/2017 as he asserted in Exhibit G. He failed to discharge the burden on him to establish the alibi he raised on the balance of probabilities as required of him.

It is instructive that the learned trial Judge had duly appraised the Appellant’s defence both as it relates to his statements in Exhibit G and G1 and also as to his evidence in open Court, and at page 124 of the Record of Appeal, the learned trial Judge held that: “I wish to state at this stage that the 4th Defendant is not a witness of truth, as in his evidence in Court he stated he know (sic) Uche only as a ticket officer but in Exhibit G, which he claimed he made he stated that he knew Uche and even Uche’s younger brother.

I reiterate that learned Counsel though submitting that Exhibit G exculpates him but Exhibit G also in my view reveals that he has contradicted himself as to knowledge of Uche who is one of the persons at large who sold PW2’s phone to the Hausa man who went to charge the phone i.e. G-Tide phone yet again it is the evidence of PW1 that 4th Defendant was arrested when they went to look for the said Uche. The 4th Defendant also in Exhibit G1 confirmed it was Uche who introduced him to robbery.

The above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the armed robbery charge e.g. Exhibit G1 and the evidence of PW1.” ​ It is trite that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G.

OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. An appellate Court will therefore not interfere with such a finding of fact unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding is perverse: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E.

In other words, it is not the function of an appellate Court to retry the case on the evidence in the printed record and set aside the decision of the trial Court in order to substitute its own views. As long as the trial Court had properly appraised and evaluated the evidence before it, an appellate Court will not interfere. See:IGAGO v STATE (1999) LPELR-1442(SC), per Karibi-Whyte, JSC at page 27, para. E.

The party who complains against a finding of fact by a trial Court must therefore, show in what way the finding is wrong or perverse: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D; and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B.

In the instant appeal, it is evident to me from the finding of the trial Court that it duly appraised the evidence before it and in the face of such evidence which is on the printed record, the Appellant’s mere and unsubstantiated assertion in Exhibit G that he was at his house on the 25-26/03/2017 was not fatal to the Prosecution’s case. The Appellant has therefore failed to show how the finding of the trial Court was perverse or had occasioned any miscarriage of justice. I therefore resolve this issue against the Appellant.

On the whole, the four issues in this appeal have been resolved against the Appellant, thus signposting that the appeal is devoid of merit. I therefore dismiss this appeal for being unmeritorious. The judgment of the trial Court, the High Court of Ogun State sitting at Sagamu, delivered on the 24th of August, 2020 in Suit No. HCS/47C/2018 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and the same should be dismissed. I wish to add a few comments for the purpose of emphasis and in affirmative support of the said lead judgment.

The Appellant argued that conspiracy is not an offence that was defined by an Act, therefore, it is unlawful to convict the Appellant when the offence is not defined under any written law as provided in Section 36(12) of the 1999 Constitution.

It is trite that the offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means and the offence of conspiracy has a unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed. See NDOZIE V. STATE (2016) LPELR-26067(SC), OSAREREN V. FRN (2018) LPELR-43839(SC). ERIM V. THE STATE (1994) 5 NWLR (PT. 345) 522 AT 524 and OSONDU V. F.R.N. (2000) 12 NWLR (PT. 682) 483 AT 501-502.

And this definition has been the accepted position of law in our criminal jurisprudence that a Court can draw support where an accused is charged for the offence of Conspiracy. Contrary to the argument of the Appellant, it is clear from the provisions of various laws that the offence of Conspiracy was defined, criminalized and adequately provided in satisfaction of the provision of Section 36(12) of the Constitution. See Section 516 of the Criminal Code, Section 96(1) of the Penal Code and Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004.

And again, there are plethora of judicial authorities that defined Conspiracy which is legally accepted and the Courts can rely on same, see the cases of IBOJI V. STATE (2016) LPELR-40009(SC), HASSAN V. STATE (2016) LPELR-42554(SC) and OMOTOLA & ORS V. STATE (2009) LPELR-2663(SC). Consequent upon the above and the more elaborate reasons advanced in the lead judgment. I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed by me.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA.

One of the issues thrown up by this appeal is whether the offence of conspiracy is codified in line with the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.” The foregoing provision is to the effect that a person shall not be convicted of an offence unless such offence is specifically or expressly provided for by a statute or legislation.

This accords with the provision of Section 36(6)(a) of the 1999 Constitution which provides that a person who is charged with a criminal offence shall be informed in detail of the nature of the offence. This much was pronounced upon by the Supreme Court in GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)1 AT 22, PARAGRAPH A, where the Court per Fabiyi, JSC held as follows: “Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides.

Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court.” Also, in ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30 AT 62, PARAGRAPHS A-B, Ngwuta, JSC held as follows: “In order to constitute an offence, criminality of its disobedience and punishment for same must be contained in the order disobeyed.” Furthermore, in TAFIDA VS.

FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)129 AT 147, PARAGRAPHS G-H, the Supreme Court, per Aka’ahs, JSC held as follows: “The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.” ​What this means is that an offence in respect of which sanction is provided must be expressly created by a statute.

The offence of conspiracy is expressly created by Section 6(b) of the Armed Robbery which provides that: “Any person who- (b) conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be proceeded against and punished accordingly under this Act.” I therefore completely agree with my learned brother when he held that all that is required to satisfy Section 36(12) of the Constitution is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The submissions made for the Appellant under issue No. 1 has no basis in law and it is hereby discountenanced. ​Premised on the foregoing and the fuller reasons contained in the lead judgment I also dismiss the appeal and affirm the decision of the trial Court.

Judgment

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment) : This appeal came up for hearing on the 11th January, 2022.

Parties on both sides were absent, so was their counsel absent from the proceedings at the hearing on the said date. The Appellant was however represented by counsel in the person of Aminu Alhassan on the 24th November, 2021 when a new date was fixed against the 11th January, 2022 for the hearing of the Appeal. It is also on account of the respondent’s desire to engage a new counsel that the appeal case had to be adjourned to 11th January, 2022 to accommodate respondent’s new counsel.

As indicated before, when the appeal came up on 11th January, 2022 parties and their counsel were absent at the hearing. There is every indication that the Respondent and his new counsel, Mr. Lateef. Omoyemi Akangbe, of integrity Law Haven, No. 28 Ahmadu Bello way, Sokoto had been put on Notice of the impending hearing vide the Notice of hearing served on Counsel/Secretary on the 6th January, 2022. ​The appellant had long before then filed his brief of argument through his counsel, the brief having been filed on the 23rd February, 2021 and served on the Respondent on 23rd October, 2021.

Respondent did not however file any brief in response. That was the setting as at the 11th January, 2022 when the appeal came up for hearing.

Order 19 Rule 9(4) of the Court of Appeal Rules, 2021 provides thus: – “When an appeal is called and the parties have been duly served with the Notice of hearing but a party or any legal practitioner appearing for him does not appear or present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.” Order 19 Rule 10(3) of the said Rules further provide thus:- “When a Respondent, who has been duly served with the Appellant’s brief, fails to file his brief within the time stipulated in this order, or within the time as extended by the Court, the Court shall, upon being satisfied that the Respondent was duly served with a hearing notice, hear the appeal without the necessity of an application by the Appellant to hear the appeal on the Appellant’s brief alone.” Guided by the above mentioned provisions of the Rules of this Court, we went ahead and took the appeal on the 11th January, 2022.

This appeal thus, is against the decision of the Zamfara State Sharia Court of Appeal sitting in Gusau and delivered on the 16th January, 2020 in favour of the Respondent. The facts giving to this case on appeal have been set out in the record of appeal. However, from the perspective of the appellant, the Respondent had encroached into the portion of the land which the appellant (or his father) had carved out as “set back” but lying adjacent to the main building, belonging to the Appellant.

Amid protestations of the appellant, the Respondent encroached into his space (set back) and put up certain structures to the annoyance and irritation of the appellant who in the bid to reclaim the space (set back) approached the Higher Sharia Court Moriki vide suit No. CV/40/15 for a claim of trespass and nuisance against the respondent. The Higher Sharia Court entered judgment in favour of the appellant.

The appellant in whose favour judgment was given at that Court however lodged an appeal to the Upper Sharia Court Shinkafi which set aside the judgment of the Higher Sharia Court and ordered for a retrial vide suit No. CV/95/2016 at the Higher Sharia Court, Moriki. At the conclusion of the proceedings, the Higher Sharia Court again decided the case in favour of the Appellant by conferring ownership of the 3 feet set back to the appellant.

The Respondent dissatisfied with that decision of the Higher Sharia Court, lodged his appeal to the Upper Sharia Court, Shinkafi which affirmed in part the reliefs granted to the Appellant by the Higher Sharia Court but over turned that aspect of the decision of the Higher Sharia Court relating to the ownership of the 3 feet set back and conferred same on the Respondent. Against the decision of the Upper Sharia Court given on 17th January, 2019, the Appellant lodged an appeal to the Sharia Court of Appeal, Gusau, Zamfara State, which confirmed the decision of the Upper Sharia Court.

The appellant has further appealed to this Court against the decision of the Sharia Court of Appeal handed down on the 16th January, 2020. Appellant’s Notice and Grounds of Appeal are at pages 72-75 of the record of appeal. The appellant has appealed to this Court on two (2) grounds only which, shorn of their particulars, are as follows:- “Ground One The learned trial khadi erred in law when they exercised jurisdiction on the matter of title to Land/Land ownership raised by the respondent.

Ground two The learned trial Khadi erred in law for upholding that part of the judgment of the Upper Sharia Court shinkafi Division which conferred ownership of the disputed 3 feet set back (land) to the respondent.” The appellant in the brief of argument filed on his behalf on 23rd February, 2021 formulated two (2) issues from the two (2) grounds of appeal thus:- Issue One “Whether in the light of Section 277 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria, and the location of the land in dispute, the honourable Khadis of the Court below did not erred in law when they assumed jurisdiction and upheld that part of the decision of the Upper Sharia Court Shinkafi which conferred ownership of the dispute 3 feet setback to the Respondent without having regard to their statutory jurisdiction? (Distilled from ground 1).

Issue two If issue one (1) is answered in the negative, whether it can be said that the honourable Khadis of the Court below have adequately considered the issue raised for determination by the appellant to wit; “whether the respondent had proved his ownership of the disputed 3 feet setback at the lower Court in accordance with Islamic Law.” I have considered the submission made by the counsel in the appellant in his brief of argument on those two issues.

The jurisdiction of the Sharia Court of Appeal under the Constitution of the Federal Republic of Nigeria 1999 (as amended) has been circumscribed at Section 277 of the Constitution (as amended) such that the Sharia Court of Appeal can only entertain and determine questions concerning or relating to Islamic Personal Law as itemised at Section 277(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Sharia Court of Appeal is thus, prohibited from entertaining disputes or appeals that relate to ownership of or title to land. See Maida vs.

Modu (2000) 4 NWLR (pt. 651) 99, 109. Sale vs. Babale (2018) 6 5 QRL (pt. 1) 33 (CA). ​The judgment appealed against at the Sharia Court of Appeal, Gusau, is at pages 61-70 of the record of appeal wherein the Court at pages 69-70 of the record alluded to the issue relating to disputes as to the acquisition, ownership of and title to land and in that regard, affirmed the decision of the Upper Sharia Court, Shinkafi. Of course the Sharia Court of Appeal lacks the jurisdiction to veer into that area of the law let alone assume jurisdiction over same.

Refer further to the decision in Haruna & Anr. vs. Suleiman & Attorney General Zamfara State (2014) 2 SQLR (pt. iv) pt. 521; Ziga vs. N. A. Mumuan (2016) 4 SQRL (pt. 11) pt. 245 ratio 5. The Sharia Court of Appeal cannot sit to adjudicate a case of claim for title or ownership of landed properties hence, the decision of the Sharia Court of Appeal reached on the 16th January, 2020 in this regard, is a nullity.

The appeal in effect succeeds and same is allowed on Issue No.1. ​Having come to this conclusion on the Issue of Jurisdiction, Issue No. 2 becomes academic and no longer worthy for my attention. The appeal case is remitted to the Appellate session of the High Court of Zamfara State for hearing on the issue of ownership and extent of the boundary between the Appellant and the Respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother Hussaini, JCA. I agree with his conclusion that the Sharia Court of Appeal, Zamfara State lacks jurisdiction to entertain the subject matter in this appeal, being a dispute over title to land in an urban area.

The jurisdiction provided for a Sharia Court of Appeal under Section 277 (2) of the Constitution of the Federal Republic of Nigeria, (as amended) does not extend to adjudications concerning disputes as to title to land but mainly with respect to disputes involving questions on Islamic Personal Law. I too would allow this appeal. Appeal is allowed by me. I abide by all the consequential orders in the lead judgment.

MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother Saidu Tanko Hussaini JCA. I agree with the reasoning and conclusion. This appeal succeeds and same is allowed. I abide by the consequential order in the lead judgment.

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Court of Appeal, sitting at Enugu, delivered on the 6th of December, 2013.

The Appellant as Plaintiff took out a Writ of Summons seeking the following reliefs against the Respondents: i. Declaration that the Plaintiff has complied with the provisions of the State Proceeding Law as well as the Local Government Law relating to service of notice which is the maximum legal requirement. ii. N5.5 Million Naira being underpayment of Plaintiff’s salaries from June, 1999 to May, 2003. iii. N1.14 Million Naira being Plaintiff’s entitlement for accommodation. iv. N1.14 Million Naira being Plaintiff’s entitlement as furniture allowance. v.

N1.14 Million Naira being Plaintiff’s entitlement as severance gratuity. v. An order directing the 1st Defendant to pay the Plaintiff the claimed sums from source, out of the State Joint Local Government Account, from the monies due to the 2nd Defendant from the said account.”

The story of the Appellant is that he was a Councillor duly elected in 1999 and served the 2nd Respondent until the termination of the tenure of his office in May, 2002. In the course of his service as Councillor, there arose controversies with respect to the proper remuneration payable to him. Eventually, the Appellant’s remuneration formed the subject matter of recommendation of the Federal Revenue Mobilization Allocation and Fiscal Commission, which fixed salaries of all Political Office Holders at all levels of Government and sent out circulars to that effect.

Subsequently, the 1st Respondent, through the Anambra State House of Assembly, passed a law called (the Anambra State of Nigeria, Public Officers’ Salaries Law No. 7 of 2001), which codified the Circular of the Federal Revenue Mobilization, Allocation and Fiscal Commission.

According to the Appellant, since the passing of the Law No. 7 of 2001, the Appellant, through their umbrella body; the Anambra State Councillors Forum (ASCOF) made several representations to the Respondents to pay him his salary, all to no avail. ​ The Respondents denied the claims of the Appellant and posited that the Appellant’s claim is unconstitutional, being in breach of Sections 80(1) and 124 of the CFRN 1999, as amended.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

At the conclusion of the trial, the learned trial judge in his judgment delivered on the 26th of April, 2006, dismissed the Appellant’s case and held that the Anambra State House of Assembly exceeded her powers when she enacted Law No. 7 of 2001, purporting to have charged salaries and emoluments of Councillors into the Consolidated Revenue Fund of the State.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below via a notice of appeal containing twelve Grounds of Appeal. The lower Court, in its judgment dismissed the appeal, and held as follows: “It is pertinent to note that the crux of this matter is whether Councilors can be appropriately described as public officers in the Public Service of a State (in this case Anambra) so as to benefit or be covered by Law NO. 7 of 2001, the Anambra State Public Officers’ Salaries Law, 2001.

This question becomes even more pertinent by virtue of the chapeau to the law which purports to derive its essence from Section 124(1) of the Constitution of the Federal Republic of Nigeria in which the House of Assembly considered Councilors as part of the Public Officers mentioned in Subsection (4) of Section 124 of the Constitution. Moreover Section 2 of the Public Officers’ Salaries Law, 2001 defines “Holders as holders only of Public Offices Stated hereunder (that is in the Law).

However, contrary to the misconception of the learned Counsel to Appellant and indeed the House of Assembly, the Appellant and his colleagues are not cognizable under the Constitution either in Sections 84, 124(4) or 32(d), item N, Part 1 of the Third Schedule to the 1999 Constitution and/or Section 6(d) of the Revenue Mobilization Allocation and Fiscal Commission, as Public Officers, for purposes of benefiting from their salary being prescribed by the House of Assembly and charged into the Consolidated Revenue Fund of the State same having been fixed by the Revenue Mobilization Allocation and Fiscal Commission… ln other words, by the deliberate legislative scheme to exclude the Chairman and Councillors of Local Government Counsel from those public officers or political office holders whose salaries shall be determined by the House of Assembly and their remunerations charged upon the Consolidated Revenue Fund of Anambra State subject to the approved limit of the Revenue Mobilization Allocation and Fiscal Commission, they were not mentioned either in the Constitution, the Revenue Mobilization Allocation and Fiscal Commission Act nor the Third Schedule to the Constitution where provisions for the remuneration of such public officers and political office holders are made.

Accordingly, the Appellant should not have been included as one of the beneficiaries of the scheme by either the House of Assembly or the Revenue Mobilization Allocation and Fiscal Commission.”

The Appellant, thoroughly dissatisfied with this judgment of the Court below, appealed to this Court, vide his amended Notice of Appeal, filed on the 13th October, 2021, but deemed filed on the 8th of November, 2021, upon three grounds.

From the three grounds of appeal, learned Counsel for the Appellant distilled two issues for determination in the Appellant’s Amended Brief of Argument filed on the 13th October, 2021 but deemed filed on the 8th of November, 2021. They are: 1. Whether the Court of Appeal was correct when they(sic) held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended? 2.

Whether the Court of Appeal was correct, when they(sic) held that the Law No. 7 of 2001 Anambra State Public Officers’ Law, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended, if yes, did the trial Court have the jurisdiction and competence to declare it null and void?

These issues were adopted by learned counsel for the Respondents, in the Respondents’ brief of argument deemed filed on the 8th of November, 2021.

ISSUE ONE Whether the Court of Appeal was correct when they (sic) held that Local Government Councilors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended?

It is submitted for the Appellant, that the Court below was wrong to have held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended.

Learned Counsel for the Appellant contended that the use of the word “including”, after the words “Political Office Holders”, in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, means that all Political Office Holders, outside of those specifically mentioned, are included. He maintained that the listing of those officers, cannot be read to exclude other Political Office Holders as any such interpretation will harm the spirit and the letters of the Constitution.

Learned Counsel for the Appellant submitted that though Section 6(d) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap 392, Laws of the Federation, 1990, restricts the powers of the Commission to fix remuneration of certain officers, as specified in Parts A and B of the First Schedule to the Act, Section 6(f) of the same Act makes provision for the expansion of the functions of the Commission, through the means of any other enactment.

He posited that this Court has in other decisions held that when the word “include” is used in the definition section of a statute, it is to enlarge the meaning of the expression occurring in the body of the relevant statute or constitutional provision. He called in aid, the following cases: UTIH v. Onoyivwe (1991) NWLR (Pt. 166) 221; Mandara v. AGE FED. (1984) SCNLR 31 at 343-344; Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661

He therefore urged this Court to hold that Local Government Councillors come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, and resolve this issue in favour of the Appellant.

Reacting to the above, it is submitted for the Respondent that it is not within the powers of the Revenue Mobilization, Allocation and Fiscal Commission to determine the remuneration of Local Government Councillors notwithstanding the provisions of Section 6(f) of the Revenue Mobilization, Allocation and Fiscal Commission Act, CAP 392 Laws of the Federation 1990, and, in Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended, conferring power to the Commission to determine remuneration for Political Office Holders.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned Counsel for the Respondent contended that a Councillor, though a political office holder, does not come within the purview of those office holders whose salaries shall be determined and charged upon by the Consolidated Revenue Fund. He invited the attention of this Court to Section 6(1)(d) PART A of the RMAFC ACT, CAP 392, LFN 1990.

It is further submitted for the Respondent that the principle of interpretation to be applied to the provisions of the Constitution is the maxim “expressio unius est exclusio atenus” that is, to express one thing, is to impliedly exclude another. He argued that where a statutory proposition covered a number of matters but in fact mentioned only some of them, the rest are taken to be excluded. He placed reliance on the case of Oni & Ors v. Governor of Ekiti State (2019) LPELR 46413 SC.

In the view of the learned Chief State Counsel, since Paragraph 32(d) of the Third Schedule to the Constitution has empowered the Commission to determine the remuneration of Political Office holders specifically mentioned or enumerated in that sub-paragraph of the Schedule, Councillors are excluded from the arrangement. He called in aid these cases: Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646 at 669 670; Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) FWLR (Pt. 79) 1431 at 1473 – 1474.

Accordingly, he posited that the learned Counsel for the Appellant misconceived the point when he argued that an elected Councillor is a Legislator in the Third Tier of Government listed after the word “including”.

To buttress the above argument, he referred this Court to Section 318 of the Interpretation Section of the 1999 Constitution which defines Legislative House “to mean the Senate, House of Representatives or the House of Assembly of a State” without any mention of Legislative House of the Local Government.

He further placed emphasis on Section 124 of the 1999 Constitution to contend upon reproduction of all the subsections that the Councillors are not among Officers to whom the Revenue Mobilization, Allocation and Fiscal Commission is empowered to fix their remuneration and allowances. ​ This Court is urged to resolve this issue against the Appellant and hold that Local Government Councillors do not come within the ambit of Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended.

In deciding this issue, it would be recalled that the summary of the Appellant’s argument is that the two Courts below were wrong to hold that Local Government Councillors do not come within the ambit of Paragraph 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended. The Respondents argued otherwise.

A careful perusal of the submissions of learned Counsel on both sides would easily reveal that this issue simply calls to question the extent or limits of the powers or competence of the Anambra State House of Assembly as donated to it by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to fix salaries of public officers and political office holders which shall be charged upon the Consolidated Revenue Fund of the State. In support of their respective positions, several constitutional and statutory provisions were thrown up.

These constitutional and statutory provisions shall be considered in the course of this judgment, vis-a-vis the circumstances of this case.

To start off, there is no dispute that by the combined effect of Section 4(6) and (7)(b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a State House of Assembly is empowered to make laws for the peace, order and good government of a State.

Section 4 Subsection 6 reads thus: “The Legislative Powers of a State of the Federation shall be vested in the House of Assembly of the State.” Under Subsection (7)(a) (b) and (c) thereof: “(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters that is to say – (a) any matter not in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution, (b) any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto; and (c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

Consequent upon the general legislative powers conferred upon a State House of Assembly by Subsections (6) and (7) of Section 4 of the 1999 Constitution, as amended; Section 124 thereof empowers the State House of Assembly to prescribe remuneration for certain categories of Public Officers and Political Office Holders.

The Section stipulates inter alia that:- “124-(1) There shall be payable to the holders of the offices mentioned in this Section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission. (2) The salaries and allowances payable to the holders of the offices so mentioned shall be charged upon the Consolidated Revenue Fund of the State. (3) The salaries payable to the holders of the said offices and their conditions of service other than allowances shall not be altered to their disadvantage after their appointment. (4) The offices aforesaid are offices of the Governor, Deputy Governor, the Auditor-General of a State, Auditor-General of a Local Government Councils of State, and Chairman and Members of the following bodies, that is to say, the State Civil Service Commission, the State Judicial Service Commission, the State Local Government Service Commission.” ​ Pursuant to the provisions of Section 124 of the 1999 Constitution, as amended, the Anambra State House of Assembly proceeded to enact the Law No. 7 of 2001 to provide for salaries of Public Officers in Anambra State and for related purposes.

The Law No. 7 of 2001, states inter alia: “WHEREAS: Section 124(1) of the Constitution of the Federal Republic of Nigeria provided that there shall be paid to the holders of the offices mentioned in this section such remuneration and salaries as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by, the Revenue Mobilization Allocation and Fiscal Commission. BE IT ENACTED by the House of Assembly of Anambra State of Nigeria: 1.

This law may be cited as the Anambra State Public Officers’ Salaries Law 2001 and shall be deemed to have come into effect on the 29th day of May, 1999. 2. In this law except where the context otherwise requires- “Consolidated Revenue Fund” means the Fund as cognizable under the Constitution. “Constitution” means the Constitution of the Federal Republic of Nigeria 1999; “Holders” refers to holders of Public Offices stated hereunder; “House of Assembly” refers to the Anambra State House of Assembly. 3.

The Salaries of Public Officers in Anambra State shall be as recommended by the Revenue Mobilization Allocation and Fiscal Commission as found in the Schedule. 4. The remuneration, salaries and allowances payable to the holders of the offices mentioned in Section 6 shall be charged upon the Consolidated Revenue Fund of the State. 5. The remuneration and salaries payable to the holders of the said Offices and their conditions of services other than allowances shall not be altered to their disadvantages after their appointment. 6.

The offices aforesaid are those of: Governor, Deputy Governor, Secretary to the State Government etc. Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisors, Special Advisers/ P.A to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader, Councillors.”

It is manifest from the above, that Law No. 7 of 2001 included Councillors as one of the Political Office Holders, whose salaries and remunerations are to be charged upon the Consolidated Revenue Fund of the State.

Learned Counsel for the Appellant herein has argued that a Councillor is a political office holder. That may be so. The issue now is whether he comes within the purview of those officers whose salaries shall be determined and charged upon the Consolidated Revenue Fund of the State by the Revenue Mobilization Allocation and Fiscal Commission so as to warrant judgment being entered in his favour.

To answer this question, I must have recourse to the provisions of the Revenue Mobilization Allocation and Fiscal Commission CAP. 392 Laws of the Federation of Nigeria 1990, hereafter referred to as “the RMAFC Act”, to determine whether the Appellant is actually a beneficiary. Section 6 of the RMAFC Act stipulates the powers of the Commission as regards remuneration. It provides inter alia: “6(1) – The Commission shall have power to- (d) determine the remuneration appropriate to the holders of the offices as specified in Parts A and B of the First Schedule to this Act.”

Hereunder reproduced, is Part A and B of the First Schedule to the RMAFC Act: FIRST SCHEDULE [Section 6 (1) (d)] PART A Offices President, the Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, Judge of the Federal High Court in the Federal Capital Territory, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Inspector- General of Police, the Auditor-General of the Federation and the Chairman and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the National Electoral Commission, the Federal Judicial Service Commission, the National Population Commission, the Revenue Mobilisation, Allocation and Fiscal Commission, the Nigeria Police Council and the Public Complaints Commission.

PART B Offices Governor, the Deputy Governor, Chief Judge of a State and the Judge of the High Court of a State, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor-General of a State, the Auditor-General of the Local Government Councils of a State and Chairmen and members of the following bodies, that is to say, the State Civil Service Commission, the State Judicial Service Commission and the State Local Government Service Commission.

It follows therefore that the Section 6(1)(d) of the Revenue Mobilization and Fiscal Commission, Act makes no mention of a Councilor as one of those Public Officers or Political Office Holders to benefit from payment of salary and emolument from the Consolidated Revenue Fund and whose salary shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission.

The argument of learned counsel for the Appellant is that the scope of political office Holders, whose names were not mentioned, have been expanded vide Section 6(1)(f) of the Revenue Mobilization Allocation and Fiscal Commission Act which provides that the Commission shall have power to – “(f) discharge such other functions as may be conferred on it (Commission) by the Constitution of the Federal Republic of Nigeria, this Act, or any other Act of the National Assembly.” This stance by learned counsel is with respect, untenable.

The simple reason is because those other functions that the Commission ought to perform or upon which extra power may be conferred on it by the Constitution, the Act or any other Act of the National Assembly, do not envisage expanding the scope of Political Office Holders or Public Officers whose names have not been mentioned either by the Constitution, the RMAFC Act itself or any Act of the National Assembly.

Assuming (but without conceding) that the scope is to be expanded, in the clear and unambiguous words of Section 6(1)(f) of the RMAFC Act, it is only the RMAFC Act itself; the Constitution or another Act of the National Assembly, that can expand the scope or powers thereof and not an inferior Legislative House like that of Anambra State House of Assembly.

I am therefore in total disagreement with the submissions of learned Counsel for the Appellant that the provisions of Section 32(d) Item N, Part 1 of the Third Schedule of 1999 Constitution, as amended, expands the scope of the Commission to include Councillors. The Section states inter alia that: “32.

The Commission shall have power to – (d) determine the remuneration appropriate for political office holders, including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislatures and the holders of the offices mentioned in Section 84 and 124 of this Constitution.” The import of Section 32(d) Item N, Part 1 of the Third Schedule of 1999 Constitution, as amended, (which in my view, is an assemblage of Sections 84 and 124 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, as well as Section 6(1)(d) and (f) of the RMAFC Act) is that the inclusion of Local Government Councillors by the Anambra State Law No. 7 of 2001, in the List of Political Office Holders or Public Officers of whom their salaries shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission and charged upon the Consolidated Revenue Fund of Anambra State, is at variance with the express provisions of the 1999 Constitution, as amended.

Learned Counsel for the Appellant had contended that as a Councillor of the Onitsha Local Government, the Appellant is a Legislator as envisaged by the Section 32(d), Item N, Part 1 of Schedule of the Constitution. As rightly held by the Court below, it would appear there was a legislative device to deliberately exclude political office holders like Councillors who are legislators as of right on their Local Government tier of Government.

However, they are not legislators properly so called as envisaged by the Constitution in Section 318(1) thereof, which states that: “In this Constitution, unless it is otherwise expressly provided, or the context otherwise requires – Legislative house means that Senate, House of Representatives or a House of Assembly.” The Legislative Council of a Local Government is not mentioned by the Constitution so by extension, a Councillor is not recognized by the Constitution as a member of a Legislative House properly so-called.

Again, Section 318(1) of the 1999 Constitution, as amended, defined the “Public Service of a State” to mean the service of the State in any capacity in respect of the Government of the State and includes service as mentioned in sub-paragraphs (a) to (g) thereunder.

What is more, Section 120 of the CFRN 1999, as amended, which in Subsection (1), established the Consolidated Revenue Fund of the State, stipulates in Subsection (2) thereof, that: “No money shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the fund by this Constitution, or where the issue of those moneys has been authorised by an Appropriation Law, Supplementary Appropriation Law or Law passed in pursuance of Section 121 of this Constitution.” (underlining mine).

It follows therefore, that any expenditure that is to be charged upon the fund by this Constitution, SHALL be as stipulated by Section 124(4) of the CFRN 1999, as amended.

The consequence of the above is that the inclusion of Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisors, Special Advisers/P.A. to the Chairman, leader of the Local Government Legislative Council, Deputy Leader, and Councillors, by the Anambra State Law No. 7 of 2001, in the List of Political Office holders or Public Officers whose salaries shall be fixed by the Revenue Mobilization Allocation and Fiscal Commission and charged upon the Consolidated Revenue Fund of Anambra State, is against the express provisions of Section 124(4) of the 1999 Constitution, as amended.

I therefore answer the question “Whether the Court of Appeal was correct when they(sic) held that Local Government Councillors do not come within the purview of “Political Office Holders” in Section 32(d) Item N, Part I of the Third Schedule to the 1999 Constitution of Nigeria, as amended”; in the affirmative and resolve this issue against the Appellant.

ISSUE TWO Whether the Court of Appeal was correct, when they (sic) held that the Law No. 7 of 2001 Anambra State Public Officers’ Law, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended, if yes, did the trial Court have the jurisdiction and competence to declare it null and void?

It is the submission of learned counsel for the Appellant that the CFRN 1999, as amended, has made ample provisions for the House of Assembly of a State to fix the salaries of political office holders and at the same time, charge same to the Consolidated Revenue Fund of the State. He cited and relied on Section 4(7)(2) Second Schedule, Part II, Item A, Section 2(3), Section 120(1-4).

It is his view that the Anambra State House of Assembly, acting under Section 4(7)(2) Second Schedule, Part II, Item A, Section 2(3), Section 120(1-4) of the CFRN 1999, made Law No. 7 of 2001, (Anambra State Public Officers’ Law) and the charged the salaries of Councilors to the Consolidated Revenue Fund of Anambra State. The Court below was therefore wrong to hold, as it did, that the Anambra State House of Assembly, in enacting Law No.7 of 2001, (Anambra State Public Officers’ Law), acted ultra vires its powers.

He commended the attention of this Court to the unreported case of Anambra State Government & Anor v. Gloria Obiora (CA/E/400/2008, Delivered on 10/06/2013).

Learned Counsel argued that with the passing into law of Law No. 7 of 2001 by the Anambra State House of Assembly, the recommendation of the Revenue Mobilization and Fiscal Commission disappears and loses its character, in deference to the Law No. 7 of 2001. Learned Counsel for the Appellant went further to posit that assuming, but without conceding, that the Anambra State House of Assembly did not have the vires to make the Law No. 7 of 2001, the trial Court lacked the jurisdiction to declare the Law No. 7 of 2001 a nullity.

He urged this Court to resolve the issues raised in this appeal in favour of the Appellant and allow the appeal, and grant the Appellant the reliefs he claimed.

In his response, it is submitted for the Respondent that the Court of Appeal was indeed correct, when it held that the Law No. 7 of 2001, (Anambra State Public Officers’ Law), was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended.

Learned counsel for the Respondent called this Court’s attention to Sections 4(6) and (7), and 124(1) and (4) of the 1999 Constitution, as amended, and argued that the Anambra State Public Officers’ Salaries Law No. 7 of 2001 is unconstitutional, illegal and invalid, as the Revenue Mobilization Allocation and Fiscal Commission has no constitutional power to prescribe for the remuneration and allowances of Local Government Councilors and the said salaries and allowances of the Appellant cannot be charged upon the Consolidated Revenue Fund of the State as provided in the Anambra State Public Officers’ Salaries Law No 7 of 2001.

On the question as to who prescribes salaries and remuneration for Local Government Councillors, the learned Counsel referred this Court to Section 7(1) of the 1999 Constitution which provides for the system of Local Government to be entrenched in every State by a Law to make for their establishment, structure, composition, finance and functions and pursuant to this Constitutional provision, the Anambra State House of Assembly promulgated the Local Government Law No. 5 of 2000 (as amended) wherein provisions were made for the establishment, structure, composition, finance, and function of Local Government Council and related matters.

He referred to Section 12 of the Anambra State Local Government Law No. 5 of 2000, where the sources of Revenue of the Local Government Councils include inter alia, monies from the State’s internally generated funds/revenue, allocations due to them from the State and Local Government Joint Account Distribution Committee (STALDAC) and other monies lawfully derived by the Local Government which form the Consolidated Revenue Fund of the Council.

The learned Counsel for the Respondents explained that it is from this fund that a detailed estimate of its revenue and expenditure is prepared by the Chairman and sent to the Council (Legislature) which shall consider and approve same with or without modification. In support of this position, he referred to Section 18 of the Local Government Law of Anambra State No. 5, 2000.

It was the further contention of the Respondents that the Appellant while in office was paid his salaries and allowance from the Consolidated Revenue Fund of the 2nd Respondent as provided under Section 12 of the Anambra State Local Government Law (as amended) and as approved in its budget which was one of the functions of the Appellant in his capacity as Councillor.

Further reference was made to Section 43(1)(a) of the Local Government Law (as amended) wherein the Council is conferred with the power to debate, approve and amend the Annual Budget of the Local Government subject to the Chairman’s veto which may be set aside by two thirds majority.

He observed that the Appellant while in office never paid his salaries and allowances from the Consolidated Revenue Fund of the State nor did the Anambra State House of Assembly authorize in any of its Appropriation Law at that time that salaries and allowances of Councillors be paid as expenditure in the State Budget as provided under Section 120 and 121 of the 1999 Constitution.

Having stated that the Local Government Law promulgated by the Anambra State House of Assembly made provision for the Consolidated Revenue Funds of the Local Government Councils and also empowered their Councillors (Legislative Houses) to make Annual Budgets for its revenue expenditure, the learned Counsel there posed the question whether the Anambra State Public Officers’ Salaries Law No. 7 of 2001 which purported to charge the salaries and allowances of Local Government Councillors to the Consolidated Revenue of the State is valid and in conformity with the provisions of the Constitution? ​ In answer to the question, the learned Counsel for the Respondent urged us to consider the provisions of the following sections of the Constitution namely: 4(6) and (7), 124(1) and (4) as well as Sections 3, 4 and 6 of the Anambra State Public Officers’ Salaries Law 2001, which he reproduced and noted that the plenitude of the Legislative Powers of the House of Assembly is as contained in these Sections and that Section 4(7) of the Constitution in particular empowers the House of Assembly of a State to make laws in accordance with the Constitutional provisions.

The learned State Counsel observed that amongst those mentioned by the Anambra State Public Officers’ Salaries Law No. 7 of 2001, whose salaries and allowances shall be charged into the Consolidated Revenue Fund of the State are: “Chairman of Local Government, Vice Chairman, Secretary to Local Government Supervisor, Special Adviser/PA to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader and Councillors.”

Going by the above provisions of the law and Constitution, it was the contention of the learned Counsel that the Anambra State Public Officers’ Salaries Law was made contrary to the provisions of the Constitution.

Relying on the case of Attorney-General Bendel State v.

Attorney-General of Federation (2001) FWLR (Pt 65) 448 at 556, learned counsel for the Respondent asserted that the purported unpaid arrears of salaries, accommodation, furniture allowance and severance allowance gratuity claimed by the Appellant based on the recommendation of the Revenue Mobilization Allocation and Fiscal Commission and the Anambra State Public Officers, Salaries Law No. 7 of 2001 is unconstitutional, invalid and illegal as the Revenue Mobilization Allocation and Fiscal Commission has no Constitutional Power to prescribe remuneration and allowances for Councillors and the said salaries and allowances cannot be charged into the Consolidated Revenue Fund of the State as provided in the Anambra State Public Officers’ Salaries Law, No. 7 of 2001.

In view of the foregoing, the learned Counsel for the Respondents approved the view of the learned trial Judge that the Anambra State House of Assembly exceeded its powers when it made the Public Officers’ Salaries Law 7 of 2001. ​ On whether the trial Court had the jurisdiction and competence to declare the Anambra State Public Officers’ Salaries Law No. 7 of 2001, null and void, it is submitted for the Respondent that by virtue of  Section 1(3) of the 1999 Constitution, as amended, the trial Court had the jurisdiction to hold that Law No. 7 of 2001 is inconsistent with the provisions of the 1999 Constitution, as amended.

This Court is urged to resolve this issue against the Appellant, and dismiss the appeal.

The main contention here, is whether the Anambra State Public Officers’ Law, No. 7 of 2001, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended.

It is settled law that the power bestowed on the legislature, in this case, the Anambra State House of Assembly, to make, enact and pass laws is undiluted so long as any laws passed by it is within its own legislative competence and authority. Not only can the legislature enact laws, it can also amend any existing law passed by that arm of government as circumstances may permit. In Amoshima v. State (2001) LPELR 471 (SC), this Court stated that: “It is trite law that whereas it is the duty of the legislature to enact law, that of the judiciary is to interpret the laws so made.

It follows therefore that where there is dissatisfaction with the State of the laws as it exists, and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendment thereto.

The duty both to make and amend laws so made belongs exclusively, by constitutional arrangement, to the legislature as provided under Section 4 of the Constitution of the Federal Republic of Nigeria, 1999.” It therefore stands to reason the power to make laws, and in appropriate cases, amend the laws, is vested in National or State Assembly. But where a statute is enacted in breach of the Constitution, the Courts must come in to stop the breach. This the Court can do only by one or more parties seeking the Court’s jurisdiction to declare the Statute void.

By the express provisions of Section 4(8) of the CFRN 1999, as amended, the exercise of legislative powers by the National Assembly or by a State House of Assembly, shall be subject to the jurisdiction of the Court.

It states thus: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial Tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a Court of law or of a judicial Tribunal established by law.” See also: A-G Ondo v. A-G Federation (2002) 9 NWLR (Pt.772) 222; AG Bendel v. AG Federation (1983) 1 SCNLR 239; A-G Abia v.

AG Federation (2006) 16 NWLR (Pt. 1005) 265 at 382 – 383 paras E – H and 385 (paras C – D).

In the instant appeal, the Anambra State Public Officers’ Salaries Law No, 7 of 2001, enacted by the Anambra State House of Assembly, which purported to fix the salaries and emoluments of Chairmen and Councillors of Local Governments (amongst others), and charged same upon the Consolidated Revenue Fund of the State, was enacted ultra vires the powers of the Anambra State House of Assembly, and inconsistent with the express provisions of Section 124(4) of the 1999 Constitution, as amended.

The said Anambra State Public Officers’ Salaries Law No. 7 of 2001, to the extent of its inconsistency with the Constitution, is null and void, and the trial Court had the requisite jurisdiction to strike down such inconsistent legislation.

The action of the trial Court is undoubtedly justifiable, having regard to the provisions of Section 1(3) the CFRN 1999, as amended, that prohibits the existence of any other law that is inconsistent with a Constitutional provision and declaring that such other law shall be void to the extent of the inconsistency with the Constitution, as well as Section 4(8) of the CFRN 1990, as amended. In Marwa & Ors v.

Nyako & Ors (2012) LPELR 7837 (SC), this Court, in reaffirming the supremacy of the Constitution, stated as follows: “The supremacy of the Constitution of the Federal Republic of Nigeria 1999 is captioned by Sections one and three, Part 1 of Chapter 1 under general provisions which state that: Section 1 “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Sub-Section 3 “If any other law is inconsistent with the provisions of this Constitution shall prevail and that other law shall to that extent of the inconsistency be void.” This Court had given recognition to this supremacy and had expatiated on the Constitution through various judgments in its interpretative jurisdiction.

The Constitution is described as the grundnorm and the fundamental law of the land. All other legislations in this Country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation/state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the State.

Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. But the extent and implications may be sought to be interpreted and explained by the Court.

The provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has power to amend the Constitution itself.” It is my considered view that this Court has sufficiently demonstrated that the amended 1999 Constitution has expressly donated to the Courts the power to pronounce on the constitutionality of any law made by a Legislature (such as the Anambra State House of Assembly, in the instant case), vis-a-vis the provisions of the said Constitution.

Furthermore, I am fortified in my view that where the Constitution itself expressly vests in the Courts the power to pronounce on the constitutionality of a law vis-a-vis its provisions, then the Courts cannot be said to be acting without jurisdiction, in discharging the duty imposed on them. Against the backdrop of all that has been stated, I hold without hesitation that the trial Court had the jurisdiction to entertain and pronounce on the constitutionality of the Anambra State Public Officers’ Salaries Law No. 7 of 2001.

All that the trial Court did in this regard was in the discharge of the power vested in it by the Constitution itself.​ The trial Court, and indeed all Courts in Nigeria, being the primary custodians of the Constitution, cannot close their eyes to the desecration of the Constitution by any arm of Government including the Courts themselves. See A. G Abia State v. A.G Federation (supra).

I am therefore in concert with the Court below, when it affirmed the decision of the trial Court, that the Anambra State House of Assembly, went on a frolic its own when it enacted the Anambra State Public Officers’ Salaries Law No. 7 of 2001, and purportedly charged the salaries and remunerations of “Chairman of Local Government, Vice Chairman, Secretary to Local Government, Supervisor, Special Adviser/PA to the Chairman, Leader of the Local Government Legislative Council, Deputy Leader and Councillors”, to the consolidated Revenue Fund of the State, notwithstanding that it was at variance with the express provisions of Section 124(4) of the Constitution of the Federal Republic of Nigeria 1999, as amended.

This issue is resolved against the Appellant.

Consequently, having resolved the two issues raised by the Appellant in this appeal against him, I adjudge this appeal to be wholly unmeritorious and it is accordingly dismissed. ​ The decision of the Court of Appeal, Enugu Division, delivered on the 6th of December, 2013, is hereby affirmed. I make no order as to costs. ​APPEAL DISMISSED.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Abdu Aboki, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also find no merit in the appeal and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: This is an appeal against the concurrent findings of fact by the two lower Courts in the main, that the Anambra State House of Assembly enacted the Anambra State of Nigeria, Public Officers’ Salaries Law No. 7 of 2001 ultra vires its powers donated by the Constitution of the Federal Republic of Nigeria, 1999 and therefore null and void. The facts of the case culminating in this appeal have been meticulously summarized by my learned brother, Abdu Aboki, JSC, in the leading judgment just delivered and I hereby adopt them as mine.

By the provision of Section 1 of the 1999 Constitution, the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See Cadbury (Nig) Plc v FBIR (2010) 2 NWLR (pt. 1179) 561, Governor of Ekiti State v Olubunmo (2017) 3 NWLR (pt.1551)1.

While I recognize the Constitutional right of the Anambra State House of Assembly, donated under Section 4(6) and (7) (a) (b) and (c) of the Constitution, to make laws for the peace, order and good government of the State, the exercise of that power must be in line with the dictates of the Constitution. A law enacted in excess of the powers granted by the Constitution is void to the extent of the inconsistency with the provision of the Constitution.

The provision of Section 124 of the Constitution upon which the Anambra State House of Assembly based its power to make law No. 7 of 2001, for the remuneration and salaries of holders of public offices including the Appellant clearly list offices which remuneration, salaries and allowances shall be charged upon the Consolidated Revenue Fund of the State excluding the Appellant.

The beneficiary offices are: the office of the Governor, Deputy Governor, Auditor-General for a State, Chairman and members of the State Civil service Commission, Chairman and members of the State Independent Electoral Commission and Chairman and members of the State Judicial Service Commission. That provision of the Constitution is in tandem with the provision of Section 6(1)(b) of the First Schedule of the Revenue Mobilization Allocation and Fiscal Commission Act, CAP. 392 Laws of the Federation of Nigeria, 1990.

There is no mention of the office of a Local Government Area Councilor as one of the beneficiaries of payment of salaries and emoluments from the Consolidated Revenue Fund of the State. I do not accept the submission by learned counsel for the Appellant that Section 32 (d) item N, Part 1 of the Third Schedule of the Constitution is an expansion to the scope of the Revenue Mobilization Allocation and Fiscal Commission to include Local Government Area Councilors as beneficiaries of political office holders whose salaries and emoluments are charged upon the consolidated Revenue Fund of the State.

The argument is incorrect and an attempt to read into the law what was not intended by the drafters of the Constitution. The Courts below were right to resist it and this Court cannot allow it to flourish. I hold therefore that the Law No.7 of 2001 which provide for salaries of public officers in Anambra State and for related purposes was enacted ultra vires the powers of the Anambra State House of Assembly. It is therefore void. I find no merit in this appeal whatsoever. It is hereby dismissed by me. I affirm the concurrent judgments of the two Courts below. Appeal Dismissed.

AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the lead judgment just delivered by my learned brother, Aboki, JSC, and I agree with him that this appeal lacks merit. He dealt with the two issues for determination raised in the appeal meticulously, and decisively, and I will, without much ado, adopt his reasoning and conclusion in its entirety.

Obviously, the Court of Appeal is right that Local Government Councilors do not come within the purview of “Political Office Holders”, in Section 32(d), Item N, Part 1 of the Third Schedule to the 1999 Constitution, as amended. So, the Anambra State House of Assembly clearly went on a frolic of its own when it enacted the said Anambra State Public Officers’ Salaries Law No. 7 of 2001.

Thus, I dismiss this appeal and affirm the decision of the Court of Appeal. I also make no order as to costs.

UWANI MUSA ABBA AJI, J.S.C.: I was privileged with the draft copy of the lead judgment of my learned brother, Abdu Aboki, JSC, just delivered and totally agree with the reasoning and conclusion arrived that the appeal is good for the trash bin.

The contention of the Appellant was reduced and distilled into two issues for the consideration of this Court thus: 1. Whether the Court of Appeal was correct when they (sic) held that Local Government Councilors do not come within the purview of “Political Office Holders” in Section 32 (d) Item N, Part 1 of the Third Schedule to the 1999 Constitution of Nigeria, as amended. 2.

Whether the Court of Appeal was correct when they (sic) held that the Law No. 7 of 2001 Anambra State Public Officers’ Law, was enacted, ultra vires the Anambra State House of Assembly and is as a result inconsistent with the provisions of the 1999 Constitution of Nigeria, as amended, if yes, did the trial Court have jurisdiction and competence to declare it null and void?

The grouse in this appeal lies in the constitutionality and legality of Anambra State of Nigeria Public Officers’ Salaries Law No. 7 of 2001 purporting to have charged the salaries and emoluments of Councilors (including the Appellant) into the Consolidated Revenue Fund of the Anambra State vis-a-vis Sections 80(1) and 124 of the 1999 Constitution of Nigeria (as amended).

Both the trial and lower Courts found the Anambra State of Nigeria Public Officers’ Salaries Law No. 7 of 2001 unconstitutional and ultra vires and consequently denied the claims of the Appellant. I completely agree with the reasoning and conclusion reached and hereby affirm the concurrent findings and decisions of the two Courts below. There is nothing to add or diminish. The appeal is hereby dismissed.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is an out-flow of the judgment of the Court of Appeal, Abuja Judicial Division, holden at Abuja, delivered on December 14, 2006 in appeal no. CA/A/43/05. By the judgment in question, the Court below, coram I. T. Muhammad, JCA (now CJN), Adekeye, JCA (later JSC), and Uwa, JCA, affirmed the ruling of the trial FCT High Court delivered on October 12, 2004, thereby striking out the Appellant’s suit (NO. FCT/HC/CV/931/2002) and the Respondent’s counter-claim, for lack of jurisdiction.

BACKGROUND FACTS The facts and circumstances surrounding the appeal are gleanable from the record of appeal, transmitted 10 this Court on July 14, 2009. The suit was instituted by the Appellant in the trial Court vide a writ of summons. By the statement of claim thereof, dated August 29, 2002, the Appellant claimed against the Defendant (FSB International Bank PLC) the following reliefs: ​a). The sum of N33,065,868.70 being Advance payment to RAFS Limited for the execution of National Rural Water Supply in Rivers State Lot RV 31A for a totaled contract sum of N66,131,737.56.

b). The plaintiff further claims from the Defendant interest of 100% on the judgment sum and the cost of this action until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein. ​ Interestingly, the case took a dramatic turn. On 17/07/2003, the Defendant filed a notice of preliminary objection, thereby seeking an order “striking out this suit for want of jurisdiction.” The preliminary objection was predicated upon two grounds: 1. “The suit has not been commenced in the proper forum. 2. The plaintiff lacks the locus stand to institute the action.”

By the statement of defence thereof, the 3rd and 4th Respondents (3rd and 4th Defendants’) not only denied the Appellant’s claim in toto, but equally counter-claimed and thereby sought against the Appellant the following reliefs: a). AN ORDER directing the plaintiff to issue to the 3rd Defendant forthwith a completion certificate, being the agreed acknowledgment of completion of the extent of work for which the 3rd Defendant was mobilized. b). AN ORDER awarding special damages to the 3rd Defendant in the sum of N33,065,868.68 for breach of contract. c). The cost of this action

By the amended statement of claim, dated 01/12/2003, the Appellant claimed against the Respondent (Defendants) jointly and severally: a. The sum of N33,065,868.70 being advance payment to the 1st Defendant for the execution of the National Rural Water Supply in Rivers State Lot RV.31A, for a totaled contract sum of N66,131,737.56. b. The plaintiff further claims from the Defendant interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed N33,065,868.70) plus the cost and interest therein.

Parties’ learned counsel were opportuned to address the trial Court upon the 3rd and 4th Respondents’ preliminary objection on 13/07/04 and 24/09/04, respectively.

On 12/09/04, the trial Court, coram Mukhtar, J (as he then was) delivered the vexed ruling to the conclusive effect: By the doctrine stare decisis, the decisions of both the Supreme Court and the Court of Appeal are binding on this Court and this Court has no choice than to simply follow such decisions. It is not in dispute that the PTF is an agency of the Federal Government and is a party in this case. It is, therefore, unnecessary to examine the nature of the claim or relieves sought. The simple determine factor is the status of the plaintiff being an agency of the Federal Government.

That automatically derobes this Court of jurisdiction to go in to the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court. The preliminary objection succeeds on this ground. It follows therefore, that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.

On its part, the Court below having been seized of the Appellant’s appeal (CA/A/43/05), delivered the vexed judgment to the conclusive effect: In the final analysis, any matter within the jurisdiction of the Federal High Court under the above provisions of the Constitution, is outside the general jurisdiction of High Court of Federal Capital Territory Abuja under Section 257 (1) of the 1999 Constitution or a High Court of a State. I therefore resolve the second issue in favour of the Respondents.

Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with the counter-claim, for want of jurisdiction. I hereby affirm the ruling of the trial Court, delivered on 12th of October, 2004 striking out the Appellant’s suit and counter-claim, for want of jurisdiction. This appeal fails for lacking in merit. I award N10,000.00 cost in favour of the Respondents.

On 21/09/2021, when this appeal at long last came up for hearing, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument. Thus, warranting the Court to reserve judgment to today.

Most particularly, the Appellant’s brief, settled by Kyonne l. Mando Esq., on 14/09/2020, spans a total of 17 pages. At pages 2-3 of the brief, three issues call for determination: 2.0 Whether the Court was right when it held that it is parties in a suit and not the plaintiffs claim that determines a Court’s jurisdiction? (Distilled from ground 1) 2.01 Whether the lower Court erred in law when it applied the decision in NEPA vs.

EDEGBERO (2002) 18 NWLR (part 788) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2) 2.02 Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy kobo) only being the Advance Payment Guarantee by the 1st Respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the Appellant’s can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the Appellant’s claim (Distilled from Ground 3)

The issue no. 1 is argued at pages 4-10 of the Appellant’s brief. In the main, it’s submitted that the Court below erred when it found that it’s parties and plaintiffs claim that determine, jurisdiction of a Court, and accordingly dismissed the Appellant’s appeal.

Further submitted, that in law parties do not necessarily determine jurisdiction. Rather, what determines jurisdiction is the plaintiff’s claim. See AG FEDERATION VS. AG ABIA STATE(2001) 11 NWLR (pt. 725) 689 @ 729 paragraphs F-D; ONUORAH VS. KADUNA REFINING PETROCHEMICAL COMPANY (2005) 5 NWLR (pt. 921) 393 @ 405. The Court is urged to so hold.

The issue no. 2 is argued at pages 10-13 of the said brief, to the effect that the case of NEPA VS. EDEGBERO (2002) 18 NWLR (pt. 789) 79 does not apply to the Appellant’s case, as the facts in the two cases are distinct and quite distinguishable from one another.

It’s argued, that the Appellant’s claim was based on the Deed of Guarantee dated June 6, 1998, issued by the 1st Respondent in favour of the Appellant, thereby guaranteeing the advance payment of the sum of N33,065,868.70. Having collected the said sum, the 3rd Respondent abandoned the contract, while Appellant recalled the sum guaranteed.

That looking at the Appellant’s claim, the case of NEPA VS. EDEGBERO (supra) is not applicable to the Appellant’s claim.

The Court is urged to so hold.

The issue no. 3 is argued at pages 13 to 15 of the brief, to the effect that the Appellant’s claim does not in any way relate to the Revenue of the Federation, as found by the Court below at page 145 lines 15-25 of the record of appeal.

