3PLR – MILITARY ADMINISTRATOR KWARA STATE V. LAFIAGI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

MILITARY ADMINISTRATOR KWARA STATE

V.

LAFIAGI

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/2/96

MONDAY, 1ST JUNE, 1998

3PLR/1993/73  (CA)

 

OTHER CITATIONS

7 NWLR (Pt.557) 202 (CA)

 

BEFORE THEIR LORDSHIPS

UMARU ABDULLAHI;

JAMES OGENYI OGEBE;

IBRAHIM TANKO MUHAMMAD.

 

REPRESENTATION

1. A. Sanni-AG, Kwara state for the Appellants
2. O. Fagbemi, SAN – for the Respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE– COURTS-Federal High Court – Status of

PRACTICE AND PROCEDURE– COURT – Power of Court of Appeal to transfer case to State High Court when Federal High Court lacks jurisdiction to
entertain same.

MAIN JUDGMENT

Lead Judgment Delivered by Abdullahi JCA

The respondent herein as plaintiff, took out a writ of summons before the Federal High Court, Ilorin against the appellants herein, as defendant jointly and severally on 29/5/95, seeking for various declaration and orders. The respondent also filed an ex parte motion as well as a motion on notice together with the writ. The motion ex parte was heard on 5/6/95 and the court granted the application and issued an order of interim injunction against all the appellants pending the hearing of the motion on notice, which was fixed for hearing on 15/6/95.

 

On 14/6/95, the appellants filed a notice of preliminary objection challenging the jurisdiction of the Federal High Court to determine the matter. The notice of preliminary objection was also fixed for hearing on 15/6/95. On 15/6/95, the learned trial judge listened to the parties on the issue of jurisdiction .On the same day, the learned trial judge ruled that his court has jurisdiction to entertain the case. Also on the same day, the learned trial judge ordered the appellants to show cause within ten days why the interim order made ex parte on 5/6/95 should be set aside or varied. The appellants filed an application within the ten days seeking for an order of the trial court to vary or discharge the order made ex parte, but the learned trial judge overruled the application.

 

Consequent upon these developments, the appellants filed two notices of appeal this court. One dealing with the ruling of the trial court on issue of jurisdiction and the second one on refusal of the trial court to vary or vacate the orders made pursuant to an ex parte application.

 

The two notices of appeal were consolidated culminating into this appeal.

 

I think for the purpose of clarity, it will help if the facts of the case are set out briefly.

 

The respondent was the Governor of Kwara State between 1992-1993, as a Civilian Governor. On 17th November, 1993, the military took over power in the country.
There was an allegation that some money running into several millions of Naira were given to the Kwara State Government during the tenure of the respondent by the Federal Government of Nigeria.

 

The money was said to be N120 million as water project grant and N76 million as ecological fund. These sums of money were said to have been misappropriated by the respondent and some other top government officials in his Government.
The 1st appellants decided to investigate the alleged misappropriation of the funds. He set up a judicial panel through a Legal Notice No.3 of 26th April, 1994 to be headed by a High Court judge, Ibitoye J.

 

After some sittings, the Ibitoye panel claimed that it had completed its assignment and sought to submit its report, but 1^st appellant, who appeared to be not satisfied with the work of the panel declined to accept report and ultimately dissolved the
panel.

 

Another panel of inquiry was subsequently constituted also by a Kwara State Legal Notice No.1 of 1995. This panel was also headed by Justice of the Court of Appeal Justice Isa Ayo Salami. This panel commenced sitting. In the course of it’s sitting, it
invited many people to give evidence before it including the respondent. At the conclusion of its investigations, the panel submitted its report to the 1st appellant. A white paper was produced from the report.

 

The 1st appellant was about to start implementing the recommendation of the panel when the respondent went to the Federal High Court on 29/5/95 and took out a writ of summons.

 

In order to get a full picture of the mater, I will venture to set out the particulars of claim filed by the respondent as plaintiff before the Federal High Court. They read as follows: –

 

Particulars of claim

 

“The plaintiff claims against the defendants jointly and/or several as follows: –

 

1. Declaration that the decision and orders made by the 1st defendant against the plaintiff based on the report of the tribunal were null and void and of no effect having been made in violation of the plaintiff’s constitutional rights to fair hearing and principles of natural justice when: –

 

(i)      The tribunal was an investigating body;

 

(ii)     The plaintiff was not given any notice of accusation or charge against him and at no time was he told that he was on
trial;

 

(iii)    The plaintiff was invited by the tribunal as mere witness by the tribunal.

 

(iv)    The plaintiff was not present when about twenty other witnesses testified.

