BETWEEN: 1. CHIEF EBENEZER OGBONNA 2 ELDER EPELLE AGIRIGA === 1 ST SET OF 3. CHIEF JOSAIAH NWOGU PLAINTIFFS 4. ELDER NWOBILOR NWELE

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1 IN THE FEDERAL HIGH COURT OF NIGERIA IN THE UMUAHIA JUDICIAL DIVISION HOLDEN AT UMUAHIA ON WEDNESDAY THE 29 TH DAY OF JANUARY, 2014 BEFORE THE HONOURABLE JUSTICE F. A. OLUBANJO JUDGE SUIT NO: FHC/UM/CS/64/2005 BETWEEN: 1. CHIEF EBENEZER OGBONNA 2 ELDER EPELLE AGIRIGA === 1 ST SET OF 3. CHIEF JOSAIAH NWOGU PLAINTIFFS 4. ELDER NWOBILOR NWELE (For themselves and as representing Umueneregbe Village, Umuoyorongwa, Osisioma Ngwa LGA, Abia State) 5. ATTORNEY GENERAL OF ABIA STATE === 2 nd SET OF PLAINTIFFS AND 1. COMMISSIONER OF POLICE, RIVERS STATE == 1 ST DEFENDANT 2. SUNDAY NWAFOR 3. ONYEKWERE ACHO 4. EMEBIRI NWANKWO === 2 ND SET OF 5. IKECHI JOHN DEFENDANTS 6. UZOMA ACHO (For themselves and as representing Umuonyia Village, Omuma LGA, Rivers State) RULING This suit was commenced vide a Writ of Summons dated 15/4/05 and filed the

2 same date. The Plaintiffs claims as contained on the Writ of Summons and at paragraph 15 of the Statement of Claim (also dated and filed on 15/4/05) is for: (a) A declaration that the Plaintiffs are in Abia State of Nigeria and that their entire village and the land thereat are all in Abia State. (b) An Order directing the 1 st set of Defendants to permanently demarcate the boundaries of the Abia State and Rivers State at the Southern part of Abia State particularly Umuoyoro Ngwa in Osisioma LGA, Abia State and Umuonyia in Omuma LGA, Rivers State of Nigeria. (c) An Order of Perpetual Injunction restraining the 3 rd set of Defendants from further interfering or encroaching into Abia State particularly Umueneregbe land within Abia State or using the 6 th Defendant to arrest, detain or harass or torture the Plaintiffs village and the 3 rd set of Defendants. So many applications have been filed by the parties between 2005 and present date, which account for why this suit is almost NINE years old on this Court s cause list. This Ruling is in respect of a Notice of Preliminary Objection dated 14/6/13 and filed on 17/6/13 by the 2 nd to 6 th Defendants/Applicants on record i.e. Sunday Nwafor, Onyekwere Acho, Emebiri Nwankwo, Ikechi John

3 and Uzoma Acho who are being sued for themselves and as representing Umuonyia Village in Omuma L.G.A of Rivers State. These Defendants/Applicants seek for an order striking out this suit for want of jurisdiction. The application is brought pursuant to Section 251 (1) of the 1999 Constitution as amended and under the inherent jurisdiction of this Honourable Court. The grounds of the objection are stated as follows: 1. The subject matter of this suit being outside the jurisdiction purview of the Federal High Court by virtue of Section 251 (1) of the 1999 Constitution (as amended) and Section 7 of the Federal High Court Act Laws of the Federation of Nigeria (LFN), The subject matter of this suit being one bordering on the boundary between Abia State and Rivers State falls within causes or matters over which the Supreme Court has original exclusive jurisdiction by virtue of Section 232 (1) & (2) of the 1999 Constitution (as amended) and Section 17 of the Supreme Court Act, CAP. S15, LFN, By virtue of Sections 3 and 6 of the National Boundary Commission Act, Cap, N10, LFN, 2004, the National Boundary Commission is vested with powers to deal with inter-state boundary disputes. The only issue outlined for determination by K.K. Ubani Esq. Learned Counsel for the 2 nd to 6 th Defendants/Applicants in his Written Address in Support of