The Court is urged to so hold.

Conclusively, the Court is urged upon to allow the appeal.

Contrariwise, the 1st Respondent’s brief of argument was settled by Abimbola Kayode on 08/10/2020. It spans a total of 15 pages. At page 6 thereof, a sole issue has been couched: “Whether the Court of Appeal was right to have affirmed the ruling of the lower trial Court striking out the Appellant’s suit on the ground that the FCT High Court had no jurisdiction on the matter.”

The sole issue is argued at pages 7-15 of the Respondent’s brief, to the effect that the Appellant’s claim is beyond the purview of simple contract. It is a claim in respect of the discharge of its functions under Decree No. 25 of 1994 as an Agency of the Federal Government. That’s, it relates to its administration, management and control, and not from simple contract. See Section 3 of Petroleum (special) Trust Fund Act, Cap p. 14 LFN, 2004.

It is argued that the Appellant’s reliance on AG FEDERATION VS. AG ABIA STATE (supra) et al, is bordered on a misconception of the judgment of the Supreme Court in those two cases. The Court is urged to so hold. Conclusively, the Court is urged upon to so hold and dismiss the appeal.

Having amply considered the nature and circumstances surrounding the present appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, I am amenable to adopting the three issues of the Appellant for determination of the appeal on merits anon.

ISSUE NO. 1 The first issue raises the question of whether or not the Court below was right when it held that it is parties in a suit and not the plaintiff’s claim that determines a Court’s jurisdiction. This issue is distilled from ground 1 of the notice of appeal.

As copiously alluded to above, the trial Court held in the vexed ruling resulting in the instant appeal, that the Appellant being an agency of the Federal Government of Nigeria: Automatically derobes this Court of jurisdiction to go in the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court. The preliminary objection succeeds on this ground. It follows therefore that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.

On the part thereof, the Court below, in a considered judgment, the subject of the instant appeal, held to the conclusive effect: Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with claim, for want of jurisdiction.

With possible deference, I would want to hold without much ado, that both the Court below and the trial FCT High Court had erred in their findings, to the conclusive effect that the trial Court lacked jurisdiction to entertain and adjudicate upon the instant matter (FCT/HC/CV/931/2002) giving rise to this appeal. ​ Indeed, this Court has had the cause to reiterate in a plethora of authorities, the doctrine that jurisdiction is a fundamental threshold issue and thus indispensable in administration of justice.

And the reason being, that a Court of law or Tribunal can only be competent to entertain and adjudicate upon a matter or appeal before it when: (a) It’s appropriately constituted in regard to both quorum and qualifications of the members thereof. (b) The subject matter (Res) is aptly within the purview of its jurisdictional competence, and there is no any feature inherent there in; and (c) The action (or appeal, as the case may be) is commenced by due process of law, upon fulfillment of any condition precedent. See the locus classics – MADUKOLU VS.

NKEMDILIM (1962) 1 All NLR 587; AG LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (pt. 111) 552; SKENCONSULT VS. UKEY (1981) 1 SC 6; BOT VS. BOT Appeal No. SC.255/2010, judgment on May 7, 2021 (unreported). Undoubtedly, it would tantamount to a futile effort to set down issues, deliberate on the evidence led and proceed to resolve those issues, one way or the other, if the Court seized of the matter is devoid of jurisdictional competence. As aptly held by this Court: The substratum of a Court is no doubt jurisdiction.

Without it the labourers there in, that is both litigants and counsel, on the one hand, and the judge, on the other hand labour in pain. See LAGOS STATE VS. DOSUNMU (supra), per Eso, JSC.

It is not at all controversial, that the jurisdiction of the Federal High Court is eminently as circumscribed by the provisions of Section 251 (1), (p), (q), (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (which provisions are in pari materia with Section 230 (q), (r), and (s) of the erstwhile 1979 Federal Constitution): (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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases 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 taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation. (c) Connected with or pertaining to customs and excise duties and export duties, including any claim by or againstthe Nigeria Customs Service or any member of office thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties. (d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory notes and fiscal measures;

Provided that this paragraph shall not apply to any dispute between an individual customs and his bank in respect of transactions between the individual customs and the bank; (e) Arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;

(f) Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks business names, commercial and industrial monopolies, combines and trusts, standards of good and commodities andindustrial standards;

(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal port, (including the constitution and powers of the port, authorities for Federal ports) and carriage by sea; (h) Diplomatic, consular and trade representation; (i) Citizenship, naturalization and aliens, deportation of person 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 mineral (including oil fields, oil mining, geological surveys and natural gas). (o) Weights 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 executive or administrative 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 subsection 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 of treason, treasonable felony and allied offences.

In the instant case, it is obvious that so much reliance has been placed by the two Courts below on the decision of this Court in NEPA VS. EDEGBERO(supra), to arrive at their findings, albeit erroneously, that because the Appellant was a Federal Agency, the trial FCT High Court was automatically devoid of jurisdiction to entertain the matter. That analogy does not, by any stretch of imagination, appeal to me! Interestingly, the most often cited pronouncements of this Court in NEPA VS.

EDEGBERO(supra) was the one attributed to Ogundare, JSC @ (pages 95) viz: It is not in dispute that the defendant (NEPA) is a Federal Government Agency… It is also not disputed that the cause of action in the matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of that plaintiffs and others.

In the light of all these, therefore, the action on the other hand came squarely within the provision of Section 230 (1) (s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have my self read the proviso to paragraph (q), (r), and (s) of Subsection (1) of Section 230 all over again, I can find no such exception in it that would lead me to find to the contrary.

A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the Lawmakers was to take away from the jurisdiction of the State High Court Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the provision extended this to actions for damages, injunction or specific performance.

It did not say as the learned trial Judge, with profound respect, appear to read into it that action for damages, injunction or specific performances against the Federal Government or any of its agencies could still come before a State High Court. Regrettably, it is on the basis of the pronouncement of His Lordship Ogundare, JSC that the two Courts below came to the conclusion, albeit erroneously, that once a party is an agency of the Federal Government, without more, the Federal High Court must assume exclusive jurisdiction in the matter.

Indeed, the fundamental doctrine is well settled, beyond per adventure, that in construing the provisions of Section 251 (1) of the 1999 Constitution, as amended, certain important factors ought to be taken in to account. They are (i) the parties in the matter; and not the least (ii) the subject matter (res) of the litigation. As aptly held by this Court in NEPA VS. EDEGBERO (supra):The Court must consider both (i.e subject matter) in construing the parties, the Court will have no difficulty in identifying any agency of the Federal Government in certain matters.

The case law and the law of agency will certainly be of help in relevant cases in this appeal, both counsel agree that the Appellant, the National Electric power Authority is an agency of the Federal Government. They are correct. It cannot be otherwise. See Adebilije vs. NEPA (1998) 12 NWLR (pt. 577) 219. Per Niki Tobi, JSC @ 1573 paragraphs E-H.

What’s more, according to the learned jurist, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government on any of its agencies: The matter must arise from the operation and interpretation of the constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by the Federal Government or any of its agencies. It is for the purpose of emphasis. Per Niki Tobi, JSC.

Not unexpectedly, Uwais, CJN, cherishingly postulated: The clear intendment of the modification to Section 230 of the 1979 (in parimateria with Section 251 (1) of the 1999 Constitution (supra) by the Constitution (Suspension and Modification) Decree 107 of 1993, was to confer on the Federal High Court exclusive jurisdiction in respect of the matters specified under Subsection(1) (a) to (s) thereof. The postulates of Uwais, CJN and Niki Tobi, JSC, copiously alluded to above, formidably form the integral aggregate of the lead judgment delivered by Ogundare, JSC.

The doctrine is settled, that it is the aggregate of the lead judgment and the concurring judgments or opinions that crystallize into the entirety of the decision of the Court seized of the matter or appeal. See OLORUNTOBA – OJU VS. ABDURAHEEM (2009) 6 MJSC (pt. 1) 1 @ 56 paragraphs E-F.

In the circumstance, the first issue ought to be, and it is hereby resolved in favour of the Appellant.

ISSUE NO. 2 The second issue raises the question of whether or not the Court below erred in law when it applied the decision in NEPA VS. EDEGBERO (supra) the facts in issue to decide that on issue of administration, management and control to Appellant’s claim. Distilled from ground 2 of the notice of appeal.

Flowing from the discussion under the foregoing first issue, it is my view that the decision of this Court in NEPA VS. EDEGBERO (supra) is quite distinct, and distinguishable from the facts and circumstances of the instant case. Unlike the case of NEPA VS. EDEGBERO (supra) which had to do with master and servant (Employer and Employee) relationship, the instant case is purely contractual, and therefore within the purview of the trial FCT High Court’s jurisdiction. And I so hold.

In the circumstance, the second issue ought to be, and it is hereby resolved in favour of the Appellant.

ISSUE NO. 3 The third issue raises the vexed question of whether or not the Appellant’s claim for the sum of N33,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only being the advance payment guarantee by the 1st Respondent as per the Deed of Guaranty dated 6th June, 1998, in favour of the Appellant can be related to the revenue of the Federation to oust jurisdiction of the FCT High Court from adjudicating on the Appellant’s claim. The third issue is distilled from ground 3 of the notice of appeal.

The ratio decidendi of the judgment of the Court below the present third issue relates to, could be found at page 145 lines 15-25 of the Record of Appeal thus: “The Appellant advances the claimed sum to the 3rd Respondent in exercise of its power as provided under Section 2(d) (vi) and (g) Petroleum (Special Trust Fund) Decree No. 25 of 1994 the claim is therefore for a revenue of the Federal Government i.e. Advance Payment in my view come under the management administration and control of the Appellant and relates to the revenue of the Federal Government.

As a result, any claim by the Appellant or against it pursuant to or consequent upon the exercise of its administrative functions under the Act is to be determined by the High Court and FCT or State High Court… ”

By virtue of the provision of Section 162 (1) of the 1999 Constitution, as amended (supra), the Federal Government is mandated to maintain a special account to be called the federal account into which shall be paid all revenues collected by the Government of the Federation. The exceptions thereto are the proceeds from the personnel of the Armed Forces, the Nigeria Police Force, the Ministry or Department of Government charged with the responsibility for Foreign Affairs, and the residents of the Federal Capital Territory (FCT), Abuja.

The Court below came to the conclusive finding regarding the second issue thus: The Appellant’s claim not being that of a breach of contract by the third Respondent but out of the Appellant’s administrative function of managing its revenue or funds, the lower Court it not conferred with the jurisdiction to entertain the suit… The claim thus, is for the recovery of the money which emanated from the purse of an agency of the Federal Government, the Appellant and not for damages arising out of a breach of contract. See Federal Housing Authority vs.

John Shoy International Limited (2005) NWLR (pt. 908) 637 at 65.

The extant Section 162 (1) of the 1999 Constitution, as amended, provides: 162: Distributable Pool Account 1. The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, Nigeria Police Force, the Ministry or department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.

Regarding the actual meaning of the term ‘revenue,’ Section 162 (10) of the 1999 Constitution (supra), has, unequivocally provided: (10) For the purpose of Subsection (1) of this Section, “revenue” means any income or returns accruing to or derived by the Government of the Federation from any source and includes – a. any receipt, however, described, arising from the operation of any law; b. any return, however described, arising from or in respect of any property held by the Government of the Federation; c. any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any Company or statutory.

Invariably, the term ‘revenue’ denotes an income derivable from any and all (lawful) incomes, gross income or gross receipts. It simply means a source of income; the periodic yield or interest from investment, et al. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1577. It must be postulated, at this point in time, that the provisions of Section 162 of the 1999 Constitution (supra) strictly deal with distribution or allocation of accruable revenue among the Federal Governments State Governments, Local Governments, the Legislature, the Judiciary, et al.

By virtue of the proviso to Section 251(1) of the 1999 Constitution (supra): provided that nothing in the provision of paragraphs (p), (q) and (r) of this subsection 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.

The term ‘specific performance’ denotes the rendering of a promised performance through a judgment or decree; a Court ordered remedy requiring precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. Specific performance is an equitable remedy that lies within the purview of the Court’s discretion to award whenever the common law remedy is inadequate, either because damages would be insufficient or could not possibly be established. Also termed ‘Specific Relief; ‘Performance in specific’.

See BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687.

Instructively, the rationale of ‘Specific Performance’ being inherent in Court’s jurisdiction is not far-fetched. Undoubtedly, fundamental objective of ‘Specific Performance’ is that the common law remedy of damages was often inadequate. It would thus in effect compel the promisee to sell his right to performance for a pecuniary consideration.

As aptly posited by Hansbury almost eight decades ago: “The object of the equitable remedy is to put A into the same position, by personal compulsion of B as he would already have been in if B had performed voluntarily what now he is being compelled to do. ” See HAROL GREVILLE HANBURY MODERN EQUITY: THE PRINCIPLES OF EQUITY 3rd Edition (1943) 445 @ 446.

What’s more, Keeton aptly reiterated the fundamental objectives of the equitable doctrine of specific performance, thus: In essence, the remedy of specific performance enforces the execution of a contract according to its terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. In specific performance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt for which the offender may be imprisoned until he is prepared to comply with the decree.

Actually … it is not strictly accurate to say that the Court enforces execution of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court. See G.N. KEETON: AN INTRODUCTION TO EQUITY: 5th Edition 1961 @ 304; BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687.

It is a cardinal doctrine of interpretation, that the words of a Constitution ought not be construed with debilitating or stultifying narrowness. See UNITED STATES VS. CLASSIC 313 US 299; NAFIU RABIU VS. KANO STATE (1981) 2 NWLR 293; AG FEDERATION VS. AG ABIA STATE (supra) per Uwais, CJN @ 21 paragraphs A-F. Thus, whenever a Court is inevitably confronted with the interpretation of a constitutional provision, as in the instant case, the provisions of the Constitution as a whole ought to be read in determining the object of the provision. See NAFIU RABIU VS.

THE STATE (1980) 8-11 SC 130 @ 148; (1980) 8-11 SC (Reprint) 85. I think, it was in JUSTICE RALIAT ELELU-HABEEB (CHIEF JUDGE OF KWARA STATE) VS. AG FEDERATION (2012) 2 SC (pt. 1) 145, that this Court aptly reiterated the trite fundamental doctrine: The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein.

A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it.

Having amply considered the provisions of the 1999 Constitution as a whole vis-a-vis the provision of Section 162 of the Constitution (supra), I am unable to appreciate let alone uphold, the highly misconceived summation, that the sum of N33,065,868.70 only being the Advance Payment made by the Appellant to the 3rd Respondent for the execution of the rural water supply in Rivers State, related to the revenue of the Federation. And I so hold.

It ought to be reiterated, at the tail-end of this judgment, that as an appellate Court we sit to review the decisions of the Court below strictly on points of law. However, as aptly reiterated by this Court not too long ago: We must bear in mind at all time that, we are bound by the findings thereof provided there is sufficient evidence on record upon which the Court below came to the said conclusions of facts. See NafiuRabiu vs. Kano State (1980) SCNJ 130, (1981) 2 NCLR 293 quoting with approval Denning, J. (as he then was) in Bracegirdle v. Oxley (1947) 1 All ER 126 @130 PARAGRAPHS D-F.

See FEKOLOMOH VS. THE STATE (2021) 6 NWLR (pt. 1773) per Saulawa, JSC @ 493 paragraphs B-E; KINGMAN VS. SEAGER (1938) 1KB 397; DURNELL VS. SCOTT (1939) 1 All ER 183.

In the circumstances, the third issue is hereby resolved in favour of the Appellant.

Hence, having resolved all the three issues raised by the Appellant in favour thereof, and against the Respondents, the appeal resultantly succeeds, and it is hereby allowed by me.

Consequently, the judgment of the Court of Appeal, Abuja, Judicial Division, delivered on December 14, 2006 in appeal No. CA/A/43/05 is hereby set aside.

The suit – FCT/HC/CV.931/2002 is hereby remitted to the trial FCT High Court for trial on the merits. Parties shall bear their respective costs of litigation.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment, just delivered by my learned brother, Ibrahim Musa Mohammed Saulawa JSC and to underscore the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Abuja Division or lower Court or Court below, Coram: Ibrahim Tanko Muhammad, Olufunmilola Oyinlola Adekeye JJCA (as they then were) and Chidi NwaomaUwa JCA, delivered on 14th December, 2006 wherein the Court below dismissed the appellant’s appeal for want of jurisdiction.The appellant (as plaintiff) was also unsuccessful at the High Court of FCT where his action and counter-claim were struck out for want of jurisdiction by Hussein Mukhtar J (as he then was).

FACTS BRIEFLY STATED The appellant (as plaintiff) commenced the action in the High Court of Federal Capital Territory, Abuja vide a suit on the undefended list and Particulars of claim filed on 5th September, 2002. The appellant obtained leave to issue and serve the Writ of Summons out of jurisdiction on 10th October, 2002 and filed an amended statement of claim. The reliefs sought by the Appellant as per the Amended Statement of Claim dated 1st December, 2003 and file on 4th December, 2003 were: a.

The sum of N33,065,868.70 (Thirty-Three Million, Sixty-Five Thousand, Eight Hundred and Sixty-Eight Naira, Seventy kobo) being Advance payment to the 3rd Defendant for the execution of National Rural Water Supply in Rivers State. Lot RV 3/A for total contract sum of N66,131,237.56. b. The plaintiff further claims from the Defendants interest at 10% on the judgment sum and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein. (See pages 34 of the Record)

The amount of N33,065,868.70 claimed by the Appellant was the value of the Advance payment Guarantee issued by the 1st Respondent on behalf of Rafs Nigeria Limited (3rd Respondent) as per the Deed of Guarantee (See pages 9-10 of the Record).

THE 1ST RESPONDENT’S CASE The 1st Respondent (1st Defendant at the High Court) filed a Notice of Intention to Defend and an accompanying Affidavit on 17th December, 2002 disputing the Appellant’s claims against it.

The trial Court took argument from the parties on the Proprietary of the action being heard under the undefended list procedure.

The trial Court In its ruling delivered on 25th February, 2003 having been satisfied that the Notice of Intention to Defend filed by the 1st Respondent threw some doubt on the case of the Appellant, transferred the suit to the general cause list and ordered pleadings to be exchanged between the parties. ​ Thereafter the 1st Respondent was granted leave to issue and serve Third Party Notice on Central Insurance Company Ltd (2nd Respondent); Rafs Nigeria Limited (3rd Respondent) and Lawal Inuwa Rafindadi (4thRespondent) respectively.

The trial Court ordered all the Respondents to file and serve their respective Statement, of Defence before the 31st March, 2003 and they also filed Conditional Appearance to the Appellant’s.

In keeping with Order 11, Rule 4, High Court of FCT (Civil Procedure) Rules, 1989, the third parties were joined as co-defenders by the trial High Court and pleadings ordered to be exchanged. ​ The joinder of the third parties as co-defendants necessitated the filing of an Amended Statement of Claim by the Appellant on 4th December, 2003. (See pages 31-35 of the record).

The 1st Respondent also filed an Amended Statement of Defence on 22nd January, 2004. See pages 27-30 of the record).

On 13th July, 2004 when the suit came up for hearing, learned Counsel to the 31d & 4th Respondents moved the Court by way of a Preliminary Objection dated and filed on 17th July, 2003 challenging the Court’s jurisdiction to entertain the suit on the grounds that the suit has not been commenced in the proper forum and that the Plaintiff lacks the locus Standi to institute the action. (See pages 14-15 & 40-45 of the record). The Appellant replied to the objection. All the other Defendants supported the objection.

RULING OF THE TRIAL HIGH COURT After argument of counsel to the parties in respect of the Notice of Preliminary objection, the learned trial Judge in a considered ruling delivered on 12th October, 2004 found as follows: i. The Appellant is a statutory entity established by Decree No. 1994, that is, the Petroleum (Special) Trust Fund Decree, 1994 and by the authority of APENA V NUPPP (2003) 8 NWLR (PT. 822) PG 426 is an agency of the Federal Government ii.

By Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Federal High Court is conferred with exclusive jurisdiction with regards to matters involving the Federal Government or any of its agencies and that the nature of the claim is irrelevant and that the High Court of FCT lacks the jurisdiction to determine matter involving the PTF as an agency of the Federal Government on the authority of NEPA v Edegbero (2002) 18 NWLR PT (798) 79.

In the ruling on the Notice of Preliminary Objection, the learned trial judge held as follows:- “The law is trite that the claim before the Court in the reliefs claimed by the plaintiff is what determines jurisdiction. The subject matter in the plaintiff’s claim borders on contract, as shown in the writ and the statement of claim.

However, the provision of Section 251 (1) of the 1999 Constitution has been interpreted in a number of decisions by the Supreme Court and the Court of Appeal notably in NEPA v Edegbero (supra) and the more recent decision of the Court of Appeal in FGN v Oshiomhole (supra) … By the doctrine of stare decisis, the decisions of both the Supreme Court and the Court of Appeal are binding on this Court and this Court has no choice than to simply follow such decisions. It is not in dispute that the PTF is an agency of the Federal Government and is a party in this case.

It is, therefore, unnecessary to examine the nature of the claim or reliefs sought. The simple determining factor is the status of the plaintiff being an agency of the Federal Government. That automatically derobes this Court of jurisdiction to go into the matter. By Section 251(1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court.

The Preliminary Objection succeeds on this ground. It follows therefore that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.”

The Court consequently struck out the suit of the appellant and the counter-claim of the 3rd & 4th Respondents for want of jurisdiction. (See pages 40-45 of the record)

APPEAL TO THE COURT OF APPEAL Being dissatisfied with the ruling of the trial High Court, the Appellant filed a Notice of Appeal to the Court of Appeal on 22nd October, 2004 challenging the said ruling (See pages 56-59 of the record)

The Court of Appeal in the said judgment stated particularly at pages 154-155 of the record thus: “In the final analysis, any matter within the jurisdiction of the Federal High Court under the above provisions of the Constitution is outside the general jurisdiction of the High Court of Federal Capital Territory Abuja under Section 257(1) of the 1999 Constitution or a High Court of a State. I therefore resolve the second issue in favour of the Respondents.

Having also held that the case relates to the management, administration and/or control of the Appellantand relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with the counter-claim, for want of jurisdiction. I hereby affirm the ruling of the trial Court, delivered on 12th of October, 2004 striking out the Appellant’s Suit and counter-claim, for want of jurisdiction. This appeal fails for lacking in merit. I award N10,000.00 costs in favour of the Respondents.”

At the hearing on 21/9/2021, learned counsel for the appellant’s, K. I. Mando Esq., adopted the brief of argument filed on 14/9/2020 and therein raised three issues for determination as follows:- 1. Whether the lower Court was right when it held that it is parties in a suit and not the Plaintiff’s claim that determines a Court’s jurisdiction? (Distilled from ground 1) 2.

Whether the lower Court erred in law when it applied the decision in NEPA vs EDEGBERO (2002) 18 NWLR (part 786) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2) 3.

Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty-Three Million Sixty five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only being the advance payment Guarantee by the 1st respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the appellants can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the appellant’s claim. (Distilled from Grounds 3)

Learned counsel for the 1st respondent adopted the brief of argument filed on 8/10/2020 and raised a single issue as follows:- Whether the Court of Appeal was right to have affirmed the ruling of the lower trial Court striking out the appellant’s suit on the ground that the FCT High Court had no jurisdiction on the matter.

For the 2nd respondent, I.Y. Umar Esq., of counsel adopted the brief argument filed on 23/8/2021 and deemed filed on 21/9/2021. He identified a single issues thus:- Whether the appellant’s claim falls within the preview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 so as to divest the High Court of Justice of the Federal Capital Territory and indeed all States High Court with the jurisdiction to hear and determine same.

Learned counsel for the 3rd & 4th respondents, Samson Aduikwu Eigege Esq., adopted the brief of argument filed on 9/2/2021 and deemed filed on 21/9/2021 and also adopted the issues formulated by the appellant.

I see the sole issue crafted by the 2nd respondent as covering the field in the determination of this appeal and I shall make use of it.

SOLE ISSUE Whether the appellant’s claim falls within the purview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 so as to divest the High Court of Justice of the Federal Capital Territory and indeed all States High Court with the jurisdiction to hear and determine same.

Canvassing the position of the appellant, learned counsel submitted along the following lines: (a) Because it was wrong for the Court of Appeal to have held that the Appellant’s claim is covered by the provisions of Section 251(1) of the 1999 Constitution. (b) Because there is no provision in Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999which vests exclusively in the Federal High Court to entertain claim relating to breach of contract, resulting in a claim for an Advance payment Guarantee as in Appellant’s claim. (c) Because Appellant’s claim does not relate to the Revenue of the Federation. (d) Because the Court of Appeal misapplied the principle in NEPA Vs.

EDEGBERO (supra) amongst other decision to dismiss Appellant’s appeal. He cited the following judicial authorities among others:- 1. NEPA V Edegbero (2002) 18 NWLR (pt. 789) 79. 2. Onuorah V Kaduna Refining Petroleum Company Ltd (2005) 6 NWLR (pt. 921) 393 3. Adeyemi v Opeyori (1976) 9-10 SC 31 4. A.G. Kwara State v Olawale (1993) 1 NWLR (pt. 272)645.

Learned counsel for the 1st respondent advanced the position that the appellant’s claim is beyond the purview of a simple contract as the subject matter is derivable from the activity of appellant as an agency of the Federal Government which relates to its administration, management and control.

That a community reading of the provisions of Section 3(1) (v), (g), (i) and 2 of the Petroleum (Special) Trust Fund Act, Cap P14, LFN, 2004will reveal that the award of the contract and the supply under National Rural Water Supply Programs comes within the purview of the administrative functions of the appellant as donated to it by the enabling law.

For the 1st respondent, it was submitted that any claim by the appellant arising from or against any of its contractors in pursuance of the execution of its administrative functions under this Act are to be determined exclusively by the Federal High Court of FCT. He cited NEPA v Edegbero (2002) 18 NWLR (pt. 798) 79 at 95.

Learned counsel for the 2nd respondent submitted that the appellant’s claim falls within the purview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 so as to direct the High Court of the Federal Capital Territory and indeed all the states High Court with the jurisdiction to hear and determine the same for the following reasons:- a. The cause of action arose or emanated from, or consequent upon the performance of the administrative functions of the Appellant (an agency of the Federal Government).

Therefore, the Appellant’s claim is predicated on the management, administration and control of the Appellant as contemplated under the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 and not on advance payment guarantee and/or breach of contract. b.

The Appellant’s claim for the sum for N33,065,868.70 also relates to the revenue of the Appellant (an agency of the Federal Government) within the meaning and contemplation of the provisions of Section 251 (1) (a) of the Constitution of the Federal of Nigeria, 1999 and Section 7 (1) (a) of the Federal High Court Act, 2004. c. The Court of Appeal was right in tis judgment delivered on the 14th of December, 2006 which affirmed the ruling of the High Court delivered on the 12th of October, 2004 striking out the Appellant’s suit want of jurisdiction.

He cited the following judicial authorities among others:- Attorney General, Kano State v. Attorney-General, Federal (2007) LPELR-618 (SC), (2007) All FWLR (pt.364) 204; Chief Albert Abiodun Adeogun&Ors v. Hon. John Olawale Fashogbon (2008) LPELR-131 (SC) 22, paragraph B-C; Ports & Cargo handling Services Co. Ltd &Ors v. Migfo Nigeria Ltd &Ors (2012)LPELR-9725 (SC); and Dr. Ahmed Mohammed Salik v. Alhassan Uba Idris &Ors (2014) LPELR-22909 (SC).

For the 3rd & 4th respondents, learned counsel contended that, Section 1 (3) of the Appellant’s enabling Act expressly locates it within the presidency and subjects it to the President.

The reliefs sought by the Appellant at the trial Court were for payment of a liquidated sum due to the purse of the Federal Government, by virtue of an Advance Payment Guarantee issued by the 1st Defendant on behalf of the 3rd Respondent, to whom an advance payment was made from the Federal Government fund managed by the Appellant, Ultimately, judgment in the liquidated sum claimed by the Appellant at the trial Court would have been paid into the purse of the Federal Government. That the Appellant is an organ of the Federal Government and the claim relates to revenue of the Federal Government.

He relied on NURTW v RTEAN (2012) 10 NWLR (pt. 1307) 170 at 197; A.G. Federation v A.G. Abia State (2001) 11 NWLR (pt. 724) 689 at 729; Allied Bank Nig Ltd v Akubueze (1997) 6 NWLR (pt. 509) 374 at 397 etc.

The issue of jurisdiction of a Court of law is veryimportant in the adjudication process. It is indeed the life blood of any adjudication, the fiat, the stamp of authority to adjudicate. The live wire of a case is jurisdiction and being a threshold issue, any proceeding conducted without jurisdiction come to naught, no matter the outcome of the proceedings. It is because of the critical importance of the issue of jurisdiction that it can be raised at any stage of proceedings even at the Apex Court for the first time. In N.U.R.T.W Vs.

R.T.E.A.N (2012) 10 NWLR (PT 1307) PG 170 at 189, the Supreme Court per Fabiyi J.S.C stated thus:- “…it has been pronounced by this Court several times that jurisdiction is very fundamental. It is the live wire of a case which should be determined at the earliest opportunity. If a Court has no jurisdiction to determine at the earliest opportunity. If a Court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided.

This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication.” Similarly in ARUEZE v NWAUKONI (2019) 5 NWLR (PT. 1666) PG 469 AT 478the Supreme Court per BAGE J.S.C stated thus: “Jurisdiction is the very basis on which any Tribunal tries a case, it is the lifeline of all trials. A trial without jurisdiction is a nullity.

This vital and overwhelming importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; a fortiori the Court can suo motu raise it.

It has even been said that it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity…” In ADAMA v MAIGARI (2019) 3 NWLR (PT.1558) PG 26 AT 46, the Supreme Court per ONNOGHEN, C.J.N stated thus: “jurisdiction is a fundamental issue in adjudication and should be considered and resolved first before proceeding any further because it is now trite law that a proceeding conducted by a Court/Tribunal without the requisite jurisdiction is a nullity however well conducted… ”

The law is also settled that the term jurisdiction may have meaning in different contexts. In OBIUWEUBI v C.B.N (2011) 7 NWLR (PT 1247) PG 465 AT 506 PARAS C-D, the Supreme Court per ADEKEYE J.S.C stated that: “…jurisdiction is a term of comprehensive import embracing every kind of judicial action. The term may have different meanings in a different context.

It has been defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought… ”

These authorities have followed the spirit of the locus classicus case of MADUKOLU v NKEMDILIM (1962) 1 All NLR PG 581 AT 589, where the Supreme Court per BAIRAMIAN F.J laid down the proper guidelines in determining the issue of jurisdiction of a Court of law. The Court stated that a Court is competent when: i. “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 ii.

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 iii. The case comes before the Court initiated with due process of law, and upon fulfillment of a 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 adjudication.”

In this appeal, the appellant’s claim as contained in the Amended Statement of claim at page 34 of the Record reads as follows: WHEREOF the Plaintiff’s claim against the Defendants jointly and severally is for: “i. The sum of N33,065,868.70 being advance payment to the 3rd Defendant for the execution of the National Rural Water Supply in Rivers State. Lot RV 3/A, for totaled contract sum of N66,131,737.56 ii.

The Plaintiff further claims from the Defendants interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest.”

In determining jurisdiction, it is the plaintiff claim that is at the front burner and it is not the parties that determine jurisdiction. See A.G FEDERATION VS. A.G ABIA STATE & ORS (2001) 11 NWLR (PART 724) 689 AT 729 where in the Supreme Court held that it is Plaintiff’s claim that determines jurisdiction.

Also in ONUORAH VS KADUNA REFINING & PETROCHEMICAL COMPANY LIMITED (2005) 5 NWLR (PART 921) 393 AT 405, the Supreme Court went on to hold that: “In determining whether a Court has jurisdiction in a matter or not, the Court will examine or consider the nature of the Plaintiffs claim as disclosed in his writ of summons and statement of claim. In the instant case, the Appellant’s claims are all based on breach of simple contract between the parties. The jurisdiction of the Federal High Court, however, does not admit matters of simple contract between parties.

Consequently, the Court of Appeal was right when it held that the trial Court had no jurisdiction to entertain the Appellant’s suit.”

A reference to the appellant’s claim would clarify the situation and I shall quote it. The Appellant’s claim at the trial Court was thus: 23. WHEREOF the plaintiff’s claim against the Defendants jointly and severally is for: a.

The sum of N33,065,868.70 (Thirty-Three Million Sixty-Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only being the advance payment to the 3rd Defendant for the execution of the National Rural Water Supply in Rivers State Lot RV.3/A, for a total contract sum of N66,131,737.56 (Sixty Six Million One Hundred and Thirty One Thousand Seen Hundred and Thirty Seven Naira Fifty Nine Kobo) only. b.

The Plaintiff further claims from the Defendants interest of 10% on the judgment sum and the cost of this action until payment of the entire sum guaranteed (N33,065,868.70) plus interest on the judgment sum.

Of note is that after the advance payment of the sum N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only was made to the 3rd Respondent as per the Deed of Guarantee, 3rd Respondent immediately abandoned the contract. Hence Plaintiff’s claim against the 1st Respondent for the said sum guaranteed.

What transpired between the 1st Respondent and the 3rd Respondent emanating in the issuance of the Deed of Guarantee is nothing, but a banker customer transaction, which transaction vests jurisdiction in the trial Court to hear and determine the suit. Certainly, the Federal High Court does not have exclusive jurisdiction to hear the suit, notwithstanding fact that the Appellant is a Federal Government Agency.

A close examination of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 will show that the Federal High Court is not conferred with jurisdiction to entertain claims founded in contract as in the instant case. Section 251(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court, because the items listed under the said Section 251(1) can only be determined exclusively by the Federal High Court.

All items in the list, would therefore still be within the jurisdiction conferred on the Federal High Court, the trial Court therefore had jurisdiction to entertain the Appellant’s claim. The lower Court therefore acted wrongly in its decision that the Federal High Court has exclusive jurisdiction to entertain the claim.

The Appellant’s claim as quoted in the paragraph 4.02 above is for the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only against the 1st Respondent for the sum’ guaranteed since 3rd Respondent having collected the advance payment, abandoned the contract. The Appellant’s claim therefore relates to a breach of contract by the 3rd Respondent, resulting the Appellant recalling the advance payment sum guaranteed.

It was during the pendency of the suit, 3rd Respondent counter claimed against the Appellant, claiming N33,065,737.59 (Thirty Three Million Sixty Five Thousand Seven Hundred and Thirty Seven Fifty Nine Kobo) only being the balance of the contract sum on the ground that it had fully executed the entire contract. Therefore, looking at the Appellant’s claim, and the counterclaim, they relate to breach of contract by the 3rd Respondent for abandoning the contract or against the Appellant for failure to fully pay the 3rd Respondent.

There is nowhere either in the Appellant’s claim or 3rd Respondents counterclaim where the issue of administration or management of the Appellant is raised. It is plaintiff’s claim that determines jurisdiction and not what the Defendant says. The Respondent introduced extraneous issues into Appellant’s claim, and the Court of Appeal wrongly went along the same lines. There is nowhere. in Section 251 of the 1999 Constitution asper the items listed therein where it shows that Federal High Court is conferred with jurisdiction to entertain claims founded on contract as in the instant case.

The Supreme Court in ONUORAH VS KADUNA REFINING and PETROCHEMICAL COMPANY LIMITED(supra) held that in matter of breach of simple contract only the Federal Capital Territory High Court or State High Court has jurisdiction to hear such claim. I shall quote for effect the provisions of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). S. 251(1) Notwithstanding anything to the contrary … 1.

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. 2. Connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria customs services or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties. 3.

Connected with or pertaining to banking, banks, other Financial Institution, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other measures. 4.

Connected with or pertaining to banking, banks, other financial institution, including any action between one bank and another by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank. 5.

Any matter arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or Regulating the operation of companies incorporated under the Companies and Allied Matters Act. 6. Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trust, standards of goods and commodities and industrial standards. 7.

Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent 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 power of the ports authorities for federal ports) and carriage by sea. 8. Diplomatic, consular and trade representation. 9. Citizen, naturalization and alien, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas. 10. Bankruptcy and insolvency. 11.

Aviation and safety of aircraft. 12. Arms, ammunition and explosives. 13. Drugs and poison. 14. Mines and Minerals (including Oil Fields, Oil Mining, Geological Surveys and natural gas). 15. Weights and measures. 16. The administration or the management and control of the Federal Government or any off its Agencies. 17. Subject to the provision of this Constitution, the operation and interpretation of this Constitution, the operation and interpretation of this constitution in so far as it affects the Federal Government or any of its agencies; 18.

Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. 19. 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. 20.

Provided that nothing in the provision of paragraph (p), (q) and (r) of this subsection shall present 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.

The Court of Appeal held thus:- “It is no longer necessary to examine the nature of the reliefs of claim in the lower Court, to determine which Court has jurisdiction to entertain the suit, it is enough for one of the parties (plaintiff or defendant) to be the Federal Government or any of its agencies, then only the Federal. High Court has jurisdiction to entertain the suit.” Clearly, that portion of the Court of Appeal judgment is erroneous.

The reason is plain and that is that the trial Court of the Federal Capital Territory (FCT) had jurisdiction to determine the suit as the subject matter is not covered in Section 251 (1) of the 1999 Constitution to warrant the Federal High Court’s exclusive jurisdiction over the appellant’s suit.

It need be reiterated that the decision of this Court in NEPA v Edegbero (2002) 18 NWLR (pt. 789) 79 is not applicable to the case at hand as the facts in NEPA v Edegbero are distinct and distinguishable to the facts of the case under discourse. In NEPA’s case (supra), the Respondents were employees of the Appellant (National Electric Power Authority). Following an industrial action embarked upon by the employees of the Appellant, including the Respondents in August 1994. The Respondents’ appointments were by a letter dated 10th August, 1994 terminated.

The Respondents on the 17th day of August, 1994, instituted a suit against the Appellant. During the trial, Appellant’s counsel challenged the jurisdiction of the High Court of Niger State to hear and determine the matter, onthe ground that the jurisdiction of the Court was ousted by virtue of Section 251(1) (q), (r) and (s) of the 1999 Constitution (as amended) by Decree 107 of 1993, and conferred exclusive jurisdiction on the Federal High Court.

The High Court overruled the Appellant on the issue of jurisdiction, holding that by virtue of the provisions to the said enactment, it can entertain the suit. The decision of the High Court was affirmed by the Court of Appeal. On appeal to the Supreme Court. This Court considered the provision of Section 230(1)(q), (r) and (s) of the 1979 Constitution and allowed the appeal, on the basis that the Respondents’ claim arose from an Employer-Employee relationship as per Section 230(1) (q), (r) and (s) of the 1979 Constitution.

The facts in the present appeal are quite distinguishable from the facts in NEPA’s case. In the present appeal, the 3rd Respondent, a contractor, on 4th May, 1998, secured a contract from the Appellant for the execution of National Rural Water Supply in Rivers State, LOV RV4 for a contract sum of N66,131,737.59 (Sixty-six million one hundred and thirty-one thousand seven hundred and thirty seven naira fifty-nine Kobo) only.

The policy of the Appellant at the material time was that all contractors who secured contracts from the Appellant must provide ADVANCE PAYMENT GUARANTEE from either bank or insurance company. On the strength of the terms and conditions of the contract, 3rd Respondent got the 1st Respondent to issue a Deed of Guarantee, wherein, the Appellant made payment to the tune of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only to the 3rd Respondent, for the execution of the contract.

Having collected the said N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only on the strength of Deed of Guarantee dated 6th June, 1998, the 3rd Respondent abandoned the entire contract. Appellant demanded for the sum guaranteed by 1st Respondent, 1st Respondent refused to authorise the said sum.

Hence the suit, during the trial, 3rd and 4th Respondents challenged the trial Court’s jurisdiction to hear the suit, on the basis that the Appellant is an agency of the Federal High Court as per theprovisions of Section 251(1) of the 1999 Constitution irrespective of Appellant’s claim, as what determines jurisdiction is parties and nothing more.

The decision in NEPA. Vs. EDEGBERO (supra) cannot apply to the Appellant’s claim because in NEPA’s case, the Respondent’s claim bordered on termination of their appointment by the Appellant, which action this Court as per Section 230(1) (p), (r) and (s) of the 1979 Constitution, which is in pari material with the provisions of Section 251 (1), (q), (r) and (s) of the 1999 Constitution.

In this instance the Appellant’s claim, is based on the Deed of Guarantee dated 6th June, 1998, which was, issued by the 1st Respondent in favour of the Appellant, guaranteeing the ADVANCE PAYMENT of the sum of N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight: Hundred and Sixty Eight Naira Seventy Kobo) only to the 3rd Respondent for the execution of Rural Water Supply in Rivers State. Having collected the said N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only the 3rd Respondent abandoned the said contract.

Appellant recalled the sum guaranteed.

The Appellant’s claim does not relate to administration, management and control of the Appellant, but merely relates to a breach of contract by the 3rd Respondent, having collected the Advance Payment as perk the Deed of Guarantee.

At the risk of repetition, cases are decided on their facts. No case is decided outside its factual milieu. The facts in the Appellant’s case and NEPA’s case are not similar, therefore NEPA Vs. EDEGBERO (supra) cannot in any way apply to the Appellant’s case. Cases are decided on their peculiar facts in the light of the enabling law.

A perusal of the provisions of Section 251(1) of the 1999 Constitution, shows that there is no provision as contained in items listed therein where the Federal High Court is conferred with jurisdiction to entertain claims relating to breach of contract or simple contract as the case may be. See ONUORAH VS KADUNA REFINING PETROCHEMICAL COMPANY LTD (supra).

The 1st Respondent acted as a Guarantor to the 3rd Respondent, by issuing the Deed of Guarantee dated 6th June, 1998, guaranteeing the said sum of N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only paid to the 3rd Respondent for the execution of the said Rural Water Supply, in Rivers State. Since 3rd Respondent has abandoned the contract, 1st Respondent must refund the sum guaranteed. This claim has nothing to do with administration, management and control or the functions of the Appellant.

What is evident and glaringly too, is that the appellant’s claim does not relate to the Revenue of the Federation as found by the Court below and I shall refer to it for clarity.

See page 145 of the Record thus:- “The Appellant advances the claimed sum to the 3rd Respondent in exercise of its power as provided under Section 2(d) (vi) and (g), Petroleum (Special Trust Fund) Decree No. 25 of 1994, the claim is therefore for revenue of the Federal Government i.e Advance Payment in my view come under the management administration and control of the Appellant and relates to the revenue of the Federal Government.

As a result, any claim by the Appellant or against it pursuant to or consequent upon the exercise of its administrative functions under the Act is to be determined by the Federal High Court and the FCT or State High Court …” (Underlined mine for emphasis).

A consideration of Section 162(1) of the 1999 Constitution is helpful at this point.

Section 162(1) of the 1999 Constitution provided that “the Federation shall maintain a special account to be called the Federation Account into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of personnel of armed forces of the Federation, the Nigeria Police Force, the Ministry or Department of Government charged with the responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja. (Underlined mine for emphasis).

It is clear from the provisions of Section 162(1) of the 1999 Constitution, that it cannot be said that the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy kobo) only being the Advance Payment made by the Appellant to the 3rd Respondent for the execution of the Rural Water Supply in Rivers State relates to the Revenue of the Federation as held by the Court of Appeal. See ATTORNEY-GENERAL OF THE FEDERATION VS ATTORNEY-GENERAL OF ABIA STATE & ORS (supra) 689 at 749(A)- (B).

In determining jurisdiction, where however pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the plaintiff’s pleading, that is, his statement of claim and not on the Defendant’s statement of defence. See ONUORAH VS KADUNA REFINING PETROCHEMICAL COMPANY LTD (supra), ADEYEMI vs OPEYORI (1976) 9-10 SC 31 and A-G KWARA STATE VS OLAWALE (1993) 1 NWLR (Part 272) 645.

In the Appellant’s claim, Pleadings were ordered, filed and exchanged, but the Court went on to affirm the judgment of the trial Court on extraneous issue.

The Advance Payment Guarantee to the 3rd Respondent cannot correctly be said to be Revenue of the Federation. The claim also does not relate to the administration, management and or control of Appellant. ​ This has dovetailed into one of those instances, albeit out of the ordinary run of play when an appellate Court such as the Supreme Court has to interfere with the concurrent findings of fact of two lower Courts. The reason is simple and that is that the two Courts wrongly applied the law concerning the jurisdiction of the trial High Court in relation to Section 251 (1) of the Constitution.

The trial High Court of the FCT has jurisdiction in the matter as matter was outside the ambit of Section 251 (1) CFRN which donates exclusive jurisdiction to the Federal High Court where the subject matter falls within the items so listed therein as against what is before this Court which is clearly a contractual matter meant for the state or FCT High Court.

The appeal has merit and I too allow it. I abide by the consequential orders made. Appeal Allowed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal, like many others before it, raises the vexed issue of the jurisdiction of the Federal High Court to entertain a cause or matter where an agency of the Federal Government is a party within the meaning of Section 251(1) of the 1999 Constitution, as amended and the applicability of the decision of this Court in NEPA Vs Edegbero (2002) 18 NWLR (Pt. 788) 79; (2002) LPELR- 957 (SC) to the facts of this case.

The fact that gave rise to this appeal have been amply stated in the lead judgment. I need not repeat them here.

Suffice it to say that the appellant’s claim before the High Court of the Federal Capital Territory (FCT) was for: (a) The sum of N33,065,868.70 being advance payment to the 3rd defendant (3rd respondent herein) for the execution of the National Rural Water Supply in Rivers State Lot RV. 3/9 for a total contract sum of N66,131,737.56. (b) Interest of 10% on the judgment sum and the cost of the action until the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.

The 3rd and 4th respondents raised a preliminary objection to the suit on the ground that the plaintiff/appellant is an agency of the Federal Government and that by virtue of Section 251(1) (p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction to determine the suit. Relying on the decision in NEPA Vs. Edegbero (supra) the Court held that the only relevant consideration is the fact that an agency of the Federal Government is a party to the suit and therefore the High Court of the FCT lacked jurisdiction to entertain it.

The Court below affirmed the decision on two grounds: (a) that the subject matter of the dispute relates to the revenue of the Government of the Federation; and (b) that it alsorelates to the management, administration and/or control of an agency of the Federal Government. The Court below was of the opinion that the sole determinant of the jurisdiction of the Federal High Court, vis-a-vis Section 251(1) of the Constitution, where the Federal Government or any of its agencies is a party, is the party and not the subject matter.

It is the appellant’s contention in this appeal that in determining the jurisdiction of the Federal High Court, the Court must consider both the parties and the subject matter. He argued that the subject matter of the dispute is a simple contract and does not relate to the revenue of the Federal Government and is therefore within the jurisdiction of the High Court of the FCT. As observed earlier, this issue has come before this Court on many occasions.

It must be pointed out here that even in the case of NEPA Vs Edegbero (supra), this Court recognized the fact that in construing Section 230 (1) of the 1979 Constitution (now Section 251 (1) of the 1999 Constitution, as amended) both the parties and the subject matter must be considered. See pages 23 – 24 F A of the LPELR per Niki Tobi, JSC.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

I reiterate below, my concurring judgment in a recent decision of this Court, as yet unreported, in: SC. 159/2009: Edison Automotive Ind.

Ltd Vs NERFUND &Ors., delivered on 7th May 2021, to wit: “Section 251 (1) (p) of the 1999 Constitution, as amended, provides: “251(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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters [relating to] – (p) the administration or the management and control of the Federal Government or any of its agencies.” In determining whether the Federal High Court has exclusive jurisdiction to adjudicate in any cause or matter where the Federal Government or any of its agencies is a party, the consideration goes beyond the mere fact that a Federal Government agency is a party.

In cases such as: Ohakim Vs Agbaso (2010) 19 NWLR (Pt. 1226) 172 @ 236-237 G-D; Salim vs CPC (2013) 6 NWLR (Pt. 1351) 501, Ucha Vs Onwe (2011) 4 NWLR (Pt 1237) 386, this Court has heldthat, notwithstanding the presence of a Federal Government agency as a party to a suit, the subject matter of the dispute is also relevant in determining whether the Federal High Court has jurisdiction to entertain it. See also A.G.

Lagos State Vs Eko Hotels Ltd & Anor. (2017) 12 SC (Pt. 1) 107; (2018) 7 NWLR (Pt. 1619) 518. … There is a plethora of decisions of this Court as to whether matters of simple contract fall within the purview of Section 251(1) (a) – (s) and therefore the exclusive jurisdiction of the Federal High Court.

In Roe Ltd. vs U.N.N. (2018) LPELR – 43855 (SC) @ 13 -19 C – E, this Court per Galinje (now Galumje) JSC, held, inter alia: “In the instant case, the appellant’s claim has nothing to do with administration or the management and control of the University of Nigeria, an agent of the Federal Government. It was a claim for debt arising from a simple contract which has been held in a myriad of decisions that the Federal High Court has no jurisdiction to entertain.” The decision of this Court in: Onuorah vs KRPC (2005) 6 NWLR (Pt. 921) 393, was relied upon and adopted.

In a more recent decision delivered on5th February, 2021 in SC 411/2021: Statoil Nig. Ltd Vs Inducon Nig, Ltd. & Anor (unreported), His Lordship Musa Dattijo Muhammad, JSC who wrote the lead judgment, reiterated the precedent already set by this Court on the issue. In that case, as in the instant case, the respondents’ claim was firmly rooted in simple contract and it was held that the Federal High Court lacked jurisdiction to entertain it.

As I stated earlier, the mere fact that the transaction was assigned to the respondent, which is a Federal Government agency, does not change the character of the subject matter from simple contract to one concerning the management and control of the said agency.” I adopt the reasoning in the instant case where the contract between the parties is also a simple contract. Notwithstanding the fact that the appellant is an agency of the Federal Government, I hold that the jurisdiction of the High Court of the FCT has not been ousted by Section 251(1) of the 1999 Constitution, as amended.

For these and the more elaborate reasoning in the lead judgment, I allow the appeal and order that suit no. FCT/HC/CV.931/2002 be remitted to the HighCourt of the FCT for expeditious hearing on the merits.

The parties shall bear their respective costs in the appeal. ​

MOHAMMED LAWAL GARBA, J.S.C.: My learned brother, Hon. Justice, Ibrahim Mohammed Musa Saulawa, JSC has comprehensively considered and ably resolved the three (3) issues raised in this appeal, in the lead judgment, a draft which I read before now, and I agree that the appeal deserves to succeed for being meritorious for the reasons adumbrated therein.

I do not wish to say more that, I too allow the appeal in terms of the lead judgment.

EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING): I had a preview of the lead judgment delivered by my learned brother, Lord Justice IBRAHIM MOHAMMED MUSA SAULAWA, JSC. With due respects to my highly esteemed learned brother, I hold a different view on whether the decision of the Court of Appeal concurring with the decision of the trial Federal Capital Territory High Court it lacks the jurisdiction to entertain the suit is correct.

On 4-5-1998, the appellant awarded the 3rd respondent a contract for the construction of National Rural Water Supply in Rivers State for a contract sum ofN66,131,737.56. The 1st respondent executed a deed of guarantee/Bond that the 3rd respondent would execute the contract or would refund any payment made to it in advance to execute the project. The 2nd respondent herein issued an Insurance Performance Bond to indemnify the 1st respondent on behalf of the 3rd and 4th respondents.

The 4th respondent is the Managing Director of the 3rd respondent and a guarantor to the Performance Bond for the execution of the contract. On the basis of the contract to execute the National Rural Water Supply Scheme in Rivers State, the Advance Payment Guarantee/Bond of the 1st respondent and the Insurance performance bond from the 2nd respondent, the appellant paid the 3rd respondent 50% of the contract sum (N33,065,868.70) to enable it execute the contract.

The 3rd respondent collected the said sum of N33,065,868.70 and did not execute the contract and has not refunded the said money till date inspite of repeated demands from the appellant.

The above facts constitute the cause for the action in Suit No. FCT/HC/CV/931/2002. The reliefs claimed for in that suit are stated in paragraph 23 of the amended statement of claim thusly –

“a. The sum of N33,065,863.70 being advance payment to the 3rd defendant for the execution of the National Rural Water Supply in Rivers State. Lot RV 3/A for a totaled contract sum of b. The plaintiff further claims from the defendant interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.”

The 3rd respondent herein filed a preliminary objection to the suit on the grounds that the Federal Capital Territory High Court had no jurisdiction over the suit as the appellant is an agency of the Federal Government and that the appellant lacks the locus standi to bring the suit.

The trial Court upheld the preliminary objection on the ground that because the appellant is an agency of the Federal Government, it is the Federal High Court that has exclusive jurisdiction over the suit and that the Federal Capital Territory (FCT) High Court had no jurisdiction to entertain this suit and struck out the suit.

The appeal against that decision to the Court of Appeal was dismissed for lack of merit as the Court of Appeal affirmed the decision of the trial Court in its judgment of 14-12-2006.

On 26-1-2007, the appellant commenced this appeal no. SC.196/2009 by filing a notice of appeal containing 3 grounds of appeal.

The briefs filed, exchanged and adopted in this appeal are as follows – appellant’s brief, 1st respondent’s brief and then 3rd and 4th respondents brief.

The appellant’s brief raised the following issues for determination – 1. Whether the lower Court was right when it held that it is parties in a suit and not the plaintiff’s claim that determines a Court’s jurisdiction? (Distilled from ground 1) 2. Whether the lower Court erred in law when it applied the decision in NEPA vs EDEGBERO (2002) 18 NWLR (part 788) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2) 3.

Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty-Three Million Sixty-Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only being the advance payment guarantee by the 1st respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the Appellant’s can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the Appellant’s claim? (Distilled from Ground 3)

The 1st respondent’s brief adopted and argued the issues raised for determination in the appellant’s brief.

The 3rd and 4th respondent’s brief equally adopted and argued the issues raised for determination in the appellant’s brief.

I will determine this appeal on the basis of the issues raised in the appellant’s brief. I will determine them together.

Let me start with the issue of whether the money sought to be recovered by the suit is revenue of the Government of the Federation.

Learned Counsel for the appellant argued that in view of Section 162(1) of the 1999 Constitution it is not revenue of the Government of the Federation as it is a payment made by the Appellant to the 3rd respondent for the execution of a contract.

Learned Counsel for the 1st respondent argued that the claim in the suit relates to the revenue of the Federal Government because it is a claim for recovery of money paid out from the fund of an agency of the Federal Government.

Learned counsel for the 3rd and 4th respondents argued that the money sought to be recovered by the suit is revenue of the Government of the Federation because it was paid out of the Petroleum (Special) Trust Fund established by the Petroleum (Special) Trust Fund Act Cap P. 14 LFN 2004 (2010 Reprint), that monies in this fund are derived from the sale of Petroleum Products, that monies in the fund are disbursed to the Federation Account, the NNPC and other beneficiaries determined by the President, that the balance of money left in the fund after these disbursements is the main source of the monies the appellant used to execute projects, such as the one in this case and that the monies held by the appellant in that fund is Federal Government revenue and that therefore the suit leading to this appeal relates to revenue of the Government of the Federation.

