OLURUNLAMBE & ORS V COMMISSIONER OF POLICE KWARA STATE & ORS

OLURUNLAMBE & ORS V COMMISSIONER OF POLICE KWARA STATE & ORS


IN THE COURT OF APPEAL
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN

ON TUESDAY, 28TH AUGUST, 20 8


Appeal No: CA/IL/85/16
CITATION:

Before Their Lordships:

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA

BOLOUKUROMO MOSES UGO, JCA


BETWEEN

ALHAJI SHEHU OLORUNLAMBE (REPRESENTING ELESIN FAMILY)
ALHAJI IBRAHIM DENDE (REPRESENTING IDIAPE FAMILY)
ALHAJI KEHINDE MOGAJI (REPRESENTING OGUNJEMI FAMILY)
ALHAJI AHMED AYINDE (REPRESENTING AJIBESIN FAMILY)
ALHAJI ADEBAYO ALAWO (REPRESENTING GESINDE FAMILY)
ALHAJI SALIU ADIO (REPRESENTING LADUBA FAMILY)
ALHAJI SAKARIYAU MOGAJI (REPRESENTING AKAMON FAMILY)

(APPELLANTS)

AND

COMMISSIONER OF POLICE, KWARA STATE
O/C SARS SP TUNDE MOHAMMED
ISIAKA ANAFI
ADAM OLOBI

(RESPONDENTS)


PRONOUNCEMENTS


A. JURISDICTION
1. Jurisdiction of the Federal High Court – Jurisdiction of the Federal High Court to entertain land matters

Whether the Federal High Court has jurisdiction to entertain land matters

“The trial was before the Federal High Court. The jurisdiction of the Court is without doubt limited by Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred to as the Constitution which made provisions for the jurisdiction of the Federal High Court). The Respondents made out that the reliefs sought by the Appellants at the trial Court bordered on a land dispute between the Appellants and the Federal Government represented by the 3rd Respondent who is the Zonal Town Planning Officer and the Deputy controller, Kwara State Field Office, Federal Ministry of Power, Works and Housing. While the Appellants thought otherwise and made out that the cause of action and the reliefs sought were for the enforcement of their fundamental rights that was breached by the Respondents. It is apt at this point to examine some of the reliefs sought by the Appellants at the lower Court, reliefs 1, 2, 4 and 5 are reproduced hereunder:
1. “A Declaration that the arrest of the Applicants on their family land at Madi-Ogundele Road, Behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th Applicants’ right to personal liberty provided for under Section 35 of the Constitution of the Federal Republic of Nigeria 2011 as amended.
2. A declaration that the arrest of the 1st – 7th applicants on their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th Applicants right to freedom of movement provided for under Section 41 of the Constitution of the Federal Republic of Nigeria 2011 as amended.
4. A Declaration that the Harassment, Molestation, intimidation and threat of the 1st – 7th Applicants and members of their family by arresting, harassing, molesting, intimidating and threatening the 1st – 7th applicants and members of their family with the illegal use of weapons to force the applicants away from the land at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th Respondents, their officers, Servants, Agents and Privies constitute a gross infringement on the fundamental rights of the applicants and their family as enshrined under Section 34(1)(a) and 46(1) & (2) of the Constitution of the Federal Republic of Nigeria 2011 as amended.
5. A Declaration that the threat, intimidation, molestation and harassment of the 1st – the Applicants (sic) and their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th respondents, their officers, Servants, Agents and Privies constitute a violent breach of the 1st – 7th applicants and their families (sic) right to dignity of human persons as guaranteed under the Section 34(1) of the Constitution of the Federal Republic of Nigeria as amended.”
(Underlined mine for emphasis)

Recurring in the above reliefs is the appellants’ alleged arrest and harassment on their family land by the Respondents and the allegation that the respondents trespassed unto their land, took possession of same and used force to deprive them of access to their land. Also, relevant at this point are, the depositions in the affidavit in support of the appellants’ application at the trial Court. I will reproduce paragraphs 1, 2, 13, 16, 19 and 22 (for ease of reference) of the 1st Appellant’s affidavit in which it was deposed thus:
1. “That I am the representative of Elesin family.

2. That as the representative of Elesin family I am the custodian of my family land located at Madi Ogundele Road, behind Federal Low Cost Housing Estate, Oloje, Ilorin.

13. That it is not only my family land that was being measured by surveyors from Bureau of lands Kwara State, Ajibesin Family land, Idiape Family land and Ogunyemi land were parts of the land measured and surveyed by the surveyors from Kwara State Bureau of lands.
16. That I know that on the 19th May 2014 we were taken to Court for the offence of criminal conspiracy, criminal trespass, obstruction of civil servants in the course of discharging