4 the Preliminary Objection dated 14/6/13 is Whether after a calm consideration of the entire gamut of the Plaintiffs pleadings and claims, the subject matter of this suit falls within causes and matters over which this Honourable Court is vested with jurisdiction to entertain? See paragraph 1.00 of that Written Address. Counsel submitted that causes or matters bordering on the determination of boundaries between two states of the Federation are within the scope of the National Boundary Commission by virtue of Sections 3 and 7 of the National Boundary Commission Act Cap N10 LFN 2004, and do not fall within the areas of jurisdictional competence of the Federal High Court as outlined in Section 7 of the Federal High Court Act Cap F12 LFN 2004 and Section 251 (1) of the 1999 Constitution (as amended.) As such, this Court has no jurisdiction to entertain the Plaintiffs claims as endorsed at paragraph 15 of the Statement of Claim. Reliance for these submissions was placed on: TURKUR V. GOVERNMENT OF GONGOLA STATE (1987) 4 NWLR (PT. 117) p.517 at p.549 paragraph C to D. AFRICAN PRESS OF NIGERIA V. THE FEDERAL REPUBLIC OF NIGERIA (1985) 1 ALL NLR p.50 at p.175. In the alternative 2 nd to 6 th Defendants/Applicants Counsel submitted that if the cause of action in this suit is not within the competence of the National

5 Boundary Commission, then, since it borders on questions of facts and law affecting two states as well as the Federal Government, it comes within the purview of the original exclusive jurisdiction of the Supreme Court by virtue of Sections 232 (1) and (2) of the Constitution and Section 17 of the Supreme Court Act, and the Honourable Court still lacks jurisdiction to adjudicate. In this regard, Counsel cited A. G. KANO STATE V. A. G. FEDERATION (2007) ALL FWLR (pt.364) p.236 at pp. 251 to 252 paragraphs F to A, p.252 to 253 paragraphs E to A. And A. G. BENDEL STATE V. A. G. FEDERATION (2001) FWLR (PT. 65) p.448 at pp.495 to 496 paragraphs E to D. The Court was urged to resolve the sole issue for determination in the negative and strike out this suit for want of jurisdiction. Hon. Chief L.C. Nwauba, Plaintiffs/Respondents Learned Senior Counsel, filed a Reply on Points of Law (dated and filed on 1/7/13). Therein, Learned Counsel relied inter alia on Order 16 Rules 1 and 2 (1) of the Federal High Court (Civil Procedure) Rules 2009 and submitted that since the 2 nd to 6 th Defendants/Applicants have not filed a Defence to this suit, this objection is a demurer which is not allowed by the Rules of this Court. Let me quickly deal

6 with this aspect of Plaintiffs/Respondents Counsels submissions. Order 16 Rules 1 and 2(1) of the Federal High Court (Civil Procedure) Rules 2009 provides as follows: ORDER 16: 1. No demurrer shall be allowed 2 (1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial. The operative words or phrase are/is shall be entitled to raise by his pleading. While the word shall appears to be mandatory, the words be entitled have removed the sting of that word shall and thus the actions that may be taken by a party pursuant to those Rules are merely directory rather than obligatory or mandatory. When judicially construed, the provisions of Order 16 Rules 1 and 2(1) of the Federal High Court (Civil Procedure) Rules 2009 are not sacrosanct as mandatory statutory provisions. This is because Courts are now generally slow to accept and interpret the word shall in the Rules of Court, as mandatory, but rather it is considered directory or permissive. See

7 ESSANG V. BANK OF THE NORTH (2001) 6 NWLR (PT. 709) p.384 (Court of Appeal. Furthermore, the word entitle is defined by the Oxford Advanced Learners Dictionary, International Student s Edition, 7 th Edition as follows:- to give somebody the right to have or to do something By using the phrase shall be entitled, these Rules imply a discretion on the part of whoever is required to do something; in this case, a discretion is implied on the part of the party who wishes to raise an objection on a point of law to do so in his pleading if he desires to file a Statement of Defence before raising his objection. The situation would have been different if the Rules under consideration had provided that a party shall raise by his pleading any point of law, thereby omitting the qualifying phrase shall be entitled. The summary of all that I have stated is that a Defendant may file a Preliminary Objection before he files his Statement of Defence. See the Judgment of Honourable Justice G.O. Kolawale of the Abuja Division of this Honourable Court delivered on 23/2/12 in suit No. FHC/UM/ABJ/CS/454/09 BETWEEN JIBRIN BAKO VERSES FRSC NATIONAL HEADQUARTERS WUSE ABUJA at pages 14 to 20. In his submissions, Learned Counsel for Plaintiffs/Respondents also relied inter alia on Order 29 Rules 1 (a), 2, and 4 of the Federal High Court (Civil Procedure) Rules 2009 and submitted that this application or objection not