 

(v)     No memoranda or evidence of any witnesses that testified was made available to the plaintiff.

 

(vi)    There was no exchange of memoranda and the plaintiff had no notice of what they were going to say.

 

2. Declaration that the decision of the government of Kwara State directing the plaintiffs to refund the sum of N32 million and to be prosecuted without giving copy of the report which the government acted upon and without affording him the opportunity of reacting to the report is in breach of the plaintiff’s right to fair hearing as guaranteed under the Constitution of the Federal Republic of Nigeria and therefore illegal, unlawful, null and void.

 

3. Declaration that the Commission of inquiry set up by the 1st defendant under and by virtue of an instrument dated the 1st day of January, 1995 and constituted the 4th defendant lacks jurisdiction because: –

 

(a)     it has no power to inquire into alleged misappropriation of funds which constitutes a criminal offence and is exclusively a matter for regular court established under the Constitution;

 

(b)     the power (sic) of expropriation of property given to the investigating tribunal constitutes violation of the plaintiff’s fundamental right.

 

(c)     the funds in issue were special grants which did not form part of the Kwara State Government.

 

4. Declaration that the finding of the investigation commission of inquiry that the plaintiff should refund the sum of N32 million is illegal, unconstitutional, null and void and of no effect.

 

5. Declaration that the 1st defendant was in breach of the rules of natural justice and manifested his bias, malice, and prejudice by setting up the second tribunal of inquiry under Hon. Justice Isa Ayo Salami, J.C.A. by his failure to be bound by the favorable reports and finding of earlier commission of inquiry set up by the same government under Hon. Justice Ibitoye.

 

6. A declaration that in so far as the Tribunal of inquiry of Hon. Justice Isa Ayo Salami is directed to inquire into the roles of the plaintiff who is not person in public service of Kwara State as the 1st day of January1995, the same is illegal, unconstitutional and ultra vires the powers of the therefore null and void.

 

7. Declaration that the Hon. Justice Salami’s inquiry set up by the is 1st defendant to investigate the allegation of misdeeds allegedly committed by the plaintiffs while in office is illegal, unlawful, unconstitutional, null and void and of no effect having been made more than three (3) months after the alleged acts of the plaintiff were committed and or after the plaintiff had left the office.

 

8. An order of perpetual injunction restraining the government of Kwara State and all the defendants jointly and or severally by themselves, their agents, privies and all officers acting through them from acting on the white paper on the commission of inquiry into the activities of the plaintiff under the chairmanship of Hon. Justice Isa Ayo Salami, J.C.A Dated this 29th day of May, 1995.”

 

As I mentioned earlier in this judgment, an ex parte motion was along with this claim. A preliminary objection was also filed by the appellants challenging the jurisdiction of the Federal High Court to determine the matter.

 

The learned trial judge considered the preliminary objection and overruled it, maintaining that he has jurisdiction to entertain the matter. On the same day, he directed the appellants to show cause within 10 days why he should vary or vacate the interim injunction granted ex parte on 5/6/95. The appellants complied, filed a motion seeking for an order varying or vacating the order granted ex parte. The court again refused the application.

The appellants then filed two notices of appeal in respect of the two rulings but the two notices were eventually consolidated into one.

 

Arising from this consolidation, the two briefs filed earlier on, were also consolidated. The final consolidated brief was filed on 2/1/98.

 

The respondent also filed a consolidated brief of argument on 16/3/98, the very day the appeal was heard.

 

The learned counsel for respondent made a lot of noise about some of the grounds of appeal and raised a preliminary objection to their competence alleging that some of them did not relate to the decision of the trial court and that some of them were not in line with the particulars given.

 

I examined the grounds, and I cannot find any substance in the allegations. Consequently I overrule the preliminary objection.

 

The learner Attorney-General, Kwara State for and on behalf of the appellants formulated some six issues for the determination of the appeal. They read as follows: –

 

1. Issue 1

 

“Whether or not the learned trial judge has jurisdiction to entertain the plaintiff’s claim:

 

(ground 1,2, and 7)

 

2. Issue 2

 

“Whether considering the nature of fund meant for Ilorin Water Expansion Scheme and that of ecological problem it
could be said that the fund is under the Ad-hoc Monitoring Team set up the Federal Government.”

 

(ground 3)

 

3. Issue 3

 

“Whether the procedure adopted by the respondent was in conformity with the laid down procedure under the enforcement of fundamental procedure rules. And if the answer to the issue is in negative whether the rules to have
been followed in this circumstance.”

 

4. Issue 4

 

“Whether the learned trial judge can look into the respondent’s claim and determine the substantive case by making the final pronouncement while he was merely hearing an application challenging his jurisdiction.