their lawful duty, kidnapping, inciting and attempted murder contrary to Sections 97, 348, 148, 273, 114 and 229 of Penal Code Law. The first information Report dated 19th May 2014 is attached and marked Exhibit A2. 19. That later the Magistrate Court in case No. MCIA/485c/2014 granted us bail and on release from Federal Prison Yard Okekura Ilorin, we saw may beacons of Bureau of lands’ private allotees and we challenged the Bureau of lands’ by filing a suit in Suit No. KWS/45/2015 between lhaji Shehu Olorunlambe & 1 Or v. the Governor of Kwara State & 4 Ors the writ is attached and marked Exhibit B.
22. That one Mrs. Abdullahi Fatimoh Iyabo an alleged private allotees of the 3rd – 4th defendants filed a direct criminal complaint against one Alfa Yusuf of Idiape family and Hakeem Jimoh of Ogunjemi Family in a direct criminal complaint dated 10th August, 2015 in case No. UACII/CRF/137/2015. The complaint is attached and marked Exhibit B.”
The learned trial Judge found that the reliefs sought arose from a land dispute and that the reliefs as set out earlier, disclosed that the applicants’ rights to their property was breached, the respondents took possession of their land and deprived them of access to their land. Also, that the suit emanated from ownership of the land between the appellants and the Federal Government that had made out that the land had been acquired by government and compensation paid. The Appellants maintained that the land in question was their family land, there was neither acquisition by the Federal Government nor compensation paid. It is clear that the disagreement over the land led to the alleged arrests on the land. Based on a similar view of there being a disagreement over land between the parties, the learned trial judge declined jurisdiction over the matter as he had no power to determine matters bordering on land.
The learned trial judge at pages 253 – 255 of the printed records of appeal after examining the reliefs sought and the affidavit deposed to at the lower Court held as follows:

“It is clear from the reliefs sought that the instant suit arose from a land dispute. See the 1st five reliefs as set out which disclose that the applicants rights to their property have been breached as they allege and the respondents have not only trespassed on their land but, taken possession, and deprived them of access to their land.
This instant suit as far as this Honourable Court is concerned therefore culminated from a disagreement between the parties over the ownership of a landed property….

Where the issue of jurisdiction is raised therefore, as in this suit, the action of the applicants must be brought under one or more of the listed provisions of Section 251(1) of the 1999 Constitution, or in the alternative satisfy the Court that the subject matter of the claim comes with the additional jurisdiction conferred on the Court by an Act of the National Assembly.

I have therefore carefully considered the provisions of Section 251(1) of the Constitution 1999 (as amended) and it is my view that no jurisdiction is conferred on the Court to adjudicate any dispute arising from disagreement over the possession of a landed property. See ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT. 1215) SC 169 where the Supreme Court held at PAGE 177 PARAGRAPH 8 on the jurisdiction of the Federal High Court over land matters as follows:
“……… On close examination of the entire provision of Section 251 of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other courts, there is nothing specifically conferring jurisdiction in that court in cases or matters concerning land disputes …….”
It is my opinion that where the principal relief relates to land in a suit as in this case the entire matter should be treated as a dispute to land.

It is my view therefore that the application for this enforcement of the applicants Fundamental Rights is a wrong vehicle to have been boarded by the applicants in the circumstances of this case. Disputes as to ownership of land and payment of compensation are not one of the fundamental rights prescribed by Chapter 4 of the Constitution…..
In the case of GAFAR VS. GOVT. OF KWARA STATE 2007 1 – 2 SC 189, it was held that the enforcement of Fundamental Rights should not be an ancillary claims. Where this is so as in this case where the original dispute is in respect of land, this Court cannot adjudicate over same.”
The above finding of the learned trial judge is unassailable. The jurisdiction of the Federal High Court is specific as well as limited by virtue of the provisions of Section 251(1) of the 1999 Constitution and does not included adjudication over matters pertaining to land. In determining the jurisdiction of the Federal High Court, the subject matter must be taken into consideration, the dispute having been grounded on dispute relating to land the trial Court was not the proper venue to have instituted the action. The subject matter in this case did not fall within the jurisdiction of the trial Court, otherwise the trial and whatever decision arrived at would be a nullity and the entire trial an exercise in futility. For the Court to exercise its jurisdiction over a matter, the Court would be competent if:
?(i) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and (ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (iii) The case comes before the Court initiated by due process precedent to the exercise of jurisdiction.
(underlined for emphasis)

See The CHIEF OF AIR STAFF & ORS VS. WING COMMANDER P.E. IYEN (2005) 1 SC (PT. 121); (2005) 6 NWLR (PT. 922) P. 496; In the case of PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR – 2915 (SC) PP. 23 – 24, PARAS. E – C his Lordship Belgore, JSC (as he then was) in respect of the importance of jurisdiction in the process of adjudication held thus:
“Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court’s jurisdiction is clearly set out in S.7 of the Federal High Court Act (Cap. 134 Laws of Federation of Nigeria, 1990) and that Court cannot arrogate to itself a jurisdiction it has not got. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (OSADEBAY VS. A – G. BENDEL STATE (1991) 1 NWLR (PT. 169) 525; OWONIBOYS TECH. SERVICES LTD. VS. JOHN HOLT LTD. (1991) 6 NWLR (PT. 199)550; OKESUJI VS. LAWAL (1991) 1 NWLR (PT. 170) 661), KATTO VS. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT. 214) 126; UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166) 166).”
See also MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPELR – 1844 (SC) PP. 15 – 16, PARAS. G – A, SKYE BANK PLC VS. VICTOR ANAEMEM IWU (2017) LPELR – 42595 (SC) PP. 78 – 79, PARAS. C – B and A – G. FEDERATION VS. A.G. ANAMBRA STATE (2017) LPELR – 43491 (SC) P. 19, PARAS. A – F.
Further, the Court can as the learned trial judge did, rightly raise the issue of jurisdiction suo motu, otherwise a trial without the requisite jurisdiction would be an exercise in futility, null and void, of no benefit to any of the parties. As rightly argued by the learned Chief State Counsel, the learned trial judge declining jurisdiction by virtue of the provisions of Section 251(1) of the 1999 Constitution, has nothing to do with the superiority of the Section with Section 46 of the 1999 Constitution, the issue did not arise at the trial, contrary to the appellants’ first issue. I am also at one with the submission that from the reliefs sought by the appellants at the trial Court, the reliefs cannot be granted without conferring title to the appellants, which the trial Court did not have the power to consider, talkless grant. It is also noteworthy that in the appellants’ brief of argument, the learned counsel to the appellants in his argument intermittently argued that the 3rd and 4th respondents were using the police (1st and 2nd Respondents) to interfere in a land matter, when the Police Act did not include land matters as part of their schedule of duty. I will highlight a few paragraphs, also that the respondents were challenging the appellants on family land. See paragraphs 5:06, 5:08 – “It is not the duty of 1st – 2nd Respondents to wade into land dispute”, the 5:10, 5:11, 5:12 “it is our submission that on scrutiny of the processes before this honorable Court, your Lordship would observe that this case is purely civil matters bordering on land matter which is outside the Police Power”, 5:13 “it is our submission that Exhibit MOJ4 has clearly shown that the police exercised quasi-judicial power over land matter between 2nd – 3rd Respondents and the appellants’ families where the Police findings show clear adjudication on land matter. The special Anti-Robbery Squad of the Police Wing has added further jurisdiction to its duties by deciding ownership of the land in defiance of Section 4 of Police Act 2010”, 5:18, 5:21, 5:23 – (stated that the police have no power over land matter generally), 5:24, 5:25, 5:26, 5:27, 5:28 – (talks about the identity of the land in dispute) and 5:33. The learned counsel to the appellants clearly spelt out the crux of the action taken out at the trial Court to be a land dispute which ran through his submissions before this Court, who by so doing agreed with the decision of the learned trial judge that the lower Court had no jurisdiction to entertain the substantive application. The trial Court was right to have declined jurisdiction. I cannot fault it.
I hold that the declaratory reliefs sought at the trial Court touched on land dispute which by virtue of Section 251(1) of the 1999 Constitution (as amended) did not include adjudication over land matters. The appeal is without merit, I dismiss it and affirm the decision of the learned trial judge declining jurisdiction to entertain the substantive matter.”Per UWA, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY UWA, J.C.A


