A.G LAGOS STATE & ORS v. ZANEN VERSTOEP& CO (NIG) LTD & ORS

CITATION: (2016) LPELR-41402(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON THURSDAY, 23RD JUNE, 2016Suit No: CA/L/702/2013

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of Appeal

Between1. ATTORNEY GENERAL OF LAGOS STATE2. DSP BAYO SULAIMON3. CAPTAIN KUKU (RETIRED)4. MR GBENGA ASHAFA5. LAGOS STATE TASK FORCE ON ENVIRONMENTALSANITATION

- Appellant(s)

And1. ZANEN VERSTOEP & COMPANY NIG. LTD2. MR. EMMANUEL ADEBAYO (COMMISSIONER OFPOLICE LAGOS STATE)3. MR. MOMOH (D.P.O BAR BEACH POLICESTATION)4. TECHNO CRIME SECURITY COMPANY LTD

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed"The law is trite that the Court is without power to award to a claimant that which hedid not claim. A Court of law may award less but not more than what the partiesclaimed. More so, the Court should never award that which was never claimed orpleaded by either party. It should therefore be borne in mind that a Court of law is nota charitable organization and its duty in civil cases is to render unto everyoneaccording to his proven claim. See EZEONWU VS ONYECHI (1996) 2 NWLR (PT 438)499; EKPEYONG VS NYONG (1975) 2 SC 65; AGU VS ODOFIN (1992) 3 SCNJ; A.G.CROSS RIVER STATE VS A.G. OF THE FEDERATION (2005) ALL NLR 144."Per OSEJI,J.C.A. (Pp. 42-43, Paras. F-C) - read in context

2. ACTION - ALTERNATIVE CLAIM: Duty of court where a claim is in the alternative"It is an established principle of law that where a claim is in the alternative, the Courtshould first consider whether the principal claim ought to have succeeded. It is onlyafter the Court may have found that it could not, for any reason, grant the principal ormain claim that it would then proceed to consider the alternative claim. The Court istherefore not shut out from considering and deciding on the alternative claim becausethe main claim is not established. See C.O.P. VS OGUNTAYO (1993) 7 SCNJ 66; G.K.F.INVESTMENT (NIG) LTD VS NITEL PLC (2009) 6-7 SC (PT 11) 163; XTOUDOS SERVICESNIG. LTD. ANOR VS TAISEI (WA) LTD (2006) 6 SCNJ 300."Per OSEJI, J.C.A. (Pp. 43-44,Paras. F-C) - read in context

3. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed"It is trite the Court cannot award what was not claimed; nor does the Court awardmore than what was claimed vide Eagle Super Pack (Nig.) Ltd. V. A.C.B. (2006) 19NWLR (Pt. 1013) 20, Oduwole v. West (2010) NWLR (pt. 1203) 598."Per IKYEGH, J.C.A.(Pp. 48-49, Paras. F-A) - read in context

4. APPEAL - RESPONDENT TO AN APPEAL: Options open to a respondent who isdissatisfied with a judgment"...This indeed is contrary to the established principle of law that the duty of aRespondent in an appeal is to support the judgment appealed against and not to fightagainst or criticize the judgment. He however has the unlimited option to appealagainst the said judgment if dissatisfied with same. See NIGERIA BANK FORCOMMERCE & INDUSTRY VS INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT 250)Page 1; EMEKA VS OKADIGBO (2012) 18 NLWR (PT 1331) 55 at 97; FEDERALMORTGAGE FINANCE LTD VS EKPO (2005) ALL FWLR (PT 248) 1667."Per OSEJI, J.C.A. (P. 9, Paras. B-E) - read in context

5. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Attitude of appellatecourts to findings of fact made by a lower court"An Appellate Court is always reluctant to alter or set aside the findings of fact by thetrial Court unless it is apparent that such findings are perverse. See OLABANJI VSOMOKEWU (1992) 7 SCNJ 266; OLARENWAJU VS GOVERNOR OF OYO STATE; (1992)11-12 SCNJ 92; MOTUNWASE VS SORUNGBE (1988) 5 NWLR (PT 92) 90."Per OSEJI,J.C.A. (P. 36, Paras. D-F) - read in context

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6. CONSTITUTIONAL LAW - RIGHT TO ACQUIRE AND OWN PROPERTY: Whether apersons property can be forcefully acquired without due process of the law"...Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999 (asamended) provides thus:-"Section 44(1) No moveable property or any interest in an immoveable property shallbe taken possession of compulsorily and no right over or interest in any such propertyshall be acquired compulsorily in any part of Nigeria except in the manner and forpurposes prescribed by law that, among other things:-(a) Requires the prompt payment of compensation therefore; and(b) gives to any person claiming such compensation right of access for thedetermination of his interest in the property and the amount of compensation to aCourt of law or Tribunal on body haring jurisdiction in that part of Nigeria."The wordings of the above set out provision is clear and unambiguous and gives everycitizen of this country, including legal entities the right to seek redress in Court byway of enforcement of their fundamental right where their property whethermoveable or immoveable is taken possession of compulsorily and without due processof law being adhered to."Per OSEJI, J.C.A. (Pp. 30-31, Paras. E-D) - read in context

7. COURT - JURISDICTION: What determines jurisdiction of Court to entertain acause/matter"It must be borne in mind that it is the claim of the plaintiff which in this case is the1st Respondent's Originating motion that a Court will examine to determine whetheror not it has jurisdiction to entertain the suit. See LADOJA VS INEC (2007) 4 WRNI."PerOSEJI, J.C.A. (P. 39, Paras. D-E) - read in context

8. COURT - JURISDICTION: Nature of jurisdiction of Court"Jurisdiction is a threshold issue in adjudication by a Court of law and as such, it isbasically considered expedient and germane to resolve same before proceeding toconsider any suit before a Court on the merit. This is premised on the reality thatdetermination of a matter by a Court will amount to a nullity and exercise in futility ifdone without jurisdiction.In other words, jurisdiction is the basis on which any Court or Tribunal tries a casebecause it is the authority it has to decide on a matter before it. See GALADIMA VSTAMBAI (200) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU (1989) 6 SC. (PT. 11) Page1; YUSUF VS OBASANJO (2004) 5 SCM 193; AJAO VS ALAO (1986) 5 NWLR (PT 45) 802;MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341. In A.G RIVERS STATE VS A.G AKWA-IBOM STATE (2011) 8 NWLR (PT 1248) 31, the Supreme Court held at page 165 of theReport that:- "When a Court's jurisdiction is challenged by the defence being athreshold issue, the Court must first be competent before it can proceed to adjudicateon the case on the merits. The reason being that jurisdiction is a radical and crucialquestion of competence.Either the Court has no jurisdiction to hear the case or it has not. It is very expedientfor a Court to examine and determine whether it has jurisdiction before proceedingany further in a matter.Furthermore, jurisdiction of Court is granted by statute orConstitution and not by the Courts. In this regard, no Court shall have jurisdiction togo beyond the provisions of the enabling law. Otherwise, it will be ultra vires. SeeUGBA VS SUSWAM (No. 2) (2012) 6 S.C (PT 11) 56. See also ADETAYO VS ADEMOLA(Supra) where Supreme Court held inter alia, that the fundamental nature ofjurisdiction is that it does not exist in a vacuum because all the Courts of law derivetheir power, authority and therefore jurisdiction either under the Constitution or underspecific statutes, in that respect no Court can assume jurisdiction in the absence ofhaving been constitutionally and statutorily empowered to do so."Per OSEJI, J.C.A. (Pp.21-22, Paras. B-F) - read in context

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9. DAMAGES - SPECIAL DAMAGES: Whether a claim for special damages must bespecifically pleaded and strictly proved"It is trite law that special damages are in a class of their own, requiring strict proofwhich can only be established by credible and ascertainable facts which have beenspecifically pleaded and of course strictly proved. ANAMBRA STATE ENVIRONMENTALSANITATION AUTHORITY VS EKWENEM (2009) 6-7 SC 5; AKINKUGBE VS EWULUMHOLDINGS (NIG) LTD (2008) 4 SCNJ 404. Special damages are not meant to beinferred from the nature of the act complained of and do not follow in the ordinarycourse as is the case with general damages. They are exceptional and so they mustbe specifically claimed and strictly proved. SeeNNPC VS KLIFCO (NIG) LTD. (2011) 4SC (PT 1) 108." Per OSEJI, J.C.A. (P. 45, Paras. B-F) - read in context

