Campagnie Generale De Geophysique (Nig) Ltd V. Prince Charles Anidi (2005)
LawGlobal-Hub Lead Judgment Report
U.M. ABBA AJI, J.C.A.
This is an appeal against the decision of Ehiwairo J, of the High Court of Delta State, Sapele, contained in the Ruling dated 8th day of July, 2002, which transferred this suit to the Federal High Court Benin, for want of the State High Court jurisdiction by virtue of Section 22(3) of the Federal High Court Act Cap 134 laws of the Federation of Nigeria, 1990.
The Respondent as Plaintiff filed this action vide Amended Writ of Summons and Statement of Claim dated 10th day of July, 1997, at the Delta State High Court Sapele, claiming for the following reliefs;-
(a) “Declaration that the plaintiff is entitled to compensation from the Defendant jointly and severally for damages to plaintiff’s cassava and trespass on plaintiff’s cassava farm by the Defendant.
(b) The sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) being damages for Plaintiff’s cassava that were destroyed by the defendants three (sic) seismic operations on the land vide seismic survey Peg No. SL-1376-5412, while prospecting for crude oil on Plaintiff’s cassava farm sometime in June, 1996.
(c) The sum of N1,000,000.00 (One Million Naira) being damages for trespass on plaintiff’s cassava farm by the Defendants.
(d) Other suitable reliefs.”
Pleadings were duly filed and exchanged. Before hearing could commence, Appellant filed a Notice of Preliminary objection on 19th March, 2002, challenging the jurisdiction of the Court being a State High Court to hear the matter and asking the court to strike out the suit.
At the hearing of the objection, the Respondent conceded on the point of non jurisdiction but the court upheld the Respondent’s counsel application to transfer the matter to the Federal High Court Benin in view of the provisions of Section 22 (3) of the Federal High Court Act, Cap 134 Laws of the Federation of Nigeria, 1990. This is what the learned trial Judge said in his ruling, allowing the Respondent’s application.
“At this stage, I have not seen anything new which will make me shift position which I held in the case of Monday Ojeba vs. United Geophysical (Nigeria) Limited and Ors suit No. S/120/09, which matter is not dissimilar from the present one.
In that matter, I relied on the authorities of Mokelu vs. Federal Commissioner for Works & Housing (1976) 1 NMLR 329 and Aluminium Manufacturing (Nigeria) Limited vs. Nigeria Ports authority (1987) 2 S.C 254 which interpreted Sections 22(2) and 22(3) of the Federal High Court Act 1976 to the effect that the State High Courts could transfer a matter rightly belonging to the Federal High Court which matter was wrongly initiated” at the State High Court to the Federal High Court.
Accordingly, I hereby transfer this matter to the Federal High Court sitting at Benin City for its determination and completion.”
The Appellant being dissatisfied with the decision of the lower court has now appealed to this court by a Notice of appeal, dated 15th day of July, 2002, upon two grounds of appeal. The grounds of appeal without their particulars are:-
(1) “Learned trial Judge erred in law, when he transferred suit No. S/134/96 to the Federal High Court instead of striking it out by virtue of Section 22(3) of the Federal High Court Act.
(2) The learned trial Judge erred in law in relying on his Earlier unreported decision in S/120/99 – MONDAY V. UNITED GEOPHYSICAL (NIG) LTD to justify the Transfer of this suit to the Federal High Court.”
Brief of arguments were duly filed and exchanged. In his Appellants brief settled by D.O Ezaga, Esq a lone issue was formulated for the determination of this appeal viz:-
“Whether the State High Court has the jurisdiction to transfer a suit to the Federal High Court where it lacks the necessary jurisdiction to hear same.”
In the Respondent’s brief settled by Dejo Lamikanra Esq, learned Counsel adopted the lone issue formulated by the Appellant in the determination of this appeal.
At the hearing of the appeal, learned Counsel for the Appellant D.O. Ezaga Esq adopted and relied on his brief deemed filed on the 17th day of August, 2004 and urged us to allow the appeal.
Lamikanra Esq for the Respondent adopted and relied on his brief deemed filed on the 16th day of May, 2005 and urged us to dismiss the appeal.
It is my view that in the determination of this appeal, the lone issue formulated by the Appellant is apt to dispose of the question raised in the appeal. The issue here is, whether the State High Court has the jurisdiction to transfer a suit to the Federal High Court, where it lacks the necessary jurisdiction to hear same.
It is the submission of learned Counsel for the Appellant Ezaga Esq that in transferring the suit to the Federal High Court the lower court placed reliance on two previous decisions of the Supreme Court, viz: CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) ALL NLR 224 and ALUMINIUM MANUFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (1987) 2 SC 254 AT 294. Learned Counsel submitted that both cases could be distinguished from this since it was the Federal High Court’s jurisdiction to transfer that formed the basis of the appeal, and it was held that the court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction, to the State High Court.