The appeal is against the Ruling of the Federal High Court delivered on the 19th day of April, 2016 by O.O. Oguntoyinbo, J., in which the trial Court suo motu raised the issue of jurisdiction on the competency of the trial Court to hear and determine the Appellants’ application for the enforcement of their fundamental rights against the Respondents on a matter which the trial Court held bordered on land dispute. The trial Court after hearing the parties held that it had no jurisdiction to entertain the Appellants’ application and struck out the matter.

The background facts are that the Appellants as applicants filed an application for themselves and on behalf of their respective families for the enforcement of their fundamental rights, pursuant to the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 claiming the following reliefs:

1. “A Declaration that the arrest of the Applicants on their family land at Madi-Ogundele Road, Behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th Applicants’ right to personal liberty provided for under Section 35 of the Constitution of the Federal Republic of Nigeria 2011 (sic) as amended.

2. A Declaration that the arrest of the 1st – 7th Applicants on their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th applicants right to freedom of movement provided for under Section 41 of the Constitution of the Federal Republic of Nigeria 2011 as amended.

3. A Declaration that the Detention of the 1st – 7th applicants and their families by the Respondents, their officers, Servants, Agents and Privies amounts to gross violation of the Applicants and their families right to personal liberty provided under Section 35 of the Constitution of the Federal Republic of Nigeria 2011 as amended.

4. A Declaration that the Harassment, Molestation, intimidation and threat of the 1st – 7th Applicants and members of their family by arresting, harassing, molesting, intimidating and threatening the 1st – 7th applicants and members of their family with the illegal use of weapons to force the applicants away from the land at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th Respondents, their officers, Servants, Agents and Privies constitute a gross infringement on the fundamental rights of the applicants and their family as enshrined under Section 34(1)(a) and 46(1) & (2) of the Constitution of the Federal Republic of Nigeria 2011 as amended.

5. A Declaration that the threat, intimidation, molestation and harassment of the 1st – 7th Applicants and their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th Respondents, their officers, Servants, Agents and Privies constitute a violent breach of the 1st – 7th applicants and their families right to dignity of human persons as guaranteed under the Section 34(1) of the Constitution of the Federal Republic of Nigeria as amended.

6. A Declaration that the detention of the 1st – 7th applicants and their members of the families by the Respondents, their officers, Servants, Agents and Privies amount to a serious violation of 1st – 7th applicants and their families’ right to freedom of movement as provided under Section 41 of the Constitution of Federal Republic of Nigeria 2011 as amended.

7. A Declaration that the arrest, detention, assault, harassment and torture of 1st – 7th Applicants and their families by the Respondents, their officers, Servants, Agents and Privies constitute gross violation and breach of 1st – 7th Applicants and their families right to life and dignity of human persons as guaranteed under Sections 33 & 34 of the Constitution of Federal Republic of Nigeria 2011 as amended.

8. An ORDER commanding the 1st – 4th Respondents jointly and severally to pay the 1st – 7th Applicants the sum of N20,000,000.00 (Twenty Million) Naira only being exemplary and aggravated damages for unlawful violation of 1st – 7th Applicants’ and their families” Fundamental Rights.

9. A PERPETUAL INJUNCTION restraining the Respondents by themselves, Agents, Servants, Officers, Privies and or any other persons from howsoever Molesting, Harassing, Arresting and threatening the applicants of or in any other manner infringing on the fundamental rights of the applicants and their respective families.”

The grounds upon which the reliefs were sought are as follows:

(i) “The Arrest, Detention, Molestation, Harassment, Intimidation and Threat of applicants and their families are contrary to Sections 33, 34, 35, 41, 44 & 46 of the Constitution of Federal Republic of Nigeria 2011 (sic) as amended.