Let me now determine the merit of the above arguments.

It cannot be disputed that the Advance Payment of N33,065,863.70 made by the appellant to the 3rd respondent for the execution of the National Rural Water Supply in Rivers State was made from its Fund established by Section 1(1) of the Petroleum ( Special) Trust Fund Act Cap P14 LFN 2004 (Reprint 2010) which provides thusly – “There is hereby established a fund to be known as the Petroleum (Special) Trust Fund … into which shall be paid all the monies received from the sale of petroleum products less the approved production cost per litre…”.

Subsection (3) of the said Section 1 provides that “The Fund shall be located in the Presidency and shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions under this Act other than the President”.

Section 3(1) (a-c) of the said Act provides that the Board of the Fund shall be responsible for – (a) Receiving monies accruing to the fund; (b) Disbursing monies from the fund within the first week of every month to the Federation Account, the Nigerian National Petroleum Corporation and to such other beneficiaries as may be determined from time to time by the President. (c) Retaining the balance of the money accruing to the fund after the disbursement specified in paragraph(b) of this subsection for the discharge of its functions under this Act.

S. 13 therein again provides concerning the sources of its funds thusly – (1) There shall be paid and credited to the fund established by this Act- (a) all monies accruing to the Fund by virtue of Section 3(1) of this Act (b) such money as may from time be lent, deposited with or granted to the Fund by the Government of the Federation. The appellant is an agency of the Federal Government under the exclusive direct control of the President. Its fund is obviously part of the public accounts of the Federation.

In any case, being an agency of the Federal Government its fund is generally part of the revenue of the Government of the Federation.

Revenue means money coming to the Federal Government or its agency or money belonging to it or its agency or money to which the Federal Government or its agency has a right or is due to it or its agency or in which it or its agency has a vested right. See Mokelu V Federal Commissioner for Works & Housing (1976) LPELR- 1904 (SC) in which this Court defined revenue thusly- “To my understanding, the word ‘Revenue’ in Section 7 (I)(a) of the Federal Revenue Court Decree means money or money-worth coming tothe purse of the Federal Government.

I am fortified in this understanding by the definition of Hodges, J. in the case of Stephens V. Abraham (1902) 27 V.L. R 753 when interpreting Section 157 Common Wealth of Australia Custom Act of 1901. At page 767 he said: ‘I take “revenue” to be moneys which belong to the Crown, or moneys to which the Crown has a right or which are due to the Crown’.

The phrase ‘moneys which belong to the Crown or moneys or moneys to which has a right or which are due to the Crown’ in the above quotation are duties payable and they indicate moneys coming to the Crown though they have become Crown or the Crown have had vested right in them before they come into treasury. This definition is more clearly brought out by Lord Tomlin in the House of the Lords case of London, Midland and Scottish Railway Company V.

Anglo- Scottish Railways Assessment Authority (1933) 150 L.T.361, where the Court was to decide whether compensation paid by the Government to railway Companies was ‘revenue’ for the purpose of Section 4(3)(ii)(d) of The Railways (Valuation for Rating) Act, 1939. At page 367 he said: ‘The word “revenue” is a word of somewhat indefiniteimport but in its ordinary sense in relation to a business undertaking, I think it connotes those incomings of the undertaking which are products of or are incidental to the normal working of the undertaking.

The compensation money would not, I think, fall within the compass of the word if so defined”. The operative word in that passage, to my mind, is ‘incoming’. He went on to say: ‘Revenue therefore in my view is not given any special meaning the Act. It bears in the Act its ordinary meaning. It is not necessary to say how wide the ordinary meaning is. It is enough to say whether it is or is not wide enough to include the compensation moneys receive by the appellants from the Government in the circumstances which have been mentioned. I am satisfied that it is not’.

A compensation already paid out is no more Government fund nor has Government any further right in it and a compensation to be paid out is an ‘out-going’ fund to the Government. In other words, compensation paid out is Government expenditure rather than revenue. Neither in its ordinary meaning nor in its usage can compensation paid out or to be paid out by the Government be called ‘revenue’ of theGovernment without over-straining the meaning of the word”.

We uphold the conclusions reached by the learned trial Judge: (1) that “a question of compensation under Section 10 of the Public Lands Acquisition Act is not a cause or matter relating to the revenue of the Government of the Federation”; and (2) that the Federal Revenue Court had no jurisdiction to hear and determine the action.

Indeed, to hold otherwise would be doing violence to the meaning of the word ‘revenue’ which in the context ought to be construed in its ordinary signification.” In Ansaldo Nig Ltd V National Provident Fund Management Board (1991) LPELR-498(SC) this Court followed its decision in Mokelu’s case and held that – “The meaning of the word “revenue of the Government of the Federation” as contained in Section 7 Subsection (1)(a) of the Federal High Court Act. Cap. 134 of the Laws of the Federation of Nigeria, 1990 has been settled by this Court in the case of Chief P.I. Mokelu V.

Federal Commissioner for Works and Housing (1976) 3 SC 35; (1976) 1 All NLR 276 at Pp.38 and 279 respectively, where this Court upheld the definition given to the words by Belgore, J. (as he thenwas) when he stated as follow – “… We think that the approach of the learned trial Judge to the issue of jurisdiction raised before him was quite correct when he said: “…To my understanding the word “revenue” in Section 7(1)(a) of the Federal Revenue Court Decree means money or money-worth coming to the purse of the Federal Government …” See also A – G Ogun State &Ors V A-G Federation (2002) LPELR-621(SC) in which this Court used the word ‘revenue’ as defined in Section 162(10) (a-c) of the 1999 Constitution.

It held thusly- “What constitutes “Revenue” is defined in Section 162(1) as meaning: “Any income or return accruing to or derived by the Government of the Federation from any source and includes: (a) any receipt, however described, arising from the operation of any law; (b) any return, however described arising from or in respect of any property held by the Government of the Federation; (c) any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body.”

In our present case, the appellant’s claim is for the recoveryof its money from the 3rd respondent since the 3rd respondent did not build the project, it received money from the appellant to build. Since the project was not executed the appellant had a right to the refund of the money it paid by the 3rd respondent for it. The money remained that of the appellant. Therefore, the case the appellant, an organ of the Government of the Federation, filed at the Federal Capital Territory High Court relates to the revenue of the Government of the Federation.

Section 251(1)(a) of the 1999 Constitution provides that the Federal High Court has the exclusive jurisdiction to entertain and try such cases.

The exact text of the said provision reads thusly – “(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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases 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.”

By virtue of Subsection(s) in Section 251(1) of the 1999 Constitution, Section 7 (1)(n) of the Federal High Court Act as amended also vests jurisdiction on the Federal High Court to the exclusion of any other Court over such matters. Section 251(1)(s) of the Constitution provide that – (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.” Section 7 (1)(a) of the Federal High Court Act “(1).

The Court shall to the exclusion of any other Court 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. 3. Where jurisdiction is conferred upon the Court under Subsections (1) and (2) of this section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject matter.

Learned Counsel for the appellant argued that because the claim arose from an alleged breach of the contract to build the National Rural Water Supply for Rivers State the Federal Capital Territory High Court had the jurisdiction to entertain and determine the claim, that a close examination of Section 251(1) of the Constitution shows that the Federal High Court is not conferred exclusive jurisdiction over claims founded in contract, notwithstanding that the appellant is a Federal Government Agency, that only the states and Federal Capital Territory High Court have jurisdiction to entertain suits founded on breach of simple contract and that the Court of Appeal ignored the decisions of this Court in Onuorah V Kaduna Refining & Petrochemical Co.

Ltd (2005) 5 NWLR (Pt.921) 393 that only the states and Federal Capital Territory High Court have jurisdiction over simple contracts. ​ Learned Counsel for the 1st respondent argued that the appellant’s claim is beyond the purview of simple contract, that it is a claim in respect of the discharge of its functions in administration, management and control under Decree No. 25 of 1994 as an agency of the Federal Government, that the claim is for therevenue of the Federal Government disbursed to the 3rd respondent pursuant to the exercise of its administrative functions, that it is a claim for the recovery of money derived from the purse of an agency of the Federal Government and it is not a claim for damages for breach of contract and so falls within the exclusive jurisdiction of the Federal High Court.

The arguments of learned counsel for the 3rd and 4th respondent are essentially similar to those of learned Counsel to 1st respondent.

Let me now determine the merits of the above arguments.

The question that arises for consideration here is whether a contractual dispute relating to the revenue of the Government of the Federation is within the subject matter prescribed in Section 251(1)(a) of the 1999 Constitution and Section 7(1)(a) of the Federal High Court Act as being within the exclusive jurisdiction of the Federal High Court. It is the wordings of Section 251(1)(a) of the 1999 Constitution and Section 7(1)(a) and (3) of the Federal High Court Act and nothing else that must be considered in determining this question.

There are no words in these provisions limiting the civil cases andmatters relating to the revenue of the Government of the Federation within the exclusive jurisdiction of the Federal High Court. It used the general phrase “civil cases and matters” without limiting words. Even the subject matter of the civil cases and matters is stated generally as follows – ‘revenue of the Government of the Federation.’ There is nothing in these words limiting the civil cases involving this subject matter that are subject to the exclusive jurisdiction of the Federal High Court only to specific types.

Therefore, by the clear and unambiguous words of these provisions, the Constitution intends that all civil cases and matters relating to the revenue of the Government of the Federation are within the exclusive jurisdiction of the Federal High Court. Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary.

If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the wordor phrase generally, and will have no power to restrict its application to specific situations. Section 7(3) of the Federal High Court Act clarifies the scope of the subject matters listed in Subsection (1) therein to include all issues relating to, or arising from or ancillary to the named subject matter.

There is nothing in the provisions of Section 251(1)( a) of the 1999 Constitution that excludes from the jurisdiction of the Federal High Court civil cases and matters whose subject matter is a contractual dispute over the obligation of the 3rd respondent to refund to the appellant the money it received from the appellant to execute the appellant’s project that it is alleged it abandoned and failed to execute. The paramount consideration is that the dispute relates to the refund of the funds of the appellant.

In my opinion, once the subject matter of the dispute is within the subject matter jurisdiction of the Court, the nature of the disputed agreement or contract is irrelevant. There is nothing in Section 251(1)(a) and (s) of the 1999 Constitution and Section 7(1)(a) and (3) of the Federal High Court Act as amended that justify the exclusion ofa contractual dispute relating to revenue of the Government of the Federation from the exclusive jurisdiction of the Federal High Court on the ground that it is a simple contract.

It is settled law that jurisdiction that is expressly vested by the Constitution or statute can only be expressly ousted by the Constitution or statute as the case may be.

The decisions of this Court in Adelekan v Ecu-Line NV(supra), Onuorah V Kaduna State Refinery & Petrochemical Co (Supra) and Ports & Cargo Handling Services Co., Ltd &Ors V Migfo Nig Ltd & Anor (supra) often cited as stating that the exclusive jurisdiction vested in the Federal High Court does not extend to simple contracts, did not lay down a principle of general application in all cases irrespective of the peculiar facts of each case.

The decision of this Court in those cases were rendered in the context of their peculiar facts having regard to the relationship between their respective subject matters to the subject matter jurisdiction vested on the Federal High Court by Section 251(1) of the 1999 Constitution and Section 7(1) of the Federal High Court Act. In Adelekan V Ecu-Line, this Courtagreed with the argument of learned counsel for the respondent that the claim was simply a contract not an admiralty matter and held that the Federal High Court had no jurisdiction over the said contract and negligence claims.

In Onuorah V Kaduna Refinery & Petrochemical Company, this Court found that the respondent is not a Federal Government Agency because as a limited liability company incorporated under the Companies Act, it is a body corporate distinct from its share holders, that it is not a subsidiary of NNPC, that therefore an action against it for breach of its contract with the appellant for supply to appellant of a specified number of empty tins is not an action against an agency of Federal Government and is not within the jurisdiction given to the Federal High Court by Section 230(1), (q), r) and (s) of the 1979 Constitution (equivalent of Section 251(1) of the 1999 Constitution), and the claim not being related to any item in of the 1979 Constitution, is simply a claim in contract that is within the jurisdiction of the State High Court.

In Ports & Cargo Handling Services Co Ltd &Ors V Migfo Nig Ltd & Anor (supra), this Court foundthat the subject matter of the suit, a contractual dispute over a joint venture bid to manage and operate Terminal C, Tin Can Island Port, Apapa has no relationship with the subject matter in Section 251(1)(g) of the 1999 Constitution and is therefore not within the subject matter jurisdiction of the Federal High Court in Section 251(1)(g).

In Mobil Production (Nig) Unlimited V Suffolk Petroleum Services (2020) 9 NWLR (PT. 1728), even though this Court distinguished the contract in that case from a simple contract by finding that the transaction involved “an armada of technical contracts”, what influenced its decision in that the case in holding that it is within the subject matter jurisdiction in Section 251(1)(n) of the 1999 Constitution, is the fact that the contracts pertain to oil fields and oil mining.

Where the subject of a contractual dispute has no relationship with any of the subject matters listed in Section 251(1) of the 1999 Constitution and Section 7(1) of the Federal High Court Act within the exclusive jurisdiction of the Federal High Court or does not arise from any transaction in any such subject matters, it remains simply a contractualdispute that is not within the jurisdiction of the Federal High, not because it is a simple contract, but because it is not related to or arising from any of the items in Section 251(1) of the Constitution and Section 7(1) of the Federal High Court Act.

If it is a contractual dispute relating to or arising from the said items, then it is within the exclusive jurisdiction of the Federal High Court. There is nothing in Section 251(1) of the 1999 Constitution stating or suggesting the contrary.

Let me state here for avoidance of doubt that by virtue of the clear words of Section 251(1) of the 1999 Constitution, a case is within the exclusive jurisdiction of the Federal High Court not for the sole reason that one or more of the parties in a case is an agency of the Federal Government, but because its subject matter is one of the subject matters listed therein as being within the exclusive jurisdiction of the Federal High Court.

In the light of the foregoing, I hold that the Federal Capital Territory High Court had no jurisdiction to entertain and determine this case. I uphold the decision of the Court of Appeal concurring with the decision of the trialCourt that it is the Federal High Court that has the jurisdiction to entertain the case and not the trial Court.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.

Judgment

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): The legislative power of the National Assembly (NASS) to make laws concerning the internal affairs of a political party is limited by Section 228(a) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) to the making of a law to provide guidelines and rules to ensure internal democracy within political parties including making laws for the conduct of party primaries, party congress and party conventions, etc.

In the purported exercise of this power, the Electoral Act 2022 was enacted and commenced on 25-2-2022 in accordance with Section 58 of the 1999 Constitution which requires in Subsection (4) that the President assents or withholds assent to a Bill, and provides in Subsection (5) that if he withholds assent, the Bill can become law if passed by 2/3 of majority of each of the two Houses of the National Assembly and the President’s assent would not be required.

In our present case, upon the presentation of the Electoral Bill 2022 to the President (1st Plaintiff herein) he assented to it and it became law, to wit, the Electoral Act 2022.

​After participating in making the Electoral Act 2022, the 1st plaintiff sought to have Section 84(12) of the Act removed or deleted on the ground that while giving his assent, he had entered a caveat expressing reservations about the constitutionality and desirability of the said Section 84(12) and followed same by writing a letter to the National Assembly (1st defendant) requesting it to cause the Electoral Act 2022 to be amended to delete the said Subsection (12) of Section 84 of the Electoral Act.

Following the refusal of the 1st defendant to grant the request, the plaintiffs commenced Suit No SC/CV/504/2022 in this Court, invoking the original jurisdiction of this Court to determine as follows – “1.

Whether having regard to separate and/or the combined provisions of Sections 65, 66, 106, 107, 131, 137, 177, and 182 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provision of Section 84 (12) of the Electoral Act, 2022 which ignores Section 84(3) of the same Act has not expanded the scope of the qualifying and disqualifying factors for the National Assembly, House of Assembly, Governorship and Presidential election asenshrined in the provisions of the Constitution thereby rendering the said provision inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, unlawful, null and void? 2.

Whether the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointees from being a voting delegate, or to be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidate for any election, even in spite/disregard of Section 84(3) of the same Act, has not disenfranchised a category of Nigerian citizens outside, and without amending, the express qualification and disqualification provisions in each of or by the combined provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to incorporate appointees as part of or category of persons who cannot contest for elective office? 3.

Whether having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant permit or empower it to make any inconsistent law with the qualification and disqualification provisions under each or all of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as Article 2 of the African Charter on Human and Peoples Rights? 4.

Whether the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party, for the purpose of the nomination of candidates for any election notwithstanding the earlier assurances in Section 84(3) of the same Act, is not inconsistent with and in violent breach of the provisions of Sections 65, 66, 106, 107, 313, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and null and void by reason of its inconsistency? 5.

Whether the 1st Defendant did not act ultra vires the legislative powers vested in it under the provisions of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provision of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria as well as Article 2 of the African Charter on Human and Peoples Rights by the introduction of the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointee from being a voting delegate or be voted for at convention or congress of any political party for the purpose of any election even in spite of Section 84(3) of the same Act?”

They sought for the following reliefs – “1. A DECLARATION that by the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provisions of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and presidential elections as enshrined in the Constitution, hence unconstitutional, unlawful, null and void; 2.

A DECLARATION that having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the National Assembly, House of Assembly, Gubernatorial and Presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for reason of inconsistency, unconstitutional and therefore null and void. 3.

A DECLARATION that Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party for the purpose of the nomination of candidates for any election is discriminatory, inconsistent with and in violent breach of the provision of each or all of Sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), as well as Article 2 of the African Charter on Human and Peoples Rights and same is null and void by reason of its inconsistency. 4.

A DECLARATION that by the introduction of the provisions of Section 84(12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the 1st Defendant has acted ultra vires the legislative powers vested in it under the provision of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of ‘the provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, thereby rendering Section 84(12) of the Electoral Act, 2022 unconstitutional, null and void. 5.

AN ORDER nullifying the provisions of Section 84 (12) of the Electoral Act, 2022 by application of the blue pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the1st Defendant as enshrined in Section 4 of the 1999 Constitution (as amended). SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit and just to make in the circumstances of the suit.”

The originating summons which was later amended, is supported by an affidavit and further affidavits and a written address. The 1st defendant filed a counter affidavit and a written address in opposition to the suit. The 2nd and 3rd defendants also filed a counter affidavit and a written address in opposition to the suit.

The 1st defendant filed and argued a notice of preliminary objection with a written address of same in urging this Court to dismiss or strike out this suit. The 2nd and 3rd defendants filed a motion on notice applying for an order of this Court dismissing or striking out this suit for incompetence and want of jurisdiction. The motion was accompanied by a written address of same.

The plaintiffs filed counter affidavits and written addresses in response to each of the preliminary objections. The plaintiffs filed replies on points of law to their said written addresses in opposition of the originating summons.

​I will determine the two objections before I delve into the merits of this suit if the need to do so remains.

The grounds for their objections are that the requirements for the invocation of the original jurisdiction under Section 1 (1) (A) of the Supreme Court (Additional Jurisdiction) Act No. 3 2002 and Order 3 Rule 6(1) of the Supreme Court Rules 2014 do not exist, that only the Federation, States, President, National Assembly and State House of Assembly and no other person can be party in an originating suit before this Court, that the dispute giving rise to this suit is not justiciable and cannot warrant the invocation of the additional original jurisdiction given to this Court by Section 1 (1) (A) of the Supreme Court on 25-2-2022 signed the Electoral Bill 2022 into law, namely, Electoral Act 2022, cannot turn around to seek to strike down the amendment by any means including this judicial process, that he cannot a probate and reprobate, that the plaintiffs have no locus standi to bring this suit, that the plaintiffs have no legal right to protect in this suit, that this suit discloses no cause of action, that the suit is an abuse of process by multiplicity of actions on the same subject matter.

I have carefully read and considered the arguments of all sides on each of the above grounds of objection.

Let me start with the ground of objection that the 1st plaintiff cannot challenge the constitutionality of the Electoral Act 2022 having participated in making the Act.

The holder of an office that participated in the making of a law, by virtue of his holding that office, cannot afterwards, as holder of that office, challenge the constitutionality, correctness, justification or desirability of that law. As a participant in the making of the law, the holder of such office has reasonable opportunity to oppose the making of such law as constituted. If the law is enacted in spite of his opposition to its making, he cannot afterwards invoke the judicial process to strike it down for any reason.

In our present case, the 1st plaintiff, as the President of the Federal Republic of Nigeria participated in making Electoral Act 2022 by virtue of Section 58 of the 1999 Constitution which provides that- (1) “The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and except as otherwise provided by Subsection (5) of this Section, assented to by the President. (2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this Section and Section 59 of this Constitution, assented to in accordance with the provisions of this section. (3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it. (4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent. (5) Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.” ​The role of the 1st plaintiff in making an Act of the National Assembly consists of his signification thathe assents or that he withholds assent to the bill, when both Houses of the National Assembly have passed the bill and reached an agreement on any amendment made on it and presented it to him for assent.

He participates in making the Act by this role irrespective of whether he assents or withholds his assent. In our present case, he assented to the Bill and it became an Act. The President of Nigeria cannot invoke the judicial process to challenge the constitutionality, validity, correctness, desirability, justification of an Act of the National Assembly that he participated in making. The suit by the plaintiff touches on the essence of the powers given to him by Section 58(4) of the 1999 Constitution.

The Constitution did not provide for the involvement of the Court by the President after exercising his powers under Section 58(4) of the Constitution one way or the other. His role in the law-making process ceases after his signification of assent or withholding of assent. In this case, he assented and consented to what the two Houses of the National Assembly had done and presented to him and the Bill became law. The only role the Constitution assigns to the President after the law is made is to comply with or enforce it.

There is no room for him to exploit the power given to the Courts by Section 4(8) of the 1999 Constitution to review the exercise of legislative powers by the National Assembly, a role he had exercised by virtue of Section 58 of the 1999 Constitution before the Bill became law, especially having consented to what the two Houses did by his assent.

The decision of this Court in Adesanya V President FRN & Anor (1981) 5 SC 69 may be a useful support on how we have determined this issue even though the facts in that case are not exactly similar to the facts of our present case, save that both involve the challenge of the constitutionality of an exercise of legislative power in Court by one who virtute officia participated in its making.

In that case, a Senator who participated in making the decision of the National Assembly confirming an appointment, filed a suit in Court to challenge the constitutionality of the resolution notwithstanding that he voted against the confirmation and was defeated by majority in the House.

This Court per Fatayi Williams CJN held that “it never was thought that by means of a friendly suit, a party beaten on the legislature could transfer to the Courts an inquiry as to the constitutionality of the legislative act … He participated in the debate leading to the confirmation of the appointment of the 2nd defendant/respondent and lost. For him, that should have been the end of the matter.

The position would probably have been otherwise if he was not a senator.” Sowemimo JSC in his contribution held that “when legislators either in the National or State Assemblies exercise their right of either making law or in circumstances in which they are authorized by the Constitution to approve or confirm certain actions they are bound by the majority decisions.” There is no provision for the judicial powers provided in Section 6 of the Constitution for any legislators to appeal to any Court against the majority decision… The appellant as senator took part in the decision and I can see no provision in the constitution giving right to a member who happens to be in the minority to sue against such decision. ​The 2nd plaintiff facilitated the 1st plaintiff’s exercise of the power to assent.

Paragraph 9 of the affidavit in support of the originating summons states that “2nd plaintiff is also the authority that has the duty to ensure that Bills passed by the 1st defendant are scrutinized for error or unconstitutional provision before the President gives his assent thereto and such Bills become law”. I agree with the argument of learned counsel for the 1st defendant that this suit by the plaintiffs is a reprobation of what the 1st plaintiff had probated and that this cannot be allowed in law.

Having assented to the Electoral Bill 2022 and thereby accepted that it becomes law, the plaintiffs cannot bring this suit contending that the Act resulting from his assent is not constitutional, or desirable or justifiable, thereby retracting from his assent in addition to the trite law against approbation and reprobation, there is no provision of the constitution that vests the president with the power to challenge the validity of an Act of the National Assembly that has come into being after his assent or after he had withheld his assent.

Also, his assent to the enactment of the said Act operates to estopp him from challenging the Act as invalid for any reason.

​Let me consider the ground of objection that this Court lacks the jurisdiction to entertain this suit because there is no basis for the invocation of its judicial power or for the exercise of such powers.

​Paragraphs 14 to 19 of the affidavit in support of the amended originating summons stated the facts forming their cause for this suit as follows- “14. The 2nd and 3rd Defendants were joined as Co-Defendants to this suit by order of this Honourable Court on 19th May 2022. 15. That I am aware that the 1st Defendant in pursuance of its legislative power commenced the amendment of the Electoral Act, 2010 which culminated in the passing of the Electoral Act (Amendment Bill) 2022. 16.

After several back-and-forth occasioning delay brought about by the inclusion of numerous provisions in the Electoral Act (Amendment Bill) 2022 the President of the Federal Republic of Nigeria assented to the Electoral Act, 2022 on the 25th February, 2022 under protest and with a caveat that Section 84 (12) therein, be removed or deleted for being unconstitutional. 17. That the President observed that the said Section 84 (12) disenfranchises political appointees in a way and manner outside the contemplation of the Constitution of Federal Republic of Nigeria, 1999 (as amended). 18.

That the President in assenting to the bill expressed the view that “it is imperative to note that the only constitutional expectation placed on serving political office holders that qualify by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

It will be stretching things beyond the constitutional limit to import extraneous restrictions into the Constitution on account of the practical application of Section 84 (12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election ” 19. That I am aware the President subsequently wrote to the 1st Defendant, seeking amendment of Section 84(12) of the Electoral Act (Amendment) 2022, that would bring the bill in tune with constitutionality by way of deleting Section 84(12) accordingly.

But till date, the 1st Defendant has refused, failed and/or neglected to so act on the request of the President. The President is concerned and wants our democracy safeguard the rule of law preserved, hence this suit.”

It is glaring from these depositions in the affidavit in support of their originating summons and the questions for determination and reliefs claimed for that this suit was not brought for the determination of any question as to the civil rights and obligations of any of the plaintiffs. It is not a personal suit of any of the plaintiffs. The suit is brought in their official capacities to safeguard and preserve our democracy and the rule of law and not to seek personal redress in respect of any of their personal rights and obligations.

Paragraph 10 of the affidavit in support of their originating summons states that “the 1st plaintiff by this action is seeking to protect and preserve the Constitution from any abuse by the 1st defendant”. ​It is obvious from Section 6 (6)(b) of the 1999 Constitution that the judicial powers vested in the Courts by Section 6 (1) of 1999 shall be invoked for the determination of only questions as to the civil rights or obligation of a person.

The judicial powers of a Court cannot be invoked to determine a suit that is filed only for the protection of the Constitution from abuse by 1st defendant and for the protection of democracy and the rule of law, that raises for determination general questions about the constitutionality of an Act of the National Assembly, that has no nexus with the civil rights and obligations of the plaintiffs. See Adesanya v. President FRN & Anor. (supra), A-G Bendel State v. A-G FRN & ORS. (1981) LPELR- 605 (SC) and A-G Anambra v.

AGF (2007) LPELR-24343 (SC). ​If a suit is not brought for the purpose of determining the civil right and obligations of the plaintiffs or the questions raised for determination and the reliefs claimed for in the suit have no nexus with the personal rights and obligations of the parties thereto, then the suit has no life and the questions raised for determination therein become general, abstract and academic questions that a Court cannot exercise judicial power to determine by virtue of Section 6 (6) (b) of the 1999 Constitution.

The law is settled by a long line of judicial decisions that Courts cannot exercise judicial power to entertain and determine general, abstract and academic questions. See Imegwu V Okolocha & Ors (2013) LPELR-19886(SC) and Bamgboye V University of Ilorin (1999) 6 SC (Pt.ii) 72. ​As it is, one of the cumulative requirements in Section 1(1) (A) of the Supreme Court (Additional Jurisdiction) Act 2002 for the invocation of the additional original jurisdiction of this Court to entertain an originating suit between the President and National Assembly does not exist.

The plaintiffs have no legally enforceable legal right or power that gives life to the questions raised for determination in the originating summons and that can be protected or enforced by the reliefs claimed for. Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act 2002 provides that – “1.

Additional Original Jurisdiction for the Supreme Court 1) In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between – a) the National Assembly and the President; b) the National Assembly and any State House of Assembly; and c) the National Assembly and the State of the Federation, in sofar as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.” The dispute in this case does not involve any question on which the existence or extent of any legal right depends.

Therefore this suit cannot be entertained by this Court in exercise of its additional original jurisdiction under Section 1 (1)(A) of the Supreme Court (Additional Original Jurisdiction) Act 2002. See AGF v. A-G Lagos (2017) LPELR-42769 (SC) and A-G Lagos v. AGF (2014) 9 NWLR (Pt. 1412) 217 at 257. Even the original jurisdiction vested in the Supreme Court by Section 232(1) of the 1999 Constitution to determine disputes between the Federation and State or between States cannot be invoked unless the dispute involves any question on which the existence or extent of a legal right depends.

See A-G Bendel State v. AGF (1981) 10 SC, and A-G Kano v. AGF (2007) LPELR – 618 (SC).

Paragraph 19 of the affidavit in support of the summons state that it is the defendant’s refusal or failure to grant the written request by the 1st plaintiff that Section 84 (12) of the Electoral Act, 2022 be amended by deleting it to bring the Act in conformity with the Constitution, that led to this suit. In Paragraph 10 of the same affidavit it is stated that “the 1st plaintiff by this action is seeking to protect the Constitution from abuse by 1st defendant”.

The President has no Constitutional or legal right or power to request or compel the National Assembly to amend or make an Act. No part of the Constitution gives him such right or power. One of the hallmarks of our Constitutional democracy is separation of powers of government. The executive, legislative and judicial powers of the government of the Federation or of a State are separated and each vested on each of the three main arms of government by Ss. 4, 5 and 6 of the 1999 Constitution. Section 4 of the said Constitution vest the legislative power on the legislature.

Section 5 vests the executive power on the executive and Section 6 vests the judicial power on the judicature (the Courts). This separation of the said powers and the vesting of each in an arm of government requires that each arm exercises its power separately and independent of the other except where the Constitution expressly provides otherwise. There is no part of the 1999 Constitution that makes the exercise of the legislative powers of the National Assembly subject to the direction and control of the President of Nigeria.

The 1st plaintiff’s written request to the National Assembly to amend the Electoral Act 2022 by deleting Section 84 (12) therein is a violation of Section 4 (1) of the 1999 Constitution. This suit which was filed as a response to the refusal of the National Assembly to grant the said written request is an employment of the judicial process to help realize the said violation. The Courts cannot be engaged in this kind of unconstitutional and illegal enterprise. The suit is therefore an abusive use of the judicial process.

In the light of the foregoing, I hold that this Court lacks the jurisdiction to entertain this suit and that therefore no useful purpose would be served determining the merit of the suit. The suit is hereby struck out. No order as to costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: I was obliged a preview of the lead judgment of my learned brother EMMANUEL AKOMAYE AGIM, JSC just delivered. It represents my view on the issues raised by the plaintiffs in the matter.

I imbibe them.

By an amended originating summons taken out pursuant to Order 3 Rule 6 of the Supreme Court Rules, Section 1(1) A Supreme Court (Additional) Jurisdiction Act 2002 and the inherent powers of this Court as preserved under Section 6(6) of the 1999 Constitution (as amended), the plaintiffs seek the Court’s nullification of Section 84(12) of the Electoral Act 2022 which they assert not only ignores Section 84(3) of the same Act but jointly and severally stand in breach of Sections 42(1) 65, 66, 106, 107, 131, 137, 177, 182, 192 and 196 of the 1999 Constitution as well.

The plaintiffs further aver that by virtue of Sections 1(3) and 4 of the 1999 Constitution Section 84(12) of the Electoral Act 2022 is ultra vires the legislative powers vested in the defendant. The abhorrent section is, in addition, a breach of Article 2 of the African Charter on Human and Peoples Rights.

The three defendants on record, by their respective notices of preliminary objection, challenge the jurisdiction of this Court to proceed on the plaintiffs’ suit as constituted.

A challenge to a Court’s jurisdiction must necessarily be determined first. The procedure saves the time of both the Court and the parties since in the absence of the required jurisdiction any decision eventually arrived at remains fruitless and unenforceable. See AG ANAMBRA V. AG FEDERATION (1993) 6 NWLR (PT 302) 692.

This Court in MADUKOLU & ORS V.

NKEMDILIM (1962) 2 SCNLR 341 at 348 per Bairamian J, as he then was, stated the conditions on which a Court is competent to exercise jurisdiction in relation to an action before it as follows:- (1) When it is properly constituted as regard numbers and qualifications of the members of the bench and no member is disqualified for one reason or another. (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 the due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Firstly, I entirely agree with learned senior counsel for the 2nd and 3rd defendants that the combined effect of the 2nd and 3rd conditions mentioned above is that this Court’s jurisdiction abates where the plaintiff’s in his claim, fails to disclose a cause of action.

It is now indeed settled law that a cause of action is the entire factual situation the existence of which entitles one person to obtain from Court, a remedy against another person. It is this factual scenario that forms the basis of invoking the jurisdiction of Court in a suit. See AG KWARA STATE V. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663, NWORIKA V. ONONEZE-MADU & ORS (2019) LPELR- 46521 (SC) and ADEYEMI V. OPEYORI (1960) 9-20 SC 31.

Learned senior counsel to the defendants/objectors cannot be faulted that by their affidavits in support of their originating summons, the plaintiffs are not political appointees in respect of whom Section 84(12) of the Electoral Act, the National Assembly in the exercise of its legislative powers pursuant to Sections 5(1) and 58(1), (2) and (3) has been put in place.

In particular subsections 4 and 5 of Section 58 provides as follows:- (4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent. (5) Where the President withholds his assent and thebill is again passed by each House by two-third majority, the bill shall become law and the assent of the President shall not be required. It is evident from available facts in this matter that the 1st plaintiff herein on being presented the Electoral bill did not withhold his assent as he is empowered to under Section 58(4).

Rather, he signified his assent thereby passing the way for the bill to become the very Act he now asks should be nullified. I hasten to firmly state that the plaintiffs are precluded from asserting the facts on which basis they seek the reliefs in their matter. Where a party is under a duty to speak but fails to do so, estoppels arises in that situation to prevent the party from asserting a right he refrained to enforce. See HALIMA HASSAN TUKUR V. GARBA UMAR UBA & ORS (2012) LPELR-9337 (SC), UKAEGBU & ORS V. UGOJI & ORS (1991) LPELR-3338 (SC).

In the case at hand, the 1st plaintiff having voluntarily signed the Electoral bill cannot in law be allowed to undo the very Act he had the opportunity of opposing but decided not to. See ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 9.

​Itis for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I also strike out the plaintiffs’ incompetent suit.

JOHN INYANG OKORO, J.S.C.: I am in agreement with the leading judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JSC and in support of his reasoning and conclusion reached therein, I shall make a few comments.

The issue of Court’s jurisdiction has been well established to be a threshold issue such that whenever it is raised, it must be addressed at the earliest opportunity because where a Court lacks jurisdiction to entertain a matter, the entire proceedings no matter how well conducted is a nullity. See Elugbe v Omokhafe (2004) 18 NWLR (pt 905) 319.

A plethora of decision on the principle abound that before a Court can assume jurisdiction in respect of any matter, this Court inclusive, it must be satisfied of the existence of the following conditions:- (i) That the Court is properly constituted with regard to the number and qualification of its members and no member is disqualified for one reason or the other; (ii) That the subject matter of the case is within the Court’s jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (iii) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, See Madukolu v Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (pt 4) 587; Skenconsult (Nig) Ltd v Ukey (1981) 1 SC 6; Dangana& Anor v Usman & 4 Ors (2012) 2 SC (pt. 111) 103; (2013) 6 NWLR (pt 1349) 50.

It must be emphasized that this Court, just as every other Court in this country, is a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and its jurisdiction is donated and circumscribed by the 1999 Constitution, and the Supreme Court Act.

See Obiuweubi v Central Bank of Nigeria (2011) 7 NWLR (pt 1247) 465 at 506; Adelekan v Ecu-Line NV (2006) 12 NWLR (pt 993) 1 at 13. ​It follows therefore that in this case, the jurisdiction of this Court is restricted to the mandate given to it by the statute, that is to say, the additional jurisdiction of the Supreme Court as prescribed by Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002. ​

The core of that provision is in pari materia with the mandate prescribed for this Court by Section 232 of the 1999 Constitution, to the effect that the original jurisdiction of this Court can only be activated by either of the parties named therein where the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

It definitely does not extend to cover a situation where a party named therein seeks to protect any of the provisions of Constitution from being contradicted by a perceived conflicting Act of the National Assembly, as in this case.

​Furthermore, the doctrine of separation of powers between the three arms of government is very prominent in the 1999 Constitution. Section 4 vests the legislative powers of the Federal Republic of Nigeria in the National Assembly, Section 5 vest the executive powers of the Federation in the President of the Federal Republic of Nigeria while Section 6 vests the judicial powers of the Federation in the Court.

Their functions and responsibilities are clearly defined such that whereas the legislature makes the laws, the executive administers the laws sopromulgated by the legislature and the Courts interpret the laws. Nowhere in Section 4 of the Constitution, or any other provision of the Constitution, is the legislative power of the Federation vested in either the President or the Court and vice versa. The Constitutional responsibilities do not overlap from one organ to another.

The doctrine of “filling the gap”, which advocates that in judicial activism, the Court may fill in the gap where there is a lacuna in the statute is not permissible under the 1999 Constitution, and the plaintiff cannot use this Court to achieve that purpose. See Attorney General, Ogun State v Attorney General of the Federation (1982) 3 NCLR 166; Lakanmi v Attorney General Western Nigeria (1971) 1 UILR 201; Cocacola (Nig) Ltd v Akinsanya (2017) 17 NWLR (pt. 1593) 74 at 128.

That is to say that, where there is a perceived offensive law, as in the instant case, there are procedures and mechanisms available within the legislature for an amendment of such provision or an entire repeal of the law but not for another organ to interfere. ​I hold the opinion, and firmly so, that the plaintiff in this action has no power to interfere with the Constitutional responsibilities of the 1st defendant or in any manner seek to influence the performance thereof.

For the above and the fuller and better reasoning in the lead judgment, I too strike out the suit for lack of jurisdiction. I also make no order as to costs.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and without any hesitation, I adopt his reasoning and conclusion.

The position of the law regarding jurisdiction and its importance as the nerve center and foundation of adjudication, which a Court must first decide on before delving into the merits of a suit or action, cannot be over-emphasized, because jurisdiction is the authority a Court has to decide matters, and where the Court has no jurisdiction, with respect to any matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent – see Ajomale V. Yaduat (No. 1) (1991) 5 NWLR (Pt. 191) 257 SC.

​But there is a difference between an exercise of power and the exercise of jurisdiction. Simply put, jurisdiction cannot be equated with powers – see Ajomale V. Yaduat (No. 1) (supra) wherein Karibi-Whtye, JSC, explained that: This is because power can only be exercised where the Court has the jurisdiction to do so … Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the Court to hear and determine the dispute between the Parties, the power in the Court is the authority to make certain orders and decisions with respect to the matter before the Court.

So, a Court must first have jurisdiction before it can proceed to exercise power, and a Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it – see Sule V. Nigerian Cotton Board (1978) 6 SC 62 and Utih V. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166) 166 SC.

In this case, the two sets of defendants; that is the first defendant and the second and third defendants, who were joined as Parties to this suit by an Order of Court made on 19/5/2022, are right that this Court has no jurisdiction of any kind whatsoever to entertain this suit, not to mention original jurisdiction. Section 232 (1) of the 1999 Constitution, as amended, provides as follows -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as the dispute involves any question of law or fact on which the existence or extent of a legal right depends.

Section 1 (1) of the Supreme Court (Additional Jurisdiction) Act 2002, also says: In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between: (a) The National Assembly and the President; (b) The National Assembly and any State House of Assembly; and (c) The National Assembly and the State of the Federation, is so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

The operative words, as far as this suit is concerned, which I highlighted, are “the existence or extent of a legal right” because that is the crux of the matter. “Legal right”, as defined in Black’s Law Dictionary, 9th Ed., is, “aright created or recognized by law; the capacity of asserting a legally recognized claim against one with a correlative duty to act”.

In this case, the Plaintiff has asked this Court to determine inter alia whether the first defendant did not act ultra vires the powers vested in it “by the introduction of Section 84(12) of the Electoral Act 2022 disqualifying political appointee from being a voting delegate or be voted for at Convention or Congress of any Political Party for the purpose of any election, even in spite of Section 84(3) of the Act?” He also prayed for: An Order nullifying the provisions of Section 84(12) of the Electoral Act, 2022 by application of the Blue Pencil Rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the 1st Defendant as enshrined in Section 4 of the 1999 Constitution (as amended).

In addition to the averment in paragraph 10 of his supporting affidavit that the “1st Plaintiff by this action is seeking to protect the Constitution from abuse by 1st Defendant”, it was further averred as follows in the said supporting Affidavit: 16. After several back-and-forth … the President assented to the Electoral Act, 2022 on 25/2/2022 under protest and with a caveat that Section 84(12) therein, be removed or deleted for being unconstitutional. 17.

The President observed that the said Section 84(12) disenfranchises political appointees in a way and manner outside the contemplation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) 18. The President in assenting to the Bill expressed the view that- “It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify by extension as public officers within the context of the Constitution, is resignation, withdrawal or retirement at least 30 days before the date of the election.

It will be stretching things beyond the constitutional limit to import extraneous restrictions into the Constitution on account of the practical application of Section 84(12) of the Bill where political Parties’ Conventions and Congresses were to hold earlier than 30 days to the Election”. 19. The President subsequently wrote to the 1st Defendant, seeking amendment of Section 84(12) of the Electoral Act (Amendment) 2022 ​that would bring the Bill in tune with constitutionality by way of deleting Section 84(12) accordingly.

But till date, the 1st Defendant has refused, failed and/or neglected to so act on the request of the President. The President is concerned and wants our democracy safeguard, the rule of law preserved, hence this Suit. Yes, it is true that this Court has original jurisdiction in any dispute between the Plaintiff and the first Defendant, however, any such dispute between them must involve any question “on which the existence or extent of a legal right depends”. My learned brother dealt extensively with this Issue in the lead judgment and I adopted his reasoning earlier.

Let me just say that I agree with him that the dispute in this case does not involve any question on which the existence or extent of any legal right depends, therefore, this suit cannot be entertained by this Court in the exercise of its additional original jurisdiction under the said Section 1 (1) (a) of the Supreme Court (Additional Jurisdiction) Act, 2002.

​It is a well-established principle that where a Court finds that it has no jurisdiction to entertain a matter presented to it for adjudication, the matter must be struck out- see Adelekan V. Ecu-Line Consortium (2006) 12 NWLR (Pt. 993) 33, Okoye & Anor V. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt. 1110) 335, and Lakanmi V. Adene (2003) 10 NWLR (Pt. 828) 353.

In the circumstances of this case, wherein this Court lacks jurisdiction to entertain the suit filed by the Plaintiff, the said Suit No. SC/CV/504/2022 has no business being on this Court’s Cause List, and it is accordingly struck out.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, Hon. Justice, Emmanuel Akomaye Agim, JSC in this suit and found that it represents my views on the competence of both the plaintiffs to initiate and the Court to adjudicate over the suit in its original jurisdiction vested under the provisions of Section 232 (1) and pursuant to Subsection (2); under the Additional Jurisdiction.

​This Court has firmly settled and established the law that where the issue of the competence or jurisdiction of a Court of law to entertain/adjudicate over a matter is raised by any of the parties, it should be considered and determine first before a consideration of other issues or other steps are taken in the proceedings. Oputa, JSC, in A.G., Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552 at 566 restated the law that when a Court’s jurisdiction is challenged:- “it is neater and far better to settle that issue one way or another before proceeding to hearing of the case on the merits.

The reason is that jurisdiction is a radical and crucial question of competence. Either the Court has jurisdiction to hear the case or it has not.” See also Okoye v. N.C. & F.C. Ltd. (1991) 7 SC (pt. 111) 33, (1991) 6 NWLR (pt. 199) 501, Petro jessica Ent. Ltd. v. Leventis Tech. Co. Ltd. (1992) 1 NWLR (244) 675, Odofin v. Agu (1992) NWLR (pt. 299) 350, Lekwot v. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22.

This position of the law is based on the recognised, very fundamental and crucial nature of and fatal consequence of the absence or defect in the jurisdiction of a Court to adjudicate over a matter which has been described as both intrinsic and extrinsic to judicial proceedings of a Court of law.

​In the famous case of Utih v. Onoyivwe (1991) 1 SC (pt. 1) 61, (1991) 1 SCNJ, 25, (1991) 1 NWLR (pt. 166) 166, Muhammad Bello, CJN in his usual proficiency, said, of the jurisdiction of a Court of law:- “Moreover, jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” On the authority of Madukolu v.

Nkemdilim (1962) 1 All NLR, 587, (1962) 2 SCNLR 341, all proceedings conducted by a Court of law, along with every outcome thereof, without the requisite jurisdiction, would be an exercise in legal futility for being null, void and of no judicial effect, at all.

I totally agree with the lead judgment that this Court lacks the original jurisdiction to entertain and adjudicate on the merit of this suit for the primary reason that the Plaintiffs have not, by the facts placed before the Court, shown the existence of a real dispute between them and the Defendants which involves any question or issue of fact or law on which the existence or extent of any congnisable legal right/s of theirs, depends.

With the declaration of lack of jurisdiction on the part of the Court to entertain the suit on the ground that it is incompetent, the only course open to the Court in the circumstances, is to strike out the suit, being the final Court in the land, with the final decision against which there is no right of appeal. See Utih v. Onoyivwe (supra), Obi v. INEC (2007) 7 SC, 268.

In the absence of the requisite jurisdiction to adjudicate over the suit on the merit, no legal and judicial duty exists for the Court to consider the other issues raised in the suit for that would amount to embarking on an exercise in futility, needless waste of precious judicial time and resource, that will end up in nullity.

In the above premises, I join in striking out the suit on ground of incompetence.

ABDU ABOKI, J.S.C.: I had the benefit of reading in draft, the lead judgment prepared by my learned brother EMMANUEL AKOMAYE AGIM, JSC, just delivered. I agree entirely with the reasoning and conclusion reached and to underscore my support, I shall make some remarks.

​By an Amended Originating Summons, filed on the 20th of May, 2022, brought pursuant to Order 3 Rule 6 of the Supreme Court Rules, and Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act, 2002 and the inherent powers of this honourable Court, as preserved by Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Plaintiffs sought for the determination of the following questions: 1.

Whether having regard to separate and/or combined provisions of Sections 65, 66, 106, 107, 131, 13, 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the provisions of Section 84(12) of the Electoral Act, 2022 which ignores Section 84(3) of the same Act, has not expanded the scope of the qualifying and disqualifying the factors for the National Assembly, House of Assembly, Governorship and Presidential Elections as enshrined in the provisions of the Constitution, thereby rendering the said provision inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 as amended, and therefore unconstitutional, unlawful, null and void? 2.

Whether the provision of Section 84(12) of the Electoral Act, 2022disqualifying political appointees from being a voting delegate, or to be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidate for any election, even in spite/disregard of Section 84(3) of the same Act, has not disenfranchised a category of Nigerian citizens outside, and without amending, the express qualification and disqualification provisions in each of or by the combined provisions of Sections 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, to incorporate appointees as part of or category of persons who cannot contest for elective office? 3.

Whether having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant permit or empower it to make any inconsistent law with the qualification and disqualification provisions under each or all of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.as well as Article 2 of the African Charter on Human and Peoples’ Rights? 4.

Whether the provision of Section 84(12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidates for any election, withstanding the earlier assurances in Section 84(3) of the same Act, is not inconsistent with and in violent breach of the provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and null and void by reason of its inconsistency? 5.

Whether the 1st Defendant did not act ultra vires the legislative powers vested in it under the provisions of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and/or in violation or breach of the provisions of Sections 42(1), 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, as well as Article 2 of the African Charter on Human and Peoples’ Rights by the introduction of the provisions of Section 84(12) of the Electoral Act, 2022 disqualifying political appointee from being a voting delegate or be voted for at Convention or Congress of any political party for the purpose of any election, even in spite of Section 84(3) of the same Act?

​And upon the determination of these questions, the Plaintiffs sought for the following reliefs against the 1st Defendant: 1.

A DELARATION that by the joint and or combined reading of Sections 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the provisions of Section 84(12) of the Electoral Act, 2022 which ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential Elections as enshrined in the said Constitution, hence unconstitutional, unlawful, null and void. 2.

A DECLARATION that having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying. grounds for elections to the National Assembly, State House of Assembly, Gubernatorial and Presidential Election outside the express constitutional qualification and disqualification provisions as already provided in each or all of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and without amendment to any of those sections, is for reason of inconsistency, unconstitutional and therefore null and void? 3.

A DECLARATION that Section 84(12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidates for any election, is discriminatory, inconsistent with and in violent breach of the provisions of each or all of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, as wellas Article 2 of the African Charter on Human and Peoples’ Rights and same is null and void by reason of its inconsistency? 4.

A DECLARATION that by the introduction of the provisions of Section 84(12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the 1st Defendant has acted ultra vires the legislative powers vested in it under the provisions of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and/or in violation or breach of the provisions of Sections 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, thereby rendering Section 84(12) of the Electoral Act, 2022 unconstitutional, null and void? 5.

AN ORDER nullifying the provisions of Section 84(12) of the Electoral Act, 2022 by application of the blue pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the 1st Defendant as enshrined in Section 4 of the 1999 Constitution, as amended. SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit and just to make in thecircumstances of this case

The grounds in support of the Originating Summons are as follows: i) The Constitution of the Federal Republic of Nigeria provides for qualifications and disqualifications of the offices of the President and Vice president, Governor and Deputy-Governor, Senate and House of Representatives, and House of Assembly, Ministers, Commissioners and Special Advisers;

ii) By provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the qualifying factors for election into the office of President, Vice President, Governor, Deputy-Governor, Senate, House of Representatives, House of Assembly and ministers are as follows: a) Nationality; b) Age as prescribed by the provisions of the constitution; c) Educational qualification;

and d) Sponsorship by a political party. iii) The disqualifying factors for the election into offices of President, Vice President, Governor, Deputy-Governor, Senate, House of Representatives and Houses of Assembly as provided for under the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are as follows: a) Ifthe aspirant has allegiance to a country other than Nigeria; b) If the aspirant is adjudged or declared to be of unsound mind; c) If the aspirant has been sentenced;

d) If the aspirant has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct within a period of less than 10 years; e) If the aspirant is an undischarged bankrupt; f) If the aspirant is a public servant and has refused to resign 30 days before the election date; g) If the aspirant is a member of any secret society;

h) If the aspirant has presented a forged certificate to the Independent National Electoral Commission. iv) By the provision of Section 84(12) of the said Electoral Act, 2022, political appointees are not eligible as voting delegates or aspirants for the purpose of nomination of candidate for any election, even in spite of the policy guideline provision of Section 84(3) of the same Act;

v) The provision of Section 84(12) of the Electoral Act, 2022 constitutes a disenfranchisement of serving political office holders from voting or being voted for atConventions of Congresses of any political party, for the purpose of the nomination of candidates for any election; vi) Being a political appointee is not a disqualifying factor to be eligible for voting as a delegate or contest as an aspirant for nomination as a candidate for any election under the Constitution of the Federal Republic of Nigeria;

vii) 1st Defendant has introduced Section 84(12) to the Electoral Act, 2022, as to disqualification for election into the offices of the President and Vice President, Governor and Deputy-Governor and Membership of the Senate, the House of Representatives and House of Assembly of each States of the Federation, outside the provisions of the Constitution; viii) Political appointees, or office holders have the right to freedom from discrimination under the Constitution and African Charter on Human and people’s right;

ix) Political appointees, or office holders are recognized by the Constitution and (they) have the right to vote and to be voted for which is inalienable under African Charter on Human and People’s Rights and the Political and Civil Rights Convention; x) Nigeria has domesticatedboth the African Charter on Human and People’s Rights;

xi) The right of Political appointees to freedom from discrimination and to vote and to be voted for guaranteed by the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) have been taken away by Section 84(12) of the Electoral Act, 2022; xii) The Federal Republic of Nigeria is a strong member of the United Nations Organization and has ratified the Universal Declarations of Human Rights, adopted unanimously by the United Nations General Assembly in 1948;

xiii) The Universal Declarations of Human Rights, 1948, recognizes that every citizen has the right “… to vote and to be elected at periodic elections; xiv) The Federal Republic of Nigeria is a pioneer and strong member of the African Union and a signatory to African Charter on Human and people’s Rights; xv) The provision of Section 84(12) of the Electoral Act, 2022 is inconsistent within the extant provisions of Sections 65, 66, 106, 107, 131, 137, 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and unconstitutional;

xvi) The 1st Defendant actedultra vires its legislative power as guaranteed under the Constitution by the introduction of the new Section 84(12) into the Electoral Act, 2022; xvii) There are adequate provisions existing in the Constitution with regards to qualification and disqualification factors for election offices under the Constitution; xviii) Sections 66(1)(f), 137(1)(g), 182(1)(g) of the 1999 Constitution have been amended to include political appointees as part of category of persons to resign or retire from their appointments before contesting election;

xix) It is unconstitutional and discriminatory for the 1st Defendant to legislate to ban political appointees from voting or seeking vote at the convention or congress of political parties when the 1999 Constitution has not forbidden them from doing so; xx) The Supreme Court as the Court of last resort is in the best position to quickly take this suit and resolve the Constitution issues put forward;

xxi) The decision of the Supreme Court on the constitutional issues involved in this case will guide all the lower Courts in any matter that may be filed or pending before them on the same or similar case(s) (if any); and xxii) There is no lacuna in the 1999 Constitution which Section 84(12) of the Electoral Act, 2022 can fill.

Attached to the Amended Originating Summons is a 26 Paragraph affidavit, deposed to by one Elodimuo Ekene Vincent, an Employee of the Federal Ministry of Justice, Abuja; as well as a written address in support.

In opposition to the amended Originating Summons, the 1st Defendant filed a Counter Affidavit of 12 Paragraphs, deposed to by one Charles Yoila, a Legal Practitioner in the employment of the 1st Defendant; as well as a written address. The 1st Defendant also filed a Notice of Preliminary Objection to the Amended Originating Summons.

The Plaintiffs filed a further affidavit in support of the amended Originating Summons against the 1st Respondent’s Counter affidavit, as well as the Plaintiffs’ reply on points of law, in support of the Plaintiffs’ Amended Originating Summons.