10. DAMAGES - SPECIAL DAMAGES: Whether a claim for special damages must bespecifically pleaded and strictly proved"A claim for special damages be it in a fundamental rights action or ordinary actionmust particularize the damages claim which must be proved strictly or item by item toarrive at the total sum claimed. See Saleh v. Bank of the North Ltd. (2006) 6 NWLR(pt. 976) 316."Per OSEJI, J.C.A. (P. 49, Paras. A-C) - read in context

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11. JURISDICTION - JURISDICTION OF THE STATE/FEDERAL HIGH COURT: Scope ofthe jurisdiction of the State and Federal High Courts with respect to enforcement offundamental rights"As per the enforcement of the Fundamental Human Rights the Constitution in Section46 provides thus:-46 (1) "Any person who alleges that any of the provisions of this chapter has been, isbeing or likely to be contravened in any state in relation to him may apply to a HighCourt in that state for redress.46 (2) subject to the provisions of this Constitution, a High Court shall have jurisdictionto hear and determine any application made to it in pursuance of the provisions of thisSection and may make such order, issue such writs and give such directions as it mayconsider appropriate for the purpose of enforcing or securing the enforcement withinthat state of any right to which the person who makes the application may be entitledunder this chapter."The High Court referred to in the Section has been held to mean the Federal HighCourt or the High Court of a State. It follows that any person whose fundamentalrights as detailed in the 1999 Constitution (as amended) has been, is being or likely tobe contravened in any State in relation to him may apply to either the Federal HighCourt in that State or the High Court of that State, depending on whether the breachcomplained about is within the ambit of the subject matter jurisdiction of either of theCourts. Put in simple terms the jurisdiction of the Federal High Court to entertain anapplication for the enforcement of a person's fundamental right is limited to andcircumscribed by Section 251(1) of the Constitution. Conversely, the High Court of aState has no jurisdiction to hear a fundamental rights application on any matter withinthe exclusive jurisdiction of the Federal High Court. This position was made very clearby the Supreme Court in the case of ADETONA VS IGELE GENERAL ENTERPRISES LTD(2011) 7 NWLR (PT. 1247) 535 AT 504 per Tabai JSC as follows:- Although, unlike the1979 Constitution, Section 318 (1) of the present Constitution does not define "HighCourt", there is no doubt that the terms carries the same meaning as given by Section277 (1) of the 1979 Constitution to mean Federal High Court or High Court of a state.Therefore, it is my understanding that where a person'sfundamental right is breached, being breached or about to be breached, that personmay apply under Section 46(1) to the judicial division of the Federal High Court in theState or the High Court of the State or that of the Federal Capital Territory in whichthe breach occurred or is occurring or about to occur. This is irrespective of whetherthe right involved comes within the legislative competence of the Federation or Stateor the Federal Capital Territory. See the case of MINISTER OF INTERNAL AFFAIRS V.SHUGABA (1982) 3 NCLR 915. It has to however be noted that the exercise of thisjurisdiction by the Federal High Court is where the fundamental right threatened orbreached falls within the enumerated matters on which that Court has jurisdiction.Thus, fundamental rights arising from matters outside its jurisdiction cannot beenforced by the Federal High Court. See: TUKUR V. GOVERNMENT OF GONGOLASTATE (1989) 3 NSCC 225; (1989) 4 NWLR (PT. 117) 517. Equally, a High Court of astate shall lack jurisdiction to entertain matters of fundamental rights, althoughbrought pursuant to Section 46(2) of the Constitution where the alleged breached ofsuch matters arose from a transaction or subject matter which fall within the exclusivejurisdiction of the Federal High Court as provided by Section 251 of theConstitution."Per OSEJI, J.C.A. (Pp. 23-26, Paras. A-A) - read in context

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12. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Conditions for theexercise of the jurisdiction of the Federal High Court"The Supreme Court has in a number of cases in recent times settled the issue, thatfor the Federal High Court to have jurisdiction under Section 251 of the 1999Constitution (as amended) the following must co-exist:(a) The parties or a party must be the Federal Government or its agencies.(b) The subject matter of litigation.See the case ofOBIUWEBI VS CENTRAL BANK OF NIGERIA (2011) 7 NWLR (PT 1247)465 and NATIONAL UNION OF ROAD TRANSPORT WORKERS VS ROAD and TRANSPORTEMPLOYERS ASSN OF NIGERIA (2012) LPELR (7840) SC. Also in PDP VS SYLVA (2012)13 NWLR (PT 1316) 85 at page 138 it was held that:- "When the jurisdiction of theFederal High Court is in issue, the following must co-exist:-(a) The parties or party must be the Federal Government or its agency.(b) Subject matter of Litigation."See also WEMA SECURITIES FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCECORPORATION (2015) 16 NWLR (PT 1484) 93.It is therefore now settled that jurisdiction is a combination of parties and subjectmatter and not enough only to have an agency of the Federal Government before theFederal High Court will have jurisdiction."Per OSEJI, J.C.A. (Pp. 37-38, Paras. B-A) - read in context

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SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering

the Leading Judgment): This appeal is against the

judgment of the Federal High Court, Lagos Division

delivered by ABUTU J. on the 2nd day of November 2007.

The Appellants and the 2nd Respondent herein were

Respondents in the suit filed in the lower Court while the

1st Respondent was the Applicant.

The said 1st Respondent had as Applicant commenced a

suit in the Federal High Court, Lagos Division (lower Court)

by way of an application for the enforcement of its

Fundamental Human Right against the aforesaid

Respondents. In the said application dated 9-11-2006 the

following reliefs were sought:-

(i) A declaration that the forcible breaking-in and

carting away of the Applicant’s properties from its

premises situate at 1A Ozuma Mbadiwe Street,

Victoria Island, Lagos by the Respondents on Sunday,

August 26, 2006 and subsequent days thereafter is

illegal and unconstitutional as it violates the

Applicant’s right to property guaranteed by Section

44 of the 1999 Constitution of the Federal Republic of

Nigeria.

(ii) A declaration that the continued forcible

occupation of the Applicant’s

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said premises situate at 1A Ozuma Mbadiwe Street,

Victoria Island, Lagos by the Respondents and their

agents or privies is illegal and unconstitutional as it

violates the Applicant’s right to property guaranteed

by Section 44 of the 1999 Constitution of the Federal

Republic of Nigeria.

(iii) An Order directing the Respondents, their agents

and/or privies to vacate the Applicant’s premises

situate at No. 1A Ozuma Mbadiwe Street, Victoria

Island, Lagos.

(iv) An Order directing the Respondents to return all

the Applicant’s properties (as itemized in the

Applicant’s statement hereto) which were forcibly

removed from the Applicant’s said premises situate at

No. 1A Ozumba Mbadiwe Street, Victoria Island

L a g o s , t o t h e s a i d p r e m i s e s O R I N T H E

ALTERNATIVE.

Damages of the total sum of $5, 707, 292.90 to its

equivalent in Naira, being the value of the Applicant’s

properties forcibly removed from the Applicant’s

premises situate at 1A Ozumba Mbadiwe Street,

Victoria Island, Lagos.

(v) General damages of the sum of N200 Million Naira

(Two Hundred Million Naira) for the illegal and

unlawful violation of the

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Applicant’s right to property guaranteed by Section

44 of the 1999 Constitution of the Federal Republic of

Nigeria.

(vi) Exemplary damages of N300 Million Naira (Three

Hundred Million Naira) for the illegal, unlawful, gross

and blatant violation of the Applicant’s right to

property guaranteed by Section 44 of the 1999

Constitution of the Federal Republic of Nigeria.

GROUNDS FOR SEEKING RELIEF

1. By v ir tue of Sect ion 44 (1) of the 1999

Constitution;

“No moveable property or any interest in an

immovable property shall be taken possession of

compulsorily and no right over or interest in any such

property shall be acquired compulsorily in any part of

Nigeria except in the manner and for the purpose

prescribed by a law ………………..”