(ii) The threat, Arrest, Harassment, Molestation, Torture and Intimidation of the applicants and their families constitute gross violation of Applicants’ fundamental human rights.

(iii) No compensation was paid by the Respondents to the Applicants.
(iv) The applicants were not given right of access for the determination of their interest in the property before the Court of law.

(v) The 1st – 4th Respondents resorted to violence, arrest, detention, threats, intimidation, harassment, assault, torture and molestation of the applicants and their family to gain possession of the land in dispute.”

On the Appellants’ part, by their joint affidavit evidence maintained that their family land was never acquired nor compensation paid for same but, that the 3rd – 4th Respondents employed the services of the 1st – 2nd Respondents to effect their arrest and detention in order to intimidate, harass, embarrass, threaten the appellants and their families with death and dehumanizing or subjecting the appellants to degrading treatment. It was alleged that the 3rd – 4th respondents embarked on using the 1st – 2nd respondents in order to take possession of the appellants’ family land situated at Madi – Ogundele Road, behind Oloje Low Cost-Housing Estate Ilorin. The 3rd and 4th respondents alleged that the land at Oloje/Ogidi Area, Ilorin was acquired and compensation paid to the beneficiaries while the 1st – 2nd Respondents alleged that documentary evidence was presented, while the appellants made out that none of the documents showing acquisition of the land and payment of compensation was exhibited at the trial Court yet the 1st and 2nd Respondents by their report made out that the land was acquired by the Federal Government and embarked on massive arrest, detention, intimidation, destruction of property and harassment of the appellants.

After parties were heard on the issue of jurisdiction, the Court held that it lacked jurisdiction to determine the matter in that the issue for determination is not covered by Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter referred to as the Constitution). The trial Court therefore struck out the originating motion. The appellants as applicants were unhappy with the decision, thus this appeal. The appellants formulated the following two issues for determination of the appeal thus:

1. “Whether Section 251(1) of the Constitution of the Federal Republic of Nigeria 2011 as amended overrides Section 46 (Chapter IV) of the Constitution of Federal Republic of Nigeria 2011 as amended, where Fundamental Right of applicant is infringed (Ground 1).

2. Whether the appellants’ originating motion is for the Declaration of title to the land and not challenging Fundamental Rights of appellants as infringed by the respondents.”

The 1st – 3rd Respondents on their part formulated the following sole issue for determination of the appeal thus:

1. “Whether the trial Court with limited jurisdiction under Section 251 (1) 1999 Constitution FRN (as amended) has the jurisdictional competency to entertain the Appellant’s application for the enforcement of fundamental rights of the Appellants on matter bordering on land dispute.”

This issue relates to and or was distilled form Grounds 1, 2, 3 and 4 of the Notice of Appeal.

The 4th Respondent also formulated a sole issue thus:

“Whether learned trial Judge was right to decline jurisdiction to entertain the Appellants’ case; considering the cause of action and reliefs sought.” (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal).

In arguing the appeal, the learned counsel to the appellants M.H.O. Hameed adopted and relied on his brief of argument filed on 18/1/17, but deemed properly filed on 20/2/17 and his reply brief filed on 30/4/18 but deemed properly filed on 31/5/18 as his argument in this appeal in urging us to allow same. In arguing his first issue, it was submitted that Section 251 (1) of the Constitution as amended confers jurisdiction on the Federal High Court in respect of general subject matters covered by the Section. It was argued that Section 251(1) does not apply to Section 46 (Chapter IV) of the Constitution that relates to special jurisdiction of the Federal High Court in respect of enforcement of fundamental rights of the appellants. Further, that the grounds and the reliefs of the appellants’ application fall under Section 46 Chapter (IV) of the Constitution as amended.

It was submitted that Section 251(1) of the onstitution (as amended) has no applicability in the enforcement of fundamental rights of any aggrieved party who perceived his fundamental rights is being infringed upon by the police. See JACK VS. UNAM (2004) 5 NWLR (PT. 865) 208 at 226, 229. It was concluded on this issue that Section 251(1) of the Constitution which the trial Court relied upon in declining jurisdiction has no overriding power over Section 46 of the Constitution, as amended.

In arguing his second issue, it was submitted that the reliefs sought by the appellants are within Section 46 (Chapter IV) of the Constitution, as amended. See TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. It was argued that in the reliefs sought the appellants did not pray for declaration of title to the land in dispute even though they alleged that the 3rd and 4th Respondents engaged the 1st and 2nd Respondents to arrest, detain, torture, harass and destroy the appellants’ purchasers’ property on the land.

It was submitted that based on Exhibit ‘A1’, the 1st Respondent asked Magaji Baba of Ajibesin family to report with a list of documents which shows that Exhibit “A1” upon which the appellants’ family were arrested and detained over family land is false and in bad faith. See ONAH VS. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 537. Further, that the 3rd – 4th Respondents wrote a petition to the 1st Respondent after which the appellants’ community was warned on the 21st day of February, 2012 to keep off the land belonging to the Federal Government, the 3rd – 4th Respondents asserting that they were assigned to take inventory of illegal developments, red mark them, served the appellants’ family with contravention notices.

The alleged assignment was to be done in company of policemen. Exhibit MOJ 3 was said to corroborate Exhibits ‘A’ and ‘A1’.