The 1st Defendant thereafter filed a Reply on points of law, to the Plaintiffs’ written address in opposition to the 1st Defendant’s notice of Preliminary Objection.

​Also, in opposition to the amended Originating Summons, the 2nd and 3rd defendants filed a Counter Affidavit of 13 paragraphs, deposed to by one Chukwuma Eke, a Legal Practitioner and Special Assistant to the 3rd defendant; to which was attached Exhibit RS1, and a written address. The 2nd and 3rd defendants also filed a Motion on Notice, for an order dismissing or striking out the plaintiffs’ suit, for incompetence and want of jurisdiction.

Attached to the Motion on Notice was a 13-paragraph affidavit, also deposed to by Chukwuma Eke, with Exhibits A, B, and C, annexed thereto, as well as a written address.

The plaintiffs filed a Counter Affidavit of 8 paragraphs, in opposition to the 2nd and 3rd defendants’ Motion on Notice, and a written address.

Thereafter, the 2nd and 3rd defendants filed a Reply Address, in response to the Counter Affidavit and written address of the plaintiffs on the challenge of jurisdiction.

It is also worthy of note that the Nigeria Bar Association (NBA) is an Amicus Curiae in the instant suit. A Counter Affidavit in opposition to the Amended Originating Summons was filed on its behalf on the 24th of May, 2022. The 33-paragraph Counter Affidavit, deposed to byone B. Lawal, Esq; the Secretary of the Nigerian Bar Association Public Interest Litigation Committee, has some annexures, as well as a written address.

1ST DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION By a Notice of Preliminary Objection, dated the 12th of May, 2022, and filed on the 13th of May, 2022, and brought pursuant to Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act, No. 3, 2002; Order 6 Rule 1 of the Supreme Court Rules, 2014, as amended, and under the inherent jurisdiction of this Court, the 1st Defendant challenged the competence of this suit, and sought for an Order of this Court dismissing or otherwise striking out this suit.

The grounds upon which the Preliminary Objection is brought, are as follows: 1. This Honourable Court lacks the requisite jurisdiction to hear and determine this suit, same having been filed in flagrant violation of Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act, No.3, 2002 and Order 3 Rule 6(1) of the Supreme Court Rules, (as amended 2014). 2.

Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act, No.3, 2002, only permits the invocation of theoriginal jurisdiction of this Honourable Court where there is a dispute between the President and the National Assembly, which involves any question of law or fact on which the existence or extent of a legal right depends. 3.

The proper parties in any action where the original jurisdiction of the Supreme Court is invoked are persons listed in Section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act, No.3, 2002, and no other person whatsoever, whether natural or artificial, is allowed to be a party to that suit under any guise whatsoever. 4.

The condition precedent for the activation of the original jurisdiction of the Supreme Court as stipulated by Section 232 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the Supreme Court (Additional Jurisdiction) Act, No.3, 2002 has not been complied with. 5. The suit as presently constituted neither discloses nor raises the existence of any dispute which may warrant the invocation of the original jurisdiction of this Honourable Court. 6.

The 1st Plaintiff/Respondent having on Friday, 25th February, 2022 signed the Electoral Bill, 2022 into Law, in accordance with the Constitution, cannot approbate and reprobate at the same time by making a U-turn, by using the machinery of this Honourable Court as enshrined in Section 232 of the CFRN 1999, as amended, and the Supreme Court (Additional Jurisdiction) Act, No.3, 2002, to partly undo that which by the provision of Section 58 of the CFRN as amended, has been done. 7.

That by assenting to the passage of the Electoral Bill 2022 into Law, the 1st Plaintiff has conclusively discharged his duty under the Constitution and there is no basis to attempting to undo that which he has done by virtue of his powers under Section 58 of the CFRN 1999, as amended. 8. The Act complained is a joint and voluntary act of the 1st Plaintiff/Respondent in the exercise of his powers to Assent to a Bill for an Act of the National Assembly, under Section 58(4) and (5) of the CFRN 1999, as amended. 9.

The suit is an attempt by the 1st Plaintiff/Respondent to make a U-turn or otherwise deviate from its earlier Assent to the Bill, which gave rise to the Electoral Act, 2022. 10. Section 58 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) did not provide for a conditional assent to a Bill for an Act of the National Assembly and assent once given signifies the acceptance of and concurrence of the President to the entirety of the Bill to become an Act of the National Assembly. 11.

The original jurisdiction of the Supreme Court cannot be invoked to amend the provision of any law validly made by the National Assembly in the exercise of the legislative powers granted it by the Constitution of the Federal Republic of Nigeria 1999 (as amended). 12. The suit as constituted neither disclose nor raises any question of law or fact which may give rise to the existence or extent of a legal right in favour of the office of the 1st Plaintiff/Respondent. 13.

The Plaintiffs/Respondents merely seek to enforce the fundamental rights of political appointees who are natural persons and in whose favour the Plaintiffs/Respondents herein seek to invoke the original jurisdiction of this Honourable Court contrary to the provisions of the Supreme Court (Additional Jurisdiction) Act 2002. 14.

The original jurisdiction of the Supreme Court as contained in Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act No. 3 2002 cannot be invoked to institute an action for the enforcement of fundamental human right as entrenched in the African Charter of Humans and Peoples Right, International Covenant on Civil and Political Right and the United Nations’ Universal Declaration of Human Right or any other law validly made by the National Assembly for the applicability and enforcement of the rights contained in these international instruments. 15.

The legal right contemplated in Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 1(1)(A) of the Supreme Court (Additional Jurisdiction Act. No. 3 2002 relates to the legal right of States concerned and the offices specifically mentioned therein; and not a blanket authority or invitation for the said office or persons to make themselves vanguard for the protection of the right of others. 16.

Section 84(12) of the Electoral (Amendment) Act 2022 did not create any legal right or duty in the office of the 1st of Plaintiff/Respondent the breach of which could have warranted the invocation of the original jurisdiction of the Supreme Court as contemplated by Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act. No. 3 2002. 17. The subject matter of this suit does not fall within the original jurisdiction of this Court and as such the decision of this Honourable Court cannot be binding on all Courts, persons and authorities. 18.

The hearing and entertainment of this suit as presently constituted in the original jurisdiction of this Honourable Court will not only set a bad precedent but also lead to a floodgate of actions instituted via the original jurisdiction of this Honourable Court contrary to the intendment of Section 232 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Supreme Court (Additional jurisdiction) Act 2002 by person not listed designated or contemplated by the said laws. 19.

The 2nd Plaintiff/Respondent is not a proper party and has no locus standi to institute this action before this Honourable Court. 20. The Government of the Federation is not a party to thissuit as provided for under the Supreme Court (Additional Original Jurisdiction) Act, 2002 and as such the 2nd Plaintiff/Respondent has no part whatsoever to play in this suit. 21. The suit is strictly between the 1st Plaintiff/Respondent and the 1st Defendant as provided for under the Supreme Court (Additional Original Jurisdiction) Act, 2002. 22.

The purported legal right which the 1st Plaintiff/Respondent seeks to protect in the instant case does not ensure to it in any way in his official capacity but to political appointees who have exercised their personal right to accept political appointment. 23. The 1st Plaintiff is not a political appointee. 24. There is no dispute to be resolved by this Court as between the 1st Plaintiff/Respondent and the 1st Defendant/Applicant. 25. This Honourable Court is not the appropriate forum for the determination of this suit. 26.

Sections 84(12) of the Act is not in conflict with the provisions Sections 147, 151, 192 and 196 of the Constitution.

The Preliminary Objection was supported by an affidavit of ten (10) paragraphs, sworn to by one Charles Yoila, a Legal Practitioner in theemployment of the 1st defendant, and a written address, wherein the following issues were submitted for determination, as follows: 1.

Whether from the facts and circumstances of this case, this suit as presently constituted by the 1st and 2nd Plaintiffs/Respondents is not liable to be struck out, for having been brought in flagrant violation of Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act, No.3, 2002 and Order 3 Rule 6(1) of the Supreme Court Rules, (as amended 2014), in relation to the invocation of the original jurisdiction of this Honourable Court? 2.

Whether from the facts and circumstances of this case, there exists a dispute within the contemplation of Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act, No.3, 2002 and Order 3 Rule 6(1) of the Supreme Court Rules, (as amended 2014), which discloses or raises the existence or extent of any legal right in favour of the 1st and 2nd Plaintiffs/Respondents to warrant the invocation of the original jurisdiction of this Honourable Court?

​In arguing together, the two issues raised, it is submitted for the 1st Defendant that jurisdiction being the bedrock ofall judicial proceedings, any decision reached in the absence of jurisdiction, is null and void, and of no legal effect whatsoever.

Learned Counsel argued that in the instant case, by virtue of Section 232 of the 1999 Constitution, as amended, and Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act, No.3 of 2002, the original jurisdiction of this Court to hear matters specified therein is not only original, but also by extension, exclusive to the persons and parties identified in the Sections of both laws. Reliance was placed on A.G. of Rivers State & Ors v. Lagos Chamber of Commerce & Industry (2018) LPELR-45944 SC.

He listed the conditions that must exist for a successful invocation of the original jurisdiction of this Court, and stated that the first hurdle which the Plaintiffs/Respondents must cross is the identification of the existence of a dispute between the 1st Plaintiff and the 1st defendant. He cited the case of A.G. Anambra State v. A.G.

Federation (2007) LPELR-24343, and submitted that going by the dictum in the case under reference, there is no dispute between the 1st plaintiff and the 1st Defendant, over the subject matter of the suit, that is, the enactment of the Electoral Act, 2022, as both parties acted in line with Section 58 of the 1999 Constitution, as amended.

Learned Counsel contended that the jurisdiction of this Court cannot be invoked to amend any law validly made by the National Assembly, in the exercise of the legislative powers granted it by the Constitution of the Federal Republic of Nigeria, 1999 as amended.

He opined that a cursory look at the issue raised and the reliefs sought by the 1st Plaintiff/Respondent on the face of the Originating Summons, would reveal that the issues and reliefs are centered on the legal and fundamental right of Political Appointees to vote and be voted for, and not the legal right accruing to the office of the 1st Plaintiff in any material particular. He cited the case of A.G. Federation v. A.G Imo State & Ors (1982) LPELR-24941 SC.

​He pointed out that the proper parties in any action where the original jurisdiction of this Court is invoked, are persons listed in Section 232(1) of the 1999 Constitution, as amended and Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act 2002; the implication of which is that the plaintiffs, as constituted, particularly, the 2nd plaintiff, are not among the persons so listed and therefore cannot invoke this Court’s original jurisdiction.

In response to the Preliminary Objection, the Plaintiffs filed an eight (8) paragraph Counter affidavit, deposed to by Elodimuo Ekene Vincent, a Principal State Counsel at the Federal Ministry of Justice. In the written address attached thereto, two issues were raised for determination. They are: 1. Having regard to the fact and circumstances and the law, whether the Honourable Supreme Court has the requisite jurisdiction to entertain this suit as presently constituted? 2.

Having regard to the circumstances of this suit, whether the instant application is meritorious to warrant the grant of the reliefs sought by the Defendant/Applicant?

It is submitted for the Plaintiffs that contrary to the arguments of the 1st Defendant, there is indeed a dispute between the Plaintiffs and the 1st Defendant. Learned Senior Counsel insisted that this Court, by virtue of Section 232(1) of the 1999 Constitution, as amended, and Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act 2002; ​has the jurisdiction to hear and determine this suit as presently constituted.

He argued that contrary to the contentions of the 1st defendant, there is a legal dispute for which this Court is called upon to determine. Learned Silk reproduced some portions of the affidavit in support of the amended originating summons and maintained that there is a legal dispute that involves a question of both law and facts on which the existence or extent of a legal right depends.

Relying on A.G. Bendel State v. A.G. Federation (supra), Learned Silk submitted that the assent by the President of the Bill cannot prevent the Court from declaring the Act a nullity where applicable, and urged this Court to invoke its original jurisdiction to hear and determine this suit.

The Nigerian Bar Association (NBA), also raised an objection to the competence of this suit, arguing in the main that the suit is grossly incompetent, in that the Plaintiffs have no reasonable cause of action. It contended that the suit is an abuse of judicial process and official privilege and the Plaintiffs lack the requisite locus standi, adding that the suit isacademic and speculative. In support of its stance, the NBA relied on a plethora of authorities, inter alia: Inakoju & Ors v. Adeleke &Ors (2007) Vol. 143 LRCN 1; Orakul Resources Ltd & Anor v.

NCC &Ors (2022) LPELR-56602 SC; Plateau State & Anor v. A.G. Federation & Anor (2006) LPELR-2921 SC.

This Court is urged to strike out this suit, in the interest of justice.

2ND AND 3RD DEFENDANTS’ MOTION ON NOTICE

By a Motion on Notice, brought pursuant to Section 17(B) of the Supreme Court Act, 2004, Order 3 Rules 1, 14 – 17 of the Supreme Court Rules, 1999 as amended and the inherent jurisdiction of this Court, as prescribed by Section 6(6)(A)&(B) of the 1999 Constitution as amended, the 2nd and 3rd Defendants sought for: “An Order dismissing or striking out the Plaintiffs’ Suit No: SC/CV/504/2022, for incompetence and want of jurisdiction.”

​The application was supported by an affidavit of 13- paragraph, sworn to by Chukwuma Eke, Esq., a Legal Practitioner and Special Assistant to the 3rd Defendant, as well as some documentary exhibits. A sole issue was distilled for determination by the 2nd and3rd Defendants, to wit: “Whether this Honourable Court has the requisite jurisdiction and can exercise its original jurisdiction to entertain and determine the Plaintiffs’ suit as presently constituted, in all the circumstances of this case?”

In canvassing this sole issue, learned Senior Counsel for the 2nd and 3rd Defendants restated the well settled conditions that must be satisfied, before a Court of law can have and properly exercise jurisdiction to hear and determine a case before it. He cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 342, amongst others.

Learned Senior Counsel argued that the Plaintiffs’ suit cannot be accommodated within the original jurisdiction of this Court, adding that the Plaintiffs lack the requisite competence or locus standi to institute and maintain the claim against the Defendants.

In further elucidation, learned Silk posited that the Plaintiffs’ claim falls outside the original jurisdiction of this Court, citing the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 588–589.

He invited this Court’s attention to paragraphs 1-25 of the Plaintiffs’ affidavit in support of the amended originating summons, which according to him, shows that the subject matter of this suit is all about the Plaintiffs’ displeasure with the provisions of Section 84(12) of the Electoral Act, 2022 enacted by the 1st defendant and assented to by the 1st Plaintiff.

Learned Silk contended that the Plaintiffs are seeking to invoke the original jurisdiction of this Court to construe and interpret the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

He noted that the matters raised by the Plaintiffs’ suit, which relates to issues of validity and constitutionality of the provisions of Section 84(12) of the Electoral Act, 2022, or the interpretation of the 1999 Constitution of Nigeria, as amended, are matters which border on the operation and interpretation of the Constitution, as it affects the Federal Government of Nigeria and its Agencies or Organs like the National Assembly, and therefore fall within the exclusive jurisdiction of the Federal High Court, vide Section 251 of the 1999 Constitution, as amended.

Reliance was placed on these cases: A.G. Lagos State v. A.G. Federation &Ors (2014)LPELR-22701 SC; A.G. Federation v. A.G. Anambra State (2018) 6 NWLR (Pt. 1615) 314.

It is the opinion of learned Silk that the Plaintiffs have failed to demonstrate and show by their affidavit evidence, that this suit was brought on behalf of the Federal Government or that the legal rights of the Federation of Nigeria (as a corporate whole) are in issue in this case.

Furthermore, it is the view of Learned senior counsel that the though the Plaintiffs predicated their claim on the provisions of Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act, 2002, the presence of the 2nd Defendant, has removed this case from the compass of the provisions of Section 1(I)(A) of the Supreme Court (Additional Jurisdiction) Act, and placed it squarely within the jurisdiction of the Federal High Court, vide Section 251 of the CFRN 1999, as amended. The case of Elelu-Habeeb v. A.G Federation (2012) All FWLR (Pt. 629) 1011 at 1049, was relied on.

​Secondly, it is submitted for the 2nd and 3rd Defendants that the case put forward by the Plaintiffs, is that they want this Court to construe and interpret the provisions of Section 84(12) of the Electoral Act, 2022, ​vis-a-vis the provisions of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which in the view of the 2nd and 3rd Defendants is outside the original jurisdiction of this Court.

Learned Silk contended that the case of the Plaintiffs is not within the ambit of Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act, 2002, adding that the Plaintiffs have not demonstrated the existence of any cognizable legal dispute between the National Assembly and the person or Office of the President or that such a dispute involves a question of law or fact on which depends the existence or extent of a legal right claimed by the Plaintiffs. He called in aid, the case of BHS Int’l Ltd v. AG. Lagos State &Ors (2016) LPELR-40084 CA.

​Learned SAN maintained that a critical look at the amended originating summons will show that it failed to disclose the existence of any legal rights and obligations of the Plaintiffs in relation to the provisions under review, that had been violated or that is in danger of being violated by the 1stdefendant. That it did not disclose any cognizable legal interest of the Plaintiffs in the subject matter of the originating summons. That the 1st Plaintiff did not in any way or manner claim to be a “Political Appointee” or even an Attorney to any Political Appointee.

That he (the 1st Plaintiff) did not claim to represent any disclosed political appointee. That the consequence of all that has been said is that the 1st Plaintiff comes across as a busy body, or meddlesome interloper seeking to protect the interest of any or all political appointees at large, who, in the view of the 1st Plaintiff, is being precluded from voting at any congress or convention by virtue of Section 84(12) of the Electoral Act, 2022.

He added that the Plaintiffs are seeking declaratory and injunctive reliefs for the benefit of persons who are not parties before this Court, which he submitted, is not permissible under the law, citing in aid, the case of A.G. Kaduna State v. Mallam Umaru Hassan (1985) LPELR-617 SC.

​Learned Senior Counsel submitted that in so far as no civil rights and obligations of the Plaintiffs are called in issue in the amended originating summons, they lackedthe competence and locus standi to institute and maintain the claim against the Defendants.

This Court is urged to hold that it lacks the jurisdiction to entertain the plaintiffs’ suit, and same should be struck out and/or dismissed for want of jurisdiction. The case of UBN Plc v. Ntuk (2003) 16 NWLR (Pt. 845) 183, was relied on.

Arguing in response, it is submitted for the plaintiffs that this Court has the substantive additional original jurisdiction, to entertain and determine the instant suit as presently constituted, to the exclusion of any other Court, vide Section 232 of the 1999 Constitution, as amended, and Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act, No.3 of 2002. The case of A.G. Federation v. A.G. Lagos State (2017) 8 NWLR (Pt. 1556) 20, was relied on.

Learned Senior Counsel for the Plaintiffs contended that there is a legal dispute, as well as a reasonable cause of action in the instant suit, which basically is the constitutionality or otherwise, of Section 84(12) of the Electoral Act, 2022, relying on the case of A.G. Bendel State v. A.G Federation (1981) 10 SC 1.

​He opined that the joinder of the2nd Plaintiff to the suit, is not fatal to the case and in any case, assuming, but without conceding that the 2nd plaintiff is misjoinder in this suit, such a situation has been cured by the provision of Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rule, 2019. This Court is urged to dismiss this application, in the interest of justice.

The case of the Plaintiffs, simply put, is that Section 84(12) of the Electoral Act, 2022 is unconstitutional, null and void, being discriminatory against political appointees and therefore violates the provisions of Section 42(1) of the Constitution, the African Charter on Human and Peoples’ Rights and the United Nations Declarations on Human Rights.

I have thoroughly perused the arguments of all Counsel in both the Preliminary Objection and the Motion of Notice, the crux of which is whether or not, this suit as constituted, falls within the ambit of Section 232(1) of the CFRN 1999, as amended, as well as Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act, 2002.

​Section 232(1) of the 1999 Constitution, as amended provides thus:- “The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.” Subsection 2 of Section 232 of the same Constitution reads as below:- “In addition to the jurisdiction conferred upon it by Subsection (1) of this Section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly.” Section 1(1)(A) of the Supreme Court (Additional Original jurisdiction) Act 2002 states as follows: “In addition to the original jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall to the exclusion of other Courts, have original jurisdiction in any dispute between:- (a) The National Assembly and the President. (b) The National Assembly and any State House of Assembly, and (c) The National Assembly and any State of the Federation in so far as that dispute involves any question (whether of law or fact) which theexistence or extent of a legal right depends.” In A-G, Federation v.

A.G. Lagos State (2017) LPELR-42769(SC), this Court, commenting on instances where its original jurisdiction can be invoked, held inter alia, as follows: “…From the wordings of the above quoted provisions, the Supreme Court has jurisdiction to the exclusion of any Court in Nigeria, to entertain, hear and determine any dispute between the Federation and State or between States, if and in so far as, such dispute involves any question on which the existence or extent of a legal right depends.

In addition, it has original jurisdiction as the National Assembly pursuant to Section 232(2) may confer upon by any Act of the National Assembly. See AG Kano State vs A.G Fed {2007} 6 NWLR (pt. 1029)164; AG Lagos State v AG, Federation (2004) 18 NWLR (pt. 904) 1; A.G, Federation v A.G Imo State (1983) 4 NCLR 178; Kaduna State v President of the Federal Republic of Nigeria (1981) 2 NCLR 781.” See also A-G of Fed. v.

A-G of Imo State &Ors (1982) LPELR-24941(SC) where it was held that: “With regard to the issue as to whose legal right is intended to be involved in thedispute under the section, the Court further held that it must be the legal right of the State invoking the original jurisdiction of the Court. The dispute has to involve either a constitutional right vested in that State or affect its existing or prospective legal right or interest: See Attorney-General of Bendel State v. Attorney-General of the Federation (supra) at pp. 24, 51, 80, 157 and 228.

I think it is significant to mention Attorney-General of Eastern Nigeria v. Attorney-General of the Federation (1964) 1 All NLR 224 which was exhaustively considered and particularly by Idigbe, JSC., at pp. 74-77 in Attorney-General of Bendel State v. Attorney-General of the Federation (supra).

Interpreting the provisions of Section 114(1) of our Republican Constitution, which is in parimateria with Section 212(1) of the current Constitution, the Court decided in that case that the State which invoked the original jurisdiction of the Court must show that its vested legal right had been involved.

It follows from the foregoing that where the Federation, as in the case at hand, invokes the original jurisdiction of the Court under Section 212(1) of the Constitution it must be shown that there is a justiciable dispute between the Federation and the Defendants/States and that the dispute must involve a legal right of the Federation. The Federation as Plaintiff must show that it has such right or interest which is affected or is likely to be affected by the action complained of.”

I have thoroughly perused the depositions in the affidavit in support of the amended Originating Summons. of particular interest to me are paragraphs 10, 16, 19 and 20.

They state thus: “10 – Section 84(12) of the Electoral Act 2022, is a detraction from both Section 84(3) of the same Act and from the 1999 Constitution of the Federal Republic of Nigeria, and the 1st Plaintiff by this action is seeking to protect and preserve the Constitution from any abuse by the 1st Defendant. 16 – After several back and forth occasioning delay brought about by the inclusion of numerous provisions in the Electoral Act (Amendment Bill) 2022, the President of the Federal Republic of Nigeria assented to the Electoral Act, 2022 on the 25th February, 2022, under protest and with a caveat that Section 84(12) therein, be removed or deleted for being unconstitutional. 19 – That I am aware the President subsequently wrote to the 1st Defendant, seeking amendment of Section 84(12) of the Electoral Act (Amendment) 2022, that would bring the Bill in tune with constitutionality, by way of deleting Section 84(12) accordingly.

But till date, the 1st Defendant has refused, failed and/or neglected to so act on the request of the President.

The President is concerned and wants our democracy safeguard the rule of law preserved, hence this suit. 20 – That I have read the provisions of the Electoral Act, 2022 and I know as a fact that the new provisions introduced therein, include Section 84(12), which provides thus: “No political appointee at any level shall be voting delegate or be voted for at the Convention or Congress of any political party, for the purpose of the nomination of Candidates for any election.” Even in spite of the policy guideline promises in Section 84(3) of the same Act.’

​It is manifest from the depositions highlighted above, that this case does not involve any question on which the existence or extent of any legal right depends, or the civil rights and obligations of the Plaintiffs; and therefore, does not fall within the ambit of Section 232(1) of the CFRN 1999, as amended, as well as Section 1(1)(A) of the Supreme Court (Original Jurisdiction) Act, 2002.

Moreover, by Section 58 of the 1999 Constitution, as amended, once there is an Assent to a Bill, it signifies the acceptance and concurrence of the Presidency to the entirety of the Bill to become an Act of the National Assembly. Having given his Assent to the Bill, the 1st plaintiff cannot under any guise, turn around to invoke the judicial process to challenge the constitutionality, validity or otherwise of an Act of the National Assembly, duly made in the exercise of its legislative powers. This goes against the spirit and letter of Section 4 of the 1999 Constitution, as amended.

It is in view of the above reasons and the reasons contained in the lead judgment written by my brother, EMMANUEL AKOMAYE AGIM, JSC, that I also hold that the original jurisdiction of this Court cannot be invoked in the circumstances of this suit. The suit is accordingly struck out.

​I abide by the consequential orders in the lead judgment, including the order as to cost.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: On April 29th, 2022, the two plaintiffs herein instituted the present suit vide an originating summons, thereby seeking the determination of various questions and declaratory reliefs against the 1st Defendant. However, pursuant to the order of this Court, duly granted on 19/5/2022. both the 2nd and 3rd Defendants were joined as such parties to the suit.

By the Amended Originating Summons, filed on 20/5/2022 the plaintiffs seek the determination of a total of five fundamental questions, viz: (1) WHETHER having regard to separate and or the combined provisions of Section 65, 66, 106, 107, 131, 177, and 182, of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provision of Section 84 (12) of the Electoral Act, 2022 which ignores Section 84(3) of the same Act has not expanded the scope of the qualifying and disqualifying factors for the National Assembly, House of Assembly, Governorship and presidential elections as enshrined in the provisions of the Constitution thereby rendering the said provision inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 (as amended)and therefore unconstitutional, unlawful, null and void? (2) WHETHER the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointees from being a voting delegate, or to be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidate for any election, even in spite/disregard of Section 84(3) of the same Act, has not disenfranchised a category of Nigerian citizen outside, and without amending, the express qualification and disqualification provisions in each of or by the combined provisions of Sections 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to incorporate appointees as part of or category of person who cannot contest for elective office? (3) WHETHER having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant permit or empower it to make any inconsistent law with the qualification and disqualification provisions under each or all of Sections 42(1) 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as Article 2 of the African Charter on Human and People’s Rights? (4) WHETHER the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party, for the purpose of the nomination of candidates for any election notwithstanding the earlier assurances in Section 84(3) of the same Act, is not inconsistent with and in violent breach of the provisions of Sections 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and null and void by reason of its inconsistency? (5) WHETHER the 1st Defendant did not act ultra vires the legislative powers vested in it under the provisions of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provision of Sections 41(1) 65, 66, 106, 107, 131, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria as well as Article 2 of the African Charter on Human and Peoples Rights by the introduction of the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointee from being a voting delegate or be voted for at convention or congress of any political party for the purpose of any election even in spite of Section 84(3) of the same Act?

Accordingly, the plaintiffs have urged upon the Court to grant the following five declaratory reliefs in favour thereof: (1) A DECLARATION that by the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 151, 177, 182, 192 and 196, of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provisions of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, hence unconstitutional, unlawful, null and void;

(2) A DECLARATION that having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the National Assembly, House of Assembly, Gubernatorial and presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of Sections 65, 66, 106, 107, 131, 137, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for reason of inconsistency, unconstitutional and therefore null and void. (3) A DECLARATION that Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party for the purpose of the nomination of candidates for any election is discriminatory, inconsistent with and in violent breach of the provision of each or all of Sections 42, 65, 66, 106, 107, 131, 147, 151, 177,182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), as well Article 2 of the African Charter on Human and Peoples Rights and same is null and void by reason of its inconsistency. (4) A DECLARATION that by the introduction of the provisions of Section 84(12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the 1st Defendant has acted ultra vires the legislative power vested in it under the provision of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provision of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, thereby rendering Section 84(12) of the Electoral Act, 2022 unconstitutional, null and void. (5) AN ORDER nullifying the provisions of Section 84 (12) of the Electoral Act, 2022 by application of the blue pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the 1st Defendant as enshrined in Section 4 of the 1999 Constitution (as amended).

​The Amended Originating Summons is predicated upon a total of 22grounds. In support, there is a 26-paragraphed Affidavit deposed to by Ekodimuo Ekene Vincent, Esq., a principal state counsel in the chambers of the 2nd plaintiff. Attached to the said Affidavit is the plaintiffs’ Written Address settled by prince Lateef Fagbemi, SAN.

On the part thereof, the 1st defendant filed: a Notice of preliminary objection to the AMENDED ORIGINATING SUMMONS, which is predicated upon a total of 25 grounds. In support of the Notice of preliminary objection, is a 10 paragraphed Affidavit, deposed to by Charles Yoila, a Deputy Director, Legal Services of the 1st defendant. Attached to the said Affidavit is a Written Address settled by Dr. Kayode Ajulo, SAN.

On 24/5/2022, the 2nd Defendant equally filed a motion on Notice, thereby urging upon this Court for the following relief: “An Order Dismissing or striking out the plaintiff’s suit No. SC/CV/504/2022, for incompetence and want of jurisdiction.”

​The said motion is predicated upon a total of 6 grounds. In support thereof is a 13 paragraphed Affidavit deposed to by Chukwuma Eke, a legal practitioner and special Assistant to the 3rd Defendant. Attached to the Affidavit are various processes, marked as Exhibits A-D, D1: (i) EXHIBIT A: NOTICE AND GROUNDS OF APPEAL (PDP AND 1. CHIEF NDUKA EDEDE, 2 (AG FEDERATION) filed in the Court of Appeal Owerri Judicial Division on 12/04/2022. (ii) EXHIBIT B: THE 2ND RESPONDENT’S (2ND PLAINTIFF) BRIEF in the said appeal: (iii) EXHIBIT C: The judgment of the Court of Appeal in Appeal No.

CA/OW/87/2022, delivered on 11/05/2022. (iv) EXHIBIT D: APPEAL OF CROSS APPEAL TO APPEAL NO. CA/OW/87/2022; (v) EXHIBIT D1: NOTICE OF APPEAL 13/5/2022 in Appeal No. CA/OW/87/2022 by Chief Nduka Edede.

In response to the defendants’ processes, the plaintiffs deemed it expedient to file Replies along with written Addresses in support.

On 26/05/2022, when the originating summons came up for hearing, the parties were accorded the opportunity of addressing the Court, thereby identifying and adopting the extant processes vis-a-vis the Written Addresses thereof. Thus, resulting in the Court to reserve judgment sine die.

DETERMINATION OF THE DEFENDANTS’ PRELIMINARY OBJECTIONS As alluded here-to-fore, the defendants herein have deemed it expedient to vehemently challenge the competence of the instant suit vide a Notice of Preliminary Objection and Motion on Notice, respectively.

By the extant rules of this Court, it’s incumbent upon the Court to first and foremost deal with the said Preliminary Objection and motion of preliminary objections of the defendants, before proceeding to determine the suit on the merits, if at all necessary.

I have accorded an amply critical, albeit dispassionate, consideration upon the complex constitutional nature of the present suit the objections canvassed by the 1st, 2nd and 3rd defendants challenging the jurisdictional competence of this Court to entertain and determine the suit, the plaintiffs’ replies there to vis-a-vis the far-reaching submissions of the respective learned senior counsel thereupon. Most interestingly, the issues raised by the learned senior counsel in their respective written Addresses are not at all mutually exclusive.

Thus, I have deemed it expedient to adopt the two issues thrown up by the 1st defendant for the determination of the objections, viz: (1) Whether from the facts and circumstances of this case, this suit as presently constituted bythe 1st and 2nd plaintiffs/Respondents is not liable to be struck out for having been brought in flagrant violation of Section 1(1) (A) of the Supreme Court (Additional Jurisdiction) Act.

No. 3 2002; and Order 3 Rules 6(1) of the Supreme Court Rules (as amended 2014) in relation to the invocation of the Original jurisdiction of this Honourable Court. (2) Whether from the facts and the circumstances of this case there exists a dispute within the contemplation of Section 1(1) (A) of the Supreme Court (Additional Jurisdiction) Act No. 3 2002; and Order 3 Rule 6 (1) of the Supreme Court Rules (as amended 2014) which discloses or raises the existence or extent of any legal right in favour of the 1st and 2nd Plaintiffs/Respondents to warrant the invocation of the original jurisdiction of this Honourable Court.

ISSUES NO.1 The first issue raises the vexed question of whether or not from the facts and circumstances of this case, the suit as presently constituted is not liable to be struck out for having been brought in flagrant violation of Section 1(1) (A) of the Supreme Court (Additional Jurisdiction) Act No. 3, 2002, and Order 3 Rule 6 (1) of the Supreme Court Rules (as amended, 2014) in relation to the invocation of the original jurisdiction of the apex Court

Likewise, the second issue raises the question of whether or not from the facts and circumstances of the case, there exists a dispute within the contemplation of Section 1 (1) (A) of the Supreme Court (Additional Jurisdiction) Act No.3, 2002, and Order 3 Rule 6(1) of the Supreme Court Rules (as amended 2014) which discloses or raises the existence or extent of any legal right in favour of the 1st and 2nd Plaintiffs/Respondents, to warrant the invocation of the Original ‘jurisdiction’ of the apex Court.

Instructively, the term ‘jurisdiction’ denotes an authority to entertain, hear and determine a case (matter, action, appeal, et al). Indeed, jurisdiction has equally been defined as: Capacity to decide the matter in issue, capacity to hear the controversy, command, control, decision-making power over the case; domain, domination, extent of authority, grasp, legal authority, legal power to decide a case, reign, sovereignty… territorial range of authority, territory. See BURTON’S LEGAL THESAURUS, 3RD Edition, 1998 @ 321.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Jurisprudentially, the term jurisdiction is universally understood to mean the Court’s power to entertain, hear and decide a case or issue a decree (order). Also termed competent jurisdiction; coram judice; adjudicatory jurisdiction: BLACK’S LAW DICTIONARY 11TH Edition 2019 @ 1017.

According to Fleming James Jr. et al, the Rules of jurisdiction of Courts are to large extent constitutional rules: The provisions of the US Constitution specify the outer limits of the subject matter jurisdiction of the Federal Courts and authorities congress, within those limits, to establish by the organization and jurisdiction of the Federal Courts. Thus, Article III of the Constitution defines the judicial power of the United States to include cases arising under Federal law and cases between parties of diverse state citizenship as well as other categories.

The US Constitution, particularly the Due process clause, also establishes limits on the jurisdiction of the state Courts. These due process limitations traditionally operate in two areas: jurisdiction of the subject matter and jurisdiction over persons. Within each state, the Court system is established by State Constitutional provisions or by a combination of such provisions and implementing Legislation, which together define the authority of the various Courts within the system. See FLEMING JAMES Jr. et al: CIVIL PROCEDURE 5TH Edition, (2001) @ 55; BLACK’S LAW DICTIONARY 2019 op cit @ 1017.

There’s no gainsaying the fact, that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is a model of the American Constitution which cherishingly had been structured on the fundamental principles of separation of powers between the Congress (Legislature), Executive and the Judicature (Judiciary). Under Articles I, II and III of the American Constitution, it’s provided: ARTICLE I SECTION 1. All the legislative powers herein granted shall be vested in a congress of the United States which shall consist of a Senate and House of Representatives. ARTICLE II SECTION 1.

The executive power shall be vested in a president of the United States of America. He shall hold his office during the Term of four years, and, together with the Vice president chosen for the same Term, be elected… … ARTICLE III SECTION 1.

The Judicial power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the congress may from time to time ordain and establish. The Judges both of the Supreme Court and inferior Courts, shall hold their offices during good behavior and shall at state Times, receive for their Services a compensation, which shall not be diminished during their continuance in office.

Comparatively, under the 1999 Constitution (supra), the separation of powers is cherishingly provided under chapter I, part II; Sections 4, 5 and 6: 4-(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a senate and House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative’s List set out in Part I of the second schedule to this Constitution. 5- (1) Subject to the provisions of this Constitution, the executive powers of the Federation – (a) Shall be vested in the president and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by here either directly or through the vice-president or Ministers of the Government of the Federation or other officers in the public service of the Federation;

and (b) (b) shall extend to the execution and maintenance of this constitution all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws. 6. (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates being, Courts established for the Federation. (6) the judicial powers vested in accordance with the foregoing provisions of this section- (a) shall extend notwithstanding anything to the contrary in this Constitution to all inherent powers and sections of the Court of law. (b) shall extend to all matters between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that persons;

(c) shall not except as otherwise provided by this Constitution extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive’s Principles of State Policy set out in Chapter 11 of this Constitution and (d) shall not as from the date when this section comes in force, extend to any action or proceeding relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to competence of any authority to make any such law.

Now, as copiously alluded to above, the Defendants’ preliminary objections vehemently challenge the competence of the plaintiffs’ suit nay the jurisdiction of this Court to entertain and determine same. The objections (especially that of the 1st Defendant) is predicated upon a total of 29 grounds, the Affidavits in support and the various Exhibits attached thereto.

Most particularly, ground 1 of the objection raises the very fundamental question that: (1) This Honourable Court lacks the jurisdiction to hear and determine this suit same having been filed in flagrant violation of the Supreme Court(Additional jurisdiction) Act, No. 3 2002 and Order 3 Rule 6 (1) of the Supreme Court Rules (as amended 2014)”

In my considered view, the starting point ought to be the provision of Section 1 (1) (A) of the Supreme Court (Additional Jurisdiction) Act No. 3, 2002, viz: 1.

ADDITIONAL ORIGINAL JURISDICTION FOR THE SUPREME COURT (1) In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other Court have original jurisdiction in any dispute between- (a) The National Assembly and the President; (b) The National Assembly and any State House of Assembly; and (c) The National Assembly and the State of the Federation, in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

Pursuant to the forgoing unequivocal provisions of Section 1 (1) – (5) of the Supreme Court (Additional Jurisdiction) Act No, 3, 2002, there is no controversy, at all, that the two Houses of the National Assembly (the Senate and House of Representatives) had a cause to passa bill, the Electoral Bill which was sent to the 1st plaintiff for his assent. And that, the 1st plaintiff dutifully deemed it expedient on February 25th, 2022 to assent and sign the Bill into law (Electoral Act, 2022) in accordance with the provision of Section 58 of the 1999 Constitution (supra).

The provisions of Section 58 of the 1999 Constitution are to the following effect: (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by Subsection (5) of this section, assented to by the President. (2) A bill may originate in either the Senate or the House of Representatives and shall become law unless it has been passed and, except as otherwise provided by this section and Section 59 of this Constitution, assented to in accordance with the provisions of this section. (3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other Houses on any amendment made on it. (4) Where a bill ispresented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent. (5) Where the President withholds his assent and the bill is again passed by each House by two-third majority, the bill shall become law and the assent of the President shall not be required.

The above provisions of Section 58 of the 1999 Constitution are crystal, clear, and rather unambiguous. The 1st plaintiff had exercised his constitutional power as President of the Federation by according his assent, thereby signing the Electoral Bill, 2022 into law (Electoral Act, 2022). Thus, having signed the said Bill into law, it would be not only difficult but utterly impossible for him to now seek to undo what he had voluntarily done – the signing of the said Electoral Bill, 2022 into law (Electoral Act, 2022). See ADESANYA VS.

PRESIDENT FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 9 per Fatai William, CJN.

As alluded to above, the judicial powers of the Federation shall be vested in the Courts, as cherishing provided under Section 6 of the 1999 Constitution, as amended: 6.- (1) The judicial powers of the Federationshall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution for a State. (3) The Courts to which this section relates established by this Constitution for the Federation and for the States specified in Subsection (5) (a) to (i) of this Section shall be the only superior Courts of record in Nigeria;

and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (4) Nothing in the foregoing provisions of this section shall be construed as precluding- (a) the National Assembly or any House of Assembly, from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

(b) the National Assembly or any House of Assembly which does not require it from abolishing any Court which it has power to establish or which it has brought into being. (6) the judicial powersvested in accordance with the foregoing provisions of this section- (a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

Cherishingly, Section 6 of the 1999 Constitution, as amended, has maintained the removal of the anachronism that the king (meaning the state in this country), ‘could do no wrong’. Indeed, it’s a luxury which this Country could ill-afford ever since the coming into force of the Constitution of the Federal Republic of Nigeria, 1979, the precursor to the extant 1999 Constitution, as amended. As aptly stated by this Court in OLUFUNMILAYO RANSOME-KUTI VS.

A.G FEDERATION (1985) 6 SC 246; (985) 2 NWLR (pt. 6) 211, it’s a prerogative which Bacon described “as a galand of prerogatives woven around the pleadings and proceedings of the King’s suits”, per Eso, JSC. ​It’s trite, that HenryBracton (c1220 – 1268) was a great man in the common law history. He lived well over seven centuries ago. As a Judge of the King’s Bench, Bracton was equally an ecclesiastic – as most Judges were then. Interestingly, the red robe which High Court Judges still wear was originally a cassock.

He was acclaimed to have been the first jurist to make the common law into science. Recall Bacon’s famous treatise- THE LAWS AND CUSTOMS OF ENGLAND -wherein he made references to previous cases (authorities), just as we do now. As aptly remarked by Lord Denning, MR: By using decided cases in this way, he started the English system of precedent.

In his notebook he says: ‘Si tamen similia evenerint, per simile judicentier, cum borasitoccasio a similibusprocedere ad similia (if however similar things happen to take place, they should be adjudged in a similar way: for it is good to proceed from precedent to precedent)’ Tennyson took up that phrase when he wrote of England, that it is a land where a man may speak the thing he will, A land of settled government. A land of just and old renown. Where Freedom slowly broadens down. FromFlecedent to precedent.

See DENNING: WHAT NEXT IN THE LAW, Oxford University Press Inc. 1982; First Indian Edition, 2011 @ 5-6. Remarkably, Bracton equally left his footprints in the sands of time, when he wrote in his treatise: Quod Rex Non Debetesse sub Homine, sed sub Deo Lege’. (That the King should not be under man but under God and the law.) The aforementioned epitaphs of Bracton were throughout the centuries quoted, most especially during the despotic reigns of the Stuart Kings who claimed to rule by divine right.

I think it was King James 1 of England who once had the audacity to declare: “Then I am to be under the law. It is treason to affirm it”. To which Sir Edward Coke replied: Thus wrote Bracton: “The King is under no man, but under God and the Law”.

Recall when Charles 1 was put on trial for treason before the specially constituted High Court of justice, the President of the Court (John Bradshaw) repeatedly quoted Bracton: “The King is under no man but under God and the Law “However, King Charles 1 defiantly refused to plead, thereby vehemently denying that the Court was competent to try him for treason.

Nonetheless, the King was tried, convicted, sentenced to death, and executed (by heading). As Andrew Marvell aptly captured the solemn scene: “He is a common did or mean upon that memorable scene: but with his leaner eye. The axe’s edge did try … But bowed his comely head Down as upon a bed See Denning: WHAT NEXT IN THE LAW, op cit @ 6-7.

Most instructively, under Section 232 of the 1999 Constitution as amended (supra), the Supreme Court is cloaked with the following far-reaching original jurisdiction: 232 (1) The Supreme Court shall, to the exclusion of any other Courts have original jurisdiction in any dispute between the Federation and a state or between State if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. (2) In addition to the jurisdiction conferred upon it by Subsection (1) of this Section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly.

Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminalmatter.

As copiously alluded to above, apart from the forgoing provision of Section 233 of the 1999 Constitution, Section 1 (1) (A) of the Supreme Court (Additional Jurist diction) Act No. 3, 2002 (supra) has graciously accorded this Court with additional original jurisdiction: In any dispute between- (a) The National Assembly and the president; (b) The National Assembly and any State House of Assembly; and (c) The National assembly and the State of the Federation, in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

Arguably, by virtue of the foregoing unequivocal provisions of Section 232 (1) & (2) of the 1999 Constitution (as amended), for the Court’s original jurisdiction to be invoked, the plaintiffs have an onerous burden to show that the dispute which they would want the Court to resolve or determine involves any question upon which the existence or extent of their legal right depends. See A.G BENDEL STATE.

V A.G FEDERATION (1981) 10 SC; AG KANO STATE VS AG FEDERATION (2007) LPELR-618, (SC). ​Indeed, it has long been settled by thisCourt in a plethora of authorities, that before the original jurisdiction of the Supreme Court can be invoked under the Constitution (Section 232 of 1999 Constitution, as in the instant case), there are certain preconditions that must be satisfied, viz: (1) There must be a justiciable dispute involving any question of law or fact; (2) The dispute must be- (a) between the Federation and a State in its capacity as one of the constituent units of the Federation; or (b) between the Federation and more states than (six) are in their capacities as members of the constituent units of the Federation, or (c) between states in their aforesaid capacities, and the dispute must be one on which the existence or extent of a legal right in the aforesaid capacity is involved.

See AG. LAGOS STATE VS AG. FEDERATION (2004) 18 NWLR (Pt. 904) 1 @125-126 paragraphs G-A; AG. FED. VS. AG. IMO STATE (1983) 4 NWLR 178; AG. KANO STATE VS. AG. FED. (2007) 6 NWLR (PT. 1028) 164 C-D; 182 E-H; AG. LAGOS STATE VS. AG. FED. (2014) LPELR-22701(SC) Per Kekere-Ekun, JSC @ 128-129 paragraphs B-H.

​I have critically, albeit dispassionately, consideredthe plaintiffs’ averments contained in the Affidavits thereof.

Most particularly, paragraphs (15), (16), (17), (18), (19), (23) and (24) of the Affidavit in support of the Amended Originating Summons, deposed to by Elodimiuo Ekene Vincent, Esq., a principal state counsel in the chambers of the 2nd plaintiff, aver: (15) That I am aware that the 1st Defendant in pursuance of its legislative power commenced the amendment of the Electoral Act, 2010 which culminated in the passing of the Electoral Act (Amendment Bill) 2022. (16) After several back-and-forth occasioning delay brought about by the inclusion of numerous provisions in the Electoral Act (Amendment Bill) 2022, the President of the Federal Republic of Nigeria assented to the Electoral Act, 2022 on the 25th February, 2022 under protest and with a caveat that Section 84 (12) therein, be removed or deleted for being unconstitutional. (17) That the President observed that the said Section 84 (12) disenfranchises political appointees in a way and manner outside the contemplation of the Constitution of Federal Republic of Nigeria, 1999 (as amended). (18) That the President in assenting tothe bill expressed the view that “it is imperative to note that the only constitutional expectation placed on serving political office holders that qualify by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

It will be stretching things beyond the constitutional limit to import extraneous restrictions into the Constitution on account of the practical application of Section 84 (12) of the bill where political parties’ convention and congresses were to hold earlier than 30 days to the election ” (19) That I am aware the president subsequently wrote to the 1st Defendant seeking amendment of Section 84 (12) of the Electoral Act (amendment) 2022, that would bring the bill in tune with constitutionality by way of deleting Section 84(12) accordingly, but till date, the 1st Defendant has refused/failed and/or neglected to so act on the request of the President.

The president is concerned and wants our democracy to safeguard the rule of law preserved hence this suit. (23) That l know as a fact that the introduction of the provision of Section 84(12) into the Electoral Act, 2022 is an attempt to take away the constitutionally guaranteed rights of political appointees to vote and be voted for. (24) That I know as a fact that unless the 1st Defendant is restrained, and the said provision of Section 84(12) of Electoral Act 2022, struck down, the said provision if implemental portends a grave danger to the constitutional democracy of Nigeria as a Country.

I am unable to appreciate, let alone uphold, the foregoing preposterous and rather a sheer afterthought averments. It would amount to the 1st Plaintiff having the cake thereof and eating it simultaneously. Most interestingly, it is a popular English Idiomatic proverb: “YOU CAN’T HAVE YOUR CAKE AND EAT IT TOO”. That’s to say – you cannot simultaneously retain your cake and eat it. See WIKIPEDIA.

​Invariably, the word ‘assent’ denotes an agreement, approval, or permission, especially verbal or non-verbal conduct (action) reasonably interpreted (construed) as willingness (consent). Under the law of contract, for instance, assent, is a fundamental requirement to the formation of a binding contract. Thus, ‘assent’ generally implies thatboth parties to an exchange shall have a reasonably clear conception of what they are actually getting, and what they are giving up in return. See MARVIN A.

CHIREISTEIN: CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS (1990) @ 66; BLACK’S LAW DICTIONARY op cit @ 143.

As alluded to above, the Electoral Bill, 2022 (like any other Bill of the National Assembly) requires the Assent of the President (1st plaintiff) by virtue of Section 58(1) of the 1999 Constitution (supra): 58 (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and except as otherwise provided by Subsection (5) of this Section, assented to by the President.

By virtue of Subsection (5) of Section 58 (supra), it is provided that: (5) where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required. Thus, by virtue of the foregoing unequivocal provisions of Section 58 (1) & (5) of the 1999 Constitution (supra), once a Bill passed by the National Assembly isduly assented to by the President pursuant to Section 58 (1) of the 1999 Constitution supra, (as in the instant case), the Bill is deemed an Act of the National Assembly.

In the instant case, the Electoral Act of 2022 became law on the very date the president assented (signed), to same on 25/02/2022. See ODUA OGBORU VS. UDUAGHAN (2011) 17 NWLR (pt. 1277); (2011 LPELR-8236 (SC).

I have deemed it expedient to reiterate, that the Supreme Court has an onerous duty to jealously and courageously guard its jurisdiction with a view to preserving the sanctity (sacredness) of the rule of law and its inviolable independence. It is trite, that of the foremost characteristics of the rule of law, is the absolute supremacy or predominance of regular Courts as opposed to arbitrary power. In the sense, that no man is above the law, duly established in the ordinary legal manner before the law Courts.

Secondly, the equality before the law: The equally subjection of all classes to the ordinary law of the land administered by the ordinary Courts; the Rule of Law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to thelaw which governs other citizens or form the jurisdiction of ordinary tribunals. See ALBERT VENN DICEY: LAW OF THE CONSTITUTION (1885) @ 202, 203. Arguably, the concept of justice has dramatically changed over the years. See the Federal Constitutions of 1960, 1963, 1979 and lately the extant 1999 Constitution as amended or altered.

Under Section 17 of the 1999 Constitution, it is provided: 17.

The state social order is founded on ideals of Freedom, Equality and Justice. (2) In furtherance of the social order- (a) every citizen shall have equality of right, obligations and opportunities before the law; (b) the sanctity of human person shall be recognized and human dignity shall be maintained and enhanced; (c) government actions shall be humane; (d) exploitation of human or natural resources in any form whatsoever for reasons other than the good of the community shall be prevented;

and (e) the independence, impartiality and integrity of Courts of law, and easy accessibility thereto shall be secured and maintained. (3) The State shall direct its policy towards ensuring that- (a) all citizens withoutdiscrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunities to secure suitable employment;

(b) conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life: (c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused; (d) there are adequate medical and health care facilities for all persons; (e) there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever; (f) children, young persons, and the aged are protected against any exploitation whatsoever, and against moral and material neglect;

(g) provision is made for public assistance in deserving cases or other conditions of need; and (h) the evolution and promotion of family life is encouraged.

It is my considered view, that the Supreme Court has cherishingly not abdicated its fundamental duty of upholding and applying the supremacy of the directives of the Rule of Law. See. Governor of Lagos State vs Ojukwu (1986) 1 NWLR (Pt. 18),Wherein this Court held, inter alia: There is no doubt that we are under a military Regime but it is a regime that had pledged itself to observe and abide by the Rule of law. The rule poses- 1. That the State (including the Lagos State Government) is subject to the law. 2. That the judiciary is a necessary agency of the Rule of Law. 3.

That Government (including the Lagos State Government) should respect the rights of individual citizens under the Rule of Law. 4. That to the Judiciary is assigned both by the Rule of Law and our Constitution the determination of all action and proceedings relating to matters in dispute between persons and between government or an authority and any person in Nigeria, Per Oputa, JSC @ 647-648.

Recall, exactly eight decades ago (in 1942), Lord Atkin had the audacity to state in the notorious case of LIVERSIDGE VS ANDERSON (1942) AC 206: In this country amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the principles of liberty for which on recent authority we are now fighting, that judgesare no respecter of persons and stand between the subject and any attempted encroachment on the liberty by the Executive, alert to see that any coercive action is justified in law.

Per Lord Atkin, LJ @ 244. Most interestingly, the horrible war condition under which Lord Atkin, LJ alluded to in LIVERSIDGE VS. ANDERSON (supra) was graphically captured by no other than the legendary Lord Denning, MR: But when I was appointed a Judge, it was the time of the flying bombs. On one occasion in the basement after lunch, two witnesses turned up to give evidence- their faces cut by splinters from the bombs. One morning I got to my room in the Courts and found the windows blasted and broken glass everywhere. At home back in Cuckfiel we were in the flight path of enemy bombers.

They dropped their unused bombs on us. One afternoon we had a grandstand view of the first flying bomb shot down by a spitfire. We carried on as usual of course. As Lord Atkin said in Liversidge V. Adersion: ‘In this country, amid the clash of arms, the laws are not silent: they may be changed, but they speak the same language, in war as in peace. ​See Lord Denning, MR: THE DUE PROCESS OF LAW, OXFORD UNIVERSITY PRESS, FIRST PRINT 1980; REPRINTED 2012 @ 188-189.

It ought to be reiterated, that the Grund-norm itself (i.e the 1999 Constitution, as amended), from which all other laws derive their validity, is fundamentally founded on the doctrine of the Rule of Law. As aptly pontificated by this Court in the case of GOVERNOR OF LAGOS STATE V.

OJUKWU (Supra): The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law it means also that government should be conducted within the frame- work of recognised rules and principles which restrict discretionary power which Coke, colourfully spoke of as golden and straight met wand of law as opposed to the uncertain and crooked cord of discretion.

More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are wholly independent of the executive. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. Thelaw should be even handed between the government and citizens. Per Obaseki, JSC @ 638.

​Hence, against the background of the foregoing reasoning, and the elaborative reasoning and conclusion ably reached in the judgment just delivered by my learned brother Hon. Justice Emmanuel Agim, JSC I too hereby deem it imperative to strike out the instant suit for being devoid of competence. The suit is struck out. No order as to costs.

Judgment

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgement): This application was brought pursuant to Orders 7 Rule 1, 17, Rules 1 and 2, 18 Rule 11, 20 Rules 2 and 3 of the Court of Appeal Rules 2011, Sections 6 (6) (a), 35 (1) 46 (1) and 232 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and the inherent jurisdiction of this Court.