2. The break-in of the Applicant’s premises at 1A

Ozumba Mbadiwe Street, Victoria Island Lagos, and

forceful removal and carting away of the Applicant’s

properties which included all its equipment, tools,

spares and accessories by the Respondents on August

26, 2006 and subsequent days is illegal and

unconstitutional.

3. The

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Respondents have no power under 1999 Constitution

or any law to break-in and cart away the Applicant’s

properties.

4. The Respondents their privies or agents have no

powers under 1999 Constitution or any law to forcibly

evict the Applicant and occupy the Applicant’s

premises and deny the Applicant any access to its

premises.

The said application was supported by a statement of facts,

and a 31 paragraph affidavit with numerous documents

attached as Exhibits ZVI to ZV 28. There is also a further

affidavit of 5 paragraph to which is attached a copy of

Police Report marked as Exhibit ZV 29.

The Appellants as the 1st, 3rd, 5th, 6th and 7th

Respondents in the lower Court reacted by filing a counter

affidavit as well as a notice of preliminary objection. The

2nd Respondent as 8th Respondent in the lower Court also

filed a counter affidavit.

The 2nd and 4th Respondents (Commissioner of Police

L a g o s S t a t e ) a n d D . P . O B a r B e a c h P o l i c e

Station respectively, did not file any counter affidavit.

Briefly put, the facts as can be gleaned from the Records is

that the Applicant (now 1st Respondent herein), is a civil

dredging and Marine

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Engineering Company in occupation of a land situate at No

1A Ozumba Mbadiwe Street, Victoria Island, Lagos, since

1983 and which occupation was through allocation by the

Lagos State Government. The said occupation was first

disturbed in 1989 when the Lagos State Government

forcibly evicted it but was restored back into possession by

a Court order.

The same fate befell the 1st Respondent in 2004 when it

was also evicted through the instrumentality of another

private company but it also regained possession shortly

thereafter.

But sometime in August 2006, the said premises was

invaded in the early hours of a Sunday morning by a large

contingent of heavily armed policemen who carted away all

the 1st Respondent’s specialized dredging equipment,

machinery and spares worth hundreds of millions of Naira

and none of the said equipment was ever returned. It was

also forcibly locked out of the premises by these policemen

and had been denied access to same and all petitions to the

Lagos State Government and Police on the issue received

no positive response. The 4th Respondent is permanently

on guard over the premises.

This necessitated the 1st

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Respondent to institute the action in the lower Court for

the enforcement of her fundamental right to property.

At the hearing of the suit, the Appellant’s preliminary

objection challenging the jurisdiction of the Court was

taken together with the 1st Respondent’s originating

motion and the parties, (except the 2nd and 4th

Respondents in the lower Court) duly adopted and relied on

their respective written addresses.

In a Ruling delivered by the Learned Trial Judge on

2-11-2007, he dismissed the preliminary objection and

granted all the reliefs sought by the 1st Respondent

including an order that all the Respondents before him

should ensure the return of the 1st Respondent’s properties

forcibly removed, within 30 days of the Ruling, otherwise,

they would be liable to pay for the value of the items to the

tune of $5, 707, 297, 90 (US DOLLARS).

Being dissatisfied with the said Ruling, the Appellants

herein, filed a Notice of Appeal on 9-11-2007. With the

leave of this Court, they subsequently filed an amended

Notice of Appeal with three grounds of appeal on 9-4-2015

but deemed properly filed on 26-5-15.

In compliance with

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the relevant Rules of this Court, briefs of argument were

thereafter filed and served and same was adopted by the

parties at the hearing of this appeal on 25-4-2016.

In the Appellants brief of argument settled by LAWAL

PEDRO SAN Solicitor General of Lagos State and filed

on 21-5-2015 but deemed properly filed and served on

26-5-2015, three issues were formulated for determination.

To wit:-

(1) Whether the complaints and reliefs of the

Applicant/1st Respondent are cognizable under

Section 44 of the Constitution of the Federal Republic

of Nigeria 1999 to have conferred jurisdiction in the

Federal High Court.

(2) Whether the Federal Court ought to have declined

jurisdiction in this matter having regard to its

findings that the Appellants who carried out the

eviction of the Applicant from the land are not

Federal Government agencies, but Lagos State

Government agencies.

(3) Whether the Trial Court was right to have granted

the Applicant’s relief in Paragraph (d) for the return

of the properties removed from the premises at No 1A

Ozumba Mbadiwe Street, Victoria Island, or in the

alternative, damages of $5, 707, 297, 90 (US

DOLLARS) being

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the value of the properties.”

The 1st Respondent’s brief of argument is dated and filed

on 26-10-2015 and settled by ROTIMI ALADESANMI Esq.

The following two issues were formulated therein for

determination:-

(1) Whether the lower Court had the jurisdiction to

entertain the suit as the enforcement of a

fundamental right to property.

(2) Whether the appeal on the order for the return of

the 1st Respondent properties within 30 days does

not amount to a moot point in view of the alternative

relief for the monetary value of the removed items

which was granted.

The 2nd Respondent also filed a brief of argument on the

26-6-2015. It was settled by G.O ASUMAH Esq. Two

issues were formulated therein as follows:-

(1) Whether by the complaints and reliefs of the 1st

Respondent sought, the trial Court was right to have

ordered its reinstatement when it did not prove and

title to land?

(2) Whether the trial Court was right in awarding

Exemplary Damages of N10, 000, 00.00 (Ten Million

Naira) against the 2nd Respondent being one of the

Respondents in the suit.

The Appellants reply brief of argument is dated and filed on

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14-1-2016.

In the 2nd Respondent’s brief of argument, the conclusion

is that the Appeal has merit and should be allowed, with an

order setting aside the decision of the lower Court

delivered on 2-11-2007. The two issues argued in the said

briefs also attacked the decision of the lower Court while

supporting the stance of the Appellants.

This indeed is contrary to the established principle of law

that the duty of a Respondent in an appeal is to support the

judgment appealed against and not to fight against or

criticize the judgment. He however has the unlimited

option to appeal against the said judgment if dissatisfied

with same. See NIGERIA BANK FOR COMMERCE &

INDUSTRY VS INTERGRATED GAS (NIG) LTD (2005)

ALL FWLR (PT 250) Page 1; EMEKA VS OKADIGBO

(2012) 18 NLWR (PT 1331) 55 at 97; FEDERAL

MORTGAGE FINANCE LTD VS EKPO (2005) ALL

FWLR (PT 248) 1667.

Having failed to appeal against the said judgment the 2nd

Respondent’s brief of argument which seeks to set aside

the judgment of the lower Court is therefore incompetent

and it is accordingly discountenanced.

I shall however adopt the three issues raised in the

Appellants’

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brief of argument in the consideration of this appeal.

ISSUE 1

Dwelling on this issue, Learned Senior Counsel for the

Appellants submitted that a perusal of the 1st Respondent’s

application in the lower Court reveals that the main relief

sought therein was not for the enforcement of its human

right under Section 44 or any other Section in Chapter

Four of the 1999 Constitution.

He referred to Paragraph 11 to 14 of the affidavit in

support of the said application to further submit that any

alleged forceful entry into another person’s land and

carting away of his property would amount to civil wrong of

trespass and conversion and not breach of fundamental

right. Therefore, having regard to the facts relied by the 1st

Respondent, the alleged breach of its right was not the

main complaint before the lower Court and this renders the

said application incompetent. He cited in support, the case

of UZOUKWU VS EZEONU II (1991) 6 NWLR (PT 200)

708 at 757; GAFAR VS GOVT OF KWARA STATE

(2007) 4 NWLR (PT 1024) 375; FRN VS IFEGWU

(2003) 5 SC 252.

It was further contended that there is no way the lower

Court would have considered the alleged

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breach of the 1st Respondent’s right to property without a

determination of the wrongful entry, that is trespass to the

land in dispute which is a matter outside the jurisdiction of

the Federal High Court vide ACHEBE VS NWOSU (2003)

7 NWLR (PT. 818) 103 and GARFAR VS GOVT.

KWARA STATE Supra.