It was submitted that, it was not the duty of the 1st and 2nd Respondents to wade into a land dispute. Further, that the 1st and 2nd Respondents resolved, during investigation, that the appellants’ family land has been acquired by the Federal Government having paid compensation to the appellants’ family, the family encroached upon Federal Government land. Reference was made to Exhibit MOJ 4 and the case of ADEBO VS. OMISOLA (2005) 2 NWLR (PT. 909) 149 at 175. It was contended that the 1st – 4th Respondents were engaged in an unlawful grabbing of the appellants’ family land by the use of police arrest, detention, torture, threats, harassment and dehumanizing the appellants and members of their family. Further, that even if the 3rd – 4th Respondents had any right in law to land, they cannot enforce their supposed right by the use of the police. See NKPA VS. NKUME (2001) 6 NWLR (PT.710) 543 at 560, AJAO VS. ASHIRU (1973) 11 SC 23. It was submitted that on scrutiny of the processes before this Court, we would observe that this case is purely a civil matter bordering on land which is outside the police power. The police was said to be estopped from exercising jurisdiction on civil matters. Reference was made to Section 8(2) of the Administration of Criminal Justice Act, 2015. It was stressed that Exhibit MOJ 4 shows clearly that the police exercised quasi-judicial power over a land matter between the 3rd – 4th Respondents and the appellants’ family where the police findings show clear adjudication on land matter. It was contended that the Special Anti-Robbery Squad of the Police Wing has added further jurisdiction to its duties by deciding ownership of the land in defiance of Section 4 of the Police Act 2010.

In alternative argument, without conceding that the appellants’ family land was acquired and compensation paid to the appellant’s family and they encroached onto the land, the procedure for recovery of the land ought to have been followed by filing originating summons before the Court of competent jurisdiction for declaration that the land has been acquired and remained the property of the Federal Republic of Nigeria following which the Court would make an order for possession, self-help was condemned as the appellants alleged same against the respondents. See OGU ALAJI VS. A – G RIVERS STATE (1997) 6 NWLR (PT. 508) 209 at 225 – 226. Further, that assuming the 3rd – 4th Respondents have any title to the Appellants’ family land by acquisition, they cannot use the Police Force to enforce their supposed right in the land. It was stressed once again that the Police Force has no power in land matters generally; otherwise any officer who goes beyond his power would be personally liable. See Section 341 of the Police Act, CAP. P.19 Laws of the Federation, 2010. It was reargued that the 3rd – 4th respondents engaged the 1st and 2nd Respondents in order to dispossess the Appellants of their family land by using the 2nd Respondent in particular, whose duty is to curb Armed Robbery activities and not to terrorize the appellants and their family members. See UZOUKWU VS. EZEONU 11 (1991) 6 NWLR (PT. 200) 708 and EZEADUKWA VS. MADUKA (1997) 8 NWLR (PT. 518) 635 at 662.

The appellants also alleged that the land described in Exhibits MOJ, MOJ 2, MOJ 3 and MOJ 4, referred to land situated at Ogidi Oloje while the Appellants land is described as Madi – Ogundele Road, Behind Oloje Low Cost Housing Estate, Ilorin, portions of land that did not share boundary. It was concluded that the involvement of the Special Anti-Robbery Squad (SARS) on a land matter based on a false complaint by the 3rd and 4th Respondents has made the Respondents jointly liable and that the Respondents must justify the infringement of the appellants’ rights. See AGBAKOBA VS. THE DIRECTOR, S.S.S. (1994) 6 NWLR (PT. 351) 475 at 495.

On the part of the 1st – 3rd Respondents, the learned Chief State Counsel, Ayoola Idowu Akande, on their behalf relied on his brief of argument filed on 6/1/18, deemed properly filed on 17/4/18, as his argument in urging us to dismiss the appeal. In arguing his sole issue, it was submitted that the Federal High Court being a Court of limited jurisdiction could not have rightly entertained the Appellants’ application for the enforcement of their fundamental rights on a matter connected to or relating to land dispute. It was argued that from the affidavit evidence, claims and reliefs sought before the trial Court, the cause of action before the trial Court was dispute over a parcel of land between the Appellants and the Federal Government represented by the 3rd Respondent, the Zonal Town Planning Officer and Deputy Controller, Kwara State Field Office, Federal Ministry of Power, Works and Housing. Reference was made to paragraphs 3(a) and (b) of the 1st – 4th Respondents’ Counter Affidavit, pages 156 – 157 of the records of Appeal.

Further, that the cause of action leading to the appeal having been grounded on a dispute relating to land the trial Court was not the appropriate Court for the Appellants to have sought legal redress because the trial Court is not competent to exercise its jurisdiction on matters pertaining to land and the subject matter did not fall within the jurisdiction of the Court. See SEA TRUCKS LTD VS. ANIGBORO (2001) FWLR (PT. 37) 1000 at PAGE 1021, PARAS C – G. It was argued that by virtue of Section 251(1) of the Constitution, as amended the trial Court had no jurisdiction to entertain the matter. Reference was made to the reliefs sought and the findings of the trial Court at pages 92 – 95 and page 253 – 254 respectively to the effect that the cause of action is a dispute over land and the trial Court had no jurisdiction to entertain the matter and that issues pertaining to land and payment of compensation or otherwise are not under fundamental rights as prescribed by Chapter 4 of the Constitution. We were urged to uphold the findings of the learned trial judge while reliance was placed on the case ofUNACHUKWU VS. AJUZIE (2009) ALL FWLR (PT. 495) 1730 at PAGE 1722, PARAS. C – D to the effect that the Court can raise the issue of jurisdiction suo motu. It was argued that where the fundamental rights of an applicant has been allegedly violated, it is incumbent on him to seek legal redress in High Court that is competent to entertain the cause of action, otherwise the case would be struck out. See TUKUR VS. GOV RNMENT OF GONGOLA (1989) 4 NWLR (PT. 117) 517 and ADETONA VS. IGELE GENERAL ENTERPRISE (2011) ALL FWLR 1025 at PP. 1054 – 1056.