8 having been timeously filed can only be taken at the conclusion of trial in this matter. I may just pause to state, that, it is trite that the issue of jurisdiction can be raised at any time, and it is expedient for the Court to determine as early as possible, whether or not it has the powers to adjudicate so as not to waste the time of parties, court and Counsel. Besides this, the fundamental objectives of the Federal High Court (Civil Procedure) Rules 2009, is the just and expeditious disposition of cases (See Order 1 Rule 4). If this suit can be justly and expeditiously determined at this stage of Preliminary Objection, then it is to the benefit of all concerned if this objection is disposed of before energy is expended in the trial of the case. Chief Nwauba further posited that by the striking out of the names of the former 1 st to 5 th Defendants off the record on 19/6/13, this objection has been overtaken by events and ought to be struck out since the reliefs sought against the former 1 st to 5 th Defendants (whose names have been struck out and are no longer defendants to this suit) cam never be granted by this Court. A Court can only exercise its jurisdiction over parties before it and strictly in respect of the case between them upon issues raised and reliefs sought. Reliance was placed on HEBILE V. REG. TRUSTEES OF C & S (2003) 2 NWLR (PT.804) p.399 (Supreme Court). I pause again, to note that, upon the striking out of the names of the former 1 st

9 to 5 th Defendants on 19/6/13, i.e - the Government of the Federal Republic of Nigeria. - the Attorney General of the Federation & Minister of Justice. - the Surveyor General of the Federation. - the Government of Rivers State of Nigeria, and - the Attorney General of Rivers State. these persons ceased to be parties before the Honourable Court, and Plaintiffs/Respondents Claim number 2 i.e. (b) An Order directing the 1 st set of Defendants to permanently demarcate the boundaries of the Abia State and Rivers State at the Southern part of Abia State particularly Umuoyoro Ngwa in Osisioma LGA, Abia State and Umuonyia in Omuma LGA, Rivers State of Nigeria. can no longer be granted by this Honourable Court. Their claims Nos. 1 and 3 are however still of concern to this Honourable Court as to whether or not the Federal High Court can exercise jurisdiction over such a subject matter. It was the opinion of Learned Senior Counsel for Plaintiffs/Respondents that

10 the issues which arises for determination in this objection is (1) Whether or not this Court has jurisdiction to hear and determine this suit? He submitted that this Court possesses jurisdiction based on the provisions of Section 251 (1) (r) of the 1999 Constitution and placed reliance, inter alia on F G N V. OSHIOMOLE (2004) 3 NWLR (PT.860) p.305 at 323 paragraphs F to H (Court of Appeal). F H A V. JOHN SHOY INTERNATIONAL LTD (2005) 1 NWLR (PT. 908 p.637 at 650 to 651 paragraphs H to D. Counsel posited, based on the cases he cited, that exclusive jurisdiction is vested in this Court in matters in which the Federal Government or any of its agencies is a party notwithstanding the nature of the claim in the action. He therefore urged the Court to hold that it has jurisdiction and to proceed to determine the Plaintiffs claim. This objection was argued on 2/12/13, when Mr. Agala for the 2 nd to 6 th Defendants/Applicants and Miss Ejiofor for the Plaintiffs/Respondents adopted their written addresses. I have carefully considered the instant objection. The issues formulated for determination by both Counsel are the same. I shall consider them together. Does this Honourable Court possess jurisdiction to adjudicate over (items