Learned Senior Counsel also submitted that jurisdiction is

the life-blood of any adjudication, without which no

proceeding, however well conducted can be valid. He cited

the following cases. OHAKIM VS AGBASO (2010) 19

NWLR (PT 1226) 172 SC ; MADUKOLU VS

NKEMDILIM (1962) 2 SCNLR 341; IKE VS NZEKWE

(1975) 2 SC 1 and TUKUR VS GOVT OF GONGOLA

STATE (1989) 4 NWLR (PT 117) 517.

He then urged this Court to resolve the issue in favour of

the Appellant.

ISSUE NO 2

Herein Learned Senior Counsel submitted that the

jurisdiction of the Federal High Court is limited to the

matters specified under Section 251 (1) of the 1999

Constitution. Therefore, if the Applicant’s claim is not

within the ambit of Section 251 (1), the only conclusion will

be that the Federal High Court has no jurisdiction to

entertain the matter. He referred to the case of PORT AND

CARGO

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HANDLING SERVICES CO. LTD VS MIGFO (NIG) LTD

(2008) LPELR (4862) CA. and PPMC VS DELPLU

PETROLEUM INC. (2005) 8 NLWR (PT 298) 458.

While noting that the lower Court rightly found that the

acts complained of by the 1st Respondent were committed

by the Appellants who are agent and agencies of the Lagos

State Government and not the Federal Government and

which finding was not appealed against, it was submitted

that the 1st Respondent’s suit, in so far as it is against the

Appellants’ cannot be classified as a proceeding against the

executive or administrative action or decision of the

Federal Government or any of its agencies as to vest

jurisdiction on the Federal High Court under Section 251

(1) (r). He added that in the circumstance, the lower Court

ought to have declined jurisdiction to hear the application

after its finding that the Appellants are not agents or

agencies of the Federal Government when the alleged

wrongful act was committed.

While conceding that under Section 46 of the Constitution

both the Federal and State High Courts have concurrent

jurisdiction in matters relating to enforcement of

Fundamental Human Rights, it was

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contended that, having regard to Section 46(2) and 251 (r)

of the Constitution of the Federal High Court lacks

jurisdiction to entertain fundamental right matters against

the State Government or any of its agencies as held in

GAFAR VS GOVT VS BUSINESS VENTURE LTD (2000)

5 NWLR (PT 658) 668.

This Court was then urged to resolve the issue in favour of

the Appellant and allow the appeal.

Responding to the Appellants issues (1) & (2) in their own

issue No (1) Learned Counsel for the 1st Respondent

analysed the concept of jurisdiction and its threshold

nature in adjudication and cited the following authorities in

support. AKERE VS GOVT OF OYO STATE (2012) 12

NWLR (PT….) 240; OSAKWE V FEDERAL COLLEGE

OF EDUCATION (TECHNICAL) ASABA (2010) 10

NWLR (PT. 1201) Page 1.

In support of the submission that in determining

jurisdiction of the Court, it is only the Plaintiff’s or

Applicant’s claim that will be referred to and not the

defence, he cited the case of EMEKA VS OKADIGBO

(2012) 18 NLWR (PT 1331) 55; A.G KWARA STATE VS

WARAH (1995) 7 NWLR (PT 405) and ANIGBORO VS

SEA TRUCKS (NIG) LTD (1995) 6 NWLR (PT 399) 35.

Learned Counsel

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then referred to the 6 rel iefs sought in the 1st

Respondent’s originating motion dated 7-2-2007 brought

under the Fundamental Rights Enforcement Procedure

Rules and which reliefs were hinged on the enforcement of

its fundamental right to property as enshrined in Section

44(1) of the 1999 Constitution.

He added that by the said provision, the nature or type of

the moveable property is immaterial and title to the

immovable property is not also required as long as the

person has an interest in the said property and a violation

of any of such rights by the state amounts to an infraction

of a person’s fundamental right.

Further reference was made to Section 46(1) of the 1999

Constitution to contend that a violation of Section 44

entitles an aggrieved person to approach the High Court of

a State or the division of the Federal High Court where the

breach occurred for redress. He relied on JACK VS

UNIVERSITY OF AGRICULTURE MAKURDI (2004) 4

WRN 91 at 102; EGBUONU VS BORNU RADIO

TELEVISION CORPORATION (1997) 12 NWLR (PT

531) 29.

On the issue whether the main relief sought borders on

infringement of fundamental Human Right, Learned

Counsel

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cited the case of EXECUTIVE GOVERNOR KWARA

STATE VS ALHAJI MOHAMMED LAWAL (2005) 5

WRN 142 at 172 to submit that, if the Applicant’s

complaint relates primarily to the violation of any of his

rights guaranteed under Chapter 4 of the Constitution,

then the enforcement of Fundamental Rights is the main

plank of the action and such action can be brought under

Section 46 of the Constitution in either the Federal High

Court where the violation took place or in the High Court of

that State.

He added that in the instant case, all the reliefs sought by

the 1st Respondent relates to the infringement of the right

to moveable or immovable property as the Declaratory and

injunctive reliefs as well as damages sought are hinged on

its properties that were violently and forcibly carted away

by the Appellants and others. The 1st Respondent did not

seek any relief pertaining to title to any land but only

sought for restoration into possession of the land from

which it was forcibly evicted.

On the Appellants’ contention that they are not Federal

Government agencies but that of Lagos State, Learned

Counsel referred to the decision of the lower Court to

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argue that there was nowhere in the Ruling where it washeld that the Appellants were solely responsible for theinfractions but held generally that the actions of all theRespondents to the suit constitute a violation of the 1stRespondent’s right under Section 44 of the 1999Constitution and there is no appeal against the said findingwhich renders it binding and subsisting. Vide OGUNYADEVS OSHUNKEYE (2007) 15 NWLR (PT 1057) 218;ONIBUDO VS AKIBU (1982) 7 SC 60; ANYADUBA VSNRTC LTD (1992) 5 NWLR (PT 243) 35; UNITY BANK(NIG) PLC VS BOUARI (2008) 7 NWLR (PT 1353) 207at 271.

On the effect of having a Commissioner of Police as a partyin a suit in which declaratory reliefs inter alia, are soughtby an Applicant as relating to jurisdiction. Learned Counselreferred to the case of NATIONAL UNION OF ROADTRANSPORT WORKERS VS ROAD TRANSPORTEMPLOYERS ASSOCIATION OF NIGERIA (2015) 10WRN Page 1 at 27 which he says puts the picture clearerin a suit seeking declaratory and injunctive reliefs againstan agency of the Federal Government under Section 251(1) (r) of the 1999 Constitution.On the Appellants reliance on the case ofGARFAR VSGOVT KWARA

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STATE (Supra) to contend that the Fundamental Right

breached must relate to a matter which falls within the

special jurisdiction of the Federal High Court. Learned

Counsel cited the case of NURTW VS RTEAN (Supra) to

submit that in a suit seeking declaratory and injunctive

reliefs against an agency of the Federal Government, the

Federal High Court has jurisdiction to entertain it by virtue

of Section 251 (1) (r) of the 1999 Constitution. He urged

this Court to resolve the issues in favour of the 1st

Respondent.

Dwelling on the 1st Respondent’s issue No 2, Learned

Counsel submitted that the issue as to the return to the

items removed by the Appellants had become a moot point

upon the expiration of the 30 days given by the lower

Court, thereby making the live issue left to be the payment

of the sum claimed in the alternative.

On the issue No 3 raised in the Appellants’ brief, it was

submitted that the said issue does not arise from any of the

three grounds of appeal and grounds 3 relied on by the

Appellant is confined to the grant of an abandoned relief

for the return of 1st Respondent’s properties which was not

asked for and not the

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grant of the relief for special damages which was asked for

in the alternative. He added that any issue raised or

arguments advanced on an issue not arising from a ground

of appeal are incompetent. Vide OSINAPEBI VS SAIDU

(1982) 7 SC 104 at 11; WESTERN STEEL WORKS LTD

VS IRON STEEL WORKERS UNION OF NIGERIA

(1987) 1 NWLR (PT 49) 284.