It was the contention of the learned Chief State Counsel that Sections 251 and 46 of the Constitution are not in conflict, therefore, the issue of superiority of one over the other as argued by the learned counsel to the appellants in their first issue does not arise, we were urged to discountenance same.

In reaction to the appellants’ second issue, it was submitted that from the way the appellants’ reliefs one (1) and two (2) before the lower Court were couched, it is impossible to grant the reliefs/claims without conferring title of the land in dispute on the Appellants. It was concluded that the trial Court lacked the jurisdictional competence to have entertained the matter.

On behalf of the 4th Respondent, the learned counsel Tunde Babalola Esq., in arguing his sole issue, adopted his brief of argument filed on 16/4/18 but deemed properly filed on 9/5/18 as his argument in this appeal in also urging us to dismiss the appeal and affirm the judgment of the lower Court. It was submitted that jurisdiction is the live wire of a Court of Law and any power(s) exercised outside it is a nullity. See ADETONA VS. IGELE GENERAL ENT. LTD. (2011) ALL FWLR 1025 at PP. 1054 – 1056, PARAS. H – F. In PEOPLES DEMOCRATIC PARTY VS. TIMIPRE SYLVA (2012) ALL FWLR (PT. 637) 606 at P. 656, PARAS. B – C, P. 650, PARAS. B – C. Also, FEDERAL COLLEGE OF EDUCATION VS. AKINYEMI (2009) ALL FWLR (PT.465) 1785 at PP. 1804 – 1805, PARAS. H – C.

It was submitted that from the affidavit evidence before the Court and the reliefs sought as contained in the Applicants’ originating application, it is obvious the matter hinges on a land tussle between the Applicants, Federal Government (i.e. Ministry of Power, Works and Housing) Kwara State Government (i.e. Bureau of Lands) and the alleged use of the Police and instrumentality of the state against the Applicants which led to the alleged violation of the Applicants’ Fundamental Rights. Reference was made to pages, 102 – 111 and pages 156 – 164 of the printed records of appeal respectively, of importance were also the reliefs sought by the applicants and the introductory part (paragraphs 1 and 2) of the 1st Appellant’s Affidavit in support of the Motion on Notice, page 103 of the printed records. It was submitted that it is obvious that the crux of the application before the trial Court was based on land tussle, also relevant are the reliefs 1 and 2 sought by the Appellants at the lower Court, pages 92 – 95 of the printed records, also the 4th and 5th reliefs alleged that the Respondents were using force to chase the Appellants out of their land.

It was concluded that the declaratory reliefs sought by the Appellants touched on land dispute which by virtue of Section 251 of the Constitution (as amended), the Federal High Court did not have the jurisdiction to determine.

The appellants in their reply brief, reargued the appeal to the effect that the 1st and 2nd Respondents engaged the 3rd and 4th Respondents to unlawfully harass them on their family land without due process which infringed upon their fundamental rights as guaranteed under Sections 31(1), 34(1) (a), 35(1), 41(1) & (2) of Chapter IV of the 1999 Constitution.

It was emphasized again that the appellants’ reliefs at the trial Court were for the Court to declare as unlawful the arrest, detention, degrading treatment threat to lives, demolition of the Appellants’ purchases’ property without due process by the Respondents, for which the appellants prayed for damages perpetual injunction restraining the Respondents from infringing the fundamental rights of the Appellants. It was concluded that the Appellant did not pray for the declaration of title to the land. See NIDOCCO LTD VS. GBAJABIAMILA (2013) 14 NWLR (PT. 1374) 350 at PAGES 396 – 397, PARAS. E – F, YUSUF VS. OYETUNDE (1998) 10 SC NJ 1 at 20; (1998) 12 NWLR (PT. 579) 483 at 498 – 499.

Also, that the reliefs alleged to be sought by the Appellants are speculative on the part of the Respondents.

The appellants’ two issues formulated for the determination of the appeal are covered by each of the sole issues formulated by the 1st – 3rd Respondents and the 4th Respondent respectively. I will reformulate the sole issue thus:

“Considering the provisions of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was the trial Court right to have declined jurisdiction to entertain the Appellants’ application for the enforcement of their fundamental rights bearing in mind the cause of action and the reliefs sought?”

The trial was before the Federal High Court. The jurisdiction of the Court is without doubt limited by Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred to as the Constitution which made provisions for the jurisdiction of the Federal High Court). The Respondents made out that the reliefs sought by the Appellants at the trial Court bordered on a land dispute between the Appellants and the Federal Government represented by the 3rd Respondent who is the Zonal Town Planning Officer and the Deputy controller, Kwara State Field Office, Federal Ministry of Power, Works and Housing. While the Appellants thought otherwise and made out that the cause of action and the reliefs sought were for the enforcement of their fundamental rights that was breached by the Respondents. It is apt at this point to examine some of the reliefs sought by the Appellants at the lower Court, reliefs 1, 2, 4 and 5 are reproduced hereunder:

1. “A Declaration that the arrest of the Applicants on their family land at Madi-Ogundele Road, Behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th Applicants’ right to personal liberty provided for under Section 35 of the Constitution of the Federal Republic of Nigeria 2011 as amended.

