LAGOS STATE UNIVERSITY & ANOR VS TAIWO ADEGBOYEGA GANIYU

CORAM

PARTIES

APPELLANTS

RESPONDENTS

AREA(S) OF LAW

ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, DAMAGES, FUNDAMENTAL RIGHT, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent was a driver of a commercial Toyota bus with registration number XF 163 EKY. On 10th March, 2006, the Respondent was fixing his tyre at a vulcaniser’s workshop in front of the premises of the first Appellant. In the course of that, the armed security outfit of the first Respondent (campus marshalls), led by the second Respondent, came and arrested him. The allegation against him was that his bus was one of the vehicles used by the students for their protest action against the first Appellant on 9th March, 2006. The armed marshalls beat, tortured, chained, handcuffed and detained the Respondent. They forced him, at gun point, to admit, in writing, that he worked on 9th March, 2006 and a written apology for that. They paraded him, like a common criminal, through the highway. They took him to the P.P.L. Police Station where the police officers ordered them to release him but they refused. They seized and detained the Respondent’s commercial Toyota bus, which caused untold hardships on him and members of his family. They continued to detain the Toyota bus despite repeated demands for its release. Sequel to these, the Respondent beseeched the High Court of Lagos, Lagos Division, via an application under the fundamental right procedure and sought against the Appellants a declaration that that the arrest, detention, torture, inhuman treatment of the Applicant and the seizure and continued detention of the Applicant’s vehicle by the Lagos State University marshals is unlawful, illegal and unconstitutional, as same violate the Applicant’s Fundamental Right to personal liberty and Property as guaranteed by the Sections 35 and 44 of Constitution of Federal Republic of Nigeria 1999 and the African Charter On Human And Peoples Right (Ratification And Enforcement) Act 1990; an order directing the Respondents to pay to the Applicant the sum of N1,000,000.00, as damages amongst other reliefs.

The Appellants filed no process (counter-affidavit) in response to the suit despite the service of all the processes on them. The lower court heard the application and granted same. The Appellants being dissatisfied with the decision, obtained an extension of time to appeal against the judgment from this court filed a notice of appeal wherein they prayed for an order allowing the appeal, setting aside the judgment of the lower court and dismissing the application for fundamental rights.

The Respondent, despite service on him of the processes, he was unrepresented and filed no brief of argument

HELD

Appeal Dismissed

ISSUES

ISSUES FOR DETERMINATION

 Whether the Conditions precedent to the grant of the prayer for Fundamental Human Rights are fulfilled and the Honourable Court has jurisdiction to entertain same?

 Whether the Respondent is not bound and did prove he is the owner of the Vehicle with registration No. XF 163 EKY and the learned trial judge is right when he held that Respondent is entitled to N300,000.00 damages when the Respondent failed to prove that he suffered or entitled to any damage?

 Whether having regard to the facts placed before the Court by the Respondent the learned trial judge was right to order the immediate return of the ignition and battery?

RATIONES DECIDENDI

JURISDICTION, COURT, PRACTICE AND PROCEDURE

ISSUE OF JURISDICTION – RATIONALE FOR THE PRIME CONSIDERATION OF THE ISSUE OF JURISDICTION BY THE COURT WHEN RAISED IN ANY PROCEEDINGS

“The law compels the courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. The reason the law, in its wisdom, insists on prime consideration of jurisdictional issue is obvious. Where a court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175. Hence, I will obey this legal commandment so as not to insult the law”. PER O.F.OGBUINYA, J.C.A

JURISDICTION, WORDS AND PHRASES

JURISDICTION – MEANING OF JURISDICTION

“Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. PER O.F.OGBUINYA, J.C.A

JURISDICTION, COURT

JURISDICTION – INGREDIENTS THAT CAN INFUSE JURISDICTION INTO A COURT

“A court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. 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 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. PER O.F.OGBUINYA, J.C.A

JURISDICTION, PRACTICE AND PROCEDURE

JURISDICTION – YARDSTICK IN DETERMINING THE PRESENCE OR ABSENCE OF ITS JURISDICTION

“Nota bene, the case-law has endorsed in toto a statement of claim as the major yardstick to be used by the court to measure the presence or absence of its jurisdiction, see Akine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons/motion, as in the case that mothered the appeal, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130.

That is not all. In the eyes of the law, relief, too, is one of the determinants of jurisdiction of court, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Dec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. PER O.F.OGBUINYA, J.C.A

FUNDAMENTAL RIGHT

FUNDAMENTAL RIGHT PROCEDURE- WHETHER A RELIEF CAN BE SOUGHT UNDER THE FUNDAMENTAL RIGHT PROCEDURE WHERE THE FUNDAMENTAL RIGHT CLAIM IS ANCILLARY TO ANOTHER CLAIM

“It is the trite position of law that where the main/primary right/claim is not a fundamental right, or where a fundamental right claim is an ancillary to another claim, then it is improper to seek relief in a court under the sanctuary of fundamental right procedure as such a situation impinges on the jurisdiction of the court, see Sea Trucks (Nig.) Ltd. v. Anigboro (supra); WAEC v. Adeyanuju (supra); Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Emeka v. Okoroafor(2017) 11 NWLR (pt. 1577) 410, Nwachukwu v. Nwachukwu(2018) 17 NWLR(pt. 1648) 357.