11 1 and 3 of) the Plaintiffs/Respondents claims which obviously pertain to land, and which despite the striking out of the names of the former 1 st to 5 th Defendants off the record, still have a tint or colouration of a border dispute? I say there is a tint or colouration of a border dispute because the borders of the disputing villages (of the Plaintiffs/Respondents and the 2 nd to 6 th Defendants/Applicants) would still have to be determined before this Honourable Court can make a declaration as to whether ((or not) the Plaintiffs/Respondents land and village are in Abia State of Nigeria i.e. Relief 1. Relief 3 also makes mention of a border dispute. Whatever the case may be, land is definitely the subject matter of this suit. By the provisions of Section 251(1) of the 1999 Constitution as amended (and Section 7 of the Federal High Court Act) this Court is not given jurisdiction to adjudicate over land disputes. Plaintiffs/Respondents Counsel has contended that, once a Federal Government Agency, such as the 1 st Defendant/Respondent, is a party to a suit, the Federal High Court possesses jurisdiction to adjudicate, no matter the subject matter of the suit; he has also contended that the reliefs being sought by the Plaintiffs/Respondents come within the purview of Section 251 (1) (r) of the Constitution (as amended). In JOSIAH AYODELE ADETAYO & 2 ORS. V. KUNLE ADEMOLA & 2 ORS (2010) 15 NWLR (PT. 1215) p.169 at 190 paragraphs E to G, the Supreme Court, in construing the provisions of Section 251 (1) (r) of the

12 1999 Constitution, per MAHMUD MOHAMMED JSC held that On the face of these provisions of the Constitution, it appears that (the) impression has been created that the Federal High Court has exclusive original jurisdiction to the exclusion of all other Courts in Nigeria in any civil cause or proceedings in which the Federal Government or any of its agencies is a party. However, a very close careful and proper interpretation or construction of the provision would show that this is not necessary the true position. The because, in my view, it is the facts and circumstances of each case that will determine whether or not it is a case within or outside the exclusive jurisdiction of the Federal High Court.. His Lordship went further at P.191 paragraphs B to C to state that in considering the jurisdiction of this Court, there is a need to examine both the parties as well as the subject matter of the litigation. In this suit, there is no doubt that the 1 st Defendant is an agent of the Federal Government. There is also no doubt that the subject matter of this suit borders on a dispute regarding land, in particular the boundary between the land of the Plaintiffs/Respondents and that of the 2 nd to 6 th Defendants/Applicants. His Lordship also stated at P.192 paragraph C to D that there is nothing in Section 251 of the 1999 Constitution which specifically confers jurisdiction on the Federal High Court in causes or matters concerning land disputes. Further, that the National Assembly has not promulgated any law which confers jurisdiction on this Court

13 in causes or matters concerning land disputes. In her own Judgment, in that suit, Adekeye JSC (now retired) at P.204 paragraphs E to F stated that the action or proceedings for a declaration or injunction stipulated in Section 251 (1)(r), is that which affects the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. In this instant case, the Plaintiffs/Respondents have not alleged that any Federal Government agency, particularly the 1 st Defendant, who is the only Federal Government Agent who is (still) a party in this suit, has taken any administrative or executive action or decision which has given the land belonging to the Plaintiffs/Respondents to the 2 nd to 6 th Defendants/Applicants, or declared that the Plaintiffs village is not in Abia State, or that any Federal Government Agency particularly the 1 st Defendant, has by any administrative or executive action or decision extended the boundary of the 2 nd to 6 th Defendants/Applicants land beyond what it should be. By the decision in ADETAYO V. ADEMOLA (supra) it is obvious that Section 251 (1) (r) of the 1999 Constitution does not confer jurisdiction on this Court to adjudicate in the circumstances of this suit. Despite the striking out of the names of former 1 st to 5 th Defendants, I am inclined to agree with the Learned Counsel for 2 nd to 6 th Defendants/Applicants that the National Boundary Commission should be referred to, in order to settle

14 the issues between the Plaintiffs/Respondents and the 2 nd to 6 th Defendants/Applicants so that each party will be certain of the boundaries of their villages. For the reasons I had already stated, I am of the view that this Honourable Court lacks jurisdiction to adjudicate over substantive suit. The issues formulated for determination by Learned Counsel for the parties are resolved in the negative, in favour of the Defendants. The Notice of Preliminary Objection dated 14/6/13 and filed on 17/6/13 is upheld, and it succeeds. Suit No. FHC/UM/CS/64/05 is struck out. That shall be the Ruling of this Honourable Court. F. A. OLUBANJO JUDGE 29/1/ APPEARANCES: 1 st and 4 th Plaintiffs are present Defendants are absent Chief Elder L. C. Nwauba for all the Plaintiffs Adetutu Aina (Miss) for 1 st Defendant. No legal representation for 2 nd to 6 th Defendants.