2. A declaration that the arrest of the 1st – 7th applicants on their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the Respondents, their officers, Servants, Agents and Privies is a gross violation of the 1st – 7th Applicants right to freedom of movement provided for under Section 41 of the Constitution of the Federal Republic of Nigeria 2011 as amended.

4. A Declaration that the Harassment, Molestation, intimidation and threat of the 1st – 7th Applicants and members of their family by arresting, harassing, molesting, intimidating and threatening the 1st – 7th applicants and members of their family with the illegal use of weapons to force the applicants away from the land at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th Respondents, their officers, Servants, Agents and Privies constitute a gross infringement on the fundamental rights of the applicants and their family as enshrined under Section 34(1)(a) and 46(1) & (2) of the Constitution of the Federal Republic of Nigeria 2011 as amended.

5. A Declaration that the threat, intimidation, molestation and harassment of the 1st – the Applicants (sic) and their family lands at Madi Ogundele Road, behind Oloje Low Cost Housing Estate Ilorin by the 1st – 4th respondents, their officers, Servants, Agents and Privies constitute a violent breach of the 1st – 7th applicants and their families (sic) right to dignity of human persons as guaranteed under the Section 34(1) of the Constitution of the Federal Republic of Nigeria as amended.”

(Underlined mine for emphasis)

Recurring in the above reliefs is the appellants’ alleged arrest and harassment on their family land by the Respondents and the allegation that the respondents trespassed unto their land, took possession of same and used force to deprive them of access to their land. Also, relevant at this point are, the depositions in the affidavit in support of the appellants’ application at the trial Court. I will reproduce paragraphs 1, 2, 13, 16, 19 and 22 (for ease of reference) of the 1st Appellant’s affidavit in which it was deposed thus:

1. “That I am the representative of Elesin family.

2. That as the representative of Elesin family I am the custodian of my family land located at Madi Ogundele Road, behind Federal Low Cost Housing Estate, Oloje, Ilorin.

13. That it is not only my family land that was being measured by surveyors from Bureau of lands Kwara State, Ajibesin Family land, Idiape Family land and Ogunyemi land were parts of the land measured and surveyed by the surveyors from Kwara State Bureau of lands.

16. That I know that on the 19th May 2014 we were taken to Court for the offence of criminal conspiracy, criminal trespass, obstruction of civil servants in the course of discharging their lawful duty, kidnapping, inciting and attempted murder contrary to Sections 97, 348, 148, 273, 114 and 229 of Penal Code Law. The first information Report dated 19th May 2014 is attached and marked Exhibit A2.

19. That later the Magistrate Court in case No. MCIA/485c/2014 granted us bail and on release from Federal Prison Yard Okekura Ilorin, we saw may beacons of Bureau of lands’ private allotees and we challenged the Bureau of lands’ by filing a suit in Suit No. KWS/45/2015 between Alhaji Shehu Olorunlambe & 1 Or v. the Governor of Kwara State & 4 Ors the writ is attached and marked Exhibit B.

22. That one Mrs. Abdullahi Fatimoh Iyabo an alleged private allotees of the 3rd – 4th defendants filed a direct criminal complaint against one Alfa Yusuf of Idiape family and Hakeem Jimoh of Ogunjemi Family in a direct criminal complaint dated 10th August, 2015 in case No. UACII/CRF/137/2015. The complaint is attached and marked Exhibit B.”

The learned trial Judge found that the reliefs sought arose from a land dispute and that the reliefs as set out earlier, disclosed that the applicants’ rights to their property was breached, the respondents took possession of their land and deprived them of access to their land. Also, that the suit emanated from ownership of the land between the appellants and the Federal Government that had made out that the land had been acquired by government and compensation paid. The Appellants maintained that the land in question was their family land, there was neither acquisition by the Federal Government nor compensation paid.

It is clear that the disagreement over the land led to the alleged arrests on the land. Based on a similar view of there being a disagreement over land between the parties, the learned trial judge declined jurisdiction over the matter as he had no power to determine matters bordering on land.

The learned trial judge at pages 253 – 255 of the printed records of appeal after examining the reliefs sought and the affidavit deposed to at the lower Court held as follows:

“It is clear from the reliefs sought that the instant suit arose from a land dispute. See the 1st five reliefs as set out which disclose that the applicants rights to their property have been breached as they allege and the respondents have not only trespassed on their land but, taken possession, and deprived them of access to their land.

This instant suit as far as this Honourable Court is concerned therefore culminated from a disagreement between the parties over the ownership of a landed property….

Where the issue of jurisdiction is raised therefore, as in this suit, the action of the applicants must be brought under one or more of the listed provisions of Section 251(1) of the 1999 Constitution, or in the alternative satisfy the Court that the subject matter of the claim comes with the additional jurisdiction conferred on the Court by an Act of the National Assembly.

I have therefore carefully considered the provisions of Section 251(1) of the Constitution 1999 (as amended) and it is my view that no jurisdiction is conferred on the Court to adjudicate any dispute arising from disagreement over the possession of a landed property. See ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT. 1215) SC 169 where

the Supreme Court held at PAGE 177 PARAGRAPH 8 on the jurisdiction of the Federal High Court over land matters as follows:

“……… On close examination of the entire provision of

Section 251 of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other courts, there is nothing specifically conferring jurisdiction in that court in cases or matters concerning land disputes …….”

It is my opinion that where the principal relief relates to land in a suit as in this case the entire matter should be treated as a dispute to land.

