3PLR – ENWEREMADU V. OHAJURUKA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ENWEREMADU

V.

OHAJURUKA

COURT OF APPEAL

[PORT COURT DIVISION]

3PLR/2001/116  (CA)

 

 

OTHER CITATIONS

FWLR (Pt. 103) 472

 

BEFORE THEIR LORDSHIPS:

JAMES OGENYI OGEBE J.C.A (Presided)

MICHAEL EYARUOMA AKPIROROH, JCA.

ABOYI JOHN IKONGBEH, J.C.A. (Delivered the leading judgment)

 

BETWEEN

PRINCE CHRISTOPHER ENWEREMADU

 

AND

1. MR. STANLEY OHAJURUKA
2. MR. EMEKA STANLEY
3. ABIA STATE HOUSE OF ASSEMBLY
4. THE CLERK HOUSE OF ASSEMBLY ABIA STATE
5. THE GOVERNOR ABIA STATE
6. THE COMMISSIONER OF POLICE ABIA STATE
7. THE INSPECTOR-

GENERAL OF POLICE

 

REPRESENTATION

 

Chief Debo Akande, S.A.N., with him, R.O. Khalidson, Esq. for the appellant

Chief M.A.A. Ozekhome, Esq., with him, A.C. Chioma, Esq, for the 1st to 4th respondents.

Chief A.U. Kalu, S.A.N., Attorney-General, Abia State, with him, J. Ukpai, Esq., for 5th to 7th respondents.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Invalid decisions of lower courts arising from lack of jurisdiction – whether an appeal can lie therefrom.

PRACTICE AND PROCEDURE – APPEAL – Jurisdictional issue – whether can be raised for the first time on appeal.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – dependence of same on a principal claim.

PRACTICE AND PROCEDURE – JURISDICTION – Enabling statute – role of same in defining the nature and scope of a courts jurisdiction.

JURISDICTION – Federal High Court – whether has jurisdiction under section 15 of the Federal High Court Act on matters within the exclusive preserve of a State House of Assembly.

JURISDICTION – Jurisdictional issue – whether can be raised for the first time on appeal.

JURISDICTION – Matters falling within the internal affairs of a State House of Assembly – contest for the seat of the speaker – whether court has jurisdiction over such matters.

JURISDICTION – Where court’s jurisdiction is challenged – what the court should do.

STATUTES – Section 15, Federal High Court Act – whether confers jurisdiction on the Federal High Court to entertain matters within the exclusive preserve of a State House of Assembly.

 

ABOYI JOHN IKONGBEH, J.C.A. (Delivering the leading judgment) This ruling is on a point which this court raised and on which counsel for the parties submitted written briefs of argument on our direction. The point was whether or not the Federal High Court had jurisdiction to entertain the matter before it, which matter in its turn gave rise to the matter now before us. The matter before us is an application wherein the applicant seeks an order of this court.

 

“That the status quo ante bellum which existed before 26/6/2000 be maintained by the parties pending the determination of the substantive appeal.”

 

The appeal pending which this relief has been sought arose this way. Up to the end of business hours on 25/6/2000, the applicant was, and performed the functions of, the Speaker of the Abia State House of Assembly. Because of an unfortunate incident that occurred at the House on 26/6/2000 (and which, in my view, left a big dent on our collective claim to being a civilized nation) the members thereof had to run away to save their lives. Some days later, it came to the attention of the applicant that some members of the House had met after the incident and purported to remove him as Speaker and, in his stead, to elect another member. He felt that this was highly irregular and unconstitutional. To redress it he left Umuahia, the Abia State capital, indeed Abia State, and approached the Abuja Division of the Federal High Court from where he took out a writ of summons (not an originating summons as stated by Chief Debo Akande, S.A.N., in his brief) seeking the following reliefs:

 

“1.     A declaration that his purported removal or impeachment as Speaker of Abia State House of Assembly is unconstitutional, illegal and void and contrary to Section (2)(c) of the 1999 Constitution.

 

2. A declaration that the convening of Abia House of Assembly by the 1st, 2nd and 4th defendants on June 27th, 2000, or any other date is illegal, unconstitutional, ultra vires and void and constitutes a gross violation of the constitutional rights of the plaintiff as the speaker of Abia State House of Assembly guaranteed by section 95 (1) of the 1999 Constitution.

 

3. An order of injunction restraining the 1st and 2nd defendants from parading or holding out themselves and purporting to act or perform any function as Speaker and Deputy Speaker of Abia State House of Assembly.

