ALHAJI SHEU ABDUL GAFAR V THE GOVERNMENT OF KWARA
STATE & OTHERS (S.C. 71/2002) NGSC 62 (9 FEBRUARY 2007)
Home/Alhaji Sheu Abdul Gafar v The Government of Kwara State &
others (S.C. 71/2002) NGSC 62 (9 February 2007)
In The Supreme Court of Nigeria
On Friday, the 9th day of February 2007
Alhaji Sheu Abdul Gafar ……. Appellant
The Government of Kwara State …….Respondents
The Military Administrator of Kwara State
The Attorney-General of Kwara State
Judgment of the Court Delivered by
Mahmud Mohammed J.S.C.
This appeal against the judgment of the Court of Appeal Kaduna Division of 7-5-1997, arose from the ruling of the federal High Court Ilorin delivered on 2-8-1995 dismissing a preliminary objection raised challenging its jurisdiction in the following terms-
?1. The court lacks jurisdiction to grant sought by the applicant.?
Federal High Court Ilorin under section 42(1) of the 1979 Constitution and Order 1 Rule 2(1) and (6) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 by filing an Ex-parte application dated 29-5-1995 for leave to enforce his rights, leave was granted by the trial court on 5-6-l995 while the main application on notice was fixed for hearing on I9-6-I995.
However, the respondents on being served with the appellant’s application on notice promptly filed a notice of preliminary objection challenging the jurisdiction of the trial Federal High Court to entertain the action. Consequently, the parties were duly heard on the preliminary objection on 19-6-1995 and in a considered ruling delivered on 2-8-1995, the learned trial judge dismissed the respondent’s preliminary objection and held that the trial court has jurisdiction to entertain the action. Part of this ruling at page 71 of the records reads
“Earlier in this ruling, I found and held that the 1st and 2nd applicants/respondents are agents of the Federal Government and the 3rd applicant is an agent of the 2nd applicant/respondent. In view of the foregoing, 1 find and hold that by virtue of section 230(1)(q), (r) & (s) of the 1979 Constitution as amended by Decree 107 of 1 993, this court has jurisdiction to entertain this action as filed.?
Dissatisfied with this ruling the respondents then appealed to the Court of Appeal Kaduna, which after hearing the parties on a number of issues, allowed the appeal after considering the issue of jurisdiction alone. Umaru Abdullahi J.C.A (as he then was) in the lead judgment after thoroughly examining the issue of jurisdiction of the trial court having regards to the
reliefs claimed by the appellant in his action against the respondents, came to the conclusion thus at pages 165-166 of the record –
?In this appeal, the principal reliefs arose from, the activities of a Commission of Inquiry established by
Kwara State Government under its laws. I cannot find any statutory provisions conferring on the Federal High Court jurisdiction to entertain the
reliefs sought by the respondent. I already found that the attempt by the learned trial judge to expand the jurisdiction of his court to entertain the suit was based on complete misconception.
In my view, the correct forum for the respondent to seek his reliefs is the Kwara State High Court.
In the circumstances the appeal is allowed. The order of the trial Federal High Court assuming jurisdiction to entertain the suit is hereby set aside.
In its place, an order is herein made that the matter be transferred to the Kwara State High Court, through the Chief Judge, of Kwara State for assignment.”
The present further appeal to this court by the appellant is against this judgment of the court below.
From the seven grounds of appeal filed by the appellant to question the decision of the Court of Appeal, a single issue for determination was framed in the appellant’s brief thus –
“1. Whether the court below was right having regard to the claims of the appellant, the state of the law and in all the circumstances of the case to have held that the trial court had no jurisdiction to entertain the case of the appellant which was principally concerned with the complaint of lack of fair hearing and the observance of the rule of natural justice.
(a) Whether the doctrine of covering the field was unavailing in the circumstances of the case.
(b) Whether from the totality of the facts it could be said that the 2nd and 3 rd respondents were not agents of the 1st respondent, in other words whether there was true federalism in Nigeria at all times material.?
The respondents in their brief of argument also identified only issue for determination as follows-;
“Whether having regard to the reliefs sought by the appellant the lower court was right to have held that the trial federal High Court lacks the necessary jurisdictional competence to entertain the appellant’s case.?
Taking into consideration that this appeal arose from a ruling on the preliminary objection challenging the jurisdiction of the trial federal Nigh Court to entertain the action of the appellant having regard to the circumstances of the case and the reliefs claimed therein, the only real issue for determination in this appeal is, which of the two Courts below is right the Federal High Court which said it has jurisdiction to bear the action or the Court of Appeal which ruled that the trial court has no jurisdiction.