Interestingly, the case-law has since evolved the acceptable judicial formula which the courts use, as the template, to gauge the presence or absence of main or anciliary rights. In Sea Trucks (Nig.) Ltd v. Anigboro (2011) 3 NWHR (Pt.696) 159, Karibi-Whyte, JSC, incisively and insightfully, declared:

The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is here a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject- matter of the action. Enforcement of the right per-se cannot resolve the substantive claim which is any case different.

– PER O.F.OGBUINYA, J.C.A

COURT, JURISDICTION, ACTION, PRACTICE AND PROCEDURE

COURT – WHETHER A COURT VESTED WITH JURISDICTION TO DETERMINE THE PRINCIPAL CLAIM ALSO HAS THE VIRES TO DETERMINE THE ACCESSORY CLAIMS

“A court that is equipped with jurisdiction to hear the main claim is vested with the vires to try the auxiliary relief and vice versa. This hallowed principle of law traces its pedigree to the Latin Maxim: Accesoruim non-ducit sed sequitus suum principale, id est, that which is incidental does not lead, but follows its principal, see Tukur v. Govt of Gongola State (1989) 4 NWHR (Phill 7) 517. It follows that the respondent’s principal claims as, amply, demonstrated above, are rooted deeply in the allegation of breach of his fundamental rights. This brief legal anatomy on main and accessory claims, done in due obeisance to the law, with due reverence, clearly, punctures the appellants’ defeasible defence of categorisation of the respondent’s claim as incidental to fundamental rights. It is disabled from its birth. It cannot fly! PER O.F.OGBUINYA, J.C.A

COURT, JURISDICTION, PRACTICE AND PROCEDURE

COURT – WHETHER A COURT OF LAW HAS JURISDICTION TO GRANT A RELIEF NOT CLAIMED BY A PARTY TO A SUIT

“It is an elementary law, known for its antiquity, that a court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. The rationale behind this ageless principle of law is not far-fetched. A court of law is not clothed with the garment of a philanthropist or santa claus that dashes ex gratia awards that are not solicited by recipients. PER O.F.OGBUINYA, J.C.A

JUDGMENT AND ORDER

CONSEQUENTIAL ORDER – CONCEPT OF CONSEQUENTIAL ORDER

“In legal parlance, consequential denotes “following as a result of inference, following or resulting indirectly”, see Eze v. Gov, Abia State (2014) 14 NWLR (Pt. 1426) 192 at 216, per Rhodes – Vivour, JSC. Then, “A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it,” see Akinbobola v. Plisson Fisko (1991) 1 NWLR (pt. 167) 270 at 288, per Nnaemeka – Agu, JSC. Thus, a consequential order gives meaning and effect to a judgment without granting a fresh relief. It must be a product or bye-product of the main suit and the evidence. Hence, the law gives the court the inherent power to grant consequential orders in deserving cases, see Eagle Super Pack (Nig) Lad v. ACB Plc. (supra); Akeem v. University of Ibadan (2003) 10 NWLR (pt. 829) 584; Regd. Trustee, Apostolic Church v. Olowoleni (1990) 6 NWLR (pt. 158) 514; Amechi v. INEC (2008) 5 NWLR (pt. 1080) 227; Unity Bank Plc. V. Denclag Ltd. (2012) i8 NWLR (pt. 1332) 293; Eze v. Gov. Abia State (supra); Osuji v. Ekeocha (supra)/(2009) 7 SCNJ 248; Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169; OSIEC v. AC (2010) 19 NWLR (pt. 1226); Tindafai v. Jara (2016) 8 NWLR (Pt. 1513) 19; Namman v. Hajo (2016) 8 NWLR (Pt. 1515) 411”. PER O.F.OGBUINYA, J.C.A

COURT, JURISDICTION, PRACTICE AND PROCEDURE

COURT – EXCEPTION TO THE RULE THAT A COURT IS NOT CLOAKED WITH JURISDICTION TO AWARD UNCLAIMED RELIEFS

“It must be placed on record, perforce, that the cardinal principle of law that a court is not cloaked with the jurisdiction to award unclaimed reliefs is elastic. One of its recognised exceptions is located in the realm of consequential order. The fact that the order is a quintessence of a consequential order constitutes a serious coup de grace to the appellants’ dazzling contention. Indeed, it perforates their defence”. PER O.F.OGBUINYA, J.C.A

LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE

UNCHALLENGED EVIDENCE – ATTITUDE OF COURTS TO UNCHALLENGED EVIDENCE

“Curiously, the appellants, in their infinite wisdom, failed to file a counter-affidavit or any process to neutralise the critical averments in the application. Put simply, the appellants starved the lower court of any evidence refuting the allegations levelled against them. In essence, the crucial averments in the respondent’s affidavit were not controverted. In eyes of the law, those pungent depositions remained unchallenged. The law grants the court the unfettered liberty to act on unchallenged affidavit, see Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90; Inegbedion v. Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 539; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1”. PER O.F.OGBUINYA, J.C.A

CONSTITUTIONAL LAW

RIGHT TO PERSONAL LIBERTY- NATURE OF COMPENSATION A PARTY IS ENTITLED TO IN A BREACH OF HIS RIGHT TO PERSONAL LIBERTY

“To begin with, the respondents anchored his case, inter alia, on the provision of section 35(1) of the Constitution, as amended: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty….” The specific subsection which comes in handy on the consideration of the issue is subsection (6) of section 35 of the Constitution, as amended. Since it is the cynosure of the issue, it is imperative to pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus:

(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”

The comprehension friendly provision of section 35(1) of the Constitution, as amended, has fallen for interpretation before the courts. It is now, firmly, propagated by the case-law authorities, on the footing of the prescription of section 35(6) (supra), that a party who establishes unjustified deprivation of his personal liberty is entitled, ex debito justitiae, to compensation in the form of damages, see Odogwu v. A.-G Fed. (1996) 9-10 SCNJ 51; Jim-Jaja v. C.O.P., Rivers State (supra); F.B.N. Plc. v. A.-G., Fed (2018) 7 NWLR (Pt. 1617) 121. The word “entitled,” as encapsulated in section 35(6) (supra), denotes “to give (a person or thing) a title, right or claim to something; furnish with grounds for laying claim”, see F.BN Plc. v. A.-G, Fed. (supra) at 149, per Augie, JSC. PER O.F.OGBUINYA, J.C.A

DAMAGES

COMPENSATION – WHETHER COMPENSATION IS TANTAMOUNT TO DAMAGES

“Compensation is coterminous with damages which signify: “the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether that act or default is a breach of contract or a tort” or “the recompense given by process of law to a person for the wrong that another has done him,” see F.B.N. Plc v. A.-G, Fed. (supra) at 174, per Okoro, JSC”. PER O.F.OGBUINYA, J.C.A

FUNDAMENTAL RIGHT, DAMAGES

FUNDAMENTAL RIGHT PROCEDURE – NATURE OF AWARD OF DAMAGES IN A FUNDAMENTAL RIGHT ENFORCEMENT PROCEDURE

“In Jim-Jaja v. C.O.P, Rivers State (supra), at 254, Muntaka-Coomassie, JSC, opined:

The appellant’s claim is in connection with the breach of his fundamental rights to his liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained i.e that his fundamental right has been violated, If this is proved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic of Nigeria, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matter brought under the enforcement of the Fundamental Human Rights procedure…. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerians; fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed.

This magisterial pronouncement, in the ex cathedra authority, demolishes the defence of want of loss or injury to the respondent invented by the appellants to castrate the legality of the award. Indeed, once a party proves that his fundamental right is tampered with, or likely to be tampered with, quia timet, he is qualified/entitled to recompense and apology as decreed by the sacrosanct provision of section 35(6) of the Constitution, as amended, see Jim-Jaja v. C.O.P., Rivers State (supra); F.B.N. Plc. v. A.-G., Fed (supra)”. PER O.F.OGBUINYA, J.C.A

FUNDAMENTAL RIGHT, COURT, PRACTICE AND PROCEDURE

FUNDAMENTAL RIGHT PROCEEDING – DUTY OF COURTS IN DETERMINING FUNDAMENTAL RIGHT PROCEEDINGS

“The fundamental right proceeding is sui generis as it is “a peculiar and special action provided for in the Rules”, Onyekwulaje v. Benue State Govt. (2015) 16 NWLR (Pt. 1484) 40 at 83, per Peter-Odili, JSC. No wonder, the law has directed the courts to display activism and dispatch in determining fundamental rights action, see Fidelity Bank Plc. v. Monye (2012) 10 NWLR (Pt. 1307) 1; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Benson v. C.O.P. (2016) 12 NWLR (Pt. 1524) 445. The reasons for the recompense are not moot. Personal liberty is a commodity of an inherently high value, see FBN Plc v. A.-G, Fed. (2018) 7 NWLR (Pt. 1617) 121. Personal liberty is precious and priceless so that the preservation of liberty of citizens must always be paramount, see Benson v. C.O.P (2016) 12 NWLR (Pt. 1527) 445. Hence, the courts are enjoined to protect rights to personal liberty and freedom of movement for enjoyment by the citizenry, see DSSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Azuh v. UBN Plc (2014) 11 NWLR (Pt. 1419) 580. PER O.F.OGBUINYA, J.C.A