It is my view therefore that the application for this enforcement of the applicants Fundamental Rights is a wrong vehicle to have been boarded by the applicants in the circumstances of this case. Disputes as to ownership of land and payment of compensation are not one of the fundamental rights prescribed by Chapter 4 of the Constitution.….

In the case of GAFAR VS. GOVT. OF KWARA STATE 2007 1 – 2 SC 189, it was held that the enforcement of Fundamental Rights should not be an ancillary claims. Where this is so as in this case where the original dispute is in respect of land, this Court cannot adjudicate over same.”

The above finding of the learned trial judge is unassailable. The jurisdiction of the Federal High Court is specific as well as limited by virtue of the provisions of Section 251(1) of the 1999 Constitution and does not included adjudication over matters pertaining to land. In determining the jurisdiction of the Federal High Court, the subject matter must be taken into consideration, the dispute having been grounded on dispute relating to land the trial ourt was not the proper venue to have instituted the action. The subject matter in this case did not fall within the jurisdiction of the trial Court, otherwise the trial and whatever decision arrived at would be a nullity and the entire trial an exercise in futility. For the Court to exercise its jurisdiction over a matter, the Court would be competent if:

(i) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and

(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(iii) The case comes before the Court initiated by due process precedent to the exercise of jurisdiction. (underlined for emphasis)

See The CHIEF OF AIR STAFF & ORS VS. WING COMMANDER P.E. IYEN (2005) 1 SC (PT. 121); (2005) 6 NWLR (PT. 922) P. 496; In the case of PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR – 2915 (SC) PP. 23 – 24, PARAS. E – C his Lordship Belgore, JSC (as he then was) in respect of the importance of jurisdiction in the process of adjudication held thus:

“Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court’s jurisdiction is clearly set out in S.7 of the Federal High Court Act (Cap. 134 Laws of Federation of Nigeria, 1990) and that Court cannot arrogate to itself a jurisdiction it has not got. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (OSADEBAY VS. A – G. BENDEL STATE (1991) 1 NWLR (PT. 169) 525; OWONIBOYS TECH. SERVICES LTD. VS. JOHN HOLT LTD. (1991) 6 NWLR (PT. 199)550; OKESUJI VS. LAWAL (1991) 1 NWLR (PT. 170) 66 ), KATTO VS. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT.214) 126; UTIH VS. ONOYIVWE (1991) 1 NWLR (PT.166) 166).”

See also MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPE R – 1844 (SC) PP. 15 – 16, PARAS. G – A, SKYE BANK PLC VS. VICTOR ANAEMEM IWU (2017) LPELR – 42595 (SC) PP. 78 – 79, PARAS. C – B and A – G. FEDERATION VS. A.G. ANAMBRA STATE (2017) LPELR – 43491 (SC) P. 19, PARAS. A – F.

Further, the Court can as the learned trial judge did, rightly raise the issue of jurisdiction suo motu, otherwise a trial without the requisite jurisdiction would be an exercise in futility, null and void, of no benefit to any of the parties. As rightly argued by the learned Chief State Counsel, the learned trial judge declining jurisdiction by virtue of the provisions of Section 251(1) of the 1999 Constitution, has nothing to do with the superiority of the Section with Section 46 of the 1999 Constitution, the issue did not arise at the trial, contrary to the appellants’ first issue. I am also at one with the submission that from the reliefs sought by the appellants at the trial Court, the reliefs cannot be granted without conferring title to the appellants, which the trial Court did not have the power to consider, talkless grant.

It is also noteworthy that in the appellants’ brief of argument, the learned counsel to the appellants in his argument intermittently argued that the 3rd and 4th respondents were using the police (1st and 2nd Respondents) to interfere in a land matter, when the Police Act did not include land matters as part of their schedule of duty. I will highlight a few paragraphs, also that the respondents were challenging the appellants on family land. See paragraphs 5:06, 5:08 – “It is not the duty of 1st – 2nd Respondents to wade into land dispute”, the 5:10, 5:11, 5:12 “it is our submission that on scrutiny of the processes before this hounorable Court, your Lordship would observe that this case is purely civil matters bordering on land matter which is outside the Police Power”, 5:13 “it is our submission that Exhibit MOJ4 has clearly shown that the police exercised quasi-judicial power over land matter between 2nd – 3rd Respondents and the appellants’ families where the Police findings show clear adjudication on land matter. The special Anti-Robbery Squad of the Police Wing has added further jurisdiction to its duties by deciding ownership of the land in defiance of Section 4 of Police Act 2010”, 5:18, 5:21, 5:23 – (stated that the police have no power over land matter generally), 5:24, 5:25, 5:26, 5:27, 5:28 – (talks about the identity of the land in dispute) and 5:33. The learned counsel to the appellants clearly spelt out the crux of the action taken out at the trial Court to be a land dispute which ran through his submissions before this Court, who by so doing agreed with the decision of the learned trial judge that the lower Court had no jurisdiction to entertain the substantive application. The trial Court was right to have declined jurisdiction. I cannot fault it.

I hold that the declaratory reliefs sought at the trial Court touched on land dispute which by virtue of Section 251(1) of the 1999 Constitution (as amended) did not include adjudication over land matters. The appeal is without merit, I dismiss it and affirm the decision of the learned trial judge declining jurisdiction to entertain the substantive matter.

Parties are to bear their respective costs.

BARKA, J.C.A.

I agree

UGO, J.C.A.

I agree

Appearances:

M.H.O. Hameed For Appellant(s)

Ayoola Idowu Akande, Chief State Counsel, Kwara State Ministry of Justice – for 1st-3rd Respondents.

Tunde Babalola – for 4th Respondent. For Respondent(s)