 

5. Issue 5

 

“Whether the trial court ought to have granted the interim injunction in the circumstances of this case.

 

(grounds 1 & 2 of the 2nd record of appeal)

 

6. Issue 6

 

“Whether the defendants/appellants can be restrained and stopped from performing constitutional duties assigned to them by the 1979 constitution as amended and as generally provided for other enactments.”

 

(ground 3 of the record of appeal)”

 

For his part, the learned senior counsel for respondent formulated five issues for determination. They read as follows: –

 

“1) Issue No.1

 

Whether, on a proper construction of Commission of Inquiry Law Cap. 25 Law of Northern Nigeria, 1963 as applicable in Kwara State as amended by Kwara State Edict No.4 of 1994, and section 230 of Decree No.107 of 1993, the lower court lacks jurisdiction to entertain the respondent’s claims. The issue is covered by grounds 1, 2, and 7.

 

2) Issue No.2

 

Whether or not it is legally permissible for the respondent to commence the action alleging the violation of his fundamental rights to fair hearing by a writ of summons. This issue is distilled from ground 4.

 

3) Issue No. 3.

 

Whether or not the lower court can be said to have touched on merit the respondent’s claims in its ruling of 17th day of July, 1995.

 

4) Issue No.4.

 

Whether the lower court was right in refusing to discharge the interim order of injunction granted the appellants in having regard to the materials before it. This issue is distilled from grounds 1 and 2 of the notice of appeal in the second record.

 

5) Whether the lower court has jurisdiction to grant interim orders of injunction against the appellants on the application of the respondent on the respondent’s case as constituted. This issue relates to the 3rd ground of appeal in the notice of appeal contained in the second record.”

 

Now, in my view, the germane issue in this appeal is whether the Federal High court, Ilorin has jurisdiction to entertain the plaintiff’s claims filed before it.
The learned Attorney-General of Kwara State for the appellants thinks the Federal High Court has no jurisdiction to entertain the claims.

 

He followed up this position by making reference to Kwara State Edict No.4 of 1994 under which the Justice Salami panel was established which in turn was linked with section 2 of the Commission of Inquiry Law Cap 25 Law of Northern Nigeria
1963 applicable to Kwara State of Nigeria. The learned Attorney- General went further to contend that by the provisions of Decree No. 13 of jurisdiction of the trial court was completely ousted in this case.

 

It appears to me in a more serious note that all these submission and contentions of the learned Attorney- General are completely misplaced in this case. The simple issue involved in this case, does not call for consideration and interpretation of Decrees No. 12 or No 13 1994 in resolving the issue of the jurisdiction of the Federal High Court in this case.

In my view, the germane constitutional provision that calls for interpretation in relation to the issue of jurisdiction of the Federal High Court is section 230 (1)(q)(r)&(s) of the 1979 Constitution as amended by Decree No.107 of 1993.
It provide as follows: –

“S.230 (1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matter arising from-

 

(q)     The administration or the management and control of the Federal Government or any of its agencies

 

(r)      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: and

 

(s)     Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

Now, in coming to the conclusion that he has jurisdiction to determine the case, the learned trial judge stated as follows: –

 

“From the facts before the court, it is clear that the 3rd applicant/defendant, the Commissioner of Police is an agent of the Federal Government. From the affidavit evidence before the court, the subject matter of the commission of inquiry “Fund of 120m and N76m grant by the Federal Government for Kwara water project and Ecological problem” for which the Federal Government had an ad hoc monitoring team, whose duty was to monitor the use of the fund, and considering the relief sought in the particulars of claim and by virtue of section 230(1)(Q)(R)&(S) of the 1979 constitution as amended by Decree 107 of 1993, it is my finding and I hold that this court has jurisdiction to entertain this suit as filed. The preliminary objection raised thereby fails for reasons stated above.”

 

On this issue, it is the submission of the learned Attorney-General that section 230(I)(q)(r)(s) does not confer jurisdiction on the Federal High Court, the matter before the court being matter of GRANT. Again the whole claims of the respondent were centered around a straightforward matter arising from a Commission of Inquiry set up by the Kwara State Government under the provisions of State laws. That the claims have nothing to do with any breach of fundamental human rights, if there is any element of it, at best it is only ancillary to the main cause of action.
Learned Attorney-General contended further that mere inclusion of Commissioner of Police Kwara State, as one of the parties sued does not confer jurisdiction on the Federal High Court. That in my case, it is the nature of the claim that confers
jurisdiction on the court and not the parties per se. The case of Governor of Kwara State & 2 Ors. v. Alh. Shehu Gafar (1997) 7 NWLR (Pt.511) 51 is cited in support.
For his part, the learned senior council for respondent maintained that the Federal High Court has jurisdiction in the matter since the Commissioner of Police Kwara State is made a party to the case, and since the Commissioner of Police is an agent of the Federal Government the trial court found that it has jurisdiction to determine the claims. Learner senior counsel reemphasized the fact that an order for injunction was prayed for against the Commissioner of Police to stop him from carrying out the decision made in the white paper whether reasonable or not, clearly showed that the Federal High Court has jurisdiction to determine the matter.