On the argument by the Appellants that the alternative

claim for the monetary value of the items requires proof by

credible oral evidence because it is in the nature of special

damages. Learned Counsel submitted that Fundamental

Right proceedings is by affidavit evidence and clearly sui

generis and the facts deposed therein were not challenged

or controverted by the Appellants and as such are deemed

admitted as true and correct.

It was further submitted that Exhibits ZV6 to ZV 25

attached to the affidavit in support of the application are

delivery invoices giving details of how the 1st Respondent

came about, the items, the specific amounts and the

quantities and this pieces of evidence was not contradicted,

thus giving the Court no choice than to award the amount

of damages claimed. Vide INCAR (NIG) LTD VS MRS

ADEGBOYE

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(1985) 2 NWLR (PT 8) 453.

This Court was then urged to uphold the decision of the

lower Court and dismiss the appeal.

In the Appellants reply brief of argument dated and filed on

14-1-2016, it was submitted in response to 1st

Respondent’s issue No (1) that a careful perusal of the 1st

Respondent’s affidavit and exhibits in support will reveal a

history involving title to the property at 1A Ozumba

Mbadiwe Street, Victoria Island, Lagos which forms the

gravamen of the suit but the 1st Respondent came under

the guise of the Fundamental Rights enforcement

procedure to obtain relief in title to land. Reference was

then made to Paragraphs 8 to 19 of the affidavit in support

to strengthen the contention that the subject matter of the

suit is land, trespass to land and easement. The following

cases were relied on. WAEC VS AKINKUNMI (2008) 9

NWLR (PT 1091) 151; PETERSIDE VS I.M.B (NIG)

LTD (1993) 2 NWLR (PT 278) 712; EGBUONU VS

BORNU RADIO TELEVISION CORPORATION (Supra)

ABDULHAMID VS TALAL AKAR (2006) LPELR (24)

SC.

On the 1st Respondent’s issue No 2, it was submitted that

the contention by the 1st Respondent that the lower Court

has

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jurisdiction to entertain the suit because the 2nd, 3rd 5th

Appellants agents of the Federal Government are not

grounded in law and based on the following authorities

OMOTESHO VS ABDULLAHI (2008) ALL FWLR (PT

402) 1114; NABORE PROPERTIES LTD VS PEACE-

COVER (NIG) LTD (20140 LPELR (22586) CA; NURTW

VS RTEAN & ORS (2012) LPELR (7840) SC.

It was thus submitted that the subject matter of the suit

borders on land, title to land, and the alleged tortuous acts

of trespass to land, chattel and detinue in which the lower

Court lacks jurisdiction to entertain because it falls outside

Section 251 (1) of the 1999 Constitution.

On the contention by the 1st Respondent that the 2nd, 3rd

and 5th Respondents are agents of the Federal

Government, it was submitted that an agency relationship

exists when an agent acts on behalf of another called the

principal within a defined scope of authority and in the

instant case the 2nd, 3rd and 5th Respondents, based on

the allegations against them, acted as agents of the Lagos

State Government and not the Federal Government as to

vest the Federal High Court with jurisdiction.

This Court was then urged to allow the

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appeal.

On issue 1, that is whether the complaints and relief sought

are cognizable under Section 44 of the 1999 Constitution

(as amended) as to confer jurisdiction on the Federal High

Court.

Jurisdiction is a threshold issue in adjudication by a Court

of law and as such, it is basically considered expedient and

germane to resolve same before proceeding to consider any

suit before a Court on the merit. This is premised on the

reality that determination of a matter by a Court will

amount to a nullity and exercise in futility if done without

jurisdiction.

In other words, jurisdiction is the basis on which any Court

or Tribunal tries a case because it is the authority it has to

decide on a matter before it. See GALADIMA VS TAMBAI

(200) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU

(1989) 6 SC. (PT. 11) Page 1; YUSUF VS OBASANJO

(2004) 5 SCM 193; AJAO VS ALAO (1986) 5 NWLR (PT

45) 802; MADUKOLU VS NKEMDILIM (1962) 2

SCNLR 341.

In A.G RIVERS STATE VS A.G AKWA-IBOM STATE

(2011) 8 NWLR (PT 1248) 31, the Supreme Court held at

page 165 of the Report that:-

“When a Court’s jurisdiction is challenged by the

defence being a threshold issue, the

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Court must first be competent before it can proceed

to adjudicate on the case on the merits. The reason

being that jurisdiction is a radical and crucial

question of competence.

Either the Court has no jurisdiction to hear the case

or it has not. It is very expedient for a Court to

examine and determine whether it has jurisdiction

before proceeding any further in a matter.”

Furthermore, jurisdiction of Court is granted by statute or

Constitution and not by the Courts. In this regard, no Court

shall have jurisdiction to go beyond the provisions of the

enabling law. Otherwise, it will be ultra vires. See UGBA

VS SUSWAM (No. 2) (2012) 6 S.C (PT 11) 56.

See also ADETAYO VS ADEMOLA (Supra) where

Supreme Court held inter alia, that the fundamental nature

of jurisdiction is that it does not exist in a vacuum because

all the Courts of law derive their power, authority and

therefore jurisdiction either under the Constitution or

under specific statutes, in that respect no Court can

assume jurisdiction in the absence of having been

constitutionally and statutorily empowered to do so.

In this regard, the jurisdiction of the Federal High Court is

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derived from Section 251 (1) of the 1999 Constitution (as

amended) and Section 7 of the Federal High Court Act.

As per the enforcement of the Fundamental Human Rights

the Constitution in Section 46 provides thus:-

46 (1) “Any person who alleges that any of the

provisions of this chapter has been, is being or likely

to be contravened in any state in relation to him may

apply to a High Court in that state for redress.

46 (2) subject to the provisions of this Constitution, a

High Court shall have jurisdiction to hear and

determine any application made to it in pursuance of

the provisions of this Section and may make such

order, issue such writs and give such directions as it

may consider appropriate for the purpose of

enforcing or securing the enforcement within that

state of any right to which the person who makes the

application may be entitled under this chapter.”

The High Court referred to in the Section has been held to

mean the Federal High Court or the High Court of a State.

It follows that any person whose fundamental rights as

detailed in the 1999 Constitution (as amended) has been, is

being or likely to be contravened in

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any State in relation to him may apply to either the Federal

High Court in that State or the High Court of that State,

depending on whether the breach complained about is

within the ambit of the subject matter jurisdiction of either

of the Courts. Put in simple terms the jurisdiction of the

Federal High Court to entertain an application for the

enforcement of a person’s fundamental right is limited to

and circumscribed by Section 251(1) of the Constitution.

Conversely, the High Court of a State has no jurisdiction to

hear a fundamental rights application on any matter within

the exclusive jurisdiction of the Federal High Court.

This position was made very clear by the Supreme Court in

the case o f ADETONA VS IGELE GENERAL

ENTERPRISES LTD (2011) 7 NWLR (PT. 1247) 535 AT

504 per Tabai JSC as follows:-

Although, unlike the 1979 Constitution, Section 318

(1) of the present Constitution does not define “High

Court”, there is no doubt that the terms carries the

same meaning as given by Section 277 (1) of the 1979

Constitution to mean Federal High Court or High

Court of a state. Therefore, it is my understanding

that where a person’s

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fundamental right is breached, being breached or

about to be breached, that person may apply under

Section 46(1) to the judicial division of the Federal

High Court in the State or the High Court of the State

or that of the Federal Capital Territory in which the

breach occurred or is occurring or about to occur.

This is irrespective of whether the right involved

comes within the legislative competence of the

Federation or State or the Federal Capital Territory.

See the case of MINISTER OF INTERNAL AFFAIRS V.

