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  • 2012-09-17
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Reg. T.E.C.W.A. v. Governor, Jigawa State

THE REGISTERED TRUSTEES OF EVANGELICAL CHURCHES OF WEST AFRICA

V

THE GOVERNOR, JIGAWA STATE

THE ATTORNEY-GENERAL OF JIGAWA STATE

COURT OF APPEAL

( KADUNA DIVISION )

T. N. ORJI-ABADUA JCA ( Presided and Read the Lead Judgment )

JOSEPH TINE TUR JCA

OBANDE F. OGBUINYA JCA

CA/K/163/2004

TUESDAY, 8 JUNE 2011

COURT - Competence of - Determinants of

FUNDAMENTAL RIGHTS - Enforcement of - Application for - State and Federal High Courts - Jurisdiction of therefor - Exercise of -  Condition precedent to

FUNDAMENTAL RIGHTS - Fundamental Rights ( Enforcement

Procedure) Rules - Purport of - Right protected by - Action commenced thereunder - Applicant therein - Onus on

JURISDICTION - Meaning of - Issue of - Fundamental nature of Propriety of determining firstly - Where does not exist - Proper order to make - When may be raised - Appeal against Needlessness of filing before being raised in appellate court Power of court to determine without affording parties a hearing on

LAND LAW - Trespass and injunction - Claim for - Propriety of determining issue of title therein - Action for trespass - Who may maintain - Where trespass is established - Duty on court

STATUTE - Fundamental Rights (Enforcement Procedure) Rules Purport of - Right protected by - Action commenced thereunder -  Applicant therein - Onus on

Issue:

Whether the appellant’s action founded on trespass and commenced under the Fundamental Rights (Enforcement Procedure) Rules is competent.

Facts:

The applicant claimed that it lawfully acquired the land in dispute and had been in possession for decades, but that the defendants trespassed thereon, denying its members access to their lands. It therefore commenced an action in the High Court of Jigawa State by originating motion under the Fundamental Rights (Enforcement Procedure) Rules. It sought ex parte leave to apply for the enforcement of its fundamental rights as well as that of its members, orders directing that the grant of leave operate as a stay of all actions relating to interference with the land in dispute pending final determination of the action and the respondents to allow its members have access to their farmlands. The trial court granted the reliefs sought. The plaintiff subsequently filed its motion on notice seeking orders directing the defendants to remove the fence erected around the farmlands and that the applicant being the rightful owners of the land are entitled to enjoy the deemed grant without further interference from the defendants, order of perpetual injunction restraining the defendant from future acts of trespass or committing any act of encroachment on the land and exemplary damages. The trial court granted the reliefs in part. Aggrieved, the applicant applied to the Court of Appeal.