The application prays for the following orders: 1. AN ORDER of Hon. Court of Appeal granting the order contained in the Applicant/ Appellant’s Application dated 2nd July, 2020 as a prelude for contempt of Court procedure as prescribed by statute against the 4th Respondent, that the Trial Judge who is clothed with Jurisdictional power to grant, but willfully refused and neglected to hear and grant, before further step could be taken in the hearing of the instant Appeal today. Marked T .1 2. AN ORDER of the Hon.

Court of Appeal restraining the 5th, 7th and 8th Respondents, the Executive Arm of Lagos State Government; the state of origin of the 4th Respondent herein or any of her agencies, including but not limited to the 5th Respondent; ‘the Hon. Attorney General and Commissioner for Justice Lagos State; the 7th & 8th Respondents; the DPP Lagos State from instituting and or maintaining any criminal proceeding or charges relating to any of the charges contained either in its original or amended form in CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V.

ALHAJI ABDUL RAUF AND ALHAJI FARRY YUSUF Or any other offences that having the same ingredients as the offences contained either in its original or amended form of the instant charges. 3. AN ORDER of the Hon. Court of Appeal compelling the state of Lagos High Court presided over by Hon. Justice Hakeem Oshodi. J that is sitting as Appellate Court on the final judgment/ orders of the Federal High Court to grants as follows; a) Immediate grant of stay of proceeding on: CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND AKANNI SAUDA. And CHARGE/ SUIT NO: ID/2626C/2016.

STATE OF LAGOS V.

ALHAJI ABDUL RAUF TIJJANI AND ALHAJI FARRY YUSUF. b) Grant the stay of enforcing the unlawful warrant of arrest of the Applicant/ Appellant herein and his privies issued by the State High Court of the 5th, 7th and 8th Respondents that operating as Appellate Court to sit on the final decision of the Federal High Court without Authority of law. c) And AN ORDER setting aside all the proceeding/ decisions taken so far in two mentioned suit numbers Supra including releasing of the International Passport of the Applicant/ Appellant herein and his privies from all the encumbrances imposed on them in the said purported Appellate of Lagos State High Court Anarchistically created by the 5th, 7th and 8th Respondents without Authority of law. 4.

And for Status Quo to be secured; AN ORDER of the Hon. Court of Appeal discharge and Acquittal the Applicant/ Appellant herein and his privies; the Defendants/ Applicants thereof on the grand of legislative law and constitution as a means by which the law vindicates the Public interest in the Administration of Justice. 5. AND for such further order or other order as this Honorable Court of Appeal may deem fit to grant in the circumstance.

The grounds for the application are: 1. The Court is a creation of the constitution. It will not give its aid, under any guise, to a violation of any provision of the Constitution, which give it life. And as argued by learned Counsel for the respondents in the oral application Judges must, at all times and under all circumstances, strive to honour their oath office to defend and protect to constitution. 2.

The object of interlocutory injunction is to protect the applicant against injury by violation of his right for which he would not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trail. 3.

It is the duty of the judiciary to keep in check the excesses of the executives and overbearing and abrasive tendencies of the Legislature so that each of the 3 components of the government confines itself within the province allocated or prescribed for it by the constitution … I am of view that, it should be understood that a constitution is not a mere common legal document.

It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparatus of the government as well as regulating the relationship between the Citizen and the State. It equally makes provision for rights of the citizen within the compass of the state. 4. An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the Court.

It is an equitable jurisdiction which the Court is called upon to exercise in the light of the facts presented before it by the applicant. 5. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts. Some of the principles or factors to be considered in an application for interlocutory injunction are: 1. There must be a subsisting action. 2. The subsisting action must clearly denote a legal right which the applicant must protect. 3.

The applicant must show that there is a serious question or substantial issue to be tired. 4. And because of (3) above, the status quo should be maintained pending the determination of the substantive action.

​The application is supported by a nine-paragraph affidavit deposed to by Alhaji Abdul-Rauf Tijjani MNI OFR, with the written address in support of motion as well as exhibit A1, AB, exhibit A3A, A3B, A4, A5, A6, A7, T1 and T5 attached. The affidavit of urgency was withdrawn and struck out on the 4th of March, 2021; the 6th was served with both the hearing notice but was not in Court.

The Applicant urged the Court to grant the application in the interest of justice.

U.O. Sule Esq., SAN for the 1st Respondent did not file a counter affidavit but opposed the application on points of law; urging the Court to dismiss the application because, it does not relate to this appeal in his opinion.

Innocent Daagba Esq., of counsel for the 2nd Respondent while adopting the submissions of U.O. Sule SAN also urged the Court to dismiss the application because the application relates to a case before the Lagos State High Court and not this Court.

Rex Irame Esq., of counsel for the 3rd Respondent adopted the submissions of U.O. Sule SAN and also urged the Court to dismiss the application without much ado.

Boniface Bassey Esq., for the 4th Respondent adopted the submissions of the 1st and 2nd Respondent’s counsel as well.

​Ojonimi S. Appeh Esq., for the 5th, 7th and 8th Respondents filed a eight paragraph counter affidavit deposed by Ayobami K. Oke Esq., in opposition to the application.

I have carefully gone through the application alongside the affidavits, exhibits attached, the counter affidavit and the various submissions of counsel; especially that of the applicant who contends that he pleaded illegalities contained in reliefs 4 to 7 and established them through affidavit evidence that need no further proof; especially what he referred to as “the crime of unlawful removal of the case file that contained the final judgment of the Federal High Court and rights of the applicant… and the crime of contempt and anarchistic act of the 5th, 7th and 8th Respondents that converted their State High Court of Lagos to an appellate Court for final judgment/orders of the Federal High Court in excesses of sovereign power vested by the constitution and the law to the Executive Arms of the State of the Federation of which, the 5th, 7th and 8th Respondents… “

The Applicant formulated a sole issue for determination as follows: Whether the Courts established by the Constitution of the nation are constitutionally licensed to protect validly exercised rights of a party that placed before it along with established illegalities of other parties in the context of law?

The Applicant contends while referring to AKILU V FAWEHINMI 2 (1989) 2 NWLR part 102 at page 149, that Courts have jurisdictional power to protect rights of parties “…that falls within the sphere of his or their legal liberty.”

While referring to LAWAL-OSULA & ORS V CHIEF SAKA LAWAL OSULA & ORS (1995) LPELR-1763-SC, the applicant contends that exhibits Al and AB attached to his supporting affidavit established that the 4th, 5th, 7th and 9th Respondents have no locus standi to seek discretionary remedy from the lower Court; and that the only “jurisdictional power the trial Court has in the circumstances is to protect all the legal instruments issued in favour of the Applicant herein as against the 5th, 7th and 8th Respondents…”

That all the processes filed and argued at the lower Court, as well as the decision of the Court are exercises in futility, as they “…ab initio ousted the jurisdiction of the Court of Appeal to entertain any of their positions in the instant application or in the main appeal…” The Applicant urged this Court to grant all the reliefs sought in this application; he referred the Court to SALEH V ALHAJI SHETTIMA MONGUNO & ORS (2006) LPELR-2992-SC MUHAMMADU BUHARI & ORS V CHIEF OLUSEGUN AREMU OBASANJO & ORS (2003) LPELR-813-SC.

The Applicant also urged this Court “…not to fall into the same booby trap set down vides the sophistry of technical minded counsel of the adversary of the Appellant/Applicant herein who is not a legal practitioner but bent to exercise his civic constitutional duty that must be respected and encourage to further brighten the sphere of civilization of the citizens and stabilization of the rules of law…”

He urged this Court to resolve the sole issue in favour of the Applicant, against the Respondents.

​It is important to point out that the Applicant appeared for himself. He is not a legal practitioner. He articulated his case very well in spite of the uphill task he had to contend with; and that partly explains why he urged this Court, in apparent apprehension, not to be bogged down by technicality “…by falling into the same booby-trap set down by the sophistry of technical minded counsel…”

While the Court is always willing to assist any party who is not a legal practitioner to conduct their case without let or hindrance, in the interest of justice, the Court is always mindful of its duty as an impartial arbiter, not to jump into the arena in sympathy or empathy; OKON V OKON (2009) LPELR-8699- CA; See also SUBERU V. STATE (2010) 8 NWLR PT. 1197 PG. 586; AJUWON VS. AKANNI (1993) 9 NWLR PT. 316 PG. 182; SALUBI V. NWARIAKU (1997) 5 NWLR PT. 505 PG.442 AND OLORUNFEMI VS. ASHO & ORS (1999) 1 NWLR PT. 585 PG. 1.

Having gone through the reliefs sought, it is clear to this Court that the central issue is indeed the judgment of the Federal High Court Lagos at pages 532 to 561 of the record of appeal; and most importantly, on proper scrutiny, the reliefs sought show that the application filed on the 10th of March 2021 seeks reliefs this Court cannot grant. This Court cannot, because it is in no position to, in the circumstances “…arrest the anarchy brought into the judicial system” as claimed by the applicant.

​The reliefs sought have all been listed elaborately, and this Court does not have the jurisdiction to grant any one of them, not least because they are uncertain and imprecise, and most importantly because they refer to processes filed before the trial Court and not before this Court.

It is for these reasons that this Court cannot in all fairness hear and determine this application as presently constituted, because it lacks the jurisdiction to do so.

Even though the Applicant appears to be highly educated and very intelligent, and buoyed by his constitutional right to represent himself, some cases are better handled by counsel due largely to technicalities of the law, and parties will be better served if they engaged the services of counsel, at least for advice to avoid certain pitfalls that non lawyers inevitably face when handling cases of this nature on their own.

I am fortified in this belief by several decisions of this Court and the apex Court, chief amongst which is TIJANI & ANR V FBN PLC (2013) LPELR- 20656-CA where this Court held among other things that: “… it’s a well settled principle, that the participation of a lawyer in any criminal proceedings, as well as in complex civil proceedings (such as the instant case), on behalf of an accused person (or litigant, as the case may be), is very essential to a fair trial.

The participation of a lawyer in a case is intrinsically connected to the accused person’s or litigant’s right to adequately defend himself, or present his case. As once aptly articulated by Lord Denning, MR- It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in- intelligence. He cannot examine or cross-examine witnesses. We see it every day.

A Magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT VS. GREYHOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549. ​From the above eloquent dictum of Lord Denning, MR, it’s rather obvious, that what actually makes the participation of a lawyer (counsel) in a Court case so vital is his adequate knowledge of the law.

His ability to apply that knowledge to given fact situations; to sift relevant, admissible and often complex evidence from what is irrelevant and inadmissible. And most importantly, his skills in argumentation and power of persuasion.

I think, it was Lord Simon who once cited with approval Dr Johnson’s observation in 5 BOSWELL’S LIFE OF JOHN- (Birkbeck Hill edition) 26, thus: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL ER. 1169 @ 1176.

See also ARTICLE 14 (3) (d) of the International Covenant on Civil and Political Rights; Article 7 (i) (c) of the African Charter on Human and Peoples Rights; Article 8 (2) (d) of the American Convention on Human Rights; Article 6 (3) (c) of the European Convention for the Protection of Human Rights And Fundamental freedoms. At this point in time, the following rhetorical question is rather pertinent, what then are the likely consequences of a party’s election to conduct his case in person? I think, the answer to that pertinent rhetorical question is not far-fetched.

See AMICI CURIAE; PROSECUTOR VS. MILOSEVIC: CASE NO. IT-02-54- AR73.6, dated January 20, 2004, wherein consequent upon the complaint of the accused person that the Trial Chamber had not accorded him adequate time to prepare his defence (and for instance, he had to peruse at least 350,000 pages of complex material evidence of the prosecution), the Appeals chamber held, inter alia, thus: There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided.

A Defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal systems respect for a Defendant’s decision to forgo assistance by counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.” Per SAULAWA, J.C.A, as he then was (Pp. 14-17, paras. F-B). The decision or choice to forgo the services of counsel is left to the litigant out of respect for his rights;

“The best person to decide who represents him as counsel is the appellant, and that is his Constitutional right…” Per BELGORE, J.S.C (P. 3, paras. E-G). 0000000000 That compels me in this respect to endorse the observation of Denning L.J. (as he then was) inR. V. STAFF SUB-COMMITTEE OF LCC’S EDUCATION COMMITTEE & ANOR EX PARTE SCHONFIELD & ORS (1956) 1ALL ER 753 to the effect that: “Much as we value the help of the Bar, we must never go so far as to refuse an applicant simply because he is in person.” Per OGUNDARE, J.S.C (Pp. 37-38, para.

F) The justice of this case demands that the Applicant seeks assistance. There is no compulsion to do that, but where the applicant, as in this case, chooses to go the whole hog himself, then he sinks or swims on his own.

I am compelled to strike out this application filed on the 10th of March, 2021 for lack of jurisdiction to hear and determine the motion as presently constituted without much ado.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in advance the ruling just rendered by my learned brother, Mohammed Mustapha, JCA.

My learned brother has articulated comprehensive and elaborate reasons for striking out this application.

I agree that, for the reasons advanced by my learned brother, the application ought to be struck out for want of jurisdiction. I also strike it out.

PETER OLABISI IGE, J.C.A.: I agree.

Judgment

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): By their Originating Summons filed on the 17th September 2020, the plaintiffs seek answers from this Court to the following questions:- 1.

Having regards to the clear and unambiguous provisions of Section 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (“CFRN”), read together with item 21(e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, States Sharia Courts of Appeal and Customary Court of Appeal of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. ​2.

Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive order No. 00-10 of 2020 made by the president of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State High Courts, States Sharia Courts of Appeal and Customary Court of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful.

They urge the Court, on answering the questions, to grant them declaratory and injunctive reliefs as follows:- 1. A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (CFRN) THE Defendant’s is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Court of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As amended) (CFRN) THE Defendant is constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> </br<>

3. A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN is unconstitutional. 4.

A DECLARATION that the Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State’s High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the defendant to henceforth fund all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the plaintiffs all sums expended by the plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiffs’ States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit “A” exhibited in the affidavit in support of this originating Summons, being the true and actual amount expended by each plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff State all amounts expended by each plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional.

A sixty three paragraph affidavit, eleven paragraph further affidavit and a second further affidavit support plaintiffs’ Originating Summons. Annexed to the second further affidavit is the list of the capital expenditure incurred by some of the plaintiffs’ States for their Courts listed in Section 6(5) of the 1999 Constitution (as amended). The Plaintiffs also filed their written brief on 27th November in relation to their Originating Summons.

The defendant entered conditional appearance and filed their counter-affidavits and a written address in opposition to the Originating Summons. He also filed a notice of preliminary objection to the competence of plaintiffs’ suit. Parties have exchanged written addresses in respect of the preliminary objection as well.

Five amici curiae, Dr. Olisa Agbakoba, Asiwaju Adegboyega Awomolo, S. T. Hon, Mahmud Abubakar Magaji and Musbau Adetunbi, at the invitation of the Hon. the Chief Justice of Nigeria, given the topical nature of the issues canvassed by the suit at hand, have also obliged the Court their respective briefs.

DEFENDANT’S PRELIMINARY OBJECTION Defendant’s preliminary objection to the competence of plaintiffs’ suit, being a jurisdictional issue, must be addressed first. Otherwise, no matter the degree of thoroughness put into the determination of the suit, once that is done without the necessary authority, the effort will come to naught. See Madukolu V. Nkemdilim (1962) 2 SCNLR Customary Court of Appeal, Edo State V. Aguele & Ors (2017) LPELR-44632 (SC) and AG. Federation V. AG. Anambra State (2017) LPELR-43191.

The Defendant asserts that plaintiffs’ claim is a bid to relitigate issues earlier heard and determined by the Federal High Court sitting in Abuja in suit No. FHC/ABJ/CS/667/2013: JUDICIAL STAFF UNION OF NIGERIA V. NATIONAL JUDICIAL COUNCIL AND 73 ORS. It is argued that the plaintiffs herein were represented by their governors and judgment delivered on the issues determined in the previous suit at the Federal High Court. The judgment, the defendant contends, subsists and binds the plaintiffs.

The valid subsisting judgment of the Federal High Court, it is submitted, disentitles the plaintiffs from further invoking this Court’s jurisdiction on a matter that was so validly decided earlier.

The plaintiffs contend otherwise. They insist that neither the parties nor the issues determined previously in suit No. FHC/ABJ/CS/667/13 are same or similar as those in the instant suit. Dr. Olisa Agbakoba SAN, more pointedly, submits that whereas the JUSUN suit No. FHC/ABJ/CS/667/13 the learned counsel for the defendant asserts bars this Court from entertaining the instant suit is about “how” the Judiciary receives its fund, the plaintiffs case on the other hand, is about “who” funds the Judiciary.

​It is settled, I agree, that res Judicata only operates to bar subsequent proceedings between the same parties or their privies in respect of the very or related matter previously heard and determined by a Court of competent jurisdiction. In deciding whether or not the plea avails the defendant, the subsequent Court must examine the facts in issue and the parties before the earlier Court. The rule of res Judicata is derived from the maxim nemo debet bis vexari proeadem causa. It is the cause in the suit that matters.

Section 46(1) of the Evidence Act 2011 dwells on the point thus;- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out the way by the adverse party.

Provided that- (a) the proceeding was between the same parties or their representatives in interest; (b) The adverse party in the first proceeding had the right and the opportunity to cross-examine and (c) The questions in issue were substantially the same in the first as in the second proceeding. (Underlining mine for emphasis). See also ALFRED ASAGBA & ANOR V. ONOPHA OGAJE & ANOR (1972) LPELR-571 (SC), NTUKS V. NPA (2007) LPELR-2076 (SC) AND AG NASARAWA STATE V.

AG PLATEAU STATE (2012) LPELR-9730. ​My lords, an examination of the facts agitated at and decided by the Federal High Court in suit No. FHC/ABJ/CS/667/2013 as well as those the plaintiffs seek to raise in the instant case leaves one in no doubt that the plea of res judicata does not avail the defendant. The facts in the two matters show clearly that neither the subject matter nor the parties are the same. I so hold in overruling defendant’s objection. The decisions of this Court in COLE V. JIBUNOH & ORS (2016) LPELR-40662 (SC), IGBEKE V. OKADIGBO (2013) 12 NWLR (PT 1368) 225 and OGOEJEOFO V.

OGOEJEOFO (2006). ALL FWLR (PT 301) 1729 SC alluded to by learned senior counsel to the defendant, T.A. Gazali, SAN, on the point are very opposite.

THE SUBSTANTIVE CASE Plaintiffs brief contains two issues for the determination of their claim thus:- i.

Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) read together with Item 21(e) of the Third Schedule thereof whether the Defendant is not constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of all the States of the Federation of Nigeria being Courts created under Section 6 of the said Constitution. ii.

Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) whether the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May 2020 to compel the plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts of the Federal Government is not unconstitutional.

Senior counsel on both sides as well as the amici curiae agree, and rightly too, that the resolution of the issues the plaintiffs formulate for the purpose of determining their claim lies squarely on the Court’s interpretation of the relevant Sections of the 1999 Constitution (as amended) by virtue of which the reliefs are sought. Senior counsel are correct to contend that to succeed in the task, the Court must discover the intention of the framers of the sections in order to ensure their persistence.

Where the Court finds the words that constitute the applicable sections clear and unambiguous, the discharge of the Court’s duty lies in the application of the literal meaning of the words to the facts in dispute except if doing so will lead to manifest absurdity or inconsistency with the rest of the Constitution. See NIGERIA PORTS AUTHORITY PLC V. LOTUS PLASTIC LTD & ANOR (2005) LPELR-2028 (SC) and PROFESSOR JERRY GANA CON V. SOCIAL DEMOCRATIC PARTY & ORS (2019) LPELR – 47153 (SC).

It is indeed trite that being constitutional provisions, the Court must construe the sections liberally in order to enforce and protect the end they are designed to serve rather than embarking on a construction that defeats the obvious purpose and end of the sections. A holistic approach with all the related sections of the Constitution being considered together provides the magic wand. See AG LAGOS STATE V. AG FEDERATION (2014) LPELR – 22701 (SC), AG ABIA STATE V. AG FEDERATION (2018) 17 NWLR (PT 1648) 299 at 350, 353. Learned senior counsel Chief Awomolo and Chief S.T.

Hon are particularly right in their respective submissions that the Court, in the task before it, should be guided by the country’s constitutional history and the mischief the sections the Court reviews seek to cure. In INEC V.

ASUQUO (2018) 9 NWLR (PT 1624) 305 at 326, this Court to this end restated thus:- …It is well settled that the history of the circumstances which led to the enactment is generally allowed in the construction of the meaning and scope of the enactment such historical factors enable the interpreter or the Court to determine whether the statute or, where it is an amendment, was intended to alter the law or leave it where it stood before… The history behind the enactment of Law No 7 of Cross River State 2007 stems from ceding part of Bakassi to Cameroun.

Thus the enactment of the said law sought to and actually adjusted the boundary of Akpabuyo to make room for the returnees. (Underlining supplied for emphasis). See also G.C.M. LTD V. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT 1669) 507 at 530 – 531, FIDELITY BANK PLC V. MONYE (2012) ALL FWLR (PT 631) 1412 and LAU V. PDP (2018) 4 NWLR (PT 1608) 60.

It must be conceded to learned senior counsel, particularly Chief S.T. Hon, that the sections on which plaintiffs’ suit hinges are provided for the first time in the 1999 Constitution (as amended). None of the 1960, 1963 and 1979 Constitutions contained similar provisions on the establishments of “Federation” Courts, the National Judicial Council and its role in the funding of the Courts, as are made by the 1999 Constitution. Indeed, as it has been submitted, there must be reasons for the elaborate provisions in the 1999 Constitution which provisions the earlier constitutions omitted.

The new sections must have been put in place to avert some mischief their omission in the past had engendered. In CHIKEZIE ONYEANUSI V.

MISCELLANEOUS OFFENCES ENBOLDEN TRIBUNAL (2002) LPELR – 2066 (SC) this Court, in restating the principle laid down in 1584 in the Heydon’s case, cited with approval Lindler M.R’s dicta IN RE MAYFAIR PROPERTY CO (1898)2 thus:- In order to properly interprete any statute it is as necessary now as it was when Lord Coke reported Heydon’s case (1584) 3 Rep 7a to consider how the law stood when the statute to be construed was passed, what the mischief was, for which the old law did not provide and the remedy provided by the statute to cure that mischief. (Underlining supplied for emphasis).

The Court’s resort to the historical settings and antecedents of enactments as aid to their interpretation appear endless. See INTERNATIONAL BANK FOR WEST AFRICA V. IMANO (NIG) LTD & ANOR (1988) 2 NWLR (PT 85) 633 at 668, OGBONNA V. AG IMO STATE & ORS (1992) LPELR – 2287 (SC) and ABUBAKAR V. YAR’ADUA & ORS (2008) LPELR – 51 (SC).

In the defendant’s brief of argument settled by Abubakar Malami, SAN, Attorney General of the Federation, the importance of the EXPRESSIO UNIUS EST EXCLUSIO ALTERNUS rule in the construction of statute, particularly the constitution, the grundnorm, has inter-alia been dwelt upon. It is said to be an aid that cannot also be over-emphasized. It is indeed a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included.

The rule is that the express mention of the one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to same issue. See OGBUNYIYA V. OKUDO (1979) 6 – 9 SC 32, F.C. UDOH V. ORTHOPAEDIC HOSPITALS BOARD AND ANOR (1993) LPELR – 3308 (SC) and AG ONDO STATE V. AG EKITI STATE (2001) LPELR – 622 (SC).

We must be mindful of the type of constitution which sections the Court sets out to interprete. Section 2(3) of the 1999 Constitution (as amended) defines Nigeria as a Federation consisting of thirty six states and a Federal Capital Territory. This Court in HON MINISTER FOR JUSTICE AND ATTORNEY GENERAL OF THE FEDERATION V.

ATTORNEY GENERAL LAGOS STATE (2013) LPELR – 20974 (SC) cited with approval Professor Ben Nwabueze in his book, “Federalism in Nigeria under a presidential Constitution,” to circumscribe the concept of a Federation to presuppose:- An arrangement whereby powers of government within a country are shared between a national, country-wide government and a number of regionalized (i.e. territorially localized) governments, in such a way that each exists as a government separately and independently from others, operating directly on persons and property within its territorial area and its own apparatus.

The learned author is however quick to note that the 1999 Constitution which provides for the country’s Federation, being a unitary one, exhibits self-evident fundamental contradictions. Unitarianism and federalism, he authoritatively adds, are logically opposing and mutually exclusive concepts. A Unitary Constitution providing for the federal system raises serious implications for the autonomy of the federating units which characteristic remains the most overriding requirement of a Federation.

Unarguably, the very Section 5 of the 1999 Constitution that vests the executive authority of the Federal Government in the president similarly vests the executive authority of a State Government in the governor of the state.

Remarkably, the extent of the authority vested in both the president and the governor in relation to their respective areas of influence “extend to the execution and maintenance of the very same Constitution.” The legitimate question that arises, given this arrangement is whether the president’s power to execute and maintain the provision of the Constitution relating to, for example, the establishment and funding of Courts listed under Section 6 thereof, subsumes or overrides the similar powers the Constitution vests in the plaintiffs.

The question instructively informs my understanding of the dispute between the parties in this suit. To find the answer to the question, it is apt to examine, interprete and apply the relevant and germane Sections of the 1999 Constitution to the facts in issue in the case and the sections of the Constitution only.

The observation of Bello JSC as he then was (of blessed memory) in the case of SENATOR ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOTHER (1981) 5 SC 112 at 149 which he reiterated in ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1981) LPELR – 605 (SC) 43 – 44 must continue to guide the Court in the due exercise of its interpretative jurisdiction.

His lordship authoritatively enthused:- The Court shall at all times bear in mind that our Constitution is unique and the solutions to our constitutional problems must invariably be found within the Constitution itself or upon its construction… great care should be exercised in the use of the rules of constitutional law formulated for countries whose Constitutions are not in pari materia with our Constitution and whose ways of life are not identical with ours. (Underlining supplied for emphasis).

Also, the place of precedent, the doctrine of stare decisis, in adjudication is an eminent one. The question whether or not the decisions of this Court bind subordinate and indeed the Court itself is no longer open to argument. The doctrine directs that once a point of law has earlier been pronounced upon by a Court of competent jurisdiction, the Court and those subordinate to it are bound by such pronouncement on the very principle in a subsequent case.

In the case at hand, if any of the sections to be interpreted had previously been interpreted, the Court would be bound by its earlier construction except if same is demonstrated to be reached per incuriam or is unjust to persist. For us, Section 287 of the 1999 Constitution (as altered) has codified this common law doctrine. See NIGERIA AGIP OIL COMPANY LTD V. CHIEF GIFT NKWEKE & ANOR (2016) LPELR – 26060 (SC) and ALHAJI ADISA V. EMMANUEL OYINWOLA (2000) LPELR -186 (SC).

RESOLUTION OF ISSUES My lords, the first issue distilled by the plaintiffs had been raised before and substantially pronounced upon by this Court. Some pronouncements of the Court relevant to the two issues distilled by the plaintiffs and adopted by all senior counsel, the resolution of which as being determinable of the instant claim remain availing in AG FEDERATION V. A.G ABIA STATE (NO 2) (2002) 6 NWLR (PT 764) 542 – 905 and A.G BENDEL STATE V. A.G FEDERATION & ORS (1982) 3 NCLR 1.

These are decisions alluded to by senior counsel on both sides of the claim in their submissions before us with hardly any sustained effort at distinguishing the facts and legislation in the earlier cases with those in the instant case. In AG FEDERATION V.

AG ABIA STATE (NO 2) (supra) Ogundare JSC (of blessed memory) in the lead judgment at 688, 689 of the law report stated:- It is clear from the above provisions that it is the Consolidated Revenue Fund of the Federation, and not the Federation Account that is charged with the salaries and allowances and recurrent expenditure of judicial offices in the Federation. The Consolidated revenue Fund of the Federation is established under Section 80 of the Constitution.

The charge on the Federation account is clearly inconsistent with Section 84 of the Constitution and is therefore unconstitutional, notwithstanding the provision of Subsection 9 of Section 162… (Underlining supplied for emphasis).

Uwais, CJN in his concurring contribution at pages 760 – 761 of the law report opined as follows:- …It has transpired that …deductions are being made from the Federation Account in respect of monies paid to the National Judicial Council for the funding of the federal and state judiciaries… All these deductions are carried out as first line charge on the Federation Account.

All the deductions are not provided for by the 1999 Constitution, notwithstanding the provisions of Section 162 Subsections 9 in the case of the National Judicial Council, so that even if any enactment has provided for them, like the Appropriation Act by the National Assembly, such enactment is inconsistent with the Constitution and is therefore invalid to the extent of the inconsistency. (Underlining supplied for emphasis). Onu JSC (of the blessed memory) at pages 876 – 877 pointedly concurred thus:- Consideration for the funding of the Judiciary is provided for in the Constitution.

Sub-sections (1), (2), (4) and (7) of Section 84 of the Constitution provide:- ‘(1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowance as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission. (2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation.’ At Subsection 4, the long list (which I do not intend to set out) of the holders of such offices is set out while Subsection 7 (ibid) enacts that: ‘7.

The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.’ The above provisions have been made to emphasise how it is the Consolidated Revenue Fund of the Federation established under Section 80 of the Constitution and not the Federation Account that is charged with the salaries and allowances of judicial officers as well as recurrent expenditure of judicial offices in the Federation.

It is then to be stressed how the charge on the Federation Account is clearly inconsistent with Section 84 of the Constitution and is therefore unconstitutional notwithstanding the provision of Subsection 9 of Section 162 which states: ‘9.

Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of Courts established for the Federation and the States under Section 6 of this Constitution.’ If it was intended by the above provision to give the Judiciary, a share of the Federation Account such has not been made manifest. Sequel to these, all the charges on the Federation Account considered herein are inconsistent with the Constitution and are therefore invalid. (Underlining supplied for emphasis).

The foregoing pronouncement of this Court remains binding. The plaintiff has not urged us to depart from the decision let alone to persuade us accordingly.

The obvious implication is that this Court’s decision that Section 84 of the Constitution provides for the funding of the judiciary to the extent specified in Subsections (4) and (7) thereof persists. Learned senior counsel for the plaintiffs as well as the amici curiae on their side insists that the defendant, beyond what the two subsections of Section 84 of the Constitution provide for the funding of plaintiffs’ Courts listed in Section 6(5)(e) (g) and (i), is obligated to fund the capital expenditure of the listed Courts as well.

They contend that having been established pursuant to Section 6 of the Constitution as “Federation Courts” they are entitled to the same treatment in terms of their funding as do the Federation Courts listed under Section 6(5) (a) (b) (c) (cc) (f) and (h) of the Constitution. Besides, Item 21(e) of the Third Schedule of the Constitution empowers the National Judicial Council to collect, control and disburse all monies, capital and recurrent, for the judiciary.

I am not impressed by these submissions. ​I find merit in the submissions of the learned Federal Attorney General, the amici curiae Mahmud A. Magaji SAN and Musibau Adetunbi SAN, that Section 6 does not create the Courts listed under Subsection 5 thereof. The section only vests in the two sets of Courts the judicial powers exercisable by them as superior Courts of record. It is about the authority the Courts require to adjudicate and determine any matter put before them that are within their jurisdiction. See MOHAMMED ABACHA V.

FEDERAL REPUBLIC OF NIGERIA (2014) LPELR – 22014 (SC), CUSTOMARY COURT OF APPEAL EDO STATE V. CHIEF ENGINEER E.A. AGUELE & ORS (2017) LPELR-44632 (SC) and J.O. ANAKWENZE V. LOUIS ANEKE & ORS (1985) LPELR – 481 (SC). Secondly, Section 84(7) which is clear and unambiguous charges only the salaries, allowances and recurrent expenditure of the plaintiffs’ Courts listed in Section 6(5) (e) (g) (i) to the Consolidated Revenue Fund of the Federation. Their capital expenditure cannot be read into the subsection that has not so provided.

The principle, we all agree, is well settled in the construction of statutory provisions, that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See ATTORNEY GENERAL BENDEL STATE V. AIDEYAN ​ (1989) 9 SC 127 and FRN V. OSAHON & ORS (2006) LPELR -3174. The Courts listed in Section 6(5) (e) (g) and (i) remain State Courts established under Sections 270 to 281 of the 1999 Constitution.

The defendant is only obligated to fund them in the manner provided for under Section 84 (7) because the Constitution, notwithstanding the fact that they are state Courts, has so provided. The Constitution being supreme, all its provision have binding force on all authorities and persons. See BUBA MARWA & ORS V. ADMIRAL MURTALA NYAKO (2012) LPELR – 7837 (SC), ABACHA V. FAWEHINMI (2000) 4 SC (PT II) 1 and UGBA & ANOR V. SUSWAM & ORS (2014) LPELR – 22882 (SC).

Chief Awomolo seems to rely on a passage at page 82 in Professor Ben Nwabueze’s book “Constitutional Democracy in Africa”, volume 3, to suggest that the defendant is obligated to fund the capital expenditure of plaintiffs’ Courts listed under Section 6(5) (e) (g) and (i) notwithstanding that same has not been provided for anywhere in the Constitution. Along with senior counsel for the plaintiffs, Chief Olisa Agbakoba SAN and S.T.

Hon SAN, they contend that Section 81(3) read along with Item 21(e) of the Third Schedule to the Constitution place on the defendant the duty of funding the capital expenditure of the listed Courts.

These submissions are, one is afraid, neither justified by Professor Nwabueze’s stand on the point nor a holistic interpretation of the sections of the Constitution relevant to the determination of plaintiffs’ claim. ​Firstly, Professor Nwabueze, in the write-up, is not only of the view that the Constitution is silent on the capital expenditure of the judiciary but that the silence is “unexceptionable”. Had his view been to the contrary, views of authors are only persuasive and not, unlike decisions of this Court, necessarily binding.

The position in the present case, given the seemingly endless decisions of this Court on construction of statutes, is that since Section 84(4) and (7) has not, unlike the salaries, allowances and other recurrent expenditure of the listed plaintiffs’ Courts, charged their capital expenditure to the Consolidated Revenue Fund of the Federation established under Section 80 of the Constitution, the defendant is not obligated to fund the Courts’ capital expenditure.

Paragraph 21(e) of the Third Schedule to the Constitution relied upon by the plaintiffs’ senior counsel and Amici Curiae in support of plaintiffs’ claim may not, after all, be that helpful. I shall return to this subsequently.

For now, there is the need to look at Sections 80 and 81 of the 1999 Constitution more closely. ​Learned Amicus Curiae Musbau Adetunbi SAN is on a very strong wicket in his contention that the two ways of facilitating the withdrawal of monies from the Consolidated Revenue Fund or any other public fund of the Federation are as provided under Sections 80 and 81 of the 1999 Constitution: (i) Where the Constitution makes the money being withdrawn a charge on the fund such as that done pursuant to Section 84(4) and (7) of the Constitution and (ii) Where the withdrawal of the money is authorized by an Act of the National Assembly pursuant to Section 80 and 81 of the Constitution are:- Section 81(1) and (2) of the Constitution empower the President (the defendant) to present an Appropriation bill containing estimates of expenditure other than those charged upon the Consolidated Revenue Fund of the Federation for the issue from the Fund of the sums necessary to meet the expenditure and the appropriation of same for the purposes specified in the bill.

Since Section 84(4) (7) of the Constitution do not charge the capital expenditure of any of the Courts listed in Section 6 thereof, the President, by an Appropriation bill pursuant to Section 81(1) and (2), is empowered to provide for the issue from the Consolidated Revenue Fund sums necessary to meet the capital expenditure of Courts other than plaintiffs’ Courts listed under Section 6(5) (e) (g) and (i).

The power of the National Assembly under Section 4 of the Constitution to legislate for the issuance of the sums necessary to meet the capital expenditure of the Courts from the Consolidated Revenue Fund of the Federation does not extend to plaintiffs’ Courts listed by Section 6(5) (e) (g) and (i). Undoubtedly, Paragraph 21(e) of the Third Schedule to the Constitution cannot be ignored in our interpretative task of determining the merit or otherwise of the plaintiffs’ claim. Though not part of the Constitution, the paragraph remains a good guide to knowing the intention of its framers.

Such notes, this Court has decided, while not part of the statutes, are helpful in considering the purpose of the statutory provision(s) and the mischief at which the provision(s) is/are aimed. See UWAIFO V. AG BENDEL STATE & ORS (1982) LPELR – 3445 (SC), YABUGBE V. C.O.P. (1992) LPELR – 3505 (SC), INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR – 1510 (SC) and AKINTOKUN V. LPDC (2014) LPELR – 22941 (SC).

It is evident from the interpretation we place on the relevant sections of the Constitution that in addition to the salaries, allowances and the recurrent expenditure of all the Courts specified in Section 6(5) the Constitution itself charges upon the Consolidated Fund of the Federation, the defendant is empowered pursuant to Section 81(1) (2) & (3) to initiate an Appropriation bill to fund the capital expenditure of the Federal Courts only. ​The charge of the salaries, allowances and recurrent expenditure to the Consolidated Revenue Fund of the Federation pursuant to Section 84(2)(4) and (7) of the 1999 Constitution indeed constitutes a manifest uniqueness of the type of federalism the country operates.

Otherwise, plaintiffs’ Courts listed in Section 6(5) (e) (g) and (i) being those of the federating units cannot, in a Federation, benefit from funds belonging to the central government. Paragraph 21(e) of the Third Schedule to the 1999 Constitution, it must be conceded to the plaintiffs and other senior counsel, is not, after all, an idle provision.

Given the powers of the president (the defendant) under Sections 80(2) and 81(1) (2) and (3) of the 1999 Constitution (as amended) to initiate an Appropriation Bill for the funding of the capital expenditure of the Federal Courts listed in Section 6(5) of the Constitution, the amount that stands to the credit of the judiciary would invariably include the capital expenditure of the federal Courts on same, eventually, being appropriated by the National Assembly.

In that light, the National Judicial Council, by paragraph 21(e) to the Third Schedule of the Constitution, is indeed available to “collect, control and disburse all moneys, capital and recurrent, for the judiciary.” It is from this perspective that the word “capital” as appears in the paragraph is stressed to relate only to the Federal Courts in respect of which provision, the president (the defendant), puts an appropriation bill before the National Assembly.

The money for the capital expenditure does not, be it repeated, enure to plaintiffs’ Courts listed under Section 6(5) (e)(g) and (i) since the powers of the National Assembly under Section 4 of the Constitution to legislate for the issuance of the sums necessary to meet the capital expenditure of Courts from the Consolidated Revenue Fund of the Federation does not extend to the provision of such funds to plaintiffs Courts listed under 6(5) (e) (g) and of the Constitution. I so hold in resolving plaintiffs’ first issue against them.

Earlier decisions of this Court also provide basis for the resolution of the 2nd issue for the determination of the merit of the instant claim. In AG BENDEL STATE V. AG FEDERATION (supra) this Court, while interpreting Section 149 of the 1979 Constitution which is similar to Section 162 of the 1999 Constitution, declared that the amount in the federation account is public revenue which accrues to the Federal, State and Local Governments in each state.

It is contemplated, the Court further held, that the amount or any portion thereof due to the State Governments, on being mandatorily distributed to them, ceases to be retained by the Federal Government on behalf of the beneficiary states.

At page 190 lines 21-37 of the law report, Uwais JSC (as he then was subsequently CJN) stated: It seems to me therefore that once the Federal Account is divided amongst the three tiers of Government, the State Government collectively becomes the absolute owners of the share that is allocated to them (i.e 35 percent) so that it would normally be their prerogative to exercise full control over the share consequently, it will not be appropriate for the Federal Government to administer the share without the authorization of the State Governments.

This appears to be logical and in keeping with the fundamental principle of Federation on the autonomy of the constituent States. See also AG ABIA STATE V. AG FEDERATION (No2) (supra) and AG LAGOS STATE V. AG FEDERATION (2004) 18 NWLR (PT 904) 1. In the latter case, the Lagos State Government approached this Court in 2004 when, on the directives of President Olusegun Obasanjo, the share of the State’s Local Government Councils from the Federation Account, as envisaged under Section 162(5)  of the 1999 Constitution, was withheld by the Federal Minister of Finance.

The President’s directives then was sequel to the creation of additional 56 Local Development Areas as the State’s first step in creating additional Local Government Areas in Lagos State which President Obasanjo considered unconstitutional. Like President Muhammadu Buhari vis-a-vis his Executive Order 10 of 2020, President Obasanjo issued the directives to control the State’s money in his bid to enforce compliance with the Constitution.

Uwais (CJN) in granting the claim of the Lagos State Government opined as follows:- Next is the question whether the president of the Federal Republic of Nigeria was right to direct the Minister of Finance not to release statutory allocations from the Federation Account to the States which created new Local Government areas or held elections into the new Local Government councils or failed to maintain a special account called “State Joint Local Government Account” as provided by Section 162 Subsection (6) of the Constitution?

It has been argued that the President by virtue of the ‘Oath of office,’ which he took in assumption of office, he is bound “to protect and defend the Constitution”. In addition, the “executive powers of the Federation”, is vested in the President by Section 5 Subsection (1) (a) of the Constitution and such powers extend to the execution and maintenance of the Constitution. This is certainly so, but the question is does such power extend to the President committing an illegality?

Certainly, the Constitution does not and could not have intended that. (Underlining supplied for emphasis) Kutigi JSC (of the blessed memory) concurred thus:- If the President has any grievance against any tier of Government, he should go to Court. He cannot kill them by withholding their statutory allocations. That will be brutal indeed. (Underlining supplied for emphasis). Uwaifo JSC added as follows:- I do not think it is appropriate to brand the Federal Government or Mr.

President as a trustee in relation to the constitutional powers conferred on and exercisable by them, and thereby introduce the element of personal judgment or discretion over a justiciable dispute that may arise between them and the States. The President exercises executive powers under the Constitution. They are, without dispute, awesome powers but even so they have known limits.

The exercise of the powers is kept within bounds by the intervention of the rule of law. (underlining supplied for emphasis). ​On his part, Niki Tobi JSC (of the blessed memory) concurred thus:- If the Federal Government felt aggrieved by Lagos State creating more Local Government, the best solution is to seek redress in the Court of law, without resorting to self help.

In a society where the rule of law prevails, self help is not available to the Executive or any arm of Government in view of the fact that such a conduct could breed anarchy and totalitarianism and since anarchy and totalitarianism are antitheses to democracy, Courts operating the rule of law, the life-blood of democracy, are under a constitutional duty to stand against such action. The Courts are available to accommodate all sorts of grievances that are justifiable in law and Section 6 of the Constitution gives the Courts power to adjudicate on matters between two or more competing parties.

In our democracy, all the Governments of this country as well as organizations and individuals must know the due process of the law and this they can vindicate by resorting to the Courts for redress in the event of any grievance. (Underlining supplied for emphasis). My lords, certainly this country is still a Federation and the 1999 Constitution it operates is a federal one. The Constitution provides a clear division of powers between the Federal Government and the States’ Governments. The category of powers and roles either of the two enjoys is circumscribed.

Neither of the two is at liberty to overstep the limits the Constitution prescribes for the other. If that occurs this Court remains in place to declare the act unconstitutional and void same. The plaintiffs, by their second issue for the determination of their claim, urge us to view the Executive Order No 10 of 2020 issued by President Muhammadu Buhari as unconstitutional because in its issuance, the President has overstepped the limits the Constitution sets for him. And the country is run on the basis of rule of law rather than the personal dictates of the President.

I entirely agree with them. For all the reasons so far adumbrated, I find the Order so, declare it void, and nullify same. In sum, the plaintiffs’ claim succeeds in part. Parties are to bear their respective costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship’s reasoning and conclusion.

For the records, I entertain no doubts about the accuracy of the facts as restated in His Lordship’s judgment. I equally, endorse the reasoning and conclusion with regard to the Preliminary Objection.

These prefatory observations would therefore, obviate the need to make voluble comments on the facts of the case and the Preliminary Objection. I shall therefore go straight to my responses to the issues which the plaintiffs canvassed before this Court.

Two questions were put forward. The first question was framed thus: Having regard to the clear and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21 (e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Court, Sharia Court of Appeal; Customary Court of Appeal, being Courts created under Section 6 of the Constitution? [Italics supplied for emphasis]

​Now, the case of the plaintiff is woven, inter alia, around Section 6 of the Constitution. In my humble view, therefore, the first question to be disposed of is the very fundamental one whether the said Section 6 has any relevance with the question of the funding of the Judiciary.

Section [Section 6 of the 1999 Constitution] provides, inter alia, as follows: 6. – (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution, for a State.

Way back in 1983, in Bronik Motors Ltd. v Wema Bank Ltd [1983] 1 SCNLR 296, this Court had explained that the judicial powers given to the Courts in Section 6 of the 1979 Constitution (the equivalent of Section 6 of the 1999 Constitution) were not, in any way, intended to delimit the extent of Federal and State judicial powers but to define the nature of judicial power as authority for the determination of the rights of parties in all matters before the Courts, Owodunni v Registered Trustees, CCC [2000] 10 NWLR (pt 675) 315, 331, [Ogundare, JSC]; AG Federation v AG., Abia State and Ors. (2001) LPELR – 24862 (SC) 14-15; Labiyi v Anretiola and Ors (1992) LPELR – 1730 (SC) 20-23; Abacha v Federal Republic of Nigeria [2014] 6 NWLR (pt 1402) 43, 118.

The net effect is that reliance cannot be placed on Section 6 of the 1999 Constitution alone to determine the question whether it is the responsibility of the Federal or State Government to fund any Court. The relevance of Section 6 to this question is only that it creates superior Courts of record whose independence the Constitution seeks to protect through the mechanism of charging the emoluments and recurrent expenditure of the judges of the superior Courts mentioned in the section to the Consolidated Revenue Fund of the Federation.

​Writing against the background of the 1963 Constitution, Professor B. O. Nwabueze observed that part of the constitutional devices for the guarantee of independence of the judiciary includes the provision of the 1963 Constitution that salaries of superior Court judges shall be charged on the Consolidated Revenue Fund of the Federation or Region, as the case may be, which means that they were not subject to an annual vote by the legislature, B. O. Nwabueze, Constitutional Law of the Nigerian Republic, (London: Butterworths, 1964) 293. Writing on the same vein, the renowned scholar, S.

A. de Smith has this to say: Under all the Constitutions [of the new Commonwealth Countries] the salaries of Judges are a charge on the Consolidated Fund, so that they cannot become the subject of debate on the annual estimates; and it is further provided that a Judge’s salary and terms of office cannot be altered to his disadvantage during the tenure of his appointment. S. A. de Smith, The New Commonwealth and its Constitutions, (London: Stevens and Sons, 1964) 139. T. O.

Elias made the same point in different words without making reference to the charging of the emolument of Judges to the consolidated revenue fund. He observed that the independence of the judiciary as understood in common law countries is normally understood to imply the guarantee that the salary and emoluments of a High Court Judge may not be diminished in any form during his tenure of office. According to him, this means that although upward salary revisions may benefit a judge, any general cut does not affect his emoluments, however pressing the need might be, T.

O, Elias, The Judicial Process in the Newer Commonwealth, (Lagos: University of Lagos Press, 1970) 174. The 1999 Constitution of Nigeria, apart from keeping to this tradition, went further to include the recurrent expenditure of judicial offices as a charge on the Consolidated Revenue Fund of the Federation.

​The relevant provisions of the 1999 Constitution on this subject are as follows. 80. – (1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation;

(2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution; (3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly;

(4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly. 81. -(1) The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year;

(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein;

(3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies National Judicial Council for disbursement to the heads of the Courts established for the Federation and States under Section 6 of this Constitution; 84. -(1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission;

(2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation; (3) The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after their appointment;

(4) The offices aforesaid are the offices of President, Vice- President, Chief Justice of Nigeria, Justice to the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor-General for the Federation and the Chairmen and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja, the Federal Character Commission, the Code of Conduct Tribunal, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission, the Nigeria Police Council and the Police Service Commission. … (7) The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this Section) shall be charged upon the Consolidated Revenue Fund of the Federation. (8) The recurrent expenditure of the Independent National Electoral Commission, in addition to salaries and allowances of the Chairman and members shall be a charge upon the Consolidated Revenue Fund of the Federation. [Italics supplied for emphasis] In effect, the 1999 Constitution, apart from charging the salaries and allowances of superior Court Judges on the Consolidated Revenue Fund of the Federation, included the recurrent expenditure of superior Court offices as a charge on the Consolidated Revenue Fund of the Federation.

Unarguably, the drafting of Section 84 (4) and (7) (supra) points to the fact that there is no basis whatsoever for any state capital charge on the Consolidated Revenue Fund of the Federation. Section 84 (7) (supra) remains a provision for “judicial offices of the Federation” and not of the states. In my humble view, the fact that the Federation and state judicial officers are expressly mentioned in Section 84 (4) is an indication that if the draftspersons so intended, they would have added the words “and of the states” under Section 84 (7).

As it is well-known, where a statute mentions specific things or specific persons, the intention is that those not mentioned are not intended to be included, Ogbunyiya v Okudo [1979] 6-7 SC 32; PDP v INEC[1999] 11 NWLR (pt 626) 200; FRN v Osahon and Ors (2006) LPELR – 3174 (SC) 80; B-D.

Traditionally, according to Professor Jadesola Akande, all moneys charged directly on the Consolidated Revenue Fund are not subject to annual debate in the National Assembly because once fixed they do not appear on the annual budget estimate presented in the Appropriation Bill because they are not subject to changes during the term of office of the incumbent office holder, see, J. O. Akande, Introduction to the Constitution of the Federal Republic of Nigeria, 1999 (Lagos: MIJ Professional Publishers Limited, 2000) 187.

Normally, it is such expenditures like the emolument of judges that are charged to the Consolidated Revenue Fund to ensure that their emoluments are not altered to their disadvantage. For instance, by Section 84 of the 1999 Constitution, the emolument of certain public officers at the Federal level are charged to the Consolidated Revenue Fund of the Federation. Similarly, the emoluments of certain public officers at the State level are charged to the Consolidated Revenue Funds of the States. This is the usual way of promoting the independence of such offices.

Accordingly, the capital budget of the legislature, the executive or the judiciary ought not to be charged to the Consolidated Revenue Fund, and the Constitution did not charge them to the Consolidated Revenue Fund. If they are charged to the Consolidated Revenue Fund, it means that they must be released whenever demanded, N. J.

Udombana, “Public Interest Consideration in Legislative Representation: Perspectives on the Nigerian National Assembly” (2016) 3 U.J.P.L.1 26-27. ​The implication of charging the entire budget of the organs of government to the Consolidated Revenue Fund is that the executive will lose control of management of the economy.

For instance, where there is a budget shortfall and the Government needs to cut down its budget, it cannot reduce the allocation even when their release will be at the expense of allocations to other critical sectors like education, health, payment of the emoluments of public servants etc. N. J. Udombana, “Public Interest Consideration in Legislative Representation: Perspectives on the Nigerian National Assembly” (supra). It is thus very clear that the 1999 Constitution never contemplated the charging of capital budgets to the Consolidated Revenue Fund.

Section 81 (3) cannot, by any stretch of the imagination, be interpreted to that effect. The section merely indicates who shall collect the money standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation. ​Furthermore, it must be borne in mind that the capital budget of a state judiciary goes beyond the capital budget for “state judicial officers” as it will include the budget for other state Courts like Magistrate, Customary or Sharia Courts which are outside the meaning of judicial officers pursuant to Sections 6 and 318 of the 1999 Constitution.

The power of appropriation for the capital budget of a state judiciary is vested in the State House of Assembly. Thus, Section 121 of the 1999 Constitution provides as follows: 121.

The Governor shall cause to be prepared and laid before the House of Assembly at any time before the commencement of each financial year estimates of the revenues and expenditure of the State for the next following financial year. (2) The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution, shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. (3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned.

Moreover, the NJC, as an executive body (though with judicial character), lacks the power of appropriation. The NJC is listed as one of the executive bodies by the 1999 Constitution. It will amount to grave transgression of the principles of separation of powers for the NJC to start appropriating fund for the capital budget of the judiciary. It will amount to usurpation of legislative power.

The fact that the legislature considers and approves the capital budget of the judiciary does not constitute violation of the principle of separation of powers, just as it does not constitute violation of the principle of separation of powers for the legislature to approve executive budget. The founding fathers of the American federation acknowledged that the judiciary has no power of appropriation.

Thus, Alexander Hamilton wrote: The judiciary is beyond comparison the weakest of the three departments of power… It has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society; can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. See, The Federalist, No. 78.

​By Section 2 (2) of the 1999 Constitution, Nigeria shall be a federation of States and a Federal Capital Territory. A necessary incident of federalism is the division of power between a central Government and regional (State) Governments. Apart from Section 6 (1) of the 1999 Constitution which vests the judicial power of the Federation in the Courts established for the federation, and Section 6 (2) which vests the judicial powers of a State in the Courts established for a state, Part I of Chapter VII of the Constitution is headed “Federal Courts” while Part II is headed “State Courts.” Prof.

Ben O. Nwabueze defined federalism as: …an arrangement whereby powers within a country are divided between a national countrywide government and a number of regionalized (i.e. territorially localized governments), in such a way that each exists as a government, separately and independently from others, operating directly on persons and properties within its territorial areas, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority on some matters exclusive of all others. See, B. O.

Nwabueze, The Presidential Constitution of Nigeria (London: C Hurst and Co, 1982) 37.

This Court has long recognized the autonomy of states in our federal system, AG, Bendel State v AG of the Federation [1983] NSCC 181, 192; AG Ogun State v AG Federation [1982] NSCC 1, 26, 33. Thus, neither the Federation nor the States could make laws imposing extra burden on each other. This must be so for the legislative power in a federalism usually involves the division and limitation of governmental power, AG, Bendel State v AG of the Federation (supra).

Notwithstanding the constitutional provision that Nigeria is a federation, the 1999 Constitution, in Section 153, established the NJC with certain powers. By Paragraph 21 of the Third Schedule to the 1999 Constitution, the powers of the NJC are as follows. 21.

The National Judicial Council shall have power to – (a) recommend to the President from among the list of persons submitted to it by- (i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and (ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers; (c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers. (e) collect, control and disburse all moneys, capital and recurrent, for the judiciary; (f) advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors; (g) appoint, dismiss and exercise disciplinary control over members and staff of the Council; (h) control and disburse all monies, capital and recurrent;

for the services of the Council; and (i) deal with all other matters relating to broad issues of policy and administration.

Though the establishment of the NJC violates some basic principles of federalism, it was considered a necessity to promote and protect the independence of the judiciary, particularly at the state level. It must be noted that as a statutory body, the NJC cannot do anything at all unless authorized expressly or impliedly by the statute or instrument defining its powers, which is the 1999 Constitution of Nigeria, Nze v N.P.A. [1997] 11 NWLR (pt. 528) 210, 221. ​A pertinent question, therefore, is whether the NJC is empowered to consider and approve the capital budget of a State Judiciary.