 

4. An order of injunction restraining the 3rd, 4th,5th and 6th defendants from recognizing and extending to the 1st and 2nd defendants any privileges as Speaker and Deputy Speaker of Abia State House of Assembly.

 

5. An order of injunction restraining the 5th, 6th and 7th defendants their agents and privies from interfering within any manner whatsoever, the plaintiff’s exercise of rights and discharge of his function as the Speaker of Abia State House of Assembly .”

 

6. Any order of injunction restraining the 5th, 6th and 7th defendants from harassing, intimidating, threatening force or the use of force on the person of the plaintiff in the discharge of his duty and performance as the speaker of Abia State House of Assembly.

 

Filed on the same day were a motion ex parte and another one on notice, each seeking the following reliefs:

 

“1      An order of interlocutory injunction restraining the 1st and 2nd defendants from parading or holding out themselves and purporting to act or perform any function as Speaker and Deputy Speaker of Abia State House of Assembly.

 

2. An order of interlocutory injunction restraining the 3rd, 4th, 5th, 6th and 7th defendants/respondents from recognizing and extending to the 1st and 2nd defendants/respondents any privilege as Speaker and Deputy Speaker of Abia State House of Assembly.

 

3. An order of interlocutory injunction restraining the 4th, 5th, 6th and 7th defendants/respondents their agents and privies from interfering with in an manner whatsoever the plaintiff’s exercise of right and discharge of his functions as the Speaker of Abia State House of Assembly.

 

4. An order of interlocutory injunction restraining the 5th, 6th and 7th defendants/respondents their agents and privies from harassing, intimidating, threatening force or the use of force on the person of the plaintiff in the discharge and performance of his duty as the Speaker of Abia State House of Assembly, pending the determination of this suit.”

 

The Federal High Court, Abuja (M.A. Edet, J.) granted the ex parte application. Subsequently, however, the Chief Judge of that court transferred both the substantive suit and the motion on notice to the Port Harcourt Division, within which Abia State falls. The learned Judge in that Division, Abdullahi Mustapha, J., heard the motion on notice and dismissed it. Aggrieved by this, the applicant filed a notice of appeal to this court. It is pending the determination of that appeal that he brought the application before us as noted at the beginning of this ruling.

 

Chief Akande, S.A.N., had almost concluded his arguments on the motion when we raised the issue of jurisdiction and directed that counsel file briefs on it. We felt this necessary because if indeed the Federal High Court lacked the jurisdiction to entertain the matter raised by the writ of summons, then it could not have had the competence to hear or do anything in the motion which has given rise to the appeal filed by the applicant. Once the jurisdiction of a court is called into question it becomes powerless to do anything in the cause or matter before it other than to inquire into the existence, or the lack, of jurisdiction in it to entertain that matter.

 

This is a matter of prudence. If a court lacks the jurisdiction to entertain a cause or matter, it cannot do anything in furtherance of the cause or matter. Anything it does is a nullity, no matter how well done. The only valid thing it can do in the circumstance is to pronounce the fact of its lack of jurisdiction. If, on the other hand, it finds, after due inquiry, that it has jurisdiction then it must say so before it can proceed with the cause or matter before it. It is to avoid engaging in an exercise in futility in the event of its turning out that it has no jurisdiction that prudence and common sense demand that the court put everything on hold until it has taken a decision on the issue of jurisdiction.

 

If for any reason, the issue of jurisdiction is not raised at the trial court level and everybody concerned proceeds on the assumption that there is jurisdiction, this court can still raise it. Courts are creatures of statute. It is the enabling statute that defines the nature and scope of the jurisdiction that the court in question can exercise. That jurisdiction cannot in any way be affected by the consent or ignorance of the parties or the court. (Adeyemi v. State (1991) 6 N.W.L.R. (pt. 195) 1, @ 39). Another reason why this court can, and ought to, investigate the jurisdiction of the lower court is that this court has power to hear appeals from only valid decisions of the lower court. No appeal can lie from an invalid decision. Once this court or, for that matter, any appellate court, becomes convinced that the decision appealed from was made without jurisdiction, its powers automatically shrink down to that of declaring that that decision was given without jurisdiction. It cannot go into the merit of the decision.

 

Chief Akande, S.A.N., has argued that the lower court in the present case had jurisdiction to hear the substantive suit before it and, therefore, the application that it heard. The learned Senior Advocate hinged this conclusion on two contentions. First, he contented that because the orders of injunction sought were against Federal officers, section 251(p), (q) and (r), of the 1999 Constitution which provide:

 

“(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 Court or any of its agencies conferred jurisdiction on the Federal High Court.