SHUGABA (1982) 3 NCLR 915. It has to however be

noted that the exercise of this jurisdiction by the

Federal High Court is where the fundamental right

threatened or breached falls within the enumerated

matters on which that Court has jurisdiction. Thus,

fundamental rights arising from matters outside its

jurisdiction cannot be enforced by the Federal High

Court. See: TUKUR V. GOVERNMENT OF GONGOLA

STATE (1989) 3 NSCC 225; (1989) 4 NWLR (PT. 117)

517. Equally, a High Court of a state shall lack

jurisdiction to entertain matters of fundamental

rights, although brought pursuant to Section 46(2) of

the Constitution where the alleged breached of such

matters

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arose from a transaction or subject matter which fall

within the exclusive jurisdiction of the Federal High

Court as provided by Section 251 of the Constitution.

The Appellants complaint is that the main and principal

relief sought by the 1st Respondent was not for the

enforcement of fundamental right under Section 44 of the

Constitution and since the alleged breach was tied to the

wrongful entry into a piece of land in dispute, a Federal

High Court has no jurisdiction to hear the matter.

The reliefs sought by the 1st Respondent in the lower Court

had earlier been set out in this judgment and the learned

trial judge in his Ruling on the issue held at page 237 to

239 of the Record as follows:-

“On the basis of the totality of the affidavit evidence I

find that the 7th Respondent on the 27th of August

2006 entered the premises at No. 1A Ozuba Mbadiwe

St., Victoria Island, Lagos to evacuate the Applicant’s

properties on the premises and to dispossess the

applicant of the premises. The crucial question in this

application is: Was the act of evacuating the

properties on the premises and dispossessing the

Applicant of the premises in

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the manner and for the purposes prescribed by law? If

the answer to this question is in the negative then

there is a clear contravention of the constitutional

right of the Applicant guaranteed by S.44 of the 1999

Constitution above reproduced.

The totality of the affidavit evidence in this

application shows that the Applicant had been

occupying the premises at No. 1A Ozumba Mbadiwe

St., Victoria Island, Lagos since 1983. Exhibit ZV1

shows that in 1989 the Applicant sued six persons,

including the Governor of Lagos State, the Task Force

on Environmental Sanitation and the Attorney-

General of Lagos State in respect of this land. The

task Force dispossessed the Applicant of the premises

and the Court restored the Applicant to possession of

the premises. The incident on 26th August 2006 is the

second incident. The Applicant appears to me to be a

person who in respect of the premises has been

acting on the basis of a claim of right. The only lawful

manner of taking over possession of premises from a

person who is in occupation of the premises on the

basis of a claim of right is to apply to the Court for

possession. In Governor of Lagos State vs. Ojukwu

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(1986) 1 NWLR (pt. 18) 621 at 636 Obaseki, JSC as he

then was stated thus:-

“If the Govt. of Lagos State wants possession from

Chief Emeka Odumegwu Ojukwu it should apply for

an Order of possession from the competent Court of

law”.

It is settled that to dispossess a person in occupation

of land on the basis of a claim of right of the land by

resorting to extra-judicial self-help methods is

contrary to the rule of law and the Constitution. See

Agbor vs. Metropolitan Police Commissioner (1969) 1

WLR703 at page 707 where Lord Denning M.R.;

stated thus:-

“The plain fact here is that Mr. and Mrs. Agbor claim

as of right to be entitled to possession of the ground

floor of this house. They occupied it on February 4.

They entered by stealth. They used a key that had

been left behind. But they did it under a claim of

right. It may be that they had no much right as they

claimed. But even so the proper way to evict her was

by application to the Courts of law. No one is entitled

to possession of premises by a strong hand or with a

multiple of people. That has been forbidden even

since the statute of Richard II against forcible entry.

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This applies to the police as much as to anyone else.

It applies to government departments also ….. They

must not take the law into their hands. They must

apply to the Court for possession and act only on the

authority of the Court …… seeing however that

possession was taken from her wrongfully it should be

restored to her. Thus only can the law be vindicated.

If she is to be turned out it must be by due processes

in the Courts of law and not by action of the

executive. …. in my judgment this Court should make

an interim order that she be restored to her

possession of this flat. The final rights can be decided

later.”

In the present action the affidavit evidence is that the

Respondents curiously by extra judicial methods,

without an order of the Court as their shield violently

dispossessed the Applicant of the premises and carted

away his valuable properties. It is well if a Task force

is used to execute Court orders and to thereby

dispossess citizens of proprietary rights. A task force

cannot in a civilized society be used to carry out

administrative or executive orders to dispossess

citizens of proprietary rights.

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The moveable and immoveable properties of the

applicant in this case have been taken possession of

compulsorily not in a manner prescribed by law.

There is clearly a violation of the fundamental right

of the Applicant enshrined in Section 44 of the 1999

Constitution.”

I am indeed inclined to agree with the findings and holding

of the learned trial judge and my stance is based on the

main reliefs sought by the 1st Respondent which is for a

declaration that the forcible breaking in and carting away

of the 1st Respondent’s properties from the premises

occupied by it violates its right to property guaranteed by

Section 44 of the 1999 Constitution and also a declaration

that the continued occupation of the said premises by the

Appellants is illegal and unconstitutional.

Section 44(1) of the Constitution of the Federal Republic of

Nigeria 1999 (as amended) provides thus:-

“Section 44(1) No moveable property or any interest

in an immoveable property shall be taken possession

of compulsorily and no right over or interest in any

such property shall be acquired compulsorily in any

part of Nigeria except in the manner and for

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purposes prescribed by law that, among other things:-

(a) Requires the prompt payment of compensation

therefore; and

(b) gives to any person claiming such compensation

right of access for the determination of his interest in

the property and the amount of compensation to a

Court of law or Tribunal on body haring jurisdiction

in that part of Nigeria.”

The wordings of the above set out provision is clear and

unambiguous and gives every citizen of this country,

including legal entities the right to seek redress in Court by

way of enforcement of their fundamental right where their

property whether moveable or immoveable is taken

possession of compulsorily and without due process of law

being adhered to.

The 1st Respondent in Paragraphs 8 to 23 of the facts in

support of the statement annexed to the application gave a

full detail of events leading to the forcible entry and carting

away of its property. This includes that in 1983 it was

authorized by the Lagos State Governor to move into the

land. Though it was evicted sometime in 1989 by the Lagos

State Task force on Environmental Sanitation it sued the

said body and was subsequently

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restored back into possession of the said premises, at No.

1A Ozumba Mbadiwe Street Victoria Island, Lagos by the

order of a High Court which declared the action unlawful

and it had remained in peaceful occupation there on till

2006 when it received a notice dated 24/2/06 from the 5th

Appellant to vacate the premises within three days. The 1st

Respondent further averred in Paragraphs 20, 24, 25 & 26

of the facts in support as follows:-

(20) “On the morning of Sunday, August 26, the

Respondents broke into the Applicant’s premises on

Ozumba Mbadiwe Street, Victoria Island, Lagos and

forcible evacuated the Applicant’s equipment,

machinery and spares as well as properties belonging

to other associates of the Applicant. The evacuation

continued for days afterwards unabated as the

Respondents came with fiery, armed Policemen to

prevent any of the Applicant’s staff and associates

from moving near the land.

(24) The Applicant has been totally crippled in its

business due to the acts of the Respondents in

forcibly removing and carting away all its machines,

equipment and spares and is thereby suffering severe

loss and

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damages.

(25) The Respondents acted with utmost and brazen

impunity in breaking-in and forcibly removing all the

Applicants, machines, equipment and spares from the

Applicant’s premises. The Respondents clearly acted

in total disregard for due process and the Applicant

right, while damning the consequences.

(26) The Respondents have remained totally defiant

and recalcitrant despite the Applicant’s various

petitions on the unlawful breaking-in and carting

away of its property to.”

Exhibit ZV 29 which is the copy of a police Report attached

to the 1st Respondent’s further affidavit dated 1-2-2007

showed that the 2nd 3rd and 5th Appellants confirmed that

all properties they evacuated from the said premises were

deposited at the Task Force yard, Governor’s Office,

Alausa, Ikeja. This is a clear proof that the 1st

Respondent’s properties were indeed forcibly carted away

from the premises at No. 1A Ozumba Mbadiwe Street,

Victoria Island, Lagos and taken to the 5th Appellant’s

yard.