The answer is, of course, in the negative. This must be so for the power to “(e) collect, control and disburse all moneys, capital and recurrent, for the judiciary” cannot, by any stretch of the imagination, amount to the power to consider and approve the capital budget of a state judiciary.

The doctrine of separation of powers is inchoate in the absence of the twin principle of checks and balances. A complete separation of powers, in the sense of a distribution of the three functions of government among three independent sets of organs with no overlapping or co-ordination, will be contrary to the objectives of separation of powers. What the doctrine seeks to achieve is the prevention of tyranny by not conferring too much power on anyone person or body, and the check of one power by another, See, O. H. Philips, et O.

Hood Philips’ Constitutional and Administrative Law (6th ed). (London: Sweet and Maxwell, 1978) 14. In essence, the concept of separation of powers is incomplete without the concept of checks and balances.

The latter supplements the former; both concepts constitute a dual principle, Any system of government based on the principle of separation of powers that fails to incorporate some elements of the twin principle of checks and balances will lack co-ordination of the three branches of government and risk the possibility of partial tyranny in the form of isolated legislative, executive or judicial abuse.

In the words of James Madison: Unless these departments of government be so far connected and blended as to give each a constitutional control over others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be maintained. See, The Federalist, No 48, 321 Similarly, M.J.C. Viles maintained that “the need for separating governmental powers by constitutional fiat comes from an assumption that if unrestrained by external checks, any given individual or groups of individuals would tyrannize over others,” see, M.J.C.

Viles, Constitutionalism and the Separation of Powers (London: Oxford University press, 1967) Montesquieu himself was not oblivious of this fact. He asserted that to prevent abuse of power, it is necessary that, by the nature of things, one power should check another. ​He is quite right. It is difficult, if not impracticable, for an individual, no matter how rich, powerful or influential, to constitute a check on a power of government. One power should rather be a counterpoise to other powers.

In other words, the theory of separation of powers never envisaged three autonomous governments or three autonomous branches of one government. What is envisaged is one government with three branches. The Constitution, specifically, assigned powers, duties and functions to each branch generally but also constitutes each branch a check on the other branches, AG Abia State v AG, Federation [2006] 16 NWLR (pt 1005) 265, 377; Aminu, Murtala, “Judicial Power and its Independence” in M. M.

Gidado, et al, (eds) Constitutional Essays in Honour of Bola Ige- Nigeria Beyond 1999: Stabilizing the Polity through Constitutional Re-Engineering (Enugu: Chenglo Limited, 2004) 111, 114. Consequently, in strict constitutional parlance, judicial autonomy as canvassed by the plaintiffs, is antithetical to the concept of separation of powers and checks and balances. In the Nigerian context, the autonomy of the judiciary, in the plaintiff’s contemplation, would be a synonym for vesting of legislative and executive powers on the judiciary with the potentiality of abuses.

In my humble view, therefore, the plaintiffs’ reliefs 1, 2, 3, 4, 5, 6, 7 and 8 have not been made out. They cannot, therefore, be granted, I, entirely, agree with the leading judgement that the Presidential Executive Order, ‘in particular, paragraphs 2 -7 are ultra vires the President. They are therefore, void. I so declare. Accordingly, I hereby, enter an order dismissing the plaintiffs’ issues as shown above, Relief 9 succeeds. I must thank all counsel, particularly, the amici curiae, for the exceptional industry they put in the preparation of their briefs.

EJEMBI EKO, J.S.C.: The plaintiff States by Originating Summons, have commenced this suit against the Defendant invoking the Original jurisdiction of this Court under Section 232 of the 1999 Constitution, as amended.

The summary of their cause of action is that they have been expending funds undertaking the capital projects on the superior Courts of record; namely the High Court, the Sharia Court of Appeal and the Customary Court of Appeal being Courts established “for” the States by the Constitution; whereas the capital and recurrent expenditure of those Courts are, or should have been, a charge on the Consolidated Revenue Fund of the Federation. They aver inter alia: 2.

The express provisions of Section 81(3), Paragraph 21(e) of the Third Schedule Part I and Section 121 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as altered), make the funding of all capital and recurrent expenditure of the High Courts, the Sharia Courts of Appeal, the Customary Courts of Appeal of the States the responsibility of the Federal Government through appropriation from the Consolidated Revenue Fund of the Federation through the National Judicial Council being Courts specified under Section 6 (5) of the Constitution. 3.

The Defendant since, May 1999 has been funding the “capital and recurrent expenditure” of the “Federal Government Courts” whereas the Defendant has been in partial obedience to the Constitution, by payment of recurrent expenditure of the Superior Courts in the States of the Federation, by paying only the salaries of judicial officers. 4.

The Plaintiffs claim that they have been paying the capital and other recurrent expenses of judicial officers of the Federation as explained in Section 6 (5) of the Constitution and the expenditures of the respective States are highlighted in the attached Schedules to the further affidavit.

Consequent upon the above, the Plaintiffs seek the following reliefs: 1. “A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of Item 21 (e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as Amended) CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 3.

A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN is unconstitutional. 4.

A DECLARATION that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May 2020 to compel the plaintiffs to fund States High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the Defendant to henceforth fund all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the Plaintiffs all sums expended by the Plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant, 7.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit “A” exhibited in the affidavit in support of this Originating Summons, being the true and actual amount expended by each Plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff State all amounts expended by each Plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CRFN, from 31st January, 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional”.

The plaintiffs have formulated the following two issues for the determination of this suit. 1.

“having regard to the clear and unambiguous provisions of Section 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (CFRN), read together with Item 21 (e) of the Third Schedule thereof, whether the Defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN”. 2.

“considering the provisions of Sections 60, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). whether the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May 2020 to compel the Plaintiffs to fund State High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government if not unconstitutional and unlawful”.

The Defendant, through Abubakar Malami, SAN- the Honourable, the Attorney General of the Federation, has raised Preliminary Objection to the hearing and determination of the suit, brought under the Originating Summons procedure on the following four (4) grounds, that is that – 1. the Plaintiffs’ suit constitutes a breach of the doctrine of Res judicata (i.e estoppel per rem judicatam); 2. the Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel; 3. the Plaintiffs’ cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment, and 4. the judgment of the Federal High Court is still valid and substituting.

​Much as the Hon. the Attorney-General of the Federation, gave further Notice in the Notice of Preliminary Objection that “the Defendant/Applicant shall, while arguing this Preliminary Objection, rely on all Court processes as filed in this suit by the Plaintiffs and the judgment of the Federal High Court in the previous suit”, the Notice of Preliminary Objection is substantially or in some fundamental respects deficient and uncertain.

The particulars of the suit and the allegedly “still valid and subsisting” final judgment of the Federal High Court therein in which the said Court “made final findings in its judgment” on which the Defendant predicates this Preliminary Objection- that the Plaintiffs are now, on the doctrine of “estoppel per rem judicatam” or issue estoppel, estopped from relitigating same, are not stated or given.

Order 3 Rule 1 of the extant Rules of this Court empowers this Court, in the exercise of its Original Jurisdiction, to have recourse to the rules of “the practice and procedure for the time being observed in the Federal High Court”. The Defendant has apparently brought the Notice of Preliminary Objection under or pursuant to Order 16 Rules 2 & 3 of the Federal High Court (Civil Procedure) Rules, 2009.

The very essence of pleadings, whether in civil or criminal proceedings, is audi alteram partem (to give notice to the other party of the matter one seeks determination of his civil rights or obligations against his adversary – Section 36(1) of the Constitution), Fidelis Nwadialo: Civil Procedure In Nigeria – 2nd Ed., at pages 303 – 312, gives four functions of pleadings thus – i. Pleadings define with clarity and precision the issue or questions which are in dispute between the parties and fall to be decided by the Court.

“Issues are decided by and in pleadings and pleadings deal mainly with facts”: OLUFOSOYE v. OLORUNFEMI (1989) 1 NSCC 21 at 28. ii. By means of pleadings each party is required to give fair and proper notice to his opponent of the case he has to meet to enable him to frame and prepare his own case for the trial: GEORGE & ORS. v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71; A.G, ANAMBRA STATE v. ONUSELOGU ENT. LTD. (1987) 4 NWLR (pt. 66) 547 (SC). iii.

Pleadings inform the Court what the precise matters in issue between the parties are; which matters alone the Court may determine since they set the limits of the action: OKE-BOLA & ORS. v. MOLAKE (1975) SC 61 at 62; AFRICAN CONTINENTAL SEAWAYS LTD. v. NIG. DREDGING ROADS & GENERAL WORKS LTD. (1977) 5 SC 235 at 248. iv. Pleadings constitute permanent records of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon between the parties and their privies: HOYSTEAD v. COMMISSION OF TAXATION (1926) AC 125.

This function of pleadings is very material in the consideration of the plead of res judicata- the principle that public interest or policy requires that there must be an end to litigation.

By the foregoing functions of pleadings, the instant Notice of Preliminary Objection is fundamentally deficient and defective for want of particulars or certainty. What suit, the decision of which, as has herein been pleaded constitutes estoppel per rem judicatam or issue estoppel, is one or a matter of facts to be pleaded. These material facts are not pleaded by the Defendant in the purported Notice of Preliminary Objection. Pleadings and their proof are two different things.

The defendant, who pleads special defence premised on previous decision constituting a fact estopping the Plaintiff from relitigating the facts and issues previously decided, has a duty to “plead specifically” such matter or fact with particulars: Order 13, Rules 3, 4 & 6(1) Federal High Court (Civil Procedure) Rules, 2009.

The Defendants’ Affidavit in support of (the) Notice of Preliminary Objection avers that the previous suit No. FHC/ABJ/CS/667 (2013 – decided on 13th January, 2014 between the Judiciary Staff Union of Nigeria (JUSUN) v.

NATIONAL JUDICIAL COUNCIL (NJC) & 73 others (including the present Plaintiffs) “relates to the funding of the Judiciary at the Federal and State levels”; that JUSUN in the said suit sought the interpretation of Sections 81 and 221 (sic: 121) of the Constitution, and that it was the decision in that suit (Exhibit HAGF 1) that prompted the issuance by the President of the Federal Republic of Nigeria “of the Executive Order 10”.

The JUSUN, from the pleadings in the suit Nor FHC/ABJ/CS/667/2013 (Exhibit AGF.I), had sought against the defendants therein (including all the plaintiffs herein) the questions- 1. Whether, by Sections 81(3), 121(3) & 162(9) of the Constitution, funds/amount standing to the credit of the Judiciary in the Federation Account/the Consolidated Revenue Funds of the Federation and the States shall not be paid directly to the Heads of Court concern? 2.

Whether having regards to Sections 81(3) and 121(3) of the Constitution; whether it is right that funds standing to the credit of the Judiciary should be paid piecemeal at the whims and caprices of the Governors of the States? 3. Whether the Defendants’ failure to ensure transparency in annual budgeting, monitoring and budget implementation does not amount to breach of the Fiscal Responsibility Act, 2007 cum States’ relevant Fiscal Responsibility Laws?

​Substantially, therefore, the JUSUN suit (Exhibit HAGF.1) was directed towards ensuring direct and wholesome disbursement of funds standing to the credit of the Judiciary directly to the Heads of Federal and State Courts; and that there be transparency in budgeting and budget implementation in line with the provisions of the Fiscal Responsibility Act, 2007. It sought to enforce judicial autonomy and the Federal High Court agreed and affirmed the judicial autonomy.

The substance of the instant suit is that the Plaintiffs (who were among the defendants in the JUSUN suit Exhibit HAGF.1) and against whom the burden of funding the Judiciary in their respective States has been cast in the Executive Order 00-10 do now seek a determination against the Federal Government of Nigeria, the defendant, that- 1.

By Sections 6, 81(3) of the Constitution, read with Item 21(e) in Part 1 of the Third Schedule to the Constitution, that the Federal Government, and not the States, has the constitutional burden of funding all the capital and recurrent budgets of the superior Courts of record established for the States i.e – the High Court, the Sharia Court of Appeal and the Customary Court of Appeal (i.e the Section 6 Courts); and 2.

In view of Sections 6, 80, 81, 120 and 121 of the Constitution the Presidential Executive Order – 00- 10 of 2020, which directed the States plaintiffs to fund the capital and recurrent budgets of State High Court, sharia of Appeal and Customary Court of Appeal (i.e the State’s Section 6 superior Courts of record), is unconstitutional.

​Clearly, and without much ado, the issues in the instant suit (SC/CV/655/2020) and the previous suit- FHC/ABJ/CS/667/2013 (Exhibit HAGF 1) are not identical in substance nor as to the parties and/or their privies. In the circumstance no question of issue estoppel or estoppel per rem judicatam avails the defendant to sustain the Preliminary Objection; even assuming (and I seriously doubt) the Notice of Preliminary Objection had been properly raised in accordance with the due process of law.

Suffice I mention in passing that this Notice of Preliminary Objection shall only be competent for this Court to entertain if it had been brought and raised, among other things, in accordance with the due process of law for initiating it: MADUKOLU v. NKEMDILIM (1962) 2 NSCC 374; (1962) 2 SCNLR 341. The Preliminary Objection, in the circumstance, is a non-starter. It cannot fly.

Now the merits of the suit. The five (5) provisions at the heart of the Plaintiffs’ Originating Summons are Sections 6, 80, 81(3), 120 and 121 of the Constitution as well as Item 20(e) of Part 1 of the Third Schedule thereto. Curiously, all these provisions, except Sections 80 & 120, were among the Provisions of the Constitution that were subject of the 2010 and 2017 alterations to the Constitution.

The presumption is that the lawmaker knows the state of the law existing at the time or immediately before the amendment before his embarking or proceeding on effecting alterations or amendment to the body of the statute or Constitution. The lawmaker while enacting or amending a provision(s) has in mind the legislative intent or purpose he intends to achieve thereby.

It is, for this reason, the Courts, particularly this Court, insist on, and it is part of the canons of interpretation, that Courts, when interpreting the Constitution, should give it a broad and liberal construction that will promote its purpose, and particularly insisting on the construction that would promote good government and the people’s welfare, as opposed to a narrow and conservative construction that defeats that primary purpose: RABIU v. KANO STATE (1980) 8 -11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362 at 371. This has been my stance as can be seen in ABIODUN v.

FRN (2018) 11 NWLR (pt. 1629) 86 (SC) at 109A; ONTARIO OIL & GAS LTD v. FRN (2018) 13 NWLR (pt. 1636) 197 (SC) at 227. Hitherto now (or may be the 2010 and 2017 alterations to the Constitution) the Executive, being so dominant, had made the other vital arms and organs of government believe that they existed at the mercy of the Executive arm. The Judiciary and the Legislature did not seem to have any scintilla of any real or actual independence and autonomy particularly in terms of budgetary independence and autonomy for each of them to attain their optimal ends.

An executive body like the Independent National Electoral Commission (INEC), chartered by the Constitution to “organize, undertake and supervise all elections” freely and independent of any other person, authority or arm of government, did not enjoy financial autonomy. The situation was akin to the Judiciary, Legislature and INEC living in Mr. Bumble’s welfare workhouse where Oliver Twist’s asking for the minimum for the existential of himself or the other inmates was considered a culpable offence: Courtesy – Charles Dickens: OLIVER TWIST.

This factual situation where the Judiciary must go cap-in-hand to demand for disbursement of their budgetary allocations and getting just a mere pittance out of it, at the grace, whims and caprices the Executive Arm was what prompted the suit: FHC/ABJ/CS/667/2013: JUDICIARY STAFF UNION OF NIGERIA (JUSUN) v. THE NATIONAL JUDICIAL COUNCIL & OTHERS (including the 36 Governors and the States Attorneys-General).

The Defendant seems to concede that the Presidency’s concern about the existing sorry state of affairs as regards the finances of the Judiciary, Legislature et. al. was what informed and “prompted the issuance of the Executive Order 10 by the President, Federal Republic of Nigeria”. This long prefactory detour seeks to demonstrate the existing state of affairs regarding the capital and recurrent budgets of the Judiciary when the 2010 and 2017 were effected the constitution. That is the mischief addressed by the Constitution, particularly via the 2010 and 2017 alterations to thereto.

​Mr. S. T. Hon, SAN, one of the amici curiae, is correct therefore, when he stated in his brief that the enactment of the provisions of the Constitution, the subject of this suit had “sought to do away with the practice of the State Governors holding the so called State Courts to ransom, thereby trampling on the rule of law and the independence of the Judiciary”, and that in this case, this Court should affirm the Originating Summons in order to affirm the Independence of the Judiciary.

The mischief rule links very well with the intention of lawmaker in enacting the current provision of the law being considered.

Finding the mischief invariably leads to finding the legislative intent. In ATTORNEY-GENERAL OF LAGOS STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2014) 9 NWLR (pt. 1412) 217 (SC) at 320F this Court stated thus- I need to emphasise that in interpreting the provisions of statute or even the Constitution, the historical antecedents of such provision could be of help in order to bring out the real intendment of the law or the maker or framers of the constitution.

Using the historical antecedents as a veritable tool to identifying the legislative intent for enacting a particular statute or effecting an amendment to an existing law or provisions has existing precedents in this Court as can be seen from, just a few: INEC V. ASUQUO (2018) 9 NWLR (pt. 1624) 305 at 327; LAU v. PDP (2018) 4 NWLR (pt. 1608) 60 at 123; UGWU v. ARARUME (2007) ALL FWLR (pt. 377) 807 at 854 – 855; FIDELITY BANK PLC. v. MONYE (2012) ALL FWLR (pt. 631) 1412 at 1438; INEC v. YUSUF (2020) 4 NWLR (pt. 1714) 374 at 411.

The pertinent question, in the mischief Rule, is: what is the bad practice that the provision or the amendment has sought to do away with? I had earlier found and stated that apart from Sections 80 & 120, all the provisions of the Constitution, the subject of the Originating Summons, have been materially altered by the 2010 and 2017 Alterations to the Constitution. Clearly, in my firm view when these provisions are read together with other relevant and material provisions of the Constitution, as altered; there is only refrain: the things we used to do, we do them no more.

I agree with the amici curiae (except Mahmud A. Magaji, SAN & Musibau Adetunbi, SAN), that the apparent mischief cured by the framers of the 1999 Constitution was the need to remove the Courts at the State level from asphyxiating grip of the State Governors and State Houses of Assembly. The greater mischief was the need to improve – justice delivery at the “grassroots” level, with a serious eye to upholding the rule of law – for the overall benefit of maintaining and sustaining Nigeria’s tottering democracy.

I will now consider the provisions of the Sections of the Constitution that this suit relates. Section 6 makes reference to two sets of Courts, namely the Courts directly established under the section and expressly mentioned in Subsection (5) (a) to (i) thereof and specifically stated to “be the only superior Courts of record in Nigeria”, and those such other Courts “with subordinate jurisdiction to that of a High Court” which, in Subsection (4) of Section 6 of the Constitution, the National Assembly or any House of Assembly may establish.

Section 6 (1) of the Constitution vests judicial powers of the Federation in the Supreme Court of Nigeria, the Court of Appeal, Federal High Court and National Industrial Court, as superior Courts of record established for the Federation: Section 6(5) (a) to (c). Section 6(2), (3) & (5) (e), (g) & (i) of the Constitution provide that the judicial powers of the State shall be vested in the High Court of a State, the Sharia Court of Appeal of a State and the Customary Court of Appeal of the State “being Courts established for the State”.

Between Section 6(1) & (2) the operative word is “FOR” before either the Federation or the State.

I agree with Chief Awomolo, SAN, amicus curiae, that there is the distinction between the “Federation” and the “Federal Government of Nigeria” as defined by Section 318 of the Constitution, providing that “the Federation” means the Federal Republic of Nigeria that is the Government of the Federation”. The Federation, meaning the Federal Republic means more than the Federal Government of Nigeria. It includes the States and the Local Governments as well.

The Courts established FOR the Federation and for the State by Section 6(1) & (2) of the Constitution, which Courts are specifically stated in Section 6(3) thereof to “be the only superior Courts of record in Nigeria” – and are vested with “all the powers of a superior Courts of record in Nigeria”, emphatically listed in Section 6(5) (a) to (i) of the Constitution.

Though, it is clear from Section 6(4)(a) of the Constitution that the National Assembly or any House of Assembly (of a State) are empowered to establish any Court other than those established by the Constitution (Section 6(1), (2) & (5) (a) to (i)]; the same provision makes it clear that those Courts shall have “subordinate jurisdiction to that of a High Court”. Only three High Courts are established by Section 6 of the Constitution. That is Federal High Court, the High Court of the Federal Capital Territory, Abuja and “a High Court of a State” – Section 6(1), (2) & (5) (c), (d) & (e).

I make bold therefore to state that the superior Courts in Nigeria expressly established by the Constitution (Section 6 thereof) are also the Courts established for the Federation and for the States. The other Courts with subordinate jurisdiction to that of a High Court which the National Assembly or the House of Assembly of a State may establish by an Act or Law do not belong to the genre of the superior Courts of law in Nigeria established by the Constitution under Section 6 thereof. They are inferior Courts of record with jurisdiction subordinate that of a High Court.

The crux of this Originating Summons is: how the superior Courts of records in Nigeria established by the Constitution, in Section 6 thereof, for the Federation and for the States are to be funded under the Constitution? Chapter V. E- Powers and Control Over Public Funds, in the Constitution has a total of 10 Sections, namely: 80, 81, 82, 83, 84, 85, 86, 87, 88 & 89.

Section 80 of the Constitution, establishing the Consolidated Revenue Fund of the Federation, provides- 80.(1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation. (2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution. (3) No moneys shall be withdrawn from any public fund of the Federation other than the Consolidated Revenue Fund of the Federation unless the issue of those moneys has been authorised by an Act of the National Assembly. (4) No money shall be withdrawn from the Consolidated Revenue Fund or any other public Fund of the Federation, except in the manner prescribed by the National Assembly. ​The Consolidated Revenue Fund of the Federation does not necessarily belong only or exclusively to the Federal Government but to the entire Federation.

Section 81(1) & (2) of the Constitution make it imperative that the President of the Federal Republic of Nigeria “shall cause to be prepared and laid before each House of the National Assembly- estimates of the revenues and expenditure of the Federation for the next following year”. It does appear, from Section 81(2) of the Constitution that expenditure charged directly on the Consolidated Revenue Fund of the Federation by the Constitution is not expected to be included by the President in the Appropriation Bill he presents to the National Assembly.

It is clear and explicit, from Section 81(3) that the amount standing to the credit of the Judiciary is a charge on the Consolidated Revenue Fund of the Federation. Sub-Sections (2) & (3) of Section 81 of the Constitution provide –

81.(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purpose specified therein. (3) The amount standing to the credit of the – (a) Independent National Electoral (b) National Assembly, and (c) Judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.

The Judiciary, in the context of Section 81(3) of the Constitution, in my firm view means “the Courts established for the Federation and the States under Section 6 of this Constitution”. That is, only the superior Courts of record in Nigeria. It does not include Courts “with subordinate jurisdiction to that of a High Court” within the context of Section 6(4)(a) of the Constitution.

This category of Courts, in the State Judiciary: while their expenditure or “the amount standing to (their) credit” or expenditure in relation to them is not a charge on the Consolidated Revenue Fund of the Federation, under Section 81(3) of the Constitution; their expenditure, under Section 121(2) of the Constitution is a charge on the Consolidated Revenue Fund of the State established under Section 120(1) of the same Constitution.

And by dint of Section 121(3) thereof any amount standing to the credit of the State Judiciary in relation to the inferior Courts of record in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned. The fact that, at the State level the amount standing to the credit of the judiciary is charged, under Section 121 (2) of the Constitution, on the Consolidated Refund of the State, further demonstrates the intent or purpose of the Constitution to provide assurance for judicial autonomy.

Section 81 of the Constitution does not intend the Judiciary to be treated differently from the National Assembly and Independent National Electoral Commission as regards their capital expenditure. Neither the terms “expenditure” nor “the amount standing to the credit of the judiciary” are defined by the Constitution to be Capital or Recurrent, or both. Loosely, expenditure is “the act or process of paying out; disbursement; a sum paid out”: Blacks Law Dictionary 9th Ed., page 658.

Accordingly, and in my firm view the terms expenditure (Section 81 [2)) or “the amount standing to the credit of the- judiciary” (Section 81 [3]) should, and they, include both capital and recurrent expenditure of the judiciary. ​Section 84(2), (4) & (7) of the Constitution specifically address the recurrent expenditure of the judiciary, as the provisions deal with the remuneration, salaries and allowances of judicial officers (corresponding with justices and judges of the Courts established for the Federation and the States under Section 6 of the Constitution).

Section 84(2) provides that “the remuneration, salaries and allowances payable to the holders of the offices (including judicial officers listed in Section 84 (4)) shall be a charge on the Consolidated Revenue Fund of the Federation”, in further consolidation or re-affirmation of Section 84(2); Subsection (7) of Section 84 provides- 84.(7) The recurrent expenditure of judicial offices of the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this Section) shall be a charge upon the Consolidated Revenue Fund of the Federation.

The Federation in the context of Section 84(7) of, as in the entire Constitution, is inclusive of all the tiers of government in the Federal Republic of Nigeria. The objective and purpose of Section 84(2) and (7) of the Constitution are the assurance of independence and autonomy of judicial officers manning the Superior Courts Listed in Section 6(5) of the Constitution.

The Pension Rights of Judges Act, as amended in 2016 defines a “judicial officer” to include all judges of the State High Court, Sharia Court of Appeal and the Customary Court of Appeal to accord with Section 6(3) & (5) of the Constitution. The Act makes pension rights of this category of judicial officers statutory. Ordinarily, “remuneration, salaries” in the context of Section 84 of the Constitution are agreed rewards or compensation for work done by an employee. Gratuity is the money paid to an employee when he leaves, or retires from, service.

Pension on the other hand, is the amount of money paid regularly to somebody upon his retirement. Pension rights of judicial officers, being now, statutory form part of the judicial officers’ conditions of service. Remuneration, from its ordinary dictionary meaning, includes salary, pension and gratuity. The Pension Rights of Judicial Officers Act has reinforced this notion and given it a boost.

Therefore, when the Constitution in Section 84 thereof, provides that the remuneration and salaries of Judges of Superior Courts of record (the Section 6(5) Courts under the Constitution) shall be a charge on the Consolidated Revenue Fund of the Federation; the purpose and intent of this provision of the Constitution are that the remuneration and salaries, including pensions and gratuity of all judicial officers holding offices in the Superior Courts of record in the Federation shall be borne, as a charge on, by the Consolidated Revenue Fund of the Federation.

What I am saying, for the purpose of this suit, is: the remuneration, salaries and allowances (including pensions and gratuity), being recurrent expenditure payable to the holders of the judicial offices mentioned in Sections 6(3) & (5) and 84(4) of the Constitution “shall be a charge on the Consolidated Revenue Fund of the Federation,” and not on the Consolidated Revenue Fund of the State (particularly as regards the holders of judicial offices in the High Court, Sharia Court of Appeal and the Customary Court of Appeal established for the States by Section 6(3) of the Constitution).

The State Plaintiffs are therefore right in their insistence and claim that the recurrent expenditure of the holders of the judicial offices in the High Court, Sharia Court of Appeal and the Customary Court of Appeal established by Section 6(3) & (5) of the Constitution, for the State shall be a charge on the Consolidated Revenue Fund of the Federation.

Upon reading Item 21(e) of the Third Schedule to the Constitution together with Sections 6 & 81(3) of the same, I entertain no doubt whatever that the capital and recurrent expenditure, as they relate to the superior Courts of record in Nigeria, established under Section 6 of the Constitution, remain a charge on the Consolidated Fund of the Federation. I reject the Defendant’s position or submission to the contrary. The decision of this Court interpreting Section 121(2) & (3) of the Constitution, in A.G. FEDERATION v.

A.G., ABIA STATE & ORS. (2002) 6 NWLR (pt. 764) 542, followed by OLISA AGBAKOBA v. A.G. EKITI STATE & No. NAD/56/2013; OLISA AGBAKOBA v. FGN & ORS. No. FHC/ABJ/CS/63/2013, sets the template for the construction I have adopted in relation to 81(2) & (3) of the Constitution since Sections 121(2) & (2) and 81(2) & (3) of the Constitution are in pari materia. In A.G. FEDERATION v. A.G.

ABIA STATE (supra), this Court stated that – It is clear from the phrase “other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution” in Section 121(2) that expenditure charged upon the Consolidated Revenue Fund of the State is exempted from the Executive Appropriation Bill which is laid before the House of Assembly by the Governor.

It should be emphasised too that the words “paid directly to the Heads of Court” in Section 121(3) imply a payment system outside the Appropriation Bill. (Emphasis supplied) And of course, clearly a payment system not governed by the whims and caprices of the Governor or the President. Part of the functions of the National Judicial Council, under the Constitution (Item 21(e) of Part 1 of the Third Schedule) is to “collect, control and disburse all moneys, capital and recurrent, for the Judiciary.

All moneys- for the judiciary, include the heads of expenditure of the judiciary charged upon the Consolidated Revenue Fund of the Federation and amount standing to the credit of the judiciary which Section 81(3) directs “shall be paid to the National Judicial Council for disbursement to the heads of Courts established for the Federation and the States under Section 6 of (the) Constitution”.

The use of the word “control”, in particular, implies that the power/function of the NJC, as regards the budget and budgetary proposals of the Judiciary, is the authority charged with the task of holding the bridle, check, determination, superintendency and supervision for the purpose of the phrase “the amount standing to the credit” which other provisions direct that the amount shall be paid directly to the NJC for disbursement to the Heads of Courts. ​The Constitution, speaking for itself and to all persons and authorities, declares that it “is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria” – Section 1 (1).

In its emphatic declaration in Section 1(2) thereof, the Constitution provides, inter alia, that the Federal Republic of Nigeria or any part thereof shall not be governed, except in accordance with its provisions. This seems to provide the apt answer to the submission of Mahmud A.

Magaji, SAN, Amicus Curiae, – That the framers of the Constitution, having mentioned that the funding of capital as well as recurrent expenditure of the superior Courts of the States, as created by Sections 6 (2), (5) (e), (g) and (i), 270 (1), 275 (1) and 280(1) of the Constitution; even when they had the opportunity of so doing, has shown their intention that the principles of Federalism on which the Constitution was anchored should be maintained in this regard. The learned senior Counsel placed so much reliance on ELELU-HABEEB v. A. G.

FEDERATION (2012) 13 NWLR (Pt. 1318) 423, which I am certain, was either cited in error or read out of context. This Court in the said ELELU-HABEEB v. A.G, FEDERATION (supra) did state, without ambiguity, inter alia “that a constitutional provision should not be construed in such a way as not to defeat its evident purpose”.

The evident purpose of Sections 6, 81 (2) & (3), 84 (2), (3) & (7) of the Constitution read together with Item 21(e) of Part 1 of the Third Schedule thereto is judicial independence and autonomy in respect of which it is provided, therefore, that the expenditure, capital and recurrent, of the Courts of the superior record in Nigeria, being Courts established under Section 6 of the Constitution, shall be a charge upon the Consolidated Revenue Fund of the Federation.

This the empirical constitutional provision stating the intent and purpose notwithstanding the option in Sections 6(4)(b), 275 (1) and 280(1) the same Constitution has given to “any State, that requires it” to establish the Sharia Court of Appeal or the Customary Court of Appeal. ​The Nigerian Constitution does not pretend to enthrone and operate the ideal federalism. The Nigerian Federalism, under the extant Constitution, is peculiar to Nigeria and Nigerians just as the Constitution itself is.

We seem to be operating a pseudo Federalism in the garb of the Unitarianism that suited the Military Junta that midwived the constitution for the purpose. One of the canons of interpretation is the one postulating that the constitution must not be given an interpretation that will lead to unreasonable and inconvenient results (ONYEMA v. OPUTA [supra]).

There are other rules of interpretation that enjoin the Court not to construe any provision(s) of the constitution or statute by placing a gloss on it; that a judicial interpretation must construe a provision to save it and thereby avoid making non-sense of the statute so as not to defeat the manifest purpose and intention of the law maker: NABHAN v. NABHAN (1967) 1 ANLR 47; ELABANJO & ANOR v. DAWODU (2006) 6 – 7 SC 24. The Nigerian Constitution, like any other statute, must not be construed to mean what it does not actually mean; or not to mean what it explicitly means.

Doing so smacks of judicial rascality and a complete abdication or renunciation of both the judicial responsibility and judicial oath of the judicial officer. ​The totality of all I have been labouring to say, about the aforementioned provisions of the Constitution, particularly Sections 6, 80, 81(1) and (3), 84 (2), (3) & (7) thereof read together with Item 21(e) of Part 1 of the Third Schedule to the Constitution, is that the expenditures, capital and recurrent, of the superior Courts in Nigeria established by Section 6 of the Constitution remain the burden and charge on the Consolidated Revenue Fund of the Federation, and not on the budgets or the Consolidated Revenue Fund of the State.

It is only, as regards the expenditure, capital and recurrent of the Courts the jurisdiction of which are subordinate to that of the High Court by dint of Sections 120 & 121(2) & (3) of the Constitution that the burden is upon the Consolidated Revenue Fund of the State.

The President, purporting to be enforcing, as it is mandatory on him to under Section 287 of the Constitution (he being one of the persons and authorities therein obligated), the judgment of the Federal High Court in the suit No. FHC/ABJ/CS/667/2013 (Exhibit HAGF. 1) between JUSUN v. NATIONAL JUDICIAL COUNCIL & ORS and FHC/ABJ/CS/63/2013 Between OLISA AGBAKOBA v.

FG & ORS (Exhibit HAGF. 1) had come up magisterially, promulgating the Executive Order 00- 10 of 2020 providing inter alia: 1.(b) The Accountant General of the Federation shall by this Order and such other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State judiciary in line with the financial autonomy of House of Assembly of the State and the judiciary guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) 7.(b) To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the committee, as may from to time be made.

The question that readily comes to mind is whether the promulgation of the Executive Order 00- 10 is not ultra vires the powers of the President and therefore a nullity? The executive powers of the Federation, as vested in the President by Section 5(1)(b) of the Constitution, extend “to the execution and maintenance of (the) Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”.

The executive powers of the President clearly do not extend to usurping the executive powers or functions of the Governor of a State as vested by Section 5(2(b) of the Constitution. The Constitution vests in the President no powers and control over public funds of the State. Therefore when the President, either by act of aggrandisement or otherwise, exercises powers not vested in him by the Constitution or statute and/or in excess of the powers vested in him by the Constitution or statute; he acts ultra vires.

The ultra vires doctrine, in other words, is the rule against the excess or abuse of power: B. U. EKA- JUDICIAL CONTROL OF ADMINISTRATIVE PROCESS IN NIGERIA; page 61, 2001 Ed. ​Having read all the briefs of argument filed and exchanged in the matter; I agree with the plaintiffs’ counsel and all the Amici Curiae in their support, particularly Dr. Olisa Agbakoba, SAN, that the President has, in the guise of the Executive Order, amended the Constitution which legislative power does vest or inhere in him.

He has taken over the plaintiff States’ constitutional power and control over their public funds under Sections 120, 121, 123 and 124 of the Constitution; and vested same on the Presidential Committee. Therefore on the combined effect of the doctrines – nemo dat quod non habet, and delegatus non potest delegare the President cannot arrogate the powers he does not have under the Constitution to himself nor delegate same to the Presidential Committee, the Attorney-General of the Federation or the Accountant-General of the Federation the powers he does have under the Constitution.

Doing so is ultra vires, null and void. The plaintiffs States posited that by the Executive Order- 00- 10, and I agree that, the President is unconstitutionally shierking the financial burden the Constitution has placed on the Consolidated Revenue Fund of the Federation (by relieving it of the burden) and passing it on to the plaintiffs. Neither in the suits: FHC/ABJ/CS/63/2013: OLISA AGBAKOBA v. FEDERAL GOVERNMENT & ORS nor FHC/ABJ/CS/667/2013 J.U.S.U.N v. N.J.C & ORS was any decision nor order of such sort made to warrant the purported enforcement vide the Executive Order.

The Executive Order, as it pertains to the judiciary, being ultra vires the President to make, is a nullity and unenforceable; and I so declare. The Executive Order 00- 10, being inconsistent with the Constitution, is to the extent of the inconsistency void and unenforceable by dint of Section 1 (3) of the Constitution.

Reliefs 6, 7, and 8 couched as follows- 6. AN ORDER compelling the Defendant to refund to the Plaintiffs all sums expended by the Plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit A exhibited in the affidavit in support of this Originating Summons, being the true and actual amount expended by each Plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff State all amounts expended by each Plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CRFN, from 31st January, 2020 until the date of delivery of judgment by Supreme Court of Nigeria are in a nature of special damages.

Special damage comprises all past pecuniary losses which are calculated at the date of trial: HALBURY’S LAWS OF ENGLAND 4TH Ed., vol. 36(1) paragraph 28, pages 21. Upon a claim of special damage, the plaintiff has an obligation to particularise, That obligation to particularise arises “not because the nature of the loss is necessarily unusual but because the plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”: PERESTRELLA v.

UNITED PAINT CO (1969) 1 WLR 570 per Lord Donovan, see also A.G. ANAMBRA STATE v. ONUSELOGU (1987) 4 NWLR (pt. 66) 547; NWOBOSI v. ACB LTD (1975) 6 NWLR (pt. 404) 658 at 680. As such the duty the plaintiff owes the defendant as well as the Court lies not just in Evidence Law but also, to some extent, in constitutional law. Sections 131 (1) of the Evidence Act, 2011 obligates whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist in order to be entitled to judgment.

Section 133(1) of the same Evidence Act provides that, in civil cases, the burden of first proving the existence or non-existence of an essential or material fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. No burden befalls the defendant to rebut when special damages are claimed without specific particulars and are not proved in discharge of the plaintiff’s duty to prove his assertion in order to be awarded that aspect of his claim.

The constitutional obligation on the plaintiff to particularise the special damages he claims lies in the duty the plaintiff owes the defendant, under Section 36(1) of the Constitution guaranteeing the right to fair hearing in the determination of his civil rights or obligations by the Court of law. The audi alteram partem component of the right to fair hearing requires the plaintiff to give the defendant an opportunity not only to be heard, but also to know, how he (the plaintiff) has come about the calculation of past pecuniary loss being claimed against him the defendant.

That is why Lord Donovan (op. cit) had stated that “the plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”. I do not, in my firm view, think that the plaintiffs in this case have particularised all the items that make up the various sums they seek refund of to them by the Defendant under their reliefs 6, 7 and 8 special damages, or claims in the nature of special damages that require specific pleadings of, with particulars.

The plaintiff who claims special damages shall as well prove same strictly and specifically. The evidence on it must establish clearly how the plaintiff suffered such damages as he claimed. Special damages are not inferable from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and must be claimed specifically and proved strictly: KOPEK CONSTRUCTION LTD v. JOHNSON KOLEOLA (2010) 3 NWLR (pt. 1182) 618. When duly established special damages do not, for purpose of award, give the Court much discretion.

The plaintiffs, having not made out the claims in Reliefs 6, 7 and 8; the said claims are accordingly denied and refused. As regards Reliefs 1, 2, 3, 4, 5 and 9 the plaintiffs claim, I am favourably inclined to awarding them in their favour and they are accordingly so awarded.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the lead judgment just delivered by my learned brother MUSA DATTIJO MOHAMMED JSC. I agree with the reasoning and the conclusion that the principal claims of the Plaintiffs cannot be granted. The Plaintiffs are the thirty-six (36) Attorney’s General of the thirty-six States of the Federation who have instituted this action on behalf of their respective States, while the Defendant is the Attorney General of the Federation who is sued for and as a representative of the Federal Government of Nigeria.

The 1999 Constitution (as altered) will hereafter be described as the “CFRN (as altered)” (The alterations enure into the Principal Act – 1999 Constitution).

The questions raised by the originating summons and the reliefs sought there in are as follows:- 1.

Having regards to the clear and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“CFRN”), read together with Item 21(e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the State High Courts, Sharia Courts of Appeal, Customary Court of Appeal of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful. RELIEFS SOUGHT 1.

DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) (CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of Item 21 (e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Court created under Section 6 of the CFRN. 3.

A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN is unconstitutional. 4.

A DECLARATION that the Presidential Executive Order Non 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the Plaintiffs to fund State’s High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the Defendant to henceforth fund all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the Plaintiffs all sums expended by the Plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff the amount set out against the name of each Plaintiff in Exhibit “A” exhibited in the affidavit in support of this Originating Summons, being the true and actual amount expended by each Plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff State all amounts expended by each Plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, from 31st January, 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional.

The originating summons is supported by an affidavit of 63 paragraphs and Plaintiffs’ written address. The Plaintiffs filed a further affidavit of 11 paragraphs in support of the originating summons. The completed list of the particulars of the capital expenditures of some State Courts from 1999 to date to support the claim for refund was also submitted by Adamawa, Bayelsa, Bauchi, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Katsina, Kebbi, Nasarawa, Niger, Rivers, Sokoto and Zamfara States and attached to the said further affidavit and marked as exhibit A.

The Plaintiffs filed a second further affidavit in support of the originating summons.

The Attorney General of the Federation as Defendant filed its memorandum of conditional appearance, counter affidavit with several Exhibits and written address in opposition to the originating summons. The Plaintiffs filed an affidavit in reply to the said Defendant’s counter affidavit.

The case of the Plaintiffs as disclosed in the 63 paragraph further affidavit in support of the Originating Summons and 11 Paragraph further affidavit in summary is that by the express provisions of Section 81 (3), Paragraph 21 (e) of the Third Schedule Part I and Section 121 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as altered), the funding of all capital and recurrent expenditure of the State High Courts, the Sharia Courts of Appeal, the Customary Courts of Appeal of the States is the responsibility of the Federal Government through appropriation from the Consolidated Fund of the Federation payable through the National Judicial Council being Courts specified under Section 6(5) of the Constitution.

The Defendant on the merit of the case, filed a counter affidavit which in the main admitted compliance with the responsibility for the payment of salaries and allowances of judicial officers of the Federal as obligated under Section 84(7) of the Constitution. The Defendant denied responsibility for providing for capital expenditure of all the Courts created for the Federation under Section 6(5) of the Constitution of the Federal Republic of Nigeria.

The Defendant also justified the validity of the Presidential Executive Order No. 00-10 of 2020 as a means to enforce obedience to constitutional provisions relating to the 36 States of the Federation.

Before I go into the substance of these issues, I will deal with the merit of the preliminary objection. The Defendant raised a preliminary objection to this suit on the following grounds: – 1. In the Plaintiffs’ suit constitutes a breach of the doctrine of Res judicata (i.e. estoppel per rem judicata); 2. The Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel; 3. The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court had made final findings in its judgment, and 4. The judgment of the Federal High Court is still valid and substituting.

The Defendant attached to the counter affidavit in defence of the originating summons the judgment in suit No. FHC/ABJ/CS/63/2013 – Olisa Agbakoba v. AGF & 2 Ors. delivered on 22/5/2014 by Hon. Justice A. R. Mohammed as exhibit HAGF I. Also, the judgment in suit No. FHC/ABJ/CS/667/13- Judicial Staff Union of Nigeria v. NJC & 73 Ors. delivered on 13/1/2014 by A. F. A Ademola s Exhibit HAGF 2. Both judgments were attached in aid of the contention that the defence of Res judicata can be a shield for the Defendant in this suit.

A close consideration of the grounds of objection shows that the grounds are deficient in all material particulars in relation to what aspects of the judgment being held up as a shield constitutes estoppel per rem judicatem. This contravenes Order 13 Rules 3, 4, 6 (1) of the Federal High Court (Civil Produce) Rules 2009 which provides that the Defendant must state specifically with particulars the facts of estoppel. The rules of the Federal High Court are applicable to this case by virtue of Order 3 Rule 1 of the Supreme Court Rules.

The affidavit in support of the preliminary objection merely stated tersely that the previous suit No. FHC/ABJ/667/2013 in which judgment was delivered on 13/1/2014 between JUSUN NJC & 73 Ors had included all the present Plaintiffs constitutes issue estoppel because that case decided the issue relating to “the funding of the judiciary at the Federal and State levels”. The grounds also include the fact that the said judgment sought the interpretation of Section 81 and Section 221 of the Constitution.

Be that as it may, and not willing to dwell on the paucity of materials for consideration of the merit of the objection, it is apt to note that the questions raised for determination in suit No.

FHC/ABJ/CS/667/2013 are as follows:- QUESTIONS FOR DETERMINATION 1) Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) funds/amount standing to the credit of the Judiciary in the Federation Accounts/States shall not be paid directly to the Heads of Court concerned. 2) Whether having regards to the provisions of Sections 81(3) and 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Funds/Amounts standing to the credit of the Judiciary in Consolidated Revenue Fund of the States ought NOT to be paid in piecemeal to the judiciary through the States Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. 3) Whether the Defendant’s failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Act, 2007 cum States’ relevant Fiscal Responsibility Laws and if so, the legal consequence(s) thereof The Plaintiff sought the following reliefs: – 1.

A Court Declaration that the Defendant’s failure, neglect and or refusal to pay the funds/Amounts standing to the credit of the States’ Judiciary in the Federation/Consolidated Revenue Fund directly to heads of Courts in the various States’ Judiciary is a constitutional breach which has to be abated forthwith. 2. A Court Declaration that the piece-meal payments/allocations of funds through the States’ Ministry of Finance to the States Judiciary at the Defendant’s pleasure, is unconstitutional, unprocedural, cumber-some, null, void and has to be abated forthwith. 3.

A Court Declaration that the Defendants are in breach of the relevant provisions of the Fiscal Responsibility Act, 2007 and the relevant States’ Fiscal Responsibility Laws in the way and manner of their disbursing funds to the State’s Judiciary, annual budgeting, monitoring cum implementation of budgets for the States ‘Judiciary. 4. A Court order mandating/compelling the Defendants to comply with the provisions of Sections 81(3) and 162 (9) of the 1999 Nigerian Constitution (as amended) in the disbursement of Funds to the Heads of Courts forthwith. 5.

A Court Order compelling the Defendants to henceforth ensure transparency in the way and manner of disbursing funds standing to the credit of the States’ Judiciary by publishing the Disbursement schedules regularly as statutorily required for public consumption/scrutiny. 6. An Order of perpetual injunction to perpetually restrain the Defendants, their agents, assigns, privies etc from committing any further breach of the aforesaid Constitutional/Statutory provisions. 7. Such further and or other order(s) as the Justice of this case may demand.”

I have hitherto set out the claims herein and the reliefs sought. It is clear that the issues in suit No. FHC/ABJ/CS/667/2013 border on complaints against the State Executive arm of Government and their failure to pay as at when due to the heads of Court the funds appropriated to the judiciary in the State. It also challenged the manner of annual budgeting, disbursement and monitoring of funds by the State governments vis a vis the judiciary of each State.

Whereas the subject matter of the present suit is whether the Federal Government has the Constitutional responsibility to fund the capital and recurrent expenditure of all the Courts created by Section 6(5) of the CFRN.

​The plea of Res Judicata is legally founded on the basis that a previous judgment of a Court of competent jurisdiction had decided to finality the issues of law and facts raised by the Plaintiff in the present suit. The Court before whom the plea of res judicata is raised must examine what was directly in issue and decided upon in the previous judgment sought to be used as a shield. Thus, it is the cause of action that matters and a Plaintiff cannot by formulating a fresh claim re-litigate the same cause based on the same facts seeking the same or similar reliefs.

It is the facts in issue that matter not the way the claims have been couched. In Attorney General, Nasarawa State v. Attorney General Plateau State (2012) LPELR-9730 (SC); (2012) 10 NWLR Pt. 1309 Pg.419, this Court defined a plea of res judicata to mean a thing adjudged between the same parties or their privies by a competent Court. See also Balogun v. Adejobi (1995) LPELR-724 (SC), (1995) 2 NWLR Pt.376 Pg.131; Ajiboye v. Ishola (2006) LPELR- 301 (SC) (2006) 13 NWLR Pt.998 Pg.628, Cole v.

Jibunoh (2016) LPELR-40662 (SC); (2016)4 NWLR Pt. 1503 Pg. 499. ​In this case, the question of law in issue is whether the Federal Government is constitutionally bound to be responsible for capital expenditure of Courts vested with judicial power by Section 6(5)(f),(g),(i) and (k), those expenditures hitherto borne by State Governments.

Even though the parties are substantially the same, the questions in relation to some provisions of the constitution are similar though not on all fours, the reliefs sought in both cases from the pleadings of the parties are vastly different and cannot found the basis for the plea of issue estoppel and Res judicata made herein.

My Lords, the premise of the Defendant’s objection is flawed ab initio. This is because the two judgments sought to be used as issue estoppel are the judgments of the Federal High Court which is a Court of first instance. By the combined effect of Sections 232 and 235 of the CFRN (as altered), this Court is both a Court of first instance and the final Court in this class of cases brought for adjudication. Both Courts don’t enjoy equal or similar status.

The judgment of the Federal High Court at first instance even where it has not been appealed against cannot bind the Supreme Court of Nigeria or be pleaded as res judicata before this Court. It would be ludicrous so to hold. I find no merit in the plea, the preliminary objection is dismissed.

​Now to the substance of this claim. In the Plaintiffs’ address settled by a panel of respected members of the Inner Bar led by Augustine O. Alegeh SAN., signed by Aihunegbe A. Malik SAN., two issues were distilled for determination as follows:- i.

Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of Federal Republic of Nigeria, 1999 (As Amended), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is not constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution. ii.

Considering the provisions of Sections 6, 80, 81, 120, and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the Plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional.

The issues identified by the Defendant in the brief settled by Abubakar Malami, SAN, Attorney General of the Federation are similar in substance and content with the Plaintiffs’ issues. I will adopt the Plaintiffs issues in the determination of this claim. Several amici curiae gave the benefit of their opinions on these important issues on the invitation of the Court.

The eminent Senior Advocates are:- Asiwaju Adegboyega Awomolo SAN, Dr. Olisa Agbakoba SAN, Chief Sebastian Hon. SAN, Mahmud Abubakar Magaji SAN, Musibau Adefunbi SAN.

ISSUE ONE The Plaintiffs argued on issue one that each State has been illegally compelled by Defendant’s action to fund all the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States apart from the salaries of the judicial Officers.

The Plaintiff States have been made to provide Court rooms, residential quarters, furniture, vehicles, generators and other capital expenditure as well as all recurrent expenditure apart from salaries of judicial officers for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States.

The Plaintiffs argued that a literal interpretation of the lucid and unambiguous provisions of Section 81(3) of the Constitution leads to the obvious and irresistible conclusion that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relates are to be funded by the Federal Government, represented herein by the Defendant, in terms of all capital and recurrent expenditure.

Learned Senior Counsel argued that the CFRN under Section 153 establishes the National Judicial Council (NJC) and sets out its functions in Item 21 of the Third Schedule to the CFRN and further provides specifically that the NJC shall “…Have power to collect, control and disburse all moneys, capital and recurrent, for the judiciary”.

The Courts envisioned by Section 121 (3) of CFRN are the Courts established by the respective Houses of Assembly of the various States of the Federation and not the Courts listed under Section 6(5) of CFRN. It goes without saying that the draftsmen of the CFRN anticipated that certain Courts other than the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal set out in Section 6(5) of the CFRN, may be established in the respective States of the Federation by the State Houses of Assembly.

Consequently, the funding of the capital and recurrent expenditure of these Courts created by the State Houses of Assembly was made the responsibility of the respective State Governments.

The Defendant argued that it is a gross misconception of the Constitutional provisions in Sections 6, 80, 120, 121, 318 and Item 21(e) of the 3rd Schedule to the CFRN for the Plaintiffs to assert that the responsibility of the Federal Government as it relates to the funding of Superior Courts of record established for the States under Section 6(5), is not limited to the payment of salaries and allowances of judicial officers mentioned in Section 84 (4) and interpreted under Section 318 of the Constitution to mean ‘Judges’ but that it extends to infrastructural provisions for the State High Court, the Sharia Court of Appeal of the State and the Customary Court of Appeal of the States.

The learned AGF submitted that it is clear from Section 6 and Chapter VII Part I & II when read together with the CFRN that two sets of Courts have been established – one for the Federation and one for the States. Senior Counsel argued that under the Judicature, the CFRN makes a clear distinction between the two Courts by placing them under different heads.

The Defendant argued that by considering all these constitutional provisions, as relates to the funding of the Judiciary, is simply that funds charged to the Consolidated Revenue Fund (as opposed to funds that need to pass through the legislative process of appropriation) are the funds meant for the remuneration, salaries and allowances of judicial officers. These funds do not require any legislative assent as they are already charged by the CFRN and therefore can be withdrawn from the Consolidated Revenue Fund of the Federation without Appropriation.

Needless to say, that these funds to wit: remuneration, salaries and allowances clearly fall within the category of recurrent expenditure, being expenses that are obviously recurring in nature.

The senior Counsel for the Defendant urged the Court to consider the guidelines for interpretation of the Constitution as pronounced by Obaseki JSC in AG Bendel State v. AGF (1981) 10 SC Pg. 1. The Attorney General of the Federation argued that Sections 162(4) (5)(6)(7) & (8) of the 1999 CFRN (as amended) is evidence of the fact that the State Governments have their own allocations separate from amounts standing to the credit of the Judiciary.

Chief Awomolo SAN, as amicus argued in favour of the Plaintiffs’ case that a combined reading of Sections 80 (1) and (2) and 6 (5) of the Constitution means that all monies required to be withdrawn from the Consolidated Revenue Fund of the Federation in respect of the Judiciary are of (2) two categories: I) Fund constitutionally charged to the Consolidated Revenue Fund of the Federation. Senior Counsel referred to Sections 84(4) and (7) of the CFRN (as altered).

II) Funds estimated as required for expenses for the next following year which shall include “capital” and “recurrent expenditure estimates” appropriated by the National Assembly.

​Learned Senior Counsel argued that the Constitution does not specifically provide for “Federal Government Courts” differently rather the Constitution referred to “Courts established for the Federation and States under Section 6 of the Constitution”. If the Constitution had intended to isolate Courts established for the Federal Government under Chapter VII, it would have so stated. Chief Awomolo, SAN, insisted that there is no directive to limit appropriation in respective of the judiciary to recurrent expenditure only.

​Chief Sebastian Hon. SAN, as amicus argued for the Plaintiff’s case that the entire provisions of Sections 80-84 of the 1999 Constitution are meant to also cover the capital and recurrent expenditure of the offices and persons of the Judex manning Courts wrongly labeled “State” Courts and that the provisions of Section 6(1), (3) and (5) (a)-(i) of the same Constitution ought to be read together, if for nothing else, for the clear, connecting provisions of Section 83(1) thereof.

Senior Counsel further submitted that this Court should also take cognizance of Section 84(1) and (4), which mandates the NJC to pay salaries and emoluments of all Judges of Superior Courts (including those of the High Courts, etc.) from direct disbursements from the Consolidated Revenue Fund of “the Federation” (CRFF). The framers of the Constitution grouped these Judex, not only with Justices of the Supreme Court and the Court of Appeal, etc, but with other “Federal” public servants like the President and the Vice-President, etc.