However, before proceeding to resolve this issue, it will be helpful to recount the facts that forced the appellant to run to the Federal High Court for remedy arising from the dispute with the respondents. The appellant was in the service of the Government of Kwara State, the 1st respondent, as its Secretary to the Government. While he was in the service, the federal Government made grants to the Kwara State Government in the sum of N 76 Million and N 120 Million respectively to tackle ecological problems in the State as well as for the expansion of the Ilorin Water Scheme. The handling and use of these giants was subject of a Commission of inquiry set up by the 1st respondent,
Kwara State Government. The first Commission of Inquiry was set up in April 1991 headed by Hon. Justice Ibiwoye. This Commission concluded its work but could not submit its report to the appointing authority. This led to the setting up of another Commission of Inquiry under Hon. Justice Salami to investigate the handling and use of the grants. The Salami Commission of Inquiry succeeded in completing its assignment and submitted its report to the Government. The Government considered the report and came out with a White Paper on the report, which indicted the appellant and directed him to pay the sum of N 2 million to the Kwara State Government, the 1st respondent or on the failure to do so forfeits his personal assets.
Dissatisfied with the directive in the White Paper, the appellant decided to challenge it in the Ilorin Federal High Court where he filed his action under the fundamental Rights (Enforcement Procedure) Rules 1979, for redress asking for a total of 10 reliefs arising from the decision of the 1st respondent in the White Paper.
The lone issue on jurisdiction formulated in the appellant?s brief is virtually the same, as that formulated in the respondents’ brief. In support of the issue, learned appellant?s counsel after quoting the reliefs sought by the appellant in his action, pointed out that the claims of the appellant was mainly on the enforcement of his threatened fundamental rights. Appellant maintained that his complaint in the action is that the respondents or their agents, lacked the vires to try him for criminal offences except through the observance of due process, lacked the power to find him guilty of any criminal offence without due observance of the due process; find him guilty of any criminal offence without a proper or any trial at all; issue a white paper purporting to accept the finding of guilt against him without affording him any hearing on the said report; order the forfeiture of his assets without any hearing and be the complainants, the prosecutors and judges all rolled into one in the matter. Relying on the cases of Adeyemi v. Opeyori (1976) 9-10 31 at 51; A.G
Kwara State v. Oluwale (1993) 1 NWLR (pt.272) 645 at 663 and Anya v. lyayi (1993) 7 NWLR (Pt. 305) 645 at 663-664, learned appellant?s counsel argued that since it is the claim of the plaintiff that determines the Jurisdiction of the trial court and not the interpretation placed on the claim by the opponent, the claim of the appellant in the present case is within the jurisdiction of the trial court as found by that court having regard to section 42 of the 1979 Constitution which gave the trial Federal High Court and State High Courts concurrent jurisdiction on matters concerning Fundamental Rights. Commending the trial court for jealously guarding its jurisdiction under the Federal High Court (Amendment) Decree No. 60 of 1991 and section 230(I)(q)(r) and (s) of the 1979 Constitution as amended by Decree 107 of 1993, learned counsel maintained that the trial court has the jurisdiction to entertain the case of the appellant. The cases of Ekekeugbo v. Fiberesim (1991) 6 NWLR (Pt.335) 707 at 726; and Nalsa Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212)652 at 677 were cited in support of this argument by the learned counsel for the appellant who urged this court to allow the appeal.
Comment: This is another case where if the Appellant had gone straight to the High Court after the decision of the court below, his case may have been concluded before now. I do not see anything special, about the Federal High Court hearing and determining the case.
In conclusion, since the reliefs sought in the suit are anchored squarely on the said recommendations of the Commission of Inquiry, the inevitable conclusion, is that there is no how, the alloyed branch of the fundamental human rights of the Appellant, can be determined by the trial court, without the production of and examination of the said Report or Recommendation of the Commission of Inquiry. It is my respectful view and I so hold that the Order of transfer of the suit to the High Court by the court below is right and correct. I too, affirm the said order or decision. This appeal has woefully failed and I too, dismiss having had the advantage of reading before now, the lead Judgment of my learned brother, Mohammed, J.S.C to which I subscribe. I abide by the consequential order in respect of costs.
Counsel: K.K. Eleja, Esqr
with him: M.I. Hanafi Esqr, S.A. Oko Esqr, J. Jacobs (Mrs.), M.T Adekilekun Esqr, B. Kawu (Mrs.), V. Udenze (Miss) ……. Appellant
Toyin Pinheiro, Esqr ……. Respondents