The Appellants did not in any way show or justify the said

act of forceful taking away of the properties as

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having been done in a manner or for the purposes

prescribed by law. In the circumstance, I cannot but agree

with the holding of the lower Court that the said act by the

Appellants and their agents constitute an infringement of

the rights of the 1st Respondent as guaranteed under

Section 44 of the 1999 Constitution (as amended) and as

such justifies the main relief claimed by the 1st

Respondent.

On the contention that the alleged breach was tied to the

issue of trespass and title to land which removes it from the

jurisdiction of the Federal High Court. The learned trial

judge in his Ruling at pages 239 to 240 of the Record

addressed the issue as follows:-

“The Learned Counsel for the 1st, 3rd, 5th 6th and

7th Respondent and the Learned Counsel for the 8th

Respondent have submitted that the subject matter of

the action is a land dispute and that this Court

therefore has no jurisdiction to entertain the suit.

There is not evidence in this case that there is a land

dispute between the Applicant and any of the

Respondents. The land dispute referred to in the

affidavit evidence is a dispute between Jaja

Wachukwu family and Fourstar Industries

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Limited. Both Jaja Wachankwu Family and Four State

Industries Limited are not among the Respondents in

this case. Considering the totality of the affidavit

evidence and the reliefs of the present action it is

clear beyond doubt that this is a case in which the

Applicant has complained of infringement of his

fundamental right. It is not a land dispute. This Court

has jurisdiction to entertain the suit. The reliefs

claimed by the Applicant in this case come within the

purview of the fundamental right as enshrined in

Sections 44 of the 1999 Constitution. This Court

therefore has jurisdiction to entertain the suit. See

Nwaogwugwu vs. Duru (supra) at page 280.

The Learned Counsel for the 1st, 3rd, 5th, 6th and 7th

Respondent has submitted that the identity of the

land is not certain. The affidavit evidence in this case,

particularly Exhibits ZV1-ZV29 and the other

documents annexed to the affidavit in support of the

application show beyond doubt that the premises

from which the 7th Respondent did the evacuation is

the premises at No. 1A Ozumba Mbadiwe Street,

Victoria Island, Lagos. The pleadings in suit No.

LD/2161/04 not be before me in this application

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it has not been shown that this case is on the basis of

suit No. LD/2161/04 an abuse of Court process. This

suit is not an abuse of Court process.

On the whole it is my firm view that the actions of the

Respondents complained of constitute a violation of

the Applicant’s right under Section 44 of the 1999

Constitution. Reliefs one, two and three of the action

therefore ought to be granted."

It is my humble view that the learned trial Judge was right

in holding that from the reliefs sought by the 1st

Respondent and the totality of the affidavit evidence

available before the Court for consideration, it is not

disclosed that the application for the enforcement of the 1st

Respondents right is hinged on a land dispute. An Appellate

Court is always reluctant to alter or set aside the findings

of fact by the trial Court unless it is apparent that such

findings are perverse. See OLABANJI VS OMOKEWU

(1992) 7 SCNJ 266; OLARENWAJU VS GOVERNOR OF

OYO STATE; (1992) 11-12 SCNJ 92; MOTUNWASE VS

SORUNGBE (1988) 5 NWLR (PT 92) 90. Accordingly,

this issue is resolved against the Appellants.

On issue 2, which borders on whether the Federal High

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Court ought not to have declined jurisdiction to hear the

matter having found that the Appellants who carried out

the alleged acts are agencies of the Lagos State

government and not that of the Federal Government.

The Supreme Court has in a number of cases in recent

times settled the issue, that for the Federal High Court to

have jurisdiction under Section 251 of the 1999

Constitution (as amended) the following must co-exist:

(a) The parties or a party must be the Federal

Government or its agencies.

(b) The subject matter of litigation.

See the case ofOBIUWEBI VS CENTRAL BANK OF

NIGERIA (2011) 7 NWLR (PT 1247) 465 and

NATIONAL UNION OF ROAD TRANSPORT WORKERS

VS ROAD and TRANSPORT EMPLOYERS ASSN OF

NIGERIA (2012) LPELR (7840) SC. Also in PDP VS

SYLVA (2012) 13 NWLR (PT 1316) 85 at page 138 it

was held that:-

“When the jurisdiction of the Federal High Court is in

issue, the following must co-exist:-

(a) The parties or party must be the Federal

Government or its agency.

(b) Subject matter of Litigation.”

See also WEMA SECURITIES FINANCE PLC VS

N I G E R I A A G R I C U L T U R A L I N S U R A N C E

CORPORATION (2015) 16 NWLR (PT

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1484) 93.

It is therefore now settled that jurisdiction is a combination

of parties and subject matter and not enough only to have

an agency of the Federal Government before the Federal

High Court will have jurisdiction.

In the instant case, having earlier resolved issue 1 on the

premise that the main relief sought by the 1st Respondent

is covered by Section 44 of the Constitution which

guarantees the right to property. The Federal High Court

therefore has jurisdiction to entertain same by virtue of

Section 46 (1) of the Constitution, subject however to the

satisfaction of the requirement of party in litigation.

For the Appellants, they are agencies of the Lagos State

Government and not that of the Federal Government and

this wrests jurisdiction from the Federal High Court even

with the inclusion of the 2nd Appellant who is a police

officer but acted only as agent of the Lagos State

Government.

This is certainly correct going by the parties in the Appeal

under consideration, but the Appellants seems to have

ignored the fact that in the suit appealed against and as

presented to the lower Court by the 1st Respondent, the

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Commissioner of Police Lagos State and the Divisional

Police Officer, Bar Beach Police Station were the 2nd and

4th Respondents respectively. They were parties to the 1st

Respondent’s application for the enforcement of its

fundamental rights presented before the lower Court. By

any standard of argument, the commissioner of police

cannot be said to have also acted as an agent of the Lagos

State Government.

The 1st Respondent in the said application sought some

declaratory reliefs against the Respondents at the lower

Court and that includes the commissioner of police of the

Nigeria Police Force which no doubt is an agency of the

Federal Government. See NURTW V. RTEAN & ORS

(supra). It must be borne in mind that it is the claim of the

plaintiff which in this case is the 1st Respondent’s

Originating motion that a Court will examine to determine

whether or not it has jurisdiction to entertain the suit. See

LADOJA VS INEC (2007) 4 WRNI.

It is my view therefore, that the inclusion of the

Commissioner of Police who represents an agency of the

Federal Government, as a party in the action gives the

Federal High Court the lee way to assume

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jurisdiction to hear the matter. Thus having satisfied the

twin requirement of parties in litigation and subject matter

of litigation, the lower Court cannot be faulted for

assuming jurisdiction to entertain the 1st Respondents

application for the enforcement of its fundamental right.

This issue is therefore resolved against the Appellants.

ISSUE NO 3.

This deals with whether the lower Court was right to have

granted the 1st Respondent’s claim for the return of the

properties removed from No. 1A Ozumba Mbadiwe Street,

Victoria Island, Lagos, or in the alternative, pay damages of

$5, 707, 297, 90 (US Dollars) being the invoice value of the

properties.

The Appellants’ grouse, is that the said claim or relief for

return of property had earlier been abandoned by the 1st

Respondent and the lower Court ought not to proceed to

grant the same relief. Also that the alternative monetary

relief cannot be granted without proof of same by credible

oral evidence because if is in the nature of special

damages.

For the 1st Respondent, it had deposed to the items of

special damages and attached invoices as evidence in proof

as

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Exhibits ZV6 to ZV25, and this was not contradicted by the

Appellants. The lower Court had in granting the relief

sought, ordered as follows:-

4. The Respondents are hereby ordered to return

within 30 days to the Applicant all the properties of

the Applicant including machinery equipment, loader

trucks, cranes and vehicle which the 7th Respondent

removed or carted away from the premises at No. 1A

Ozumba Mbadiwe St. Victoria Island, Lagos on or

about the 26th of August 2006.

In the alternative if the Respondents fail to return the

properties to the Applicant the sum of $5, 707, 297.

90 be the invoice value of the properties removed

from the premises of the Applicant by the 7th

Respondent.