Senior Counsel asked the question whether those Judges are mere ‘State’ Judges, if not, why group them with these “Federal” public servants if not for the purpose of servicing them together.

Dr. Olisa Agbakoba SAN, as amicus argued for the Plaintiffs’ case that the case before this Court is about funding the Courts listed under Section 6 of the Constitution. Senior Counsel argued that the Defendant having admitted to funding State Courts set out in S.6, the defendant cannot approbate and reprobate. Senior Counsel further submitted that this Court should overrule certain orders in the judgment of this Court in Attorney General for the Federation v.

AG Abia & Ors (2002) (NO. 2) 6 NWLR Pt. 764 Pg. 542 which portions as highlighted by him are per incuriam since this Court did not advert its mind to the provision of Item 21 (e) of the 3rd Schedule of the CFRN 1999. Senior Counsel submitted that this Court should also strike down certain laws made by some state Legislature to appropriate moneys for officers of some State Courts. In particular Senior Counsel referred to Section 6 of the Lagos State High Court Law which he insists is unconstitutional for provisions of extra salary and allowances for the judges of the High Court of Lagos State.

​Mahmud Abubakar Magaji, SAN, as amicus in favour of the Defendant’s position urged the view that in interpreting Sections 80, 81 (1), (2) & (3) and 84(1), (2) (3), (4) & (7) of the Constitution, the Court must relate them to Section 6 thereof in view of the fact that it is the Section that establishes the Courts in issue.

Counsel further argued that in interpreting these Sections, this Court must relate them to Sections 6(2), (3) & (5)(e), (g) (i) as well as Sections 270(1), 275(1) and 280(1) of the Constitution as they are relevant in determining the owners of the Courts in question between the Plaintiffs and the Defendant.

Senior Counsel is of the view that if the words used in provisions of Section 84(1), (2), (3) (4) and (7) of the CFRN are given their natural meaning, it would not be difficult to come to the conclusion that the framers of the CFRN intended that the remuneration, salaries and allowances of the Judicial officers of the Courts established for both the Federation and the States under Section 6 of the Constitution is to be funded by the Federal Government.

The capital expenditure of the judicial offices of the Courts established for the Federation under Section 6 of the Constitution, but not inclusive of those for the States are also charged upon the Consolidated Revenue Fund of the Federation. The capital expenditure for the Courts established under Section 6 of the Constitution is to be borne by their respective owners; meaning the government of the Federation and government of the States respectively.

Senior Counsel submitted that it is not the responsibility of the Defendant/Federal Government to fund the Courts in issue other than paying the salaries and allowances of the judicial officers of those Court as expressly provided in Section 84(1), (2), (3) (4) & (7) of the Constitution becomes more compelling when it is borne in mind that this country is a Federation where both the Federal government and the component States have their respective spheres of authority as well as responsibilities.

​Musibau Adetunbi SAN, as amicus argued for the Defendant that the interpretation of Sections 6(5) (e), (g) and (i), 81 (3) and the said Item 21(e) of the 3rd Schedule in isolation of other Sections to grant the Plaintiffs’ claims is not only wrong but is equally going to lead to a great injustice to the Defendant. Senior Counsel argued that the literal rule of interpretation of Statutes remains the foremost principle of interpretation but that sections of the Constitution must not be construed in isolation of others.

Counsel cited a plethora of authorities including: PDP v Sherrif & Ors. (2017) LPELR – 42736 (SC) P 50-51 Paras G-A, Per Rhodes-Vivour JSC; Abegunde v. The Ondo State House of Assembly & Ors. (2015) LPELR- 24588 (SC) P.41 Paras B-C Per Mohammed, JSC; A.G. Lagos State v. A.G. Federation & Ors. (2014) LPELR – 22701 (SC) P.46-47 Paras B – A Per Muhammad, JSC.

Senior Counsel urged this Court to refuse the claims of the Plaintiffs in its entirety.

OPINION ON ISSUE ONE It is not in contention by the parties that all superior Courts of record for the Federal and State Governments have been created by S.6 of the CFRN. It is also not seriously controverted by any of the parties that Section 81(3)(c), Section 84(1)(2)(3)(4) and (7) and the 3rd Schedule Item 21 (e) of the CFRN (as altered) vests the duty to fund the recurrent expenditure of all courts created by Section 6 of the CFRN (as altered) on the Federal Government.

The point of departure is that the Defendant does not agree with the Plaintiffs’ claim that the Federal Government is constitutionally bound to fund ALL Recurrent and Capital expenditures of Courts created under Section 6(5) of the Constitution.

The principal provisions of the CFRN in issue are Section 6; Section 83(1); Section 84; Section 153 (1); Section 162; Item 21(e) of the 3rd Schedule and of course other provisions which are necessary to consider in order to arrive at a just determination of the questions in controversy. My Lords, I will interpret these Sections of the CFRN by following the concept that the very provisions of the CFRN must be followed without considering other extraneous concepts as espoused by my Lord Niki Tobi JSC in Attorney General of Lagos State v.

Attorney General of the Federation (2003) 12 NWLR Pt. 833 Pg.1 at Pg. 246 wherein His Lordship opined thus:

“Let us not blow the Federal concept in our Constitution outside the parameters of the 1999 Constitution”. Thus, calling in aid other forms of Federation in violent conflict with the letters of the 1999 Constitution is wholly futile. See Chief Adebiyi Olafisoye V. FRN (2004) 4 NWLR Pt. 864 Pg. 580. A close study by scholars of Federalism shows that there appears to be no two Federal Governments of the same structure or character.

The nature of each of the Federal system of Government creates its peculiar structure that suits its political history, culture and accommodation of the diverse nation States that form the Federation. By the provision of Section 1 and 3 of the CFRN (as altered), that document is the grundnorm, and is thus supreme to all other legislations and shall have binding force on all authorities and persons in Nigeria. See AG Abia v. AGF (2002) 6 NWLR Pt. 763 Pg. 216 at 479.

There is no doubt that the Nigerian brand of “Federalism” as provided for in the CFRN (as altered) is different from other brands of federalism. There are some provisions that clearly show the Nigerian brand as a quasi-Federal or an elevated unitary system of government rather than the theoretical brand of federalism envisaged by political legal theorists. The ideal or true Federalism is different from a nation’s specific or individual constitution as there is no universal agreement as to what pure and true federalism is.

Thus, the general definitions of federalism do not affect the efficacy or effectiveness of peculiar provisions in a nation’s constitution.

Professor Nwabueze SAN., in his book Constitutional Democracy in Africa Vol. 4 at pg. 201 defines federalism as: “Federalism is an arrangement whereby governmental powers within a country are shared between a national, country-wide government and a number of regional (i.e territorially localized) governments all equal of levels and status as governments, in such a way that each of the national and regional government exist separately and independently from the others and operates directly on persons and property within the territorial area of its jurisdiction, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others.

Federalism is thus essentially an arrangement between governments, a constitutional device by which political powers within a country are divided among various units of governments, rather than among geopolitical entities comprising different peoples…” The Black’s Law Dictionary 10th Edition Pg. 732 defines “Federation” as a league or union of states, groups or people united under a strong central authority but retaining limited regional sovereignty, especially over local affairs.

Be that as it may, the Courts are bound to interpret our own brand of “federalism” as we choose to call our system of government. Section 2 of the CFRN (as altered) describes Nigeria as a Federation consisting of States and a Federal Capital Territory. From previous authorities, it is clear that it has been discovered that the spirit and essence of the CFRN (as altered) are sometimes at variance with some of its provisions. The policy thrust of this Court hitherto was to enshrine the spirit of federalism whenever the provisions of the Constitution seem to be at variance with its spirit.

In AG Fed. Abia & Ors v. AG Fed & Ors (2006) 7 SCNJ 1, (2006) 16 NWLR Pt. 1005 Pg. 265, this Court re-affirmed the position of Nigeria as a Federation when it held that it was improper for the Federal Government to legislate on the distribution of funds allocated to Local Government. This Court reiterated the autonomy of States in the Nigerian Federation and stated that allocation of funds to the Local Governments is the function of the State Government. Thus, as held in AGF & Ors v. Alh.

Atiku Abubakar (2007) 10 NWLR Pt. 1041 Pg. 1. at Pg. 157: “The function of the Constitution is to establish a framework and principles of government broad and general in terms intended to apply to the varying conditions which the development of the communities must involve, ours being a plural dynamic society and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution.” As Ogundare JSC opined in AG Abia v.

AGF (2002) 6 NWLR Pt. 763 Pg. 264 at Pg.119: “It is trite law that the Constitution of any nation is not expected to contain all the minute details of a good government. It suffices that it prescribes brief and comprehensive outlines leaving the details to be filled by those charged with the responsibility of working out the requirements of a good government.” The interpretation of the Constitution should serve the interest of the spirit of the Constitution in order to carry out its objectives and purpose. See Hon. Abegunde v. Ondo State House of Assembly (2015) 4 SCNJ 179; (2015) NWLR Pt. Pg.

The Constitution must be interpreted wholistically. See AG. Lagos v. AGF. (2014) 4 SCNJ 374; (2014) ALL FWLR Pt. 740 Pg. 1296. What I am saying here is that in attempting to consider the answer to the originating summons, I will remember that the policy thrust of this Court has been to enthrone the principles of federalism rather than lean toward unitarianism in interpreting the provisions of the 1979 and now the 1999 CFRN (as altered).

Under this issue, the framework and scope for funding the Court mentioned in Section 6 (5) of the CFRN must be considered. This is not a novel issue although the aspect of the present claim submitted for determination has never been seriously considered by this Court. ​The relevant constitutional provisions for consideration are set out below. Section 6 of the CFRN 1999 (as altered) states as follows:

(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts, to which this section relates, being Courts established, subject as provided by this Constitution, for a state. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection (5) (a) to (i) of this Section shall be the only superior Courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (5) This section relates to: (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (cc) the National Industrial Court; (d) the High Courts of the Federal Capital Territory, Abuja; (e) a High Court of a State; (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State;

(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja. (i) a Customary Court of Appeal of a State (j) Such other Court as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other Court as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

Section 81 (3) of CFRN provides thus: The amount standing to the credit of the (a) Independent National Electoral Commission (b) National Assembly (c) Judiciary, In the Consolidated Revenue fund of the Federation shall be paid directly to the said bodies respectively; In the case of the Judiciary, such amount shall be paid to National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.” Item 21(e) of the Third Schedule to the CFRN provides thus: The National Judicial Council shall have power to – (d) Collect, control and disburse all moneys, capital and recurrent, for the judiciary.

Section 153 (1) of the CFRN- creates the National Judicial Council as a Federal Commission. The composition and powers of the NJC are as contained in Pt.1 of the Third Schedule to the CFRN.

Section 162- (1) The Federation shall maintain a special account to be called “The Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry of Department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja (2) The President, upon the receipt of advice from the Revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for Revenue allocation from the Federation Account, and in determining the formula, the National assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources. (3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may prescribed by the National Assembly. (4) The amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may prescribed by the National Assembly. (5) The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the State for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly. (6) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State.

(7) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly. (8) The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State. (9) Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National judicial Council for disbursement to the heads of Courts established for the Federation and the State under Section 6 of this Constitution.

Section 6 (1) vests judicial powers on Courts created by the CFRN for the Federation. Section 6(2) vests judicial powers on Courts created by the CFRN for the State. These Courts which can be established by the National Assembly and State House of Assembly are as stated in Section 6(5) and established by Sections 230 – 284 of the CFRN (as altered) Other lesser Courts exist as created for and by the State Government. Such lesser Courts are established by the Laws of the various State of Federation.

These Courts include several grades of Magistrates’ Courts, Customary Courts, Sharia Courts, Area Courts and District Courts. Thus, there are two categories of Courts. The superior Courts of Record established for the Federation by Section 6(5) (a-k) of the Constitution and inferior Courts established by State laws for the benefit of the State.

The question raised by this issue is whether the Appropriation Act passed yearly by the National Assembly ought to include both the capital and recurrent expenditure of all the Federal and State Courts vested with judicial powers by Section 6 (5) of the CFRN (as altered) just as each yearly Appropriation Act includes the anticipated income and expenditures of the Federal Executive and the Federal Legislature. In AGF v. AG Abia (2002) NWLR No. 2 supra, the central government was referred to as the government of the Federation.

However, the popular nomenclature used by the central government itself has been the Federal Government of Nigeria while the States are referred to as State Government. Thus, the Government of Nigeria as a whole made up of all the tiers and arms of government of the Federation will be referred to here as the Government of the Federal Republic of Nigeria (FRN) while the central government will be referred to as the Federal Government of Nigeria (FGN). Undoubtedly, the Sections under contention cannot be viewed in isolation of other provisions in the CFRN (as altered).

Section 6(3) makes the Courts in Section 6(5)(a) – (i) superior Courts of record. Thus Section 6 (5)(j) and (k) respectively delineate for the Federal and Courts established for the States by making the National Assembly responsible for vesting more powers on the Courts created FOR the Federation and the House of Assembly of a State responsible for vesting more powers on the Courts created for the State, The only construction to be made of Section 6 is that it merely vests judicial powers in the Superior Court of record created for the Federation and created for the States as the case may be.

The vesting of judicial powers on these Courts by Section 6 does not determine the financial source of these Courts. Thus, much stock cannot be placed on Section 6 to determine the fiscal responsibility of the Federal Government of Nigeria to the different tiers of the judiciary of the Federation. See:Nwabueze v. Okoye (1988) NSCC Pt. III Pg. 96; (1988) 10-11 SC 77 at 145. The cardinal and golden rule of interpretation is that a document must be read wholistically.

We cannot isolate the constitutional provisions under review without considering other relevant provisions which bear on the subject matter. Sections 270(1) & (2), 271(1) & (2), 275 (1) & (2), and Section 280 (1) & (2) come to mind. I will deal with those anon. Now, Chapter VII of the Constitution provides for the JUDICATURE. It states clearly in Part I thereof FEDERAL COURTS. Item A – Section 230 provides for the establishment of the Supreme Court. Section 237 provides for the establishment of the Court of Appeal, Item C- the Federal High Court in Section 249 etc.

Part II provides for State Courts. Item A – 270-274 establishes High Court of a State etc. item B- Section 275-279 establishes the Sharia Court of a State etc. Item C – Section 280 -284 establishes the Customary Court of Appeal of a State etc. ​The Constitution itself which vested the powers of being superior Courts on these Courts collectively in Section 6(3) and Section 6 (5) separated them into two categories namely Federal and State Courts. The CFRN did not state “Courts for the Federation”, but Courts for the “Federation and States”.

In Chapter V of the CFRN (as altered) which deals with the Legislature, the powers of the Legislature to control public funds was extensively provided. Part I deals with the powers of the National Assembly to control the Funds of the Federal Government, while Part II deals with the powers of the House of Assembly of a State to control funds which enure to the benefit of the State. In Bronik Motors v.

WEMA Bank (1983) NSCC Vol. 14 Pg. 226, in relation to the 1979 Constitution, this Court emphasized the fact that within the Government of the Federation each State has the discretion to establish or not establish some of the State Courts on which Section 6 had vested judicial powers. It appears that this Court had hitherto created through decision law the dichotomy between State Courts and Federal Courts in AG Abia v.

Attorney General of the Federation (2006) 16 NWLR Pt. 1005 Pg. 265 at 377 this Court per Niki Tobi JSC held as follows: “What is the constitutional function of the Auditor General of the Federation? Unlike the Accountant-General of the Federation, the Constitution provides for the function of the Auditor-general of the Federation and it is in Section 85(2) of the Constitution. It reads: The public accounts of the federation and of all offices and Courts of the federation shall be audited and reported on by the Auditor-General who shall submit his report to the National Assembly.

The subsection is so clear as to what finances the Auditor-General can audit and they are the public accounts of the Federation of all offices and Courts of the Federal Government, wherever they may be located. For example, the Auditor-General of the Federation has the right to audit the accounts of the Courts enumerated in Section 6(5)(a)(b)(c)(d)(f)(h). This is in addition to Federal offices. Perhaps, the point I am making will become clearer if I take Section 125(2) of the Constitution, the State counterpart of Section 85(2).

The subsection reads in part: “The public accounts of a State and of all offices and Courts of the State shall be audited by the auditor-general for the State who shall submit his reports to the House of Assembly…” Again the subsection is so clear as to finances the Auditor-General of a State can audit and they are the public accounts of the State and of all offices and Courts in the State.” No doubt, the judiciary as an arm of the Government of the Federal Republic is expected to have its “capital” and “recurrent” expenditure at both the Federal Government level and the State Level.

Item E under Part I of Chapter V of the Constitution provides for powers and control over public funds by the National Assembly in Sections 80 – 89 of the CFRN. ​Section 80 provides for the establishment of the Consolidated Revenue Fund of the Federation. No moneys can be withdrawn from the Consolidated Revenue Fund of the Federation unless such moneys have been charged upon the Constitution or authorized by an Appropriation Act passed pursuant to Section 81 of the CFRN or by an Act of the National Assembly.

Section 80 provides for funds which are appropriated for certain specific expenditure or business of the Government of the Federal Republic. The Federation Account is established by Section 162 as a distributable pool account and the Consolidated Revenue Fund is sourced from the Federation Account. Now, Section 81 (1) and (2) provide for the authorization of expenditure from the Consolidated Revenue Fund, which authorization is sought by the President from the National Assembly by seeking for the passing of an Appropriation Bill into an Act by the said National Assembly.

Section 81(3) provides as follows:- The amount standing to the credit of the- a) Independent National Electoral Commission, b) National Assembly and c) Judiciary In the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.

In Section 81(3) of the Constitution, INEC, the National Assembly and the Judiciary are grouped together as institutions which should be credited with moneys, from the Consolidated Revenue Fund. ​The reason for Section 81 (3) is to safeguard the salaries, recurrent expenditure and allowances of Judges and remove them from being subject to annual legislative vote.

Thus all the justices and judges of the Courts (Federal or State) established by Section 6(5) are protected by their salaries, allowances and recurrent expenditure being a charge on the Consolidated Revenue Fund of the Federal Government. Any other expenditure even if taken from the Federation Account cannot be a first line charge but must be subject to Federal Legislative approval as is the present practice. Section 81(3) in my view differentiates between the Courts established for the Federation and the Court established for the States.

This is more so when the amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the Head of State Courts of each State as provided by Section 121 (3) (b) of the CFRN (as altered). ​The argument that the funds meant for all the expenses of the judiciary (both capital and recurrent) are standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation.

Even only the various subsections of Section 81 are read together, it shows that there is provision for the amount that stands to the credit of the Judiciary and amounts that can only be given to the Federal or State Judiciary after the process of appropriation. So how do we ascertain the money standing to the credit of the “JUDICIARY” in the Consolidated Revenue Fund of the Federation. We don’t have far to look. Section 84 makes copious provisions for that.

The most relevant portions are stated below: Section 84 (1) There shall be paid to the holders of the offices mentioned in this section such salaries and allowances as may be prescribed by the National Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission. (2) The renumeration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation. (3) The renumeration, salaries payable to the holders of the said offices and their conditions of service other than allowances shall NOT be altered to their disadvantage after their appointment. (4) The offices aforesaid are the offices of the President, Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor- General for the Federation and the Chairmen and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja, the Federal Character Commission, the Code of Conduct Tribunal, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission, the Nigerian Police Council, and the Police Service Commission. (7) The recurrent expenditure of judicial offices of the Federation (in addition to salaries and allowances) of the judicial officers mentioned in Subsections (4) of this Section) shall be a charge upon the Consolidated Revenue of the Federation. (8) The recurrent expenditure of the Independent Electoral Commission, in addition to the salaries and allowances of the Chairman and members, shall be a charge upon the Consolidated Revenue Fund of the Federation.

My Lords, the significance of the wording of Section 84 (7) must not be lost.

While Section 84 (2) provides for renumeration, salaries and allowances, Section 84 (7) the recurrent expenditure of judicial offices of the Federation (Federal Judicial Officers on one hand and puts in bracket (in addition…) (which brings into the fold) other judicial offices (State judicial Offices) whose recurrent expenditure shall be a charge on the consolidated Revenue Fund of the Federation. ​”Judicial Office” is defined by Section 318 of the CFRN to mean: The office of the Chief Justice of Nigeria, or a Justice of the Supreme Court, the office of the President or justice of the Court of Appeal, the office of the Chief judge of the Federal High Court or a Judge of the Federal High Court, the office of the President of the National Industrial Court or a Judge of the National Industrial Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge of a State or Judge of the High Court of a State, the office of the Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, office of the President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State, or President or a Judge of the Customary Court of Appeal of a State;

and a reference to a “judicial officer” is a reference to the holder of any such office. ​The drafters of the CFRN did not make a mistake in the categorization of the different heads of expenditure of judicial offices charged to the Consolidated Revenue Fund.

It is important to note that the amount standing to the credit of any office in the Consolidated Fund of the Federation in any fiscal year cannot be reduced UNDER ANY CIRCUMSTANCES. Now, what does the CFRN (as altered) mean by the “recurrent expenditure” of “offices” of the named public functionaries in Section 84 (4). I daresay offices mean all the incidentals of the office of the named functionary.

Since recurrent is defined as something that returns from time to time, recurrent expenditure is expenditure that recurs repeatedly or periodically. ​This does not include the building wherein the officer performs the function or where the officer lives while performing the function, but entails everything else needed for the functionary to function in that office except for capital expenditure which is often a once in a while or one-off expenditure.

Judicial notice is taken of the fact that a judge’s office needs to have what in accounting parlance is called OVERHEAD COSTS or RECURRENT EXPENDITURE to function optimally in that office. This Court is entitled to take judicial notice and into consideration the accounting practices of the Courts of the Federation as mandated by the Accountant General of the Federation. The heads of expenditure called RECURRENT by the office of the Accountant General of the Federation are matters of public knowledge which this Court can take judicial notice of. Recurrent expenses are in two parts.

Personnel and running costs. Personnel Costs include salaries, allowances, and overtime payments where applicable to the holder of that office. Social Contributions like National Health Insurance, ITF Contribution, Housing Fund Contribution etc where applicable to the holders of that office. Under Overhead/Running Costs, there are several heads of expenditure.

There are costs of Travel and Transport – both local and international; Training- both local and international; Healthcare – both local and international; Utilities – electricity, internet charges, water, sewage, telephone charges etc; Materials and Supplies – office consumables – writing and printing materials etc, library books, newspapers, law magazines and periodicals; Security services, cleaning etc; Maintenance Services- maintenance of motor vehicles, office furniture, office and residential quarters, plants, generators and communication equipment etc; Miscellaneous expenses including refreshments, postage and courier services, honorarium and sitting allowances, subscription of the sporting activities of the judge, subscription to professional bodies where applicable etc.

The list above is by no means exhaustive. All these are part of the money supposed to be collected from the Consolidated Revenue Fund of the Federation for all judicial offices enumerated in Section 84 (4) by the National Judicial Council for disbursement to the Heads of ALL Courts as specified. The CFRN (as altered) is very clear on this part of the Constitution. There is a clear difference between the salaries and allowances of the office holder and other recurrent expenses to maintain the office.

This is because while the judicial salary and allowances are fixed and consolidated by the Revenue Mobilisation Commission, the recurrent expenditure to maintain the office yearly would perforce vary according to inflation rate. I take judicial notice of the fact that the National Judicial Council presently makes some payments to judicial offices in this regard. What I am labouring to say here had been settled by AGF v. AG Abia & Ors (2002) 6 NWLR Pt. 764 Pg. 542 (No.2). My Lords, in AGF v.

AG Abia & Ors (2002) 6 NWLR Pt. 764 pg. 542, (No.2) this Court held while considering the issue whether the judiciary should be financed wholly from the Federation Account or the Consolidated Revenue Fund that from the provisions of Section 162(9) it is the Consolidated Revenue Fund of the Federal Government and not the Federation Account that is charged with paying the salaries, allowances and the recurrent expenditure of judicial offices in the Federation.

This Court insisted that the capital expenses of the judiciary cannot be a first line charge on the Federation Account by virtue of S. 162(9) of the CFRN. My Lord Ogundare JSC stated clearly that this section is unclear as regards the issue of direct payment to the judiciary from the Federation Account. The implication in my view is that any amount to be sourced from the Federation Account must be by way of appropriation by legislative means. The Court in AG FED V. AG ABIA State & Ors (2002) (No.2) had cause to interpret Section 162 of the 1999 Constitution.

In that case, the Supreme Court held as unconstitutional the practice of allowing the Federal Capital Territory, the judiciary, Nigerian National Petroleum Corporation (NNPC), etc draw their yearly budgetary allocations directly from the Federation Account. Specifically held to be unconstitutional was the funding of joint funding contracts and the NNPC priority projects from the Federation Account. Also held to be unconstitutional, is for each Government (Federal or State) to seek to charge its debts on the Federation Account.

This Court also held that while States are entitled to have the Federal Government render account as to how the Federation Account is operated, they have to formally make a demand in that regard.

On the question of the 13% derivation, the Court held that it was not automatic as an enabling law of the National Assembly or a Presidential Modifying Order pursuant to Section 315 of the Constitution is needed to validate it or pay a higher percentage. ​From the clear interpretation of that judgment, combined with the clear and unambiguous provisions of Section 162 (3) of the CFRN, which has stated by whom and to whom the money in the Federation Account can be shared, the only money that can stand to the credit of the judiciary as a whole in that Account is the amount appropriated for use by the Federal Government from which the Federal judiciary takes its own share on one part and the State governments take their share from which the state judiciary takes its share on the other part.

There are calls for this Court to set aside AGF v. AG Abia (2002) NO.2 supra and to adopt a different interpretation of Section 162 (9). In Bronik Motors v. Wema Bank. , supra, this Court held at Pg. 250 of the NSCC report that the pre requisite conditions which must be prayed in aid and satisfied before this Court will not follow stare decisis are as follows: (a) A broad issue of justice OR (b) Policy (c) A question of legal principle such that the retention of the decision would amount to a perpetuation of injustice.

I am not persuaded that any of the above scenario has been successfully urged or is applicable in the circumstances of this case to call for the setting aside of the legal decisions and orders in AGF v. AG Abia (2002) No. 2. The thorny part of this Constitutional question is the provision of Paragraph 21(c) of Part 1 of the Third schedule to the CFRN which provides that the NJC shall have power to collect, control and disburse all moneys capital and recurrent, for the judiciary. This is the basis on which the case of the Plaintiffs rests.

I have continued to sound this refrain throughout this opinion, which is that the provisions of the Constitution must be considered as a whole. Section 80 of the CFRN makes it clear that for the Federal Government to expend capital expenditure in respect of Courts established for the State under Section 6(5)(e)(g) & (j) of the said CFRN, it must be an expenditure passed as part of the Appropriation Act or one Charged on the Consolidated Revenue Fund of the Federation.

The question is whether the money the NJC is supposed to collect as capital is the one charged to the Consolidated Revenue Fund of the Federation. (It cannot be by virtue of Section 84(4) & (7) of the CFRN). It is only the State House of Assembly that can appropriate by law, funds for the capital expenditure of the State Judiciary. See Section 121 of the CFRN. It is of note that Section 81(3) does not give any power to the National Assembly to Legislate on Funds for any arm of government of any State of the Federation.

If the Federal Government is to fund the capital expenditure of an arm of government of a state, it must derive its powers clearly from the CFRN. It goes without saying that the National Assembly and the President of the Federal Republic of Nigeria lack the vires to prepare Appropriation Law for any State in the Federation except upon declaration of a State of Emergency in that state. It is difficult to buy the argument that the Courts listed in Section 6(5)(e)(g) and (i) are Courts established for the Federation but wrongly labeled State Courts as opined by Chief Hon. SAN.

The other argument is that there is nothing in the CFRN that limits the word “amount” in Section 81 (3) which said amount covers INEC, the National Assembly and the Judiciary to only the recurrent expenditure of these organisations. Also, that the word “amount” in Section 162 (9) is synonymous with the word “amount” in Section 81 (3) and the word is elastic enough to mean capital and recurrent amounts. How to know the specific amount standing to the credit of any of the special institutions recognized by Section 81 (3) and their beneficiaries is clearly stated by ​Section 84 of the CFRN.

While Section 81 provides for authorization of expenditure from the Consolidated Revenue Fund of the Federal Government of Nigeria (FGN), Section 162 is about the distribution of money in the pool account of the Federal Republic of Nigeria. The word “account” cannot have the same meaning in both sections of the CFRN. The argument that the amount standing to the credit of INEC and the National Assembly includes both their capital and recurrent expenditure and are payable to them from the Consolidated Revenue Fund is not supported by the provisions of the CFRN.

Section 80 (2) is specific to the effect that only moneys charged upon the Consolidated Revenue Fund can be withdrawn from it. Every other amount to be taken from the Consolidated Revenue Fund must be by an Appropriation Act. Section 81 (2) explains how the appropriation must be done. ​My Lords, it is only the salaries, allowances and recurrent expenditures of the named offices in Section 84 (4) that are charged on the Consolidated Revenue Fund of the Federation which in turn then stand to the credit of the institutions controlling these offices.

Section 84 (8) explains this very well since it states that the recurrent expenditure of INEC in addition to the salaries and allowances of its Chairman and members shall be a charge on the Consolidated Revenue Fund. Since it mentions only the recurrent expenditure of the judiciary and INEC, the rule is that what is specifically mentioned excludes what is not mentioned and that capital expenditure is excluded from moneys charged on the Consolidated Revenue Fund. See Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) LPELR -1056 (SC).

As explained earlier, where payment is constitutionally or statutorily charged on the Consolidated Fund, it anticipates that the specie of money so charged is outside the yearly Appropriation Act of the Federation or the Appropriation Law of a State and such appropriation is no longer necessary. See Section 80 (3). The further argument is that each State judiciary will submit its capital budget to the NJC and the NJC will submit the budget of State Courts and that of the Federal Courts for appropriation as an Act of the National Assembly. As stated in AGF v.

AG Abia (2002) No. 2, Section 162 (9) has been rendered otiose since the judiciary was not made a direct beneficiary of “any amount” by Section 162 (3). The only way the State judiciaries can take anything is when it is passed down through the States’ share of the amount distributed pursuant to Section 162 (3).

In spite of Paragraph 21 (e) of Part 1 of the Third Schedule, which is a mere schedule or explanatory note to the principal Act (in this case the Constitution) and cannot override the clear and collective provisions of same, I do not agree with the proposition that we must give an interpretation to Paragraph 21(e) of Part 1 of the Third Schedule to the effect that funds due to the judiciary being a charge on the Consolidated Revenue Fund of the Federation presupposes that an exception has been made to the principle of Federalism in that both State and Federal Courts are given a unitary status and thus the Federal Government must fund both the Federal and State Courts recurrent and capital expenditure.

The argument in aid of this is that the framers of the CFRN meant that all the amounts standing to the credit of the judiciary both recurrent and capital should be paid over to the National Judicial Council for disbursement to heads of Court. What can be deduced from this is that there is direct payment of the moneys charged to the Consolidated Revenue Fund to the heads of Court through the National Judicial Council.

One of the arguments in aid of the Plaintiffs’ case is that all moneys due to the judiciary at all tiers, both Federal and State, both recurrent and capital should be sourced from the Consolidated Revenue Fund of the Federation and not be subject to any legislative appropriation. That argument with the greatest respect cannot hold in view of the nature of the provisions in the CFRN relating to the need for and what constitutes the Consolidated Revenue Fund of the Federation or the States.

As stated earlier, it is a fund that is never reduced or touched whatever the varied financial fortunes of government so that the beneficiaries are never short changed by the whims and caprice of any government for any reason. The further argument is that there is nothing in Item 21(e) of Part 1 of the Third Schedule that differentiates the payment of the amount standing to the credit of one body from that of the others like the National Assembly and INEC etc., and that if the capital & recurrent expenditures of other executive bodies are met, the same should hold good for the judiciary.

The argument is that there is nothing in the provisions of Section 81(3) that requires that the judiciary to be treated differently. I beg to differ from this reasoning. The other bodies apart from the judiciary covered by Section 81(3) are another arm of government being the National Assembly and INEC, a federal institution. The Judiciary of this country straddles or encompasses both the Federal and State Courts.

The natural conclusion I am able to draw following is that it is only a few institutions that benefit from the Consolidated Revenue Fund of the federation except for the specific functionaries mentioned by Section 84(4) of the CFRN. There is no doubt that paragraph 21 (e) of Part 1 of the Third Schedule is at variance with the other provisions of the CFRN in that it throws that phrase “capital expenditure” into the issue of funding for both the Federal and State Courts as opposed to all other provisions in the CFRN in that regard.

We have to consider the fact that since the Federal Government has no control whatsoever over the Consolidated Revenue Fund of a State, it cannot reasonably be expected to undertake the funding of a State’s Judicial Service Commission’s recurrent and capital expenditure. See JSC Cross River State & Anor v. Young (2013) LPELR-20592 (SC). I daresay that the approved budgetary estimate of a State Judiciary in any fiscal year is for the State and not for the Federal Government to execute. Provisions of the CFRN are made for specific purposes.

If the NJC or the Judiciary of a State were not to send its annual budget estimates for its capital expenditure to the budget office of the Executive arm of either the Federation or the State, why were the provisions for auditing the accounts of the Courts at both Federal and State levels brought into the CFRN?

In the absence of express mention of “capital expenditure” for the Courts in issue anywhere in those Sections of the Constitution relating to the Consolidated Revenue Fund of the Federation, it would not accord with the accepted principles of interpretation of the Constitution as already held by this Court in a plethora of cases to input words not stated in the Constitution. The power to take is a corollary of the power to give.

Assuming without conceding that the NJC has the power to collect the so called “unspecified funds” of the judiciary, then then CFRN must give unequivocal power to an authority to give NJC the capital expenditure of the States Judiciary for disbursement to the heads of Court. The modalities for such a procedure must be specifically stated. In this case, such a process cannot be inferred from any of the clear provisions of the Constitution. Such an inference is outside the purview of other provisions of the CFRN (as altered). In PDP V.

INEC (1999) 11 NWLR Pt.626 Pg. 200 at 265 this Court per Ayoola JSC opined thus in PDP V. INEC: “It will not be right to imply that the legislature would have legislated an irrational distinction. Where there are no gaps in the statute and the words are plain, the irrationality or absurdity of a statute may not be the concern of the Court. However, where there is an occasion for the Court to resort to implication, the Court should not hold as implicit in a statute, that which is irrational, unreasonable, absurd or inconvenient.” This Court held in Elelu-Habeeb v.

AG Federation (2012) 13 NWLR Pt. 1318 Pg.423 that amongst the principles of interpretation of the Constitution is such principle that would have the following effect: 1. To take into cognizance what a federation entails and that in doing that, the Constitution of the Federal Republic of Nigeria being an organic scheme of government is to be dealt with as an entirety. Hence, a particular provision should not be severed from the rest of the Constitution. 2. That a constitutional provision should not be construed in such a way as to defeat its evident purpose; 3.

That under the constitution where specific power is granted, a particular power must be granted before it can be exercised; 4. The principles upon which the constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its purpose; 5. Constitutional languages are to be given a reasonable construction and absurd consequences are to be avoided; 6. Seemingly conflicting points are to be harmonized if possible so that effect can be given to all parts of the constitution.

The interpretation of conflicting provisions must be harmonized to give effect to all parts of the Constitution. The Constitution clearly provides largely for largely fiscal autonomy of the various arms of government across all tiers of government. Financial autonomy stems from the need for judicial independence, which presupposes that the judiciary must as much as possible, except for constitutionally laid down cheeks and balances, be able to regulate its affairs independent of the Executive and the Legislature.

It is in this regard that financial sufficiency and autonomy become key incidents of judicial independence. There cannot be judicial autonomy without financial independence. The practitioners of the Constitution must obey the spirit and letters of the CFRN by ensuring the financial independence of the judiciary to give to the judiciary of the States its financial rights in due season. There is no doubt that the CFRN envisages that the State governments will give the capital moneys due to the judiciary to it as soon as it is appropriated by the State House of Assembly.

Flagrant and recalcitrant disobedience by any arm or tier of government of Constitutional provisions and extant orders of Courts does not augur well for our fledgling democracy. It does the temporary beneficiaries of such obstinacy no present or future good and contradicts the ideal communal purpose of growing an egalitarian society where there is real access to justice because the Courts are not only free and fair but have modern facilities to aid the speedy dispensation of justice.

The Spirit of Federalism, much more, the Spirit of Fiscal Federalism must be given its proper place in the interpretation of the CFRN.

Even though some of the very letters of the CFRN negates true Federalism, it is the duty of this Court to follow the hollowed precedents laid by this Court that even within the concept, context and structure of our brand of Federalism, we must situate Fiscal Federalism, a corollary of Fiscal autonomy of the various tiers and Arms of Government in its proper place. ​My Lords, there is a limit to which the judiciary can purposely make a policy decision to interpret the provisions of the constitution to meet the exigencies of the moment.

Lacuna can be provided by the Courts to make the Constitution work where no contrary arguments can be proffered or where there are no other solutions or interpretations obvious from the Constitution itself. Some social problems have to be left to the legislature and the politicians by the judiciary. The judiciary cannot always be a vehicle of temporary expediency if not it will lose its focus.

The judiciary cannot interpret the law in such a way that it totally usurps the mandate of the Legislature and inserts what is arguably expedient by way of policy and ignore what the law says by widening the interpretation of the law in excess of its elastic limits. There is no doubt that the Constitution of the Federal Republic of Nigeria as it presently stands is inelegantly and sometimes ambiguously drafted. It can be better drafted so that its intentions are clearer in certain areas and its provisions stated categorically beyond equivocation.

Until that is done, there is a limit to what the judiciary can stretch it to cover. ​There is no reason to agree with the view that from the various provisions of the CFRN it is within its ambit to conclude that the Federal Government should fund the Capital expenditure of state judiciaries. The first issue is resolved against the Plaintiffs.

OPINION ON ISSUE TWO I have considered the arguments of the parties in respect of issue two. There is no need to restate them here. The President of the Federal Republic of Nigeria signed an Executive Order cited as the IMPLEMENTATION OF FINANCIAL AUTONOMY OF STATE LEGISLATURE AND JUDICIARY ORDER, No. 010 of 2020. The Plaintiffs are challenging the authority of the President to make the order. This issue deals with the extent of the powers of the Federal Government vis-a-vis each of the State Governments in respect of the Financial Autonomy of States Judiciary.

The order was to compel the State Government to pay Remuneration, Salaries and Allowances of the judicial officers of the State Courts. The order also compelled the State Government to fund the Capital and Recurrent expenditure of State Courts vested with judicial powers under Section 6 of the CFRN.

​By the doctrine of separation of powers, the Executive, Legislature and Judiciary have their respective roles constitutionally delineated. Lawmaking is exclusively within the purview of the Legislature as guaranteed under Section 4 of the CFRN (as altered). This indeed is one of the hallmarks of democracy as endorsed by this Court in His Royal Highness Lamidi Olayiwola Adeyemi (Alafin of Oyo) & Ors v.

AG Oyo State & Ors (1984) NSCC Pg. 397 at Pg. 473; (1984) LPELR- 169(SC) where it was held thus: “The doctrine of separation of powers means that neither the Legislature, the Executive, nor the Judiciary should exercise the whole or part of another’s power. It was held by this Court in Lakanmi & Anor v. the Attorney-General of Western State & Ors, (1974) 4 E.C.S.R. 743 at Pt. 731 (1971) 1 U.L.

IL.R. 201 at Pg. 218 that the structure of the Constitution of the Federation of Nigeria 1963 (hereinafter referred to as the 1963) Constitution (Suspension and Modification) Act, 1966 (No.1 of 1966) was based on the separation of powers; and in the distribution of powers amongst the organs of government the Courts were vested with the exclusive right to determine justifiable controversies between citizens and State” Also in AG Abia State & Ors v.

AGF (2003) 4 NWLR Pt. 809 Pg. 124; (2003) LPELR- 610 (SC) Pg. 23-24, this Court held as follows: “The principle behind the concept of Separation of Powers is that none of the three arms of government under the Constitutions should encroach into the powers of the other arm- the Executive, Legislature and Judicial- is separate, equal and of coordinate department and no arm can constitutionally encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction”. More recently inUgwuanyi v.

Nicon Insurance Plc. (2013) LPELR – 20092 Pg. 63 (SC), it was held thus: “Thirdly, the 1999 Constitution as amended provides for separation of power between the three distinct organs, the Legislature, Executive and the Judiciary. The Constitution does not allow one out of the three to usurp the powers conferred on any of the other two.”

Undoubtedly, Section 5 of CFRN vested the Executive Powers of the Federation on Mr. President. Section 5 (1)(a)(b) provides thus: 5. (1) subject to the provisions of this Constitution, the executive powers of the Federation- a. Shall be vested in the President and may subject as aforesaid to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-president and ministers of the Government of the Federation or officers in the public service of the Federation; and b.

Shall extend to the execution and maintenance of this Constitution and all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make law. Section 1 of the said Presidential Executive Order provides thus: 1. Appropriation, Authorization, Order, etc. a.

Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge. b.

The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorize the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 12(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In Attorney General Bendel State v.

Attorney General Federation & Ors (1983) NSCC 181 at 192, this Court per Uwais JSC (as he then was) stated unequivocally thus: “As a general principle of constitutional law, it is implicit in the character of a federal constitution that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true Federation usually involves the division and limitation of governmental power. Therefore, the observations made by this Court in Attorney General of Ogun State & Ors v.

Attorney General of the Federation (supra) conform with the general principal of federalism which recognizes the autonomy of States.” In AG Ondo v. AGF & 35 Ors (2002) SC Pt. 1 Pg. 66-67; (2002) 6 SCNJ, (2002) LPELR-623 (SC) Pg. 59-61, this Court held that breach of the cardinal principles of doctrine of federalism in the Constitution is ineffectual with no force of law.

In that case, this Court held that Section 26(3) and Section 35 of the Corrupt Practices & other Related Offences Act 2000 are unconstitutional and declared them null and void because they offended the principles of federalism and were ultra vires the powers of the Federal Government to regulate upon. In AG Cross River State v. AGF & Anor (2005) 6 SCNJ 152, (2005) LPELR- 3159 (SC) Pg. 40-41 this Court insisted that the Federal Government is merely a trustee on behalf of the States in respect of funds paid unto the Federation Account. In AG Ogun State v.

AG Federation (1982 NSCC Pg. 1 at Pg. 33, ESO, JSC stated thus: “A situation where the Chief Executive of the country or a Federal Functionary could be subject to sanction by a State House of Assembly or State Chief Executive or functionary could be subject to the authority of the National Assembly would offend not only against the spirit but also the letter of the Constitution. Each of the State legislative Assemblies and the National Assembly is sovereign on its own House. Neither interferes with the Government of the other. This is the true basis of the Federal Constitution.

To be otherwise would lead to anarchy the exact antithesis of the intendment of the Constitution. Having held thus far that the National Assembly could not validly impose a duty on a State functionary and vice versa, the President in exercise of his power to adapt the Public Order act would be acting unconstitutionally if he imposed in the adaptation Order duty and obligations on the Governor of the State as contended by the learned counsel for the plaintiffs”. In AGF v.

AG Lagos State, (2013) 16 NWLR Pt. 1380 Pg. 249, this Court held per Onnoghen JSC (as he then was) that the defining feature of Federalism is the recognition of the separateness and independence of the Central (FGN) and each State government that makes up the federation. Therein, My Lord approved and reiterated the stand of this Court in AG Lagos v. AG Federation & Ors (2003) 12 NWLR Pt. 833 Pg. 1 where it was held that the 1999 Constitution re-enacts the doctrine of federalism that ensures that none of the government whether State or Federal is subordinate to each other, as each is autonomous.

See also AG Bendel v. AGF (1983) supra. In Alafin Adeyemi v. A.G.

Oyo (1984) supra this Court held forcefully Per Fatai Williams CJN at page 12 lines 27-32 thus: “Secondly, neither the President of the Federal Republic of Nigeria nor the National Assembly can unilaterally confer powers on a state functionary such as a Governor or the Attorney-General of a State and thus bring him within the investigatory nor scrutinizing powers conferred upon the National Assembly by Section 82 Subsection (1) of the 1979 Constitution”. ​My Lords, Section 5 (1) of the CFRN is very clear as to its intention and range.

It is to be noted that it is made subject to other over riding provisions of the CFRN. The provision is to empower the President to make Executive Orders to guide the various agencies of the FGN – Federal Government to execute its policies particularly where legislation is unclear or non existent on the point. Before specific laws are put in place, it is merely a hand maid to the President in ensuring by publication of policy directions, the agenda of the Presidency on matters with respect to which the National Assembly can make laws.

There is no doubt that appropriation and disbursement of funds for the State judiciary are not matters with respect to which the National Assembly can make laws. Undoubtedly, it is ultra vires of Mr. President to alter or modify Section 121 of the Constitution in any form whatsoever. Order 1(a) appears to me to either be a repetition or modification of Section 121(3) of the Constitution. In conclusion, the contents of the Presidential Executive Order particularly Sections 2-7 are ultra vires the powers of the President. It is null and void and of no effect.

I resolve the 2nd issue in favour of the Plaintiffs. In the circumstances, the first issue having been resolved against the Plaintiffs, reliefs 1, 2, 3, 4, 5, fails. Reliefs 6, 7, 8 consequently also fails. Relief 9 is granted since the Plaintiffs succeed on that issue.

UWANI MUSA ABBA AJI, J.S.C. (DISSENTING JUDGMENT): I have received in advance the draft judgment of my learned brother, Musa Dattijo Muhammad, JSC, wherein in his lead judgment, he granted the first relief sought by the Plaintiffs and declared the Presidential Executive Order No. 00.10 of 2020 unconstitutional, null and void.

The facts giving rise to the instant suit from the Plaintiffs/ Applicants are that the Defendant/Respondent has been funding only the Supreme Court, Courts of Appeal, Federal High Courts and High Courts of the FCT. For the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal in the Plaintiffs’ States, the Defendant has only been paying salaries of the judicial officers thereof since 1999.

However, by the combined constitutional provisions, it is the Defendant that has the constitutional duty and obligation to fund all capital and recurrent expenditures of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal in the Plaintiffs’ States. Thus, the Presidential Executive Order No. 00.10 of 2020, made by the President of the Federal Republic of Nigeria on 22nd May, 2020, to compel the Plaintiffs to fund States’ High Courts, Sharia Courts of Appeal and Customary Courts of Appeal is unconstitutional.

​The plank of the Defendant contrariwise is that the Plaintiffs since 1999 have defied the constitutional provision of financial autonomy for State Judiciaries in funding the capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, through annual budgetary estimates of the Executive in the States, instead of paying the funds standing in the credit of the Judiciary in the Consolidated Revenue Funds.

Thus, that the Presidential Executive Order No. 00.10 of 2020, made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is in line with the decision of Courts and the constitutional provisions to further grant financial autonomy to High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, and therefore not unconstitutional.

Consequently, the plaintiffs/Applicants vide an Originating Summons seek for the following declarations by this Honourable Court: 1.

A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of Item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 3.

A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, is unconstitutional. 4.

A DECLARATION that the Presidential Executive Order No. 00.10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, to compel the Plaintiffs to find States’ High Courts, Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the Defendant to henceforth fund all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the Plaintiffs all sums expended by the Plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff the amount set out against the name of each Plaintiff in Exhibit “A” exhibited in the affidavit in support of this Originating Summons, being the true and actual amount expended by each Plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff State all amounts expended by each Plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional.

The Plaintiffs filed their affidavit in support with annexures and written address while the Defendant filed its counter-affidavit, supporting documents and annexures thereof. Amicus Curiae Briefs were invited by this Court due to the public interest of this suit. Chief Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakoba, SAN, S.T. Hon, SAN, Mahmud Abubakar Magaji, SAN, and Musibau Adetunbi, SAN, filed their respective briefs in the order of seniority.

The Plaintiffs formulated 2 issues for determination as follows: 1.

Having regard to the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is not constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution. 2.

Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, to compel the Plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional.

The Defendant on the other hand distilled 2 issues for determination thus: 1.

Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the Constitution. 2.

Whether in the highly improbable event that issues 1 is decided in favour of the Plaintiffs, the Plaintiffs have proven their case to entitle them to the refund of expenses allegedly invested in the recurrent and capital expenditure of the State Judiciaries from May 1999 to date.

Chief Asiwaju Adegboyega Awomolo, SAN, in his Amici Curiae brief submitted that the Plaintiffs’ reliefs be granted and a declaration that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is inconsistent with the provisions of the Constitution and should be declared void. Dr.

Olisa Agbakoba, SAN, in his Amici Curiae brief opined that the Defendant is constitutionally obligated to fund all capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 CFRN, 1999. Thus, that the Presidential Executive Order No. 00-10 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is a violation of the Constitution. He prays this Court to grant all the reliefs of the Plaintiffs.

In the same light, S.T Hon, SAN, submitted that the two issues be resolved in favour of the Plaintiffs/Applicants.

Contrarily, Mahmud Abubakar Magaji, SAN, submitted that it will be against the spirit and intendment of the concept of Federalism which the Constitution sets out to achieve to place responsibility of funding the capital expenditure of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal under the Federal government of Nigeria. He however conceded that the Presidential Executive Order No. 00-10 of 2020 is unconstitutional.

Similarly, Musibau Adetunbi, SAN, agrees with the Defendant that it is the constitutional responsibility of the States to fund the capital expenditure of their respective State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal. He therefore prays this Court to dismiss reliefs 1-8 while issue two be granted in their favour.

The Defendant has filed a preliminary objection to the case of the Plaintiffs dated 20/9/2021 and filed on 21/9/2021, on the grounds that: 1. The Plaintiffs’ suit constitutes a breach of the doctrine of res judicata. 2. The Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel. 3. The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment. 4. That the judgment of the Federal High Court is still valid and subsisting.

The Defendant in seeking this Court’s favour and discretion distilled a lone issue for determination thus: Whether the instant suit does not constitute a breach of the doctrine of res judicata/issue estoppel and abuse of Court process.

The Plaintiffs filed their counter affidavit and written address dated 29/9/2021 and filed on same date, to the Defendant’s preliminary objection. They seek for determination: Whether the Plaintiffs’ suit constitutes a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.

​The preliminary objection of the Defendant is predicated on the plea of res judicata/issue estoppel and abuse of Court process. For the plea to succeed therefore, it must be established: 1. That the issues and subject-matter were the same in the earlier as in the second action or that the plaintiff has had an opportunity of recovering and, but for his own fault, might have recovered in the first action that which he seeks to recover in the second action. The cause of action must have been determined on the merits.

This is so because the plea has for its rationale the two legal maxims: interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa. 2. The parties must be the same. Parties include their privies either in blood, law or estate. 3. The judgment in the earlier action must be a final one. See Per OGUNDARE, J.S.C, in IGWEGO & ORS V. EZEUGO & ANOR (1992) LPELR- 1458(SC) (P. 50, PAR-AS. A-F). It is clear on the face of the Plaintiffs’ suit and that of the Defendant that the parties are not the same and it is not possible that the Judicial Staff Union of Nigeria V.

National Judicial Council and 73 Ors have transmogrified into the same parties as presented in the present suit. Furthermore, whereas the former case has its cradle from the Federal High Court, the jurisdictional cradle of the present case is the Supreme Court as expressly provided by Section 232(1) of the 1999 Constitution (as amended).

​Again, a preliminary objection is meant to terminate or abate the competence of a suit. Where it is so allowed, the aggrieved party has the right of appeal. However, it should be discouraged in cases that come to the Supreme Court as the Court of first instance and last resort in order to give both parties fair hearing rather than truncating their case or shutting any party out preliminarily. This is because in cases where the Supreme Court assumes original jurisdiction, the parties do not have any other Court to resort to.

They ought therefore to be given fair hearing rather than allowing a preliminary objection to abate it. The preliminary objection is therefore dismissed.

MAIN SUIT: Since I dissent the majority judgment/opinion, I shall consider the issues formulated by the Defendant.

ISSUE 1: Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21 (e) of the Third Schedule thereof, whether the Defendant is constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the Constitution.

​I will straightway consider the relevant sections of the Constitution for clarity and differentiation.

Section 6 (1)-(5) of the 1999 CFRN provides: 6. (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution, for a State. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection (5) (a) to (i) of this Section, shall be the only superior Courts of record in Nigeria;

and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (4) Nothing in the foregoing provisions of this section shall be construed as precluding;- (a) the National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

(b) the National Assembly or any House of Assembly, which does not require it, from abolishing any Court which it has power to establish or which it has brought into being. (5) This section relates to- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (cc) the National Industrial Court; (d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State; (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(i) a Customary Court of Appeal of a State; (j) such other Courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other Courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. ​It is crystal clear that Subsections 1 and 2 of Section 6 of the Constitution make provisions and directions for judicial powers or jurisdiction of both Federal and States Courts.

However, Subsection 3, although interfused both the Federal and State Courts made it abundantly clear that the Constitution referred expressly to both Federal and State Courts that are to be called and conferred with the status of superior Courts of record. Thus, both the Federal and State Courts are to enjoy the status and jurisdiction of superior Courts of record.

Subsection 3 above settles it thus: “and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record.” What the Constitution intended herein is that the States shall have the power to make laws for the creation of State Courts but the Courts to be created must not be given powers above the Courts constitutionally empowered to be superior Courts of record.

It is only the Courts listed in this Constitution, whether Federal or State Courts that have the powers of superior Courts of record. ​The Constitution goes further to list all the Courts under both the Federal and State Courts with the jurisdiction and gamut of superior Courts of record. What this implies expressly is that although the Courts listed under sub-section are State Courts, they are altogether to enjoy the status and jurisdiction of superior Courts of record. See Section 5(a)-(k).

Furthermore, the distinction widens in Part I and Part II thereof of Chapter VII, where the Constitution makes the list of Courts under the State to enjoy the status and jurisdiction of Courts of superior records. See Section 270 for High Court of a State, Section 275 for Sharia Court of Appeal of a State and Section 280 for Customary Court of Appeal of a State.

By the foregoing elucidation and exegesis, it is without argument that although Section 6 (1) provides that “The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation”, it is nothing more than a directive that the States should establish their Courts which shall be recognized by the country Nigeria as “Superior Courts of record in Nigeria.” See Subsection 3 of Section 6 of the Constitution.

By Section 6 (1), “The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.” Federation has been defined to include States and a Federal Capital Territory. See Section 2(2) of the 1999 CFRN. The above clearly accords with the spirit and principle of Federalism contemplated in Section 2(2) of the 1999 CFRN (as amended).

The Constitution goes further to clarify the fact that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria are under the judicial powers of the States when it distinguished that the appointment of the Heads and Judges of these State Courts shall be done by the Governor of the State and not the President. See Sections 271 (1)(2), and 281 (1) (2) respectively of the 1999 Constitution (as amended).