 

It was his contention further that section 15 of the Federal High Court Act which provides:

 

“In any case where any person acts in an office in which he is not entitled to act, the court may grant an injunction restraining him from so acting and may (if the case so requires) declare the office to be vacant”

 

also conferred jurisdiction on the Federal High Court since the plaintiff was asking for a declaration that the 1st defendant was occupying an office he was not entitled to occupy.

 

Mr. A. C. Chioma and Chief M.A. A. Ozekhome, each of whom filed a separate brief on behalf of the 1st –4th respondents, and Mr. A. U. Kalu, S.A.N., the learned Attorney-General, Abia State, for the 5th – 7th respondents, were all of one voice in opposition. It was their view that neither section 250(1) of the Constitution nor section 15 of the Federal High Court Act conferred jurisdiction on the Federal High Court over the reliefs sought in the substantive suit. The two counsels for the 1st – 4th respondents pointed out that the main claim in the writ related to the speakership of the Abia State House of Assembly. The orders for injunction were, in their view, sought only as consequential or ancillary reliefs.

 

I could not agree more with counsel for the respondents. Mr. Kalu, S.A.N., referred to the efforts of Chief Akande. S.A.N., as “a valiant but failed attempt to brings the subject matter of the appeal within the scope of the jurisdiction granted the Federal High Court by the Constitution.” I could not agree more with him. I do not agree with Chief Akande S.A.N. that the claim for orders of injunction was the crux of the matter before the lower court. The crux of the matter was clearly the complaint by the applicant that he had been irregularly and unconstitutionally removed as Speaker. He went to court principally to have this situation reversed. He sought the orders of injunction for the sole purpose of effectuating his claim to be reinstated as speaker. This principal claim was not dependent for its success on the orders of injunction. Those orders were indeed subsumed in the main claim. If it is determined that he had indeed been irregularly and unconstitutionally removed and ought to be reinstated, implicit in that determination would be the order that none of the parties should interfere with him in the occupation of the office of Speaker and in the performance of the duties thereof. So that it was not strictly necessary to specifically ask for the order. It is only prudent, for the avoidance of doubt, to include it. Its omission cannot make much difference. On the other hand, the order of injunction cannot exist without it first being determined that the applicant was entitled to be reinstated. The order of injunction is, therefore, clearly subordinate to the claim for the determination of the constitutionality or otherwise of the applicant’s removal as Speaker of the Abia State House.

 

Now, I do not think that Chief Akande, S.A.N. himself can contest, or has contested, that the fight for the seat of the Speaker of the Abia State House of Assembly is a matter that is pre-eminently within the internal affairs of that House. It is a matter of high debate whether or not even the Abia State High Court has jurisdiction to go into it. To try and bring in the Federal High Court is only to introduce a higher degree of debate. The reliance by the learned senior counsel on section 15 of the Federal High Court Act is misplaced. That section does not pretend to confer jurisdiction of the Federal High Court to dabble in matters that are within the exclusive preserve of a State House of Assembly. Nor has the fact that he has sought some consequential reliefs against some Federal Officers converted his suit into a federal cause or matter, which only an apparatus of the Federal Government can handle. The applicant cannot be allowed to use these ancillary reliefs as an excuse to shoehorn his case into the confines of the jurisdiction of the Federal High Court, into which it clearly cannot fit.

 

I have no difficulty at all, having regard to all I have said, in coming to the conclusion that the action of the applicant was outside the purview of the jurisdiction of the Federal High Court. That court had no jurisdiction to entertain

1. It follows, therefore, that it could not have given the decision it gave on the applicant’s application. That decision, was therefore, a nullity. That further being the case, the applicant could not have brought a valid appeal. That being ultimately the case, this application is incompetent, having no appeal on which to hinge itself. It is accordingly struck out.

 

Considering the nature of this case, I do not think it advisable to make any order as to costs. I therefore make none.

 

JAMES OGENYI OGEBE, JCA. I read in advance the ruling of my learned brother Ikongbeh JCA just delivered and I agree with his reasoning and conclusion.

 

Accordingly, I strike out the application for want of jurisdiction. I too make no order as to costs.

 

MICHAEL EYARUOMA AKPIROROH, JCA. I read in draft the ruling of my learned brother, Ikongbeh J. C. A. just delivered and I agree with his reasoning and the conclusion reached by him. I also strike out the application for want of jurisdiction.

 

Case referred to in the judgment.

Adeyemi v. State (1991) 6 NWLR (pt. 195)1 at 39

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1999 – sections 92 and 251.

Federal High Court Act – Section 15.