BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Achebe v. Nwosu.
  • 136
  • 2003-01-06
  • ₦ 200
  • Buy Now

Achebe v. Nwosu.

1.      DR. J.U. ACHEBE CHIEF MEDICAL DIRECTOR

NATIONAL ORTHOPAEDIC  HOSPITAL,

ENUGU AND

2.      ORTHORPAEDIC HOSPITALS  MANAGEMENT BOARD

V

CHIEF DONA NWOSU

AND

THE FEDERAL MINISTRY OF HEALTH AND 2 OTHERS

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN THOMPSON AKPABIO, JCA ( Presided )

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

MUSA DATTIJO MUHAMMAD, JCA

CA/E/30/2000

TUESDAY, 14TH JANUARY, 2002

ACTION - Contentious action - Initiating same under Fundamental Right Enforcement Procedure - Impropriety of

COURT - Appellate court - Where declares on action invalid - Whether same appellate court can go into its merit.

COURT - Decision of court - Decision made without jurisdiction Consequence of

COURT - Federal High Court - Jurisdiction of  - Whether includes declaration of title to land

COURT - Judges - Need for to observe the principle of stare decisis

FUNDAMENTAL RIGHTS  - Enforcement of - How action is commenced when enforcement of fundamental rights is involved

FUNDAMENTAL RIGHTS - Enforcement of - Two main categories of enforcement

FUNDAMENTAL RIGHTS - Fundamental Right Enforcement Procedure

Rules - Initiating contentious action thereunder - Impropriety of

INTERPRETATION OF STATUTES  - Section (230 of 1979 Constitution) 251  of  1999 Constitution - Provisions of on jurisdiction of Federal High Court - Need for caution while interpreting same

INTERPRETATION OF STATUTES - Words that are not clear in a provision -  How construed

JUDGMENT AND ORDERS  - Decision of court - Decision made without jurisdiction - Consequence of

JUDICIAL PRECEDENT - Principle of stare decisis - Need for judges to observe

JUDICIAL PRECEDENT - Principle of stare decisis - Application of

JURISDICTION - Decision made without jurisdiction - Consequence of

JURISDICTION - Jurisdiction of  Federal High Court - Whether includes declaration of title to land

JURISDICTION - Jurisdiction of court - How determined - Importance of subject-matter of action in determining jurisdiction of court

LANDLAW - Declaration of title to land - Whether Federal High Court is competent to entertain

PRACTICE AND PROCEDURE - Principle of stare decisis - Need for judges to observe

STATUTE -  Sub-section 230(1)(s) 1979 Constitution - Invoking provisions of - Condition precedent thereto

STATUTES - Section 230(1)(a) of 1979 Constitution - The phrase ‘subject to the provision of this constitution’ stated therein - Meaning of

WORDS AND PHRASES - ‘Subject to the provision of this constitution’ Meaning of as stated in subsection 230(1)(a) of 1979 Constitution

Issue:

Whether title to land is enforceable by way of Fundamental Rights Enforcement (Procedure) Rules, and  whether in any case the Federal High Court has jurisdiction to entertain the suit relating to claim of title by the applicant.

Facts:

The applicant/respondent filed an ex parte application brought under the Fundamental Rights Enforcement Procedure Rules and got leave of  the

Federal High Court Enugu to enforce his fundamental rights under sections 40  and 42 of 1979 Constitution against the two respondents/appellants.  The ex parte application was in respect of the applicant/respondent piece of land located at ‘plot S/4 Triangle Layout near Orthopaedic Hospital, Enugu. The said ex parte application which joined the Fed Min of Health, the Fed Min of Works and Housing and the I.G. of police as 3rd, 4th and 5th respondents respectively sought, inter alia, service of declaratory, mandatory and injunctive reliefs in respect of the wall erected on the access road leading to the applicants plot by the 1st and 2nd respondents.

The trial court on the 27/10/99 granted all the reliefs sought by the applicant as well as compelling the 1st and 2nd respondents to open up the wall erected on the access road leading to the applicant’s plot within 7 days failure of which the applicant was empowered to do so. Dissatisfied with the said judgment, the 2nd respondent/appellant filed a Notice of Appeal on 29/ 10 /99 while the 1st respondent/appellant filed a separtate Notice of Appeal on 1/11/99. The 1st and 2nd respondents/appellants separately applied to the trial court for stay of execution of the said judgment pending the determination of the appeal. However, the applicant, pursuant to the same judgment demolished the erected access wall on 4/11/99 while the motion for stay of execution of the judgment was pending before the trial court.

In response to the demolished wall, the 1st and 2nd respondents/ appellants jointly filed a motion seeking to compel the applicant to restore the demolished wall. The trial court conslidated the two motions of the 1st and 2nd respondents/appellants both for stay of execution and restoration of demolished wall for hearing.

The trial Judge in his ruling refused the application for restoration of the demolished access wall but granted application for stay of execution. The respondents/appellants being aggrieved filed two separate appeals against the judgment of the trial Judge delivered on 27/10/99  and 16 /12/ 99 respectively.  The Court of Appeal which in its wisdom consolidated the two appeals is enjoined to determine, inter alia, whether the demolition of the fence by the applicant/respondent was legal, lawful and regular and if otherwise, whether the  trial court ought not to have ordered the restoration of the wall fence.