 

I have no doubt in my mind that the claims of the respondent before the Federal High Court Ilorin, arose from an executive act of the Military Administrator of Kwara State, namely setting up a Commission of Inquiry into the alleged misappropriation of large sum of money given to the Kwara State Government by the Federal Government as grants, namely N120 million water grant and N76 million ecological fund.

 

The Commission of Inquiry did its work and submitted its report and recommendations as required under its terms of reference. It is the implementation of these recommendations that prompted the respondent to go to court.

 

It is my view that for all intent and purposes the whole affairs is purely Kwara State Government affairs. Whatever anybody or person or officer may find himself having role to play, including the Commissioner of police, Kwara State in this case is doing
it or carrying it out on behalf of and for Kwara State Government.

 

Having reached this conclusion, I will now consider the constitutional provisions relating to the powers and jurisdiction of the Federal High Court. Federal High Court is one of the courts established in this country under the 1979 Constitution of the
Federal Republic of Nigeria.

 

Section 230 (1) of the 1979 Constitution provides: –

 

“230(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction-

 

(a)     in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed
by the National Assembly; and

 

(b)     in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

 

(2)     Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law”.

 

The above provisions were subsequently amended by the Constitution (suspension and Modification) Decree No. 107 of 1993.

 

The relevant portion for our purpose is S.230 (1)(q) & (s). At the expense of repetition, I shall reproduce it again. It reads as
follows: –

 

230 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matters arising from.

 

“(q)   the administration or the management and control of the Federal Government or any of its agencies;

 

(r)      subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far it affects the
Federal Government or any of its agencies; and

 

(s)     any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies:”

 

Clearly this section expanded the jurisdiction of the Federal High Court. But the real question now is that, are the appellants, particularly, the Military Administrator of Kwara State and the Commissioner of Police, Kwara State agents of the Federal
Government to fall into line with the provisions of S.230 (1)(q)(r)(s) set out above in relation to what is purely Kwara State Government affairs. I think not.

 

Kwara State Government on whose behalf both the Military Administrator and the commissioner of Police acted is a creature of the 1979 Constitution of Nigeria. It is the same constitution that created the Federal Government. Under the same
constitution, separate functions are assigned to both the Federal Government and the State Government. In the exercise of the functions assigned to both tiers of government, each routinely sets up agencies to enable it discharged its functions. This is in spite of the command structure, which is a normal feature of military administration. The provision of Constitution did not make a State Government an agency of the Federal Government; vis-à-vis the Military Administrator and a Commissioner of Police posted to a State when carrying out a duty purely in relation to the State matter cannot be regarded as an agent of the
Federal Government when carrying out that duty.

 

In the circumstances, I cannot accept the finding and the reasoning of the learned trial Judge that the Commissioner of Police, Kwara State is an agent of the Federal Government in the circumstances of the facts of this case.

 

I also find unacceptable the reasoning of the learned trial Judge that since the Federal Government had an ad hoc monitoring team to monitor the use of the fund, that would confer jurisdiction on his court to determine the matter. It is my view that this reasoning is misconceived. The Commission of Inquiry set up by Kwara State Government had nothing to do with the so called monitoring team. This team did not feature at all in the inquiry nor in the recommendations made by the Commission of Inquiry. The team is not a party to this action filed before the court, the existence of the team if any is irrelevant to this claims before the learned trial Judge.

 

On the whole, it is my view that this appeal has merit and it must succeed. The appeal is allowed. The ruling of the trial Federal High Court, Ilorin dismissing the preliminary objection raised by the appellants on grounds of jurisdiction is hereby set aside. In its place, the preliminary objection is sustained. It is accordingly ordered that the Federal High Court, Ilorin has no jurisdiction to determine the claims of the respondent.

 

The matter should be and hereby transferred to the Kwara State High Court which is the proper forum for the determination of the claims.

 

Any other order made by the Federal High Court in relation to this matter is hereby set aside.

 

Since the appellants are all officials and had paid no fees, I make no order as to costs.

 

Ogebe and Muhammad JJCA both concurred with the lead judgement.