However, it had earlier been recorded in the said Ruling at

page 225 of the record that the 1st Respondent did seek to

withdraw Paragraph (d) of the reliefs sought. Indeed a

perusal of the said record of appeal show that in the 1st

Respondent’s written submission in the lower Court it was

stated at page 135 as follows:-

“The Appellant seeks to withdraw the main relief in

Paragraph (d) for the return of its properties forcibly

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removed by the Respondents. Consequently, the

ALTERNATIVE relief for the monetary value of its

properties would now be its main relief in that

paragraph.”

It seems to me that the import of the above set out

statement in the 1st Respondents written address is that it

abandoned Paragraph (d) of the reliefs sought and in its

place relies on the claim for special damages of the total

sum of $5,707,297,90 (US Dollars) which claim had earlier

been sought as an alternative relief.

It is therefore wrong, no doubt, for the lower Court to have

proceeded to grant the said relief for return of the

properties carted away and that it should be done within 30

days failing which the Appellants and the 2nd Respondent

are to pay the sum of $5 707, 297, 90 (US Dollars) being

the invoice value of the said properties so removed from

the 1st Respondent’s premises.

Having expressly abandoned the claim in Paragraph (d) of

the reliefs sought, the said claim is deemed as non existent

and not to have been asked for by the 1st Respondent.

The law is trite that the Court is without power to award to

a claimant that which he did not claim. A

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Court of law may award less but not more than what the

parties claimed. More so, the Court should never award

that which was never claimed or pleaded by either party. It

should therefore be borne in mind that a Court of law is not

a charitable organization and its duty in civil cases is to

render unto everyone according to his proven claim. See

EZEONWU VS ONYECHI (1996) 2 NWLR (PT 438)

499; EKPEYONG VS NYONG (1975) 2 SC 65; AGU VS

ODOFIN (1992) 3 SCNJ; A.G. CROSS RIVER STATE VS

A.G. OF THE FEDERATION (2005) ALL NLR 144.

In the instant case, the 1st Respondent having expressly

abandoned relief (d) claimed in the originating motion, the

lower Court is totally devoid of the power to restore and

award same against the Appellants. I therefore agree with

the submission of the learned Senior Counsel for the

Appellants that the said claim in Paragraph (d) ought not to

be granted but struck out as abandoned. As to whether the

lower Court ought to have awarded the alternative claim

for special damages in the sum of $5,707, 29, 90 (US

Dollars). It is an established principle of law that where a

claim is in the alternative, the Court should first consider

whether the

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principal claim ought to have succeeded. It is only after the

Court may have found that it could not, for any reason,

grant the principal or main claim that it would then

proceed to consider the alternative claim. The Court is

therefore not shut out from considering and deciding on

the alternative claim because the main claim is not

established. See C.O.P. VS OGUNTAYO (1993) 7 SCNJ

66; G.K.F. INVESTMENT (NIG) LTD VS NITEL PLC

(2009) 6-7 SC (PT 11) 163; XTOUDOS SERVICES NIG.

LTD. ANOR VS TAISEI (WA) LTD (2006) 6 SCNJ 300.

In the case under consideration the abandonment of the

claim in Paragraph (d) by the 1st Respondent renders it not

grantable and gives room for the lower Court to consider

the alternative claim as presented by the 1st Respondent.

Rather than that being the case, the lower Court adopted

the alternative claim as an option to the failure of the

Appellants to comply with the main claim that had been

abandoned. This no doubt amounts to putting something on

nothing which end result is a total collapse. By ordering the

Appellants to return the properties which the 5th

Respondent carted away within 30 days and which if not

complied with, they

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shall in the alternative pay the sum of $5, 707 297, 90 (US

Dollars) being the invoice value of the properties removed

from the 1st Respondent’s premises. The lower Court no

doubt awarded a claim not sought for by the 1st

Respondent.

But assuming that the alternative claim for special

damages in the sum of $5, 707,297, 90 (US Dollars) were to

be considered as an alternative claim. It is trite law that

special damages are in a class of their own, requiring strict

proof which can only be established by credible and

ascertainable facts which have been specifically pleaded

and of course strictly proved. ANAMBRA STATE

ENVIRONMENTAL SANITATION AUTHORITY VS

EKWENEM (2009) 6-7 SC 5; AKINKUGBE VS

EWULUM HOLDINGS (NIG) LTD (2008) 4 SCNJ 404.

Special damages are not meant to be inferred from the

nature of the act complained of and do not follow in the

ordinary course as is the case with general damages. They

are exceptional and so they must be specifically claimed

and strictly proved. SeeNNPC VS KLIFCO (NIG) LTD.

(2011) 4 SC (PT 1) 108. In the instant case, the only

proof before the Court and as canvassed by the 1st

Respondent in page 19 of its brief of

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argument are Exhibits ZV6 to ZV 25 which are said to be

delivery invoices by which the various items were delivered

to the 1st Respondent. The lower Court also relied on same

without any further proof to hold at page 242 of the Record

as follows:-

With regard to relief 4 there is evidence which shows

that the properties of the Applicant were evacuated

by the Respondents. The Applicant has listed the

properties in Paragraph 25 of the affidavit in support

of the Motion on Notice and the invoice issued in

respect of the properties have been annexed to the

affidavit in support as Exhibit ZV6-ZV25. The invoices

show that the items were brought in October 1988.

The total invoice value of the items is stated to be $5,

707, 297. 90. I think this action be an application

presented under the Fundamental Right

(Enforcement Procedure) Rules 1979 in which there

is no trial for the evidence relating to the invoices to

be rested the appropriate Order to be made is an

Order for the return of the properties listed in

Paragraph 25 of the affidavit in support which were

carted away from the Applicant’s premises by the 7th

Respondent.

From the above set out

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finding of the lower Court, it is clear that there was no

evaluation of the affidavit evidence before the Court nor a

specific finding made whether the claim for special

damages was strictly proved in compliance with the law.

The mindset of the learned trial Judge on the issue is made

apparent when he held and rightly too, that the action

being an application for enforcement of fundamental right,

there is no room for evaluation of the evidence relating to

the invoices, in which case the appropriate order to be

made is an order for the return of the properties removed

from the 1st Respondent’s premises. He indeed ignored the

fact that the relief for the return of the said properties had

earlier been abandoned by the 1st Respondent. Little

wonder then that he proceeded albeit erroneously to award

a claim not asked for by the 1st Respondent.

The learned trial Judge made a correct finding that the

claim for special damages was not strictly proved because

there was no room for the evidence to be tested given the

nature of the action before the Court. This indeed tallies

with the submission of the Appellants to the effect that

such claim for special

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damages require proof by credible evidence both oral and

documentary.

The sudden volte face made by the lower Court to attach

the said claim as an alternative to failure to return the

removed properties which is a claim already abandoned by

the 1st Respondent cannot therefore stand having not been

strictly proved according to law relating to special

damages.

This issue is therefore resolved in favour of the Appellant.

In the final result, I hold that this appeal succeeds in part

and it is accordingly allowed in part.

Consequently, except for relief No. 4 which is hereby set

aside, the judgment of the Federal High Court delivered by

DAN ABUTU J. on the 2nd Day of November 2007 is

hereby affirmed.

Parties to bear their costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege

of reading in print the through judgment prepared by my

learned brother, Samuel Chukwudumebi Oseji, J.C.A., with

which I agree and add these words of mine for emphasis.

It is trite the Court cannot award what was not claimed;

nor does the Court award more than what was claimed vide

Eagle Super Pack (Nig.) Ltd. V. A.C.B. (2006) 19

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NWLR

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(Pt. 1013) 20, Oduwole v. West (2010) NWLR (pt.

1203) 598.

A claim for special damages be it in a fundamental rights

action or ordinary action must particularize the damages

claim which must be proved strictly or item by item to

arrive at the total sum claimed. See Saleh v. Bank of the

North Ltd. (2006) 6 NWLR (pt. 976) 316.

I too would allow the appeal in part and abide by the

consequential orders in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned

brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA afforded

me the opportunity of reading in advance the judgment just

delivered. I agree with the reasoning and conclusion

arrived in the lead judgment.

I have nothing more to add. I also allow the appeal in part. I

abide by the orders made in the lead judgment.

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