Similarly, the territorial and subject-matter jurisdiction of the State High Court have been made to be different from those of Federal Courts simpliciter in Section 272 (1)(2) of the 1999 Constitution (as amended).

Section 272 (2) inter alia provides that “The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State.” Again, it is the Federal law or the National Assembly that establishes the Federal Courts while it is the State law that establishes the State Courts, which includes the State High Court, Sharia Court of Appeal and Customary Court of Appeal. See Sections 270, 275 and 280 of the 1999 CFRN (as amended).

The interpretative role of this Apex Court was called upon wherein Per IKECHI FRANCIS OGBUAGU, J.S.C, in FASAKIN FOODS (NIG.) LTD. V. SHOSANYA (2006) LPELR-1244(SC) (PP. 11-12, PARAS. E-D) held thus: Let me also reproduce, the provision of Section 239 of the said Constitution in respect of the legislative authority to make laws for the High Court of a State which is vested in a State House of Assembly. “239.

The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of the State”.

It could be seen from the above provisions of the said two sections, that while only the National Assembly, could make laws with respect to the practice and procedure in the Federal High Court, the power to make similar laws for the High Court of a State, is vested in the House of Assembly of a State. Furthermore, it is without disputation that the State High Courts work for the State judiciary and its citizens within their jurisdictional boundaries and powers and for the benefit of the State the High Court is situate.

All the foregoing is to reinforce the constitutional provision that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria are for the respective States of the Federation of Nigeria. In 1988, this Court in clearly interpreting Section 6(5)(a)-(f) of the 1979 Constitution, which is pari materia with the 1999 CFRN (as amended), stated in NWABUEZE V. OKOYE (1988) NSCC (PT.

III) AT 96 LINES 47-54: Section 6(5)(a)-(f) of the 1979 Constitution states the superior Courts of record in Nigeria while Subsections (1) and (2) deal with the vesting of the judicial powers in them. Section 234 of the Constitution establishes a High Court for each State within the Federation.

However, the plank now is who is constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the Constitution? He who pays the piper dictates the tone of the music. This was what was going on when the Federal Government stepped in to remedy the gory and despicable situations that the State Judicial officers went through in the hands of their Executives.

In order to assuage and cushion this, the National Judicial Council (NJC) was set up to handle the payment of salaries and allowances of their counterparts only as clearly stated or listed in the Constitution. Section 84 of the 1999 Constitution (as amended) is explicit and express on the recurrent expenditure (remuneration, salaries and allowances) of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria shall be borne by the Federal Government and not the State Government.

In fact, Subsection 7 of Section 84 clearly provides that: (7) The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this Section) shall be charged upon the Consolidated Revenue Fund of the Federation.

Section 84 (1)(2)(3)(4) and (7) of the 1999 CFRN provides: (1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission. (2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation. (3) The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after their appointment. (4) The offices aforesaid are the offices of President, Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State… (7) The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this Section) shall be charge upon the Consolidated Revenue Fund of the Federation.

By virtue of Item 21 (e) of the Third Schedule to the Constitution, the Judicial body constitutionally empowered and saddled with the responsibility to “collect, control and disburse all moneys, capital and recurrent, for the judiciary” of the Federal Courts and “Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State” is the National Judicial Commission (NJC).

It is specifically apparent that this does not include the other Courts created by the Houses of Assembly of the respective 36 States of the Federation. ​The main goal and purpose of this is to wriggle out the control of the salaries and allowances of these judicial officers from the capricious and political control of the States and their Governors. This is meant to give some level of financial independence and liberty to these judicial officers.

The independence of the judiciary has been a major concern to the drafters of the Constitution and this was one of the ways they wanted to orchestrate it. ​Although the NJC still has the constitutional responsibility of handling “capital and recurrent” expenditure for the Federal Courts and some State Courts, it is not for all the Federal and State Courts, except those specifically and expressly mentioned. Thus, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See Per KATSINA-ALU, JSC, in FRN V.

OSAHON & ORS (2006) LPELR-3174(SC) (P. 80, PARAS. B-D). The intent of the drafters to my mind is that the current expenditure of the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States be borne by the Federal Government through NJC as earlier postulated. Let me bring out the substance and core role of the NJC in making recurrent and capital expenditure for the judiciary, which includes only the superior Courts of record.

In Section 81 (3) of the 1999 CFRN, it provides: (3) The amount standing to the credit of the- (a) Independent National Electoral Commission, (b) National Assembly, and (c) Judiciary, in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively;

in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution. ​My terse and humble opinion herein is to agree with what the learned SAN, Musibau Adetunbi, submitted at page 29 of his Amicus Curiae Brief when he opined that part of the functions of “NJC is to collect the said moneys from the Consolidated Revenue of the Federation with respect to Federal Judiciary and Consolidated Revenue Fund of the State with respect to the State Judiciary.” It is trite democratically that the only recognized and constitutional manner and method both the Federal and State governments finance their capital projects and recurrent expenditure in a financial/fiscal year for the three arms of their Government is through the Appropriation bill/Act or popularly called the “budget”.

Therefore, the capital project of the State judiciary including the High Courts, Sharia Court of Appeal and Customary Court of Appeal (which automatically excludes the salaries and allowances of the Judicial officers in the aforementioned superior Courts of records of the States), is as prescribed in Section 121 of the Constitution as follows: Section 121 of the 1999 CFRN: 121. (1) The Governor shall cause to be prepared and laid before the House of Assembly at any time before the commencement of each financial year estimates of the revenues and expenditure of the State for the next following financial year. (2) The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution, shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. (3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned.

By the above, the capital projects for the State Judiciary including those of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States, are the responsibility of the States to be disbursed to the heads of the State Courts for their capital projects. By the community reading of the provisions cited and the intendment of the constitutional drafters, the capital expenditure of the superior Courts of record in the States with their inferior counterparts are to be borne by the States and not the Federal Government.

It will also amount to duplication of capital projects where the Federal Government is also to bear the responsibility of the capital projects of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States. This will definitely not have been the intention of the drafters of the Constitution. It was meant to be a shared responsibility only in respect of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States. This was strongly declared in ATTORNEY GENERAL, BENDEL STATE V.

ATTORNEY GENERAL OF THE FEDERATION & ORS (1983) NSCC AT 192 LINES 1-7 thus: As a general principle of constitutional law, it is implicit in the character of a Federal Constitution that neither the Federation nor the States could make laws imposing extra burden on each other… Besides, it was with this full understanding that States by their laws have established their own High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States and have been bearing the responsibility of their capital projects since 1999.

This Court had the opportunity to expound on this principle, Per IGUH, JSC, in TINUBU V. I.M.B SECURITIES PLC (2001) LPELR-3248(SC) (P. 17, PARAS. D-G): …it will be necessary to recall the general principle of law governing the interpretation of our Constitution. This is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred.

Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.

It follows therefore that since the capital and recurrent expenditure of the State judiciary, which includes the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States, must be drawn from the Consolidated Revenue Funds of the States via a budgetary allocation to the state Judiciary, it is the States that are responsible constitutionally for their capital and recurrent expenditure for their State Judiciary, save in circumstances where the Constitution has made the NJC to pay remuneration, salaries and allowances of judicial officers of the State, which includes only High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States.

In this light, one of the roles of the NJC in the Third Schedule of Item 21 (e) to “collect, control and disburse all moneys, capital and recurrent, for the judiciary” must not be muzzled and misinterpreted to mean responsibility to bear both the capital and recurrent expenditure of the Courts mentioned under Section 6 (5) of the 1999 CFRN (as amended) since we have both Federal and State Judiciary.

The literal and most purposive interpretation coupled with the intent of the drafters of the Constitution will be that there are Courts created for the Federation and Courts created for the States and each federating unit ought to bear the brunt of running its capital and recurrent expenditure as provided in the Constitution. The understanding of this has been the long time practice that all the States have been responsible for the capital expenditure of their State Courts until this case of the Plaintiffs.

On the constitutionality/legality of the Presidential Executive Order, it is trite that this cannot override the legislative function of the National Assembly. However, it is constitutionally subject to the constitutional powers of the legislature and judiciary and in pursuance and furtherance of the purpose and intent of a constitutional provision.

Section 5 (1)(a)(b) of the 1999 Constitution provides as follows: 5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation – (a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

By the above provision therefore, the Presidential Executive Order is for the “execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”. We are not unaware of the hanky-panky and subterfuge played by the State Governors/Executives against the independence and financial autonomy of the State judiciary.

It is a pitiable eyesore what judicial officers and staff go through financially in the hands of the State Executives, who often flaunt constitutional and Court Orders to their whims and caprices. Thus, the Presidential Executive Order is meant to facilitate the carrying out of Section 121 (3) of the 1999 Constitution (as amended).

The Presidential Executive Order No. 00-10 by President Buhari provides as follows: 1. (a) Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary, allocation of appropriated funds to the State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge. (b) The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). 1.

Determination of the Budget Notwithstanding the provisions of any existing law, convention or regulation, other than the Constitution of the Federal Republic of Nigeria 1999 (as Amended), providing for appropriation or management of funds at the State tier of Government as follows – (a) every State Government of the Federation shall set up a Committee from the commencement of this Executive Order comprising the Commissioner of Finance, Accountant-General of the State, representative of the State Budget Office, Chief Registrars of State High Court, Sharia Court of Appeal and Customary Court of Appeal, (where applicable), the Clerk to the State House of Assembly and the Secretary of the State Judicial Service Committee or Commission; It is in situations like this that Section 5 of the Constitution has envisaged to empower the President directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation, for the execution and maintenance of this Constitution, to make Presidential Executive Order.

In the instant case “for the Implementation of Financial Autonomy for the State Legislature and State Judiciary and for Other Related Matters” which has been a bottleneck to the State Judiciary. Although the President or the Executive cannot assume legislative role and function to make laws for the Federation, a Presidential Executive Order is made subject to the Constitution and for the execution and maintenance of this Constitution and not to subvert the Constitution or derogate from its provisions.

The Constitution remains supreme and any law or Order contrary to it shall stand unconstitutional and void to the extent of its inconsistency. ​This Presidential Executive Order is to aid the State Legislature and Judiciary in ensuring the Constitutional role of their financial autonomy which the State Executive has always denied or flagrantly desecrated. It is my humble opinion that it is not unconstitutional. This issue is therefore resolved against the Plaintiffs.

There is absolutely no merit in delving into the second issue since it has by the first issue been crushed out. Issues one and two are resolved in favour of the Defendant. The claims of the Plaintiffs fail and their reliefs refused. Parties are to bear their respective costs.

ADAMU JAURO, J.S.C. (DISSENTING JUDGMENT): I had the advantage of reading in draft the lead judgment of my learned brother, Musa Dattijo Muhammad, JSC just delivered. I respectfully wish to differ and dissent in part with the judgment, particularly as it relates to issue one formulated for determination by the Plaintiffs.

The Plaintiffs took out an originating summons dated 16th September, 2020 invoking the original jurisdiction of this Court against the Defendant seeking for the determination of the following questions: 1.

“Having regards to the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is not constitutionally obligated and/or charged with the responsibility of funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of all the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

Considering the provisions of Sections 6, 80, 81 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the Plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the Constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful.”

​In the event of a favourable determination of the said questions In their favour, the Plaintiffs therefore sought the following reliefs against the Defendant: 1.

“A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of Item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 3.

A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and the Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN is unconstitutional. 4.

A DECLARATION that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the Plaintiffs to fund States’ High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the Defendant to henceforth fund all recurrent and capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the Plaintiffs all sums expended by the Plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria being Courts created under Section 6 of the CFRN ​which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each Plaintiff the amount set out against the name of each Plaintiff in Exhibit “A” exhibited in the affidavit in support of this Originating Summons being the true and actual amount expended by each Plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiffs States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period of 5th May, 1999 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each and every Plaintiff State all amounts expended by each Plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in express violation of the provisions of the CFRN and therefore, unconstitutional.”

On the 21st September, 2021, the Defendant filed a notice of preliminary objection brought pursuant to Order 2 Rule 9 of the Supreme Court Rules, 2008 (as amended) and under the inherent jurisdiction of the Supreme Court seeking the following order: “An Order of this Honourable Court dismissing this matter for want of jurisdiction.” The objection is predicated on the grounds that: 1. “The Plaintiffs’ suit constitutes a breach of the Doctrine of Res Judicata. 2. The Plaintiffs’ suit constitutes a breach of the Doctrine of Issue Estoppel. 3.

The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment. 4. That the judgment of the Federal High Court is still valid and subsisting.”

The sole issue distilled by the Defendant/Objector as having arisen for the determination of his preliminary objection is: “Whether the instant suit does not constitute a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.”

In response to the objection, the Plaintiffs filed a counter affidavit and written address on 21st September, 2021. The similar sole issue formulated by the Plaintiffs reads: “Whether the Plaintiffs’ suit constitutes a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.”

Exercising his right of reply, the Defendant/Objector, on 4th October, 2021, filed a further affidavit in support of his objection and a reply on points of law to the Plaintiffs’/ Respondents’ reply to the objection.

ARGUMENTS FOR AND AGAINST THE OBJECTION The crux of the Defendant’s objection is that the Plaintiffs are seeking to re-litigate issues and facts upon which the Federal High Court, Abuja Division had made final findings In its judgment on this matter which sanctioned the failure of disbursement of funds to the judiciary by the Defendant through the State Executives. The Defendant submitted further that in Exhibit ADF1, the judgment the Federal High Court delivered on 13th January, 2014 in Suit No: FHC/ABJ/CS/667/13 – JUDICIAL STAFF UNION OF NIGERIA VS.

NATIONAL JUDICIAL COUNCIL & 73 ORS, it was held inter alia, that the 2nd – 74th Defendants’ failure and refusal to pay the amount standing to the credit of the States’ Judiciary in the Federation/Consolidated Revenue Fund directly to the Heads of Courts in the various States’ Judiciary is a Constitutional breach. It was the Defendant’s submission that the said judgment of the Federal High Court is still valid and binding, having not been stayed nor set aside on appeal.

Consequent upon the above submission, the Defendant/Objector contended that the Plaintiffs’ case is caught by the doctrine of res judicata which prevents them from re- litigating these issues. On the principles guiding the plea of res judicata, the Defendant/Objector placed reliance on COLE V. JIBUNOH & ORS (2016) LPELR – 40662 (SC); IGBEKE V. OKADIGBO (2013) 12 NWLR (PT. 1368) 2251; NTUKS & ORS V. NIGERIAN PORTS AUTHORITY (2007) 10 SCM 127.

​The Defendant also submitted that assuming but without conceding that the doctrine of res judicata does not apply to the case under consideration, the case would still be caught by the doctrine of issue estoppel. The Defendant submitted further that the doctrine of estoppel res judicata is embedded in the principle that there should be an end to litigation and the principle of abuse of Court process as it relates to multiplicity of action.

That rather than commencing a fresh suit this Court, the Plaintiffs ought to have appealed against the judgment of the Federal High Court sitting in Abuja at the Court of Appeal.

In the final analysis of the sole issue formulated for the determination of the objection, the Defendant urged the Court to dismiss the instant suit for being an abuse of judicial process.

​In response to the Defendant’s objection, the Plaintiffs submitted that none of the legal pre-conditions for the application of the doctrine of issue estoppel exist in the case under consideration. It was submitted that the parties in the suit determined by the Federal High Court are not the same as those in the present suit. The Plaintiffs also submitted further that a dispassionate examination of all the processes presented the Courts In both cases, will show beyond doubt that the issues, subject matter and reliefs in both suits are manifestly different, distinct and irreconcilable.

That in suit: No. FHC/ABJ/CS/667/13, the questions for determination and reliefs related to the payment and mode of payments of monies due to the Judiciary to the Heads of Courts of the various states and that the principal and ancillary orders were also directed at the States.

It was submitted further that unlike the case determined by the Federal High Court, Abuja, the instant suit is a dispute between the State Governments and the Federal Government for a judicial pronouncement on who, between them, has the responsibility to fund both the capital and recurrent expenditures of the Courts established under Section 6 of the Constitution.

Secondly and as borne in the second question for determination, that the Plaintiffs have submitted the Executive Order 10 of 2020 signed by the President of the Federal Republic of Nigeria to this Court for it to be struck down on the ground that same is ultra vires the powers of the President.

In the final analysis, counsel urged the Court to dismiss the Defendant’s objection for lacking in merit.

​By way of reply, the Defendant submitted that there is no dispute that both the Plaintiffs and the Defendant herein were defendants in suit determined by the Federal High Court and that the suit was about the interpretation of Section 81 (3) and Section 121 (3) of the Constitution of the Federal Republic of Nigeria. The Defendant argued that the principle of law that for a defence of issue estoppel to succeed, there must be same identity of parties does not mean that all the parties in the previous suit must be same parties in the latter suit.

The Defendant submitted that it is sufficient, where there are several parties who were necessary parties to the issue in the previous suit are the same in the latter suit. The Court was referred to IKENI & ANOR V. EFAMO & ORS (2001) 10 NWLR (PT. 720) 1 @ 17 – 18; PRINCE EYINADE OJO & 3 ORS V. THE ATTORNEY GENERAL OF OYO STATE & 3 ORS (2008) 12 SCM (PT. 2); ALH. HANAFI ZUBAIR V. ALHAJI ABDULLAHI ATANDA KOLAWOLE (2019) 11 NWLR (PT. 1682) 76 SC.

It was the submission of the Defendant that the argument of the Plaintiffs that the present case is a challenge to the constitutionality of the Executive Order 10 of 2020 is misleading.

That a perusal of the Plaintiff’s case especially the questions placed before the Court show clearly that the Plaintiffs are not challenging the powers of the President to issue Executive Order No. 10 of 2020 but that the President by the said order, has shifted the constitutional responsibility of the Federation to fund all the Courts established by Section 6 of the Constitution for the Federation and for the States to the State Government.

On the whole, the Defendant maintained his position that the instant suit is caught by the doctrine of res judicata and issue estoppel and therefore urged the Court to dismiss the suit on the ground that same constitutes an abuse of Court process.

RESOLUTION OF PRELIMINARY OBJECTION The Defendant’s objection is predicated on the fact that the instant suit is caught by the principle of estoppel res judicata and issue estoppel in the fact of the judgment of the Federal High Court delivered on 13th January, 2014 in Suit No: FHC/ABJ/CS/667/13 – JUDICIAL UNION OF NIGERIA VS. NATIONAL JUDICIAL COUNCIL & 73 ORS. The said judgment was attached to the affidavit in support of the Defendant’s Notice of Preliminary Objection and same was marked Exhibit AGF1.

Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issues come directly in question in subsequent proceedings between the parties and their privies.

It effectively precludes a party to an action, his agents or privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving same issues. See UKAEGBU & ORS V. UGOJI & ORS (1991) LPELR – 3338 (SC); ABIOLA & SONS BOTTLING CO. LTD V. 7UP BOTTLING CO. LTD. & ORS (2012) LPELR – 9279 (SC).

Issue estoppel on the other hand is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. In the case of IKENI V.

EFAMO (2001) 10 NWLR (PT.720) p. 1, this Court enumerated the elements necessary for determining whether issue estoppel is applicable as:- (a) Whether the parties in the previous proceedings and the current proceedings are same. (b) Whether the issues are same. (c) Whether the issues are material to the cause of action in the previous and in the latter case and (d) Whether the issue has been resolved in the previous case. See BWACHA V. IKENYA & ORS (2011) LPELR – 8105 (SC); ADEDAYO V. BABALOLA & ORS (1995) LPELR – 85 (SC); OSHOBOJA V. AMIDA & ORS (2009) LPELR- 2803 (SC).

I have read with rapt attention the said judgment relied upon by the Defendant in his plea of estoppel res judicata and issue estoppel.

Despite the fact that the parties in the suit are different from those in the instant action, the issues in the said judgment together with the reliefs sought are not the same as those in this proceeding between the parties.

In Suit No: FHC/ABJ/CS/667/13 – JUDICIAL STAFF UNION OF NIGERIA VS. NATIONAL JUDICIAL COUNCIL & 73 ORS, the Plaintiffs approached the Federal High Court via their originating summons filed on 22/10/2012 for the determination of the following questions: 1.

“Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Funds/Amount standing to the credit of the Judiciary in the Federation Accounts/ Consolidated Revenue Fund of the Federation/States shall not be paid directly to the Heads of Court concerned. 2.

“Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Funds/Amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the States ought to be paid to the Judiciary piecemeal through the States’ Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. 3.

Whether the Defendants’ failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States’ Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Laws and if so, the legal consequence(s) thereof.”

​Even in the absence of the reliefs sought by the Plaintiffs in the aforementioned suit, it is clear that the questions submitted before the Federal High Court are different from those put before this Court by the Plaintiffs in the instant action. While the questions put before the Federal High Court sought clarification as to how the Judiciary receives its funding, i.e. in Suit No. FHC/ABJ/CS/667/13, the questions for determination and reliefs related entirely to the payment and mode of payments of monies due to the Judiciary to the Heads of Courts of the various States.

In contrast to the above, the questions put before this Court in the instant action are targeted at answers as to who among the Federal Government or State Governments of the Federation is constitutionally obligated to fund the capital and recurrent expenditure of the High Court of States, Sharia Court of Appeal of States and Customary Court of Appeal of States created under Section 6(5) of the Constitution.

Secondly, and as borne out in the second question for determination, the Plaintiffs have submitted the Executive Order 10 of 2020 signed by the President to this Court for it to be declared void on the ground of its alleged inconsistency with the provisions of the relevant sections of the Constitution.

​In addition to the above and as rightly noted by the Plaintiffs’ counsel at paragraph 3.14 of the written address regarding the objection, the decision of the Federal High Court sitting in Abuja in Suit No. FHC/ABJ/CS/667/2013 was delivered on 13th January, 2014 while the Executive Order 10 challenged in the instant suit by the Plaintiffs was made in the year 2020.

Flowing from the hills of the above, the Federal High Court could not have decided on the validity or otherwise of the Presidential Executive Order that was not in existence as at the time it adjudicated over the matter relied upon by the Defendant.

Consequently, I am of the view that the conditions required for the successful plea of estoppel res judicata and issue estoppel have not been met by the Defendant, hence, I am inclined without hesitation, to discountenance the objection for lacking in merit.

Having dismissed the Defendant’s objection for lacking in merits, I shall therefore proceed to consider the issues germane to the determination of the instant suit.

​The Plaintiffs are the thirty-six States of the Federation who have a dispute with the Defendant on the constitutional responsibility of funding the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States. The Plaintiffs maintain that the Defendant is constitutionally responsible not only for the recurrent but also for the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.

Attached to the Originating summons filed by the Plaintiffs is a 63 paragraph affidavit deposed to by one Chinweoke Onumonu Esq., female, Legal Practitioner of No. 22, Street, off IBB Way, Wuse Zone 4, Abuja.

​On the 27th November, 2020, the Plaintiffs also filed a further affidavit in support the Originating Summons. The said further affidavit was deposed to by the same Chinweoke Onumonu Esq. Attached to the said further affidavit is a table containing the total sum purportedly expended by the respective Plaintiff States in funding the capital expenditure of the Courts mentioned therein, for the period of 5th May, 1999 to 31st January, 2020. The said table was marked Exhibit A.

The Presidential Order made by the President of the Federal Republic of Nigeria and issued on 22nd May, 2020 otherwise known as Presidential Executive Order No. 00-10 of 2020, regarding the funding of State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal was also attached and marked Exhibit B.

On 28th June, 2021, the Plaintiffs filed another further affidavit and attached to the said further affidavit, is a document further showing the total sum so far assertedly expended by the respective Plaintiff States in funding the capital expenditure of their said Courts. The said document attached was marked Exhibit A1.

​On the 29th September, 2021, the Plaintiffs went ahead to file another further affidavit In support of their Originating Summons.

According to the Plaintiffs in paragraph 7 of their further affidavit of 29th September, 2021, Exhibits A and A1 only reflected the total sum so far expended by only twenty (22) States out of the 36 Plaintiff States in funding the capital expenditure of the said Courts, hence the need to file the further affidavit of 29th September, 2021 to put before this Court a supplementary table marked Exhibit A2, reflecting the total sum purportedly expended by Ogun State in funding the Capital Expenditure of the State Courts for the period of 1st January, 2010 to 31st January, 2020.

Lastly, on 4th October, the Plaintiffs filed another further affidavit in support of the Originating Summons. The essence of this further affidavit filed on 4th October, 2021 is to put before this Court, the total sum purportedly expended by Anambra State in funding the Capital Expenditure of the State Coutts for the period of 1st January, 2010 to 31st January, 2020.

In their written address containing arguments in support of their originating summons, the Plaintiffs identified two issues for the determination of questions put before the Court. The said issues are hereunder reproduced as follows: 1.

“Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is not constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution.

2. Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on May, 2020 to compel the Plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional.”

Expectedly, the Defendant reacted by filing a 5 paragraph counter affidavit and written address on 21st September, 2021. The said counter affidavit was deposed to by one Suleiman Jibril, male and Nigerian Citizen of the Civil Appeals Department of the Federal Ministry of Justice. In the said counter affidavit, particularly at paragraphs 4(iv), two exhibits were attached and marked exhibits HAGF1 & HAGF2. Both Exhibits are the judgments of the Federal High Court in suits no: FHC/CS/63/2013 between OLISA AGBAKOBA V. FEDERAL GOVERNMENT & 2 ORS.

And FHC/ABJ/CS/667/13 between the JUDICIARY STAFF UNION OF NIGERIA V. NATIONAL JUDICIAL COUNCIL & GOVERNORS OF THE 36 STATES respectively. Also attached to the counter affidavit of the Defendant are exhibits HAGF 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12 respectively.

At paragraph 3.01 of his written address, the Defendant also formulated two issues to wit: 1.

“Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21(e) of the Third Schedule thereof, whether the Defendant is constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution. 2.

Whether in the highly improbable event that issue 1 is decided in favour of the Plaintiffs, the Plaintiffs have proven their case to entitle them to the refund of expenses allegedly invested in the recurrent and capital expenditure of the State Judiciaries from May 1999 to date.”

​On 30th September, 2020, the Plaintiffs filed a Reply Affidavit in response to the Defendant’s Counter Affidavit filed on 21st September, 2021. The said Reply Affidavit was deposed to by one Abdulhakeem Badamasi, male, adult, Nigerian Citizen of No.22, Ziguinchor Street, Wuse Zone 4, Abuja. The Plaintiffs also filed a Reply on Points of Law to the Defendant’s written address filed on 21st September, 2021.

On this note, it is pertinent to state that a letter written by the Acting Chief Registrar of this Court with reference SC.655/2020 on 2nd September, 2021 on the direction of The Honourable, The Chief Justice of Nigeria, Hon. Justice Dr. Ibrahim Tanko Muhammad, this Court invited five Senior Advocates of Nigeria as Amici Curiae, to write their contributions/opinions on the suit under consideration.

​The said learned Silks are Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakogba SAN, Chief Sabastine Hon, SAN, Mahmud Abubakar Magaji, SAN, and last but not the least Musibau Adetunbi, SAN. Their briefs were filed as requested and the distinguish Silks adopted their briefs and made oral submissions in support thereof on Monday the 4th day of October, 2021, the date the suit was heard by this Court.

ARGUMENT AND SUBMISSIONS OF COUNSEL On issue no. 1 distilled by the Plaintiff’s counsel, it was submitted that the Courts to which this dispute is related i.e. the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States, are Courts established under Section 6 of the CFRN. Counsel referred the Court to the provisions of Section 81 (3) of the CFRN and submitted further that the said provision makes it clear that the funds are for disbursement to the heads of Courts established for the Federation and States under Section 6 of the Constitution.

It was the contention of counsel that a literal interpretation of the provisions of Section 81(3) of the Constitution leads to the conclusion that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relate are to be funded by the Federal Government, in terms of all capital and recurrent expenditure.

​It was submitted that the current practice of the Defendant in funding only the salaries of judicial officers of these States and refusing to fund the capital and other recurrent expenditure thereof, constitutes an infraction of the Constitution.

In addition to the above, counsel further submitted that the provisions of Item 21 (c) of the Third Schedule to the Constitution is also apposite in arriving at the proper interpretation of the aforesaid Constitutional provisions and in resolving the dispute between the Plaintiffs and the Defendant.

That the Constitution under Section 153 established the National Judicial Council (NJC) and set out its functions in Item 21 of the Third Schedule to the Constitution and further provides specifically that the NJC shall have the power to collect, control and disburse all monies, capital and recurrent, for the judiciary.

It was the further submission of the Plaintiffs’ counsel that the Defendant, in breach of the above Constitutional provisions persistently fails to release to the NJC, the capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.

Counsel submitted that by virtue of the obligations of funding State judiciary imposed on the Plaintiffs under Section 121 (3) of the Constitution, the resultant effect of the aforesaid breach of the Constitutional provisions by the Defendant is that the respective Plaintiffs States are now funding two sets of Courts.

Counsel argued that the law is that once the provisions of the Constitution are clear and devoid of any form of ambiguity, they should be given their natural meaning without any embellishment. He cited the cases of A.G BENDEL STATE V. A.G FEDERATION (1982) 3 NCLR 1; A.G LAGOS STATE V. EKO HOTELS LIMITED (2006) NWLR (PT. 1011) 378; A.G KANO STATE V. A.G FEDERATION (2007) 6 NWLR (PT. 1029) 164 in support of his argument.

The above position of the Plaintiffs under issue no. 1, was supported by Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakogba SAN and Chief Sabastine T. Hon, SAN, in their respective briefs before this Court.

In reply to the arguments and submissions of the Plaintiffs’ above, the Defendant’s counsel submitted that the provision of Section 6 of the Constitution, if read together with Chapter VII, Part I & II of the Constitution makes it clear that two sets of Courts are established, one set for the Federation and another established for States.

Counsel submitted further that even though the Constitution merely provided for establishment of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal, it was the respective State Laws which created them that actually set the operation of these Courts in motion and conferred their powers on them to make them functional for the States.

It was the contention of counsel for the Defendant that since Courts created for the States are in fact given life by the enabling law of the House of Assembly creating them, it is the duty of the Executive arm of Government in every State of the Federation to conceptualize and prepare the annual budget estimates of the entire States capturing particularly, the capital expenditure, present it to the Governor, who then presents it before the House of Assembly for appropriation.

The Defendant’s counsel also submitted that the Federal Government cannot be responsible for the funding of recurrent expenditure of officers for which it has no power to appoint, promote and discipline. He referred the Court to the case of JUDICIAL SERVICE COMMISSION OF CROSS-RIVER STATE & ANOR V. YOUNG (2013) LPELR – 20592 (SC).

Mahmud Abubakar Magaji, SAN, and Musibau Adetunbi, SAN in their respective briefs leaned towards the posture taken by the Defendant regarding who among the Federal and State Governments is constitutionally obligated to fund the capital and recurrent expenditures of the Courts under consideration.

On the constitutionality of the Presidential Executive Order No. 00-10 of 2020, the Plaintiffs submitted that the paragraphs of the said Order which mandates and empower the Accountant General of the Federation to make deductions from the Consolidated Revenue Fund of States for the purpose of funding the expenditure of Courts listed under Section 6(5) of the CFRN, are inconsistent with the provisions of the CFRN 1999, thus null and void.

Counsel submitted further that Section 120 of the Constitution sets out the conditions for any deduction and/or withdrawal from the consolidated revenue fund of the States of the Federation. That any such deductions and/or withdrawals from the Consolidated Revenue fund of States must be authorized by an Appropriation law or any law passed by the House of Assembly of the State.

It was argued that where the provisions of an Order or Law are inconsistent with the express provisions of the Constitution, such Order and/or law will be invalidated to the extent of its inconsistency with the Constitution. The cases of UGBOJI V. STATE (2018) 10 NWLR (PT. 1657) 346; A.G ONDO V. A.G FEDERATION (2002) 9 NWLR (PT. 772) 226; KEKONG V. STATE (2017) 18 NWLR (PT. 1596) 108.

On the strength of the above arguments and submissions, counsel urged the Court to declare the Presidential Executive Order No. 00-10 2020 null and void in view of its inconsistency with the express provision of the Constitution.

​By way of response, the Defendant’s counsel submitted that all that the Presidential Order has done, is to correct the usual practice of transmitting the funds through the State Governors to the State Judiciaries. That Section 162 (4), (5), (6), (7) & (8) of the Constitution is evidence of the fact that the State Governors have their own allocations separate from amounts standing to the credit of the Judiciary.

Counsel contended that it is not the duty of the Federal Government to either capture the proposed capital expenditure of State Judiciaries, nor to ensure their disbursement to the NJC and Heads of Courts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Counsel submitted that by virtue of Sections 275 & 280 of the CFRN, the establishment of a Sharia Court of Appeal and Customary Court of Appeal of a State, shall solely be at the discretion of any State that requires it. It was submitted further that since there is no legal machinery evidencing the input of the Federal Government in the establishment of these Courts, then it cannot be held liable to incur any capital and recurrent expenditure on these Courts.

Counsel submitted further that if a State considers that it in fact requires a Customary or Sharia Court of Appeal, the presumption of regularity presupposes that such a State has prepared, evaluated and estimated both the capital and recurrent expenditure that will be necessarily occasioned, before committing itself to the establishment of these Courts and captured same in its annual budget estimates.

That it is rather inequitable for States to now demand a refund of alleged expenditures from the Federal Government in this regard, which have not been proven to have been captured in the appropriation Acts for the fiscal years alluded to in the instant suit.

​According to the Defendant, nowhere in the Executive Order 00-10 is the Accountant General of the Federation directed by the President to make deductions from the Consolidated Revenue Fund of a State. That what is contemplated by paragraph 1 (b) is that the Accountant General of the Federation will make deductions from source which is the Federation Account. It was the contention of the Defendant that the deductions will be made from the Federation Account, before the funds get into the Consolidated Revenue Fund of the State.

Counsel contended that by virtue of Section 5 of the Constitution, the action of the President in directing the Accountant General of the Federation to deduct from source, funds standing to the credit of State Judiciaries where such State refused to release same, clearly has constitutional backing.

The Defendant further submitted that assuming but without conceding that the Plaintiffs’ reliefs, particularly those sought under reliefs 6, 7 & 8 of their originating process are competent, equity will not aid the indolent as what the Plaintiffs are currently seeking by those declarations must be denied on the basis of the legal principle of laches and acquiescence; an equitable defense which should protect the Defendant from claims such as in the instant suit, whereby the Plaintiffs have allowed the lengthy delay of approximately 21 years, before proceeding with their claim.

The cases of NNEJI & ORS V. CHUKWU & ORS. (1988) 6 S.C.N.J. 132 AT PAGES 138 – 140; NOIBI V. FIKOLATI (1987) 1 NWLR (PT. 52) 612 @ PG. 632; BANK OF NORTH LTD V. YAU (2001) LPELR- 746 (SC); BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR – 711 (SC) were cited in support.

The Defendant’s counsel also submitted that assuming but without conceding that it is the duty of the Federal Government to fund the capital and recurrent expenditures of State judiciaries, the Plaintiff States have not complied with the framework for the process of proposing, executing, completing and applying for refunds of monies expended by a State Government on a Federal Government project.

On the whole, counsel for the Defendant urged the Court to dismiss the suit for lacking In merit.

​The Plaintiffs’ Reply on Points of Law filed on 21st September, 2021 has been duly considered and having summarized the arguments and submissions germane to the resolution of the questions submitted in the Plaintiffs’ Originating process, I shall proceed with the resolution of the issues formulated by the parties.

RESOLUTION To start with, notwithstanding the litany of depositions contained in the affidavit evidence placed before this Court, save for those bordering on refund to the Plaintiffs all sums expended by them in funding the capital and recurrent expenditures of the Courts under consideration, I am of the view that the issues in this suit can be considered within a narrow compass of mere questions of law.

The first issue distilled by the Plaintiffs and the Defendant in the instant suit is centered on the question on who by virtue of the Constitution, is obligated and charged with the responsibility for the funding of all the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation, being Courts created under Section 6 of the Constitution (supra). The aforementioned Courts are superior Courts of record created under Section 6(5) of the Constitution.

For ease of reference, I shall reproduce the provisions of the said section as follows: “6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject to the provisions of this Constitution, for a State. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection 5(a) to (i) of this section shall be the only superior Courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (5) This section relates to – (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (d) the National Industrial Court; (e) the High Court of the Federal Capital Territory, Abuja; (f) a High Court of a State; (g) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;

(h) a Sharia Court of Appeal of a State; (i) a Customary of Appeal of the Federal Capital Territory, Abuja; (j) a Customary Court of Appeal of a State.

Corollary to the above provisions of Section 6(5) of the Constitution is Section 81 (3) of the same Constitution which provides that: 81(3) Any amount standing to the credit of the- (a) … (b) … (c) Judiciary, in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.” (underlining mine for emphasis) The provision of Section 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) further reinforces the provision of Section 81 (3) reproduced above.

The said section also provides that: “162(9) Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.” Further to this,Item 21 (c) of the Third Schedule of the Constitution 1999, explains the powers of the NJC in relation to Sections 81 (3) and 162(9) of the Constitution. The said section provides thus: “21.

The National Judicial Council shall have power to- (e) collect, control and disburse all moneys, capital and recurrent, for the judiciary.” When Item 21 (c) of the Third Schedule of the Constitution is read together with Sections 6, 81 (3) and 162(9) of the Constitution, it is clear that the capital and recurrent expenditures of the Courts created under Section 6(5) of the Constitution is charged upon the Consolidated Revenue Fund of the Federation.

A communal reading of the aforementioned provisions of the Constitution, with emphasis on Section 81 (3) and Item 21 (c) of the Third Schedule of the Constitution, puts it beyond any argument that the drafters of the Constitution intended that the Defendant should fully fund all the capital and recurrent expenditure of all the Courts established under Section 6 (5) of the Constitution.

If the Federal Government is responsible for the capital and recurrent expenditures of the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, the High Court of the Federal Capital Territory, Sharia Court of Appeal of the Federal Capital and Customary Court of Appeal of the Federal Capital Territory, as Courts listed under Section 6 (5) of the Constitution by disbursing funds due to them to their heads of Courts through the NJC, I see no reason why the High Courts of the States, the Sharia Courts of Appeal and Customary of Appeal of States should be left out, being Courts also listed under the same Section 6 (5) of the Constitution.

To put issues in proper perspective, Section 121 (3) of the Constitution provides for the funding of Courts not listed under Section 6(5) of the Constitution when it provides that: “121(3) Any amount standing to the credit of the – (a) House of Assembly of the State; (b) Judiciary; In the Consolidated Revenue Fund of the State shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid directly to the heads of the Courts concerned.” While the above provision seeks to reinforce the financial autonomy of the State Judiciary, it also specifically provides that any amount standing to the credit of the Judiciary of a State in the Consolidated Revenue Fund of the State shall be paid directly to the heads of Courts concerned.

This is in sharp contrast to the wordings of Section 81 (3) of the Constitution which provides that the sum standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation shall be paid to the NJC for onward transmission to the heads of Courts created under Section 6(5) of the Constitution.

The analogical deduction is that the Constitution vide its provision in Section 121 (3), vests the responsibility of funding Courts not listed under Section 6(5) of the Constitution through the head of Courts from the Consolidated Revenue Fund of the State ​There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes. The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments.

On the cardinal principle governing the interpretation of constitutional provisions, this Court, per Oguntade JSC, in the case of RASHIDI ADEWOLU LADOJA V. INEC (2007) LPELR -1738(SC) held that: “In interpreting a provision of the Constitution, the primary function of the Court is to search for the intention of the lawmaker. Where a constitutional provision is clear and unambiguous, the Court must give the words their ordinary meaning unless it will lead to absurdity and inconsistency with the provisions of the Constitution as a whole.

The true meaning of the words used and the intention of the legislature in a Constitution can be best properly understood if the Constitution is considered as a whole. It is a single document and every part of it must be considered as far as relevant in order to get the true meaning and intent of any particular portion of the enactment. Also, a Constitution must be interpreted and applied liberally. It must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide.

By necessity, a constitutional provision must be interpreted broadly…” See also HON. MICHEAL DAPIANLONG & ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928(SC); BOLA TINUBU V. I.M.B. SECURITIES PLC (2001) LPELR – 3248(SC). I should bear in mind that where the words of the legislature are clear, there is no room for applying any of the other principles of interpretation.

It is very clear that where the words used in expressing the intention of the legislature in the above provision are plain and unambiguous, in interpreting the Constitution, the Court must endeavor to give the words used in the Constitution or statute its ordinary meaning unless such interpretation will lead to absurdity or inconsistency with the rest of the legislation.

Having carefully examined the provisions of relevant sections of the Constitution regarding the issue under consideration, It is safe to answer the first question distilled by both parties in the affirmative that having regard to the clear, lucid and unambiguous provisions of Sections 6, 81 (3), 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21 (c) of the Third Schedule thereof, Defendant is constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6(5) of the Constitution.

The first issue is therefore resolved in favour of the Plaintiffs and against the Respondent.

The Plaintiffs under issue no.2 have called upon this Court to declare the Presidential Executive Order 00-10 of 2020 unconstitutional for violating the Constitutional provisions vesting responsibility for funding the High Courts of States, Sharia Courts of Appeal of States and Customary Courts of Appeal of States on the Federal Government.

Supposedly exercising his Executive powers under Section 5(1) of the CFRN 1999 (as amended), the President of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces, on the 20th day of May, 2020 signed the Presidential Executive Order 00-10 of 2020. Paragraph 8 of the Executive Order provides for the citation as follows: “This ORDER may be cited as the Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020.” The Order is targeted at strengthening the financial autonomy of State Legislature and Judiciary.

The Executive Order empowers the Accountant General to deduct from source in the course of Federation Accounts Allocation from money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The opening paragraph of Section 5(1) which confers executive powers on the President has put a caveat of a limitation on the exercise of such powers.

The powers of the President is made subject to the provisions of the Constitution. The President exercises executive powers under the Constitution and although the powers are awesome, they have known limits. The exercise of the powers is kept within bounds by the intervention of the rule of law. ABACHA V. FRN (SUPRA) 513; ODOFIN BELLO V. STATE (1966) 1 ALL NLR (REPRINT) 217; ATTORNEY GENERAL LAGOS STATE V. ATTORNEY GENERAL OF THE FEDERATION (2004) 18 NWLR (PT. 904) 1 AT 109 PARA D-H; ESHUGBAYI ELEKO V.

OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA (1931) AC 662; MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT. 18) 621. Consequently, when an Executive Power derogates from the provisions of the Constitution, such an order, with the principles of checks and balances in place under our constitutional democracy, would be subject to a judicial attack.

Empowering the Accountant General to deduct from source in the course of Federation Accounts Allocation from money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary when the funding of the capital and recurrent expenditures of the Courts under consideration is that of the Federal Government, runs contrary to the tenets of federalism. Where the Constitution provides a particular method for doing something and it is done contrary to the said method, it becomes unconstitutional.

See Section 1 (1) & (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). To this extent, the said Presidential Executive Order 00-10 is illegal, void and unconstitutional for being in conflict with the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This issue is hereby resolved against the Defendant and in favour of the Plaintiffs.

The last issue for consideration is whether the Plaintiffs have proven their case to entitle them to the refund of the total sum expended on the recurrent and capital expenditure of their various State Judiciaries from May 1999 to date.

This is where the affidavit evidence of the parties come into consideration. The Plaintiffs through Exhibits A and A1 attached to their affidavit evidence, reflected the total sum so far purportedly expended by only twenty (22) States out of the 36 Plaintiff States in funding the capital expenditure of the said Courts between 5th May, 1999 to 31st January, 2020.

By way of further affidavit, the Plaintiffs brought in Exhibit A2 and A3, reflecting the total sum purportedly expended by Ogun State and Anambra State in funding the Capital Expenditure of their State Courts for the period of 1st January, 2010 to 31st January, 2020. The Defendant submitted that enquiry will not aid the indolent Plaintiffs who have allowed the lengthy delay of approximately 21 years, before proceeding with their claim.

Also that the Plaintiffs States have not complied with the framework for the process of proposing, executing, completing and applying for refunds of monies expended by a State Government on a Federal Government project.

Having gone through exhibits A, A1, A2 and A3, and the depositions in support, I am of the view that these documents cannot be used as the parameters to determining the exact amount spent by the Plaintiffs’ States in funding the capital and recurrent expenditures of their various states over the years. The documents to me, appear to be a table hurriedly prepared in anticipation of this suit and I find it difficult to trace them to a source. Should the documents be classified as public documents? I do not know. The documents in my firm view, are not reliable.

​The law remains that when a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But if the Court disbelieves his evidence then the burden is not discharged. This principle of law is basic that I do not find it expedient to cite any authority in support.

The issue is resolved in favour of the Defendant and against the Plaintiffs. On the whole, the Originating summons of the Plaintiffs succeeds in part, Questions 1 and 2 of the Originating summons are answered in favour of the Plaintiffs. Reliefs 1, 2, 3, 4, 5, and 9 are granted while reliefs 6, 7, and 8 of the Originating summons are refused. For clarity sake, it is hereby: 1.

“DECLARED that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

DECLARED that by virtue of the clear, lucid and unambiguous provisions of Item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN), the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 3.

DECLARED that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and the Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN is unconstitutional. 4.

DECLARED that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the Plaintiffs to fund States’ High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

ORDERED that the Defendant shall from the date of the delivery of this judgment, fund all recurrent and capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 9. ORDERED that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 be set aside having declared same unconstitutional on the ground that it is in express violation of the provisions of the CFRN.”

Lastly, the Court in the course of the resolution of the issues has benefitted from the immense and scholarly contributions of the learned silks invited as Amici Curiae. The Court is grateful for the industry put, in coming up with the beautiful masterpieces. Parties are to bear their respective costs in the suit.

EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING JUDGMENT): I had a preview of the Judgment delivered by my learned brother, LORD JUSTICE MUSA DATTIJO MUHAMMAD, JSC. With due respect to His Lordship, I am constrained to disagree with the views expressed in the judgment except the validity of order 00-10.

On 17-9-2020, the plaintiffs herein filed an originating summons in this Court against the defendant. The questions raised therein for determination read thusly – 1.

Having regards to the clear and unambiguous provisions of Section 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (“CFRN’), read together with Item 21(e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State High Courts, States Sharia Courts of Appeal and Customary Court of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful.

The reliefs sought for in the originating summons read thusly – 1. A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Court of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of Item 21 (e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (CFRN) the Defendant is constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 3.

A DECLARATION that the refusal, failure and neglect of the Defendant to fund the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN is unconstitutional. 4.

A DECLARATION that the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State’s High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional. 5.

AN ORDER compelling the defendant to henceforth fund all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN. 6.

AN ORDER compelling the Defendant to refund to the plaintiffs all sums expended by the plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant. 7.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit “A” exhibited in the affidavit in support of this Originating Summons, being the true and actual amount expended by each plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each plaintiff State all amounts expended by each plaintiff for funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria. 9.

AN ORDER setting aside the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional.

The originating summons is supported by an affidavit of 63 paragraphs and plaintiffs’ written brief of argument on 27-11-2020. The plaintiffs filed a further affidavit of 11 paragraphs in support of the originating summons. The list of the particulars of the capital expenditures of State Courts by Adamawa, Bayelsa, Bauchi, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Katsina, Kebbi, Nasarawa, Niger, Rivers, Sokoto and Zamfara States was attached to the said further affidavit and marked as exhibit A.

The plaintiffs filed a second further affidavit in support of the originating summons.

The defendant filed its memorandum of conditional appearance, counter affidavit and written address in opposition to the originating summons. The plaintiffs filed an affidavit in reply to the said defendant’s counter affidavit.

​The defendant filed a notice of preliminary objection to the suit, which notice is supported by an affidavit of 5 paragraphs. The plaintiffs filed a counter affidavit and written address in reply to the notice of preliminary objection. The defendant filed a further affidavit in support of the Notice of preliminary objection and a written reply on points of law to the plaintiffs’ argument in response to the preliminary objection.

Considering that the subject matter of this suit is a public interest matter of great importance and significance, this Court invited written opinion from some of our distinguished Senior Advocates of Nigeria, as amici curiae on the subject matter of this suit. Five of them filed their respective briefs. They are Asiwaju Adegboyega Awomolo SAN, Dr Olisa Agbakoba, SAN, Chief Sebastine T. Hon SAN, Mahamud Abubakar Magaji, SAN and Musibau Adetunbi SAN.

Let me first determine the defendant’s preliminary objection as it challenges the jurisdiction of this Court to entertain this suit before I delve into the consideration of the issues raised for determination in the originating summons if need be.

​The ground for the objection as contained in the notice of preliminary objection and supporting affidavits is that this suit violates the rules of res judicata and issue estoppel because the issues in this Suit have been judicially determined by the Federal High Court of Nigeria on 13-1-2014 in Suit No. FHC ABJ/CS/667/2013, between JUSUN v NJC, Attorney General of the Federation and the plaintiffs herein, and the decision is subsisting and conclusive as the parties did not appeal against it and thereby accepted it as correct and binding upon them.

I have carefully read and considered the arguments of both sides on this issue.

​Learned Attorney General of the Federation argued that the plaintiffs herein and the defendant were the defendants in the Federal High Court Suit No.

FHC/ABJ/CS/667/2013, that the issues determined in that case are the same with the issues raised for determination in this case, that the reliefs granted by the said judgment of the Federal High Court have finally determined the issues for determination in the present suit and that the Presidential Executive Order 00-10 of 2020 is in furtherance of the said 13-1-2014 judgment of the Federal High Court as it strengthens the implementation of the financial autonomy of State judiciaries, that this Suit seeks to re-litigate the issues already judicially determined by the judgment of the Federal High Court on 13-1-2014, that the interpretation of Ss. 81 and 121 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) already judicially determined by the said Federal High Court judgment is being reopened here, that the subject matter in both cases is the financial autonomy of the Judiciary as it relates to funding by either the States or the Federal Government, that the Federal High Court that delivered the judgment is a Court of competent jurisdiction, that the subject matter of this suit is res judicata and caught by issue estoppel and is therefore not open to re-litigation and not within the jurisdiction of this Court.

Learned SAN for the plaintiffs has argued in reply that the parties in the two cases are different because the suit in the Federal High Court is by Judicial Staff Union of Nigeria as plaintiff against the National Judicial Council and 73 others as defendants, while the present suit in this Court is by the Attorney General of Abia State and 35 others as plaintiffs against the Attorney General of the Federation, that the subject matter and issues in the two cases are manifestly different and irreconcilable, that the questions for determination and reliefs in Suit No.

FHC/ABJ/CS/667/2013 related entirely to the mode of payments of monies due to the judiciary and contended that it should be paid directly to the Heads of Courts and not through the Governments of each State, that the issue in dispute, in this case, is who as between the Federal Government and the State Governments have the constitutional responsibility to fund the capital and recurrent expenditures of Courts established by the Constitution in its Section 6, that a second issue is whether the presidential executive order 10 of 2020 that enforces the funding of the said expenditures of Courts established by Section 6 of the Constitution for states is not ultra vires the powers of the President and therefore unconstitutional and void, that the Federal High Court lacked the Jurisdiction to determine the dispute that was essentially between the Federal Government and State Governments and that therefore the judgment it rendered is not that of a Court of competent jurisdiction and cannot be the basis of a plea of res judicata and issue estoppel.

Let me now consider the merits of the arguments of both sides. It is not in doubt that the plaintiffs and the defendant herein were defendants in Suit No FHC/ABJ/CS/667/2013, that the judgment of the Federal High Court delivered on 13-1-2014 in that Suit was not appealed against by any of the parties to the Suit, that by not appealing against it, they accepted the judgment as correct, conclusive, subsisting and binding on them. See Iyoho V Effiong (2007) 7 SC (Pt.iii) 90 and Dabup V Kolo (1993) 12 SCNJ 1.

​The judgment binds the parties herein because they were parties to the dispute that was determined by it and for the further reason that it is a judgment in rem as it is contra mundum, in that it binds the whole world and not only the parties to the Suit. A judgment in rem is a judgment that determines the status of some persons or thing or subject matter and binds all persons interested in the status of the property, subject matter or person.

It is a judgment in rem because it determines the position or status of the Constitution on the payment of funds standing to the credit of the Judiciary in the Federation account or Consolidated Revenue Fund of the Federation directly to the Heads of Court of each State and not to them through their State Governments.

The judgment binds all persons, whether parties to the Suit or not, on the issue or subject matter of whether the monies standing to the credit of the Judiciary in the Federation Account or Consolidated Revenue Fund should be paid directly to the Heads of Courts in each State or through their respective State Governments. The judgment stops anyone from raising the above issue in any judicial proceedings. It is conclusive against the whole world.

It therefore operates as estoppel per rem judicata or issue estoppel to bar any further Suit or litigation by anybody on the same subject matter or issue. As this Court held in Ogboru & Anor v Uduaghan & Ors (2011) LPELR- 8236 (SC) “A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation.

Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. (a) Examples are the judgment of a Court over a will creating the status of administration. (b) Judgment in a divorce by a Court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. (c) Judgment in an election petition. The feature of a judgment in rem is that it binds all persons whether a party to the proceedings or not.

It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be”. Okpalugo vs. Adeshoye (1996) 10 NWLR pt. 476, pg. 77, Fointrades Ltd. vs Uni Association Co. Ltd. (2002) 8 NWLR Pt. 770, pg. 699., Ogbahon vs. Reg.

Trustees CCCG (2002) 1 NWLR Pt. 749, pg. 675, Olaniyan vs Fatoki (2003) 13 NWLR pt. 837, Pg. 273.” In Dike & Ors v. Nzeka II & Ors (1986) LPELR – 945 (SC), this Court also held thusly- “It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and the competence to pronounce on that Status.

Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum – binding on the whole world – parties as well as non- parties, A judgment in personam, on the other hand, is on an entirely different footing.

It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se tor or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.”

Let me now consider if the subject matter of this Suit and the issues raised for determination here are the same with the subject matter of Suit No. FHC/ABJ/CS/667/2013 and the issues determined in the judgment of 13-1-2014 therein.

The questions raised for determination in Suit No.

FHC/ABJ/CS/667/2013 and the reliefs claimed for are stated in the judgment of the Federal High Court in that Suit in exhibit AC1F1 as follows- “QUESTIONS FOR DETERMINATION (1) Whether having regard to the provisions of Sections 81 (3), 121(3) and 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) funds/amount standing to the credit of the Judiciary in the Federation Accounts/Consolidated Revenue Fund of the Federation/States shall not be paid directly to the Heads of Court concerned. (2) Whether having regards to the provisions of Sections 81(3) and 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Funds/Amounts standing to the credit of the Judiciary in Consolidated Revenue in piecemeal through the States Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. (3) Whether the Defendant’s failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Act, 2007 cum State’s relevant Fiscal Responsibility laws and if so, the legal consequence(s) thereof.