Learned Counsel posed the question whether the State High Court has a commensurate power to transfer suits vice-versa. Mr. Ezaga submitted that Mokelu’s (supra) was decided before the coming into effect of the 1979 Constitution but that his argument will be based on the Aluminium Manufacturing case (supra) which was decided after coming into effect of the 1979 Constitution. Mr. Ezaga referred to page 299 in the Aluminium Manufacturing case (supra) per Karibi Whyte JSC, and submitted that after highlighting the practice and procedure of the State High Court vis-a-vis the 1979 constitution, Karibi Whyte JSC concluded that where reliance is solely placed on Section 22(3) of the Federal High Court Act as was done in this case, then the State High Court lacks the jurisdiction to transfer. That the jurisdiction to transfer is hinged on Section 230 (2) of the 19979 constitution. Learned Counsel further submitted that the Supreme Court per Nnamani JSC in E.T. AWOLEYE VS. BOARD OF CUSTOMS AND EXCISE (1990) ALL NLR 127 AT 128, held that since the commencement of the Constitution of the Federal Republic of Nigeria 1979, the State High Court can no longer exercise the power hitherto conferred by section 22 (3) of the Federal High Court Act, 1973 to transfer to the Federal High Court, a matter before it in which it had no jurisdiction to try. Learned Counsel therefore, submitted that the lower court erred when he relied on his previous ruling in the unreported Delta State High Court Suit No. S/120/99 – MONDAY OTEBO VS. UNITED GEOPHYSICAL (NIG) LTD & ORS to hold that the decision of the Supreme Court in E.T. Awoleye’s case (supra) was decided per incuria. Learned Counsel further submitted that the lower court also erred in law, when it said in Monday Otebo’s ruling that notwithstanding any provisions of the State law to the contrary, the power to transfer a matter wrongly brought up in a State High Court to the Federal High Court and vice-versa provided for in Sections 22 (2) and (3) of the Federal High Court Act, 1976 had remained intact till this day.
Learned Counsel also submitted that the State High Court derives its jurisdiction to transfer from Section 230(2) of the 1979 Constitution. That Section 230(1) referred in its Subsection (2) merely highlighted the items which constitute the sphere of jurisdiction. Mr. Ezega submitted that these spheres of jurisdiction were later expanded in the new Section 230 (1) under the Constitution (Suspension and Modification) Decree (now Act) No. 107 of 1993. These expansion now became Section 251(1) of the 1999 Constitution. He submitted that before the amendment of 1993, the State High Court could also act as Federal High Court since it had unlimited jurisdiction and that was the basis of the Supreme Court’s decision in E.T. Awoleye’s case (supra). Mr. Ezaga submitted that from the foregoing, with the coming into effect of the 1979 Constitution, its Section 236 gave the State High Court unlimited jurisdiction to do what the Federal High Court could do including the power to transfer. Learned Counsel contended that if the State High Court had no jurisdiction to try a suit as was given it by Section 230(2) and 236 of the 1979 Constitution, it could not have had the jurisdiction to transfer even if it is specifically so provided as was done in Section 22(2) and (3) of the Federal High Court Act. Learned Counsel referred to power of transfer under Section 31 (1) of the High Court Law of Western Nigeria and submitted that the supreme Court held in KARIMU IGE VS. ABRAHAM OBIWALE (1967) ALL NLR 294 that the section does not empower a Judge of the High Court to transfer an appeal to a court of competent jurisdiction where the appeal is one in which the High Court itself has not jurisdiction.
Learned Counsel posed the question whether by the current state of the statutes and the Constitution of 1999, can the State High Court still transfer suits to the Federal High Court where it lacks the jurisdiction to try same? Mr. Ezaga answered the question in the negative. Learned Counsel submitted that the Federal High Court Act has been amended by the Federal High Court (Amendment) Decree No. 60 (now Act) of 1991 after the cases of MOKELU, ALUMINIUM MANUFACTURING and E.T. AWOLEYE cases cited supra were decided. He submitted that Section 7 (6) of the Federal High Court (Amendment) Act No. 60 of 1991 and Section 230 (1) of the constitution (Suspension and Modification) Act of 1993 jointly limited the unlimited jurisdiction of the State High Court as both statutes were then Decrees which suspended the 1979 Constitution (i.e. its Section 230(2) and 236) and thus, gave the Federal High court exclusive jurisdiction in certain matters. He contended that since the 1993 Act have been abrogated by virtue of the 1999 constitution, the provisions of the said Section 230(1) were brought back to life as Section 251(1) of the 1999 Constitution. Mr. Ezaga submitted that, that being the case, the old position enunciated in the above three cases decided on the strength of the 1979 constitution are no longer relevant as they died even during the 1979 Constitution after the amendment and were buried by the 1999 Constitution. Learned Counsel further submitted that the Federal High Court (amendment) Act No. 60 of 1991 made a clear distinction on cases pending at the commencement of the said Act in its proviso to Section 7 (6) (b) which states that:-
“Provided that any decisions taken by any court other than the court as a result of the power of concurrent jurisdiction so conferred shall be valid, but all other cases pending in the said other courts, other than Appeal Court, shall at the commencement of this section, abate and the judge before whom it is pending shall transfer them to the Registrar of the court to be heard as new suits.”
Mr. Ezaga contended that from the above provision, it is clear that the constitutionally recognized concurrent jurisdiction (i.e. Section 230(2) and 236 of the 1979 constitution) is only relevant for matters which have been concluded or still on appeal. He submitted that, other than that, all matters in which the Federal High court have exclusive jurisdiction by virtue of the Act must abate and be transferred to it if same is pending in other courts such as State High Court. He contended that the State High Court will have the jurisdiction to transfer only at that stage to the Federal High Court in line with Section 22(3) of the Federal High Court Act and IGE VS. OBIWALE’S case (supra). Learned Counsel submitted that by Section 7 (6) (b) of the Amended Act No. 60 of 1991, any decision including a decision made thereafter is void. Learned Counsel contended that after the commencement of the Act, all subsequent matters ought not to even go to the State High Court again because up to the stage before commencement, the jurisdiction only abated, but thereafter, it becomes a case of lack of jurisdiction ab initio.
He submitted that this is so because the concurrent jurisdiction by the State High Court and the Federal High Court shared transfer cases under Section 22 (3) of the Federal High Court Act (as Amended) have been taken away by the ouster of concurrent jurisdiction to try. Thus, the order to transfer being a decision by virtue of the definition of decision in Section 7(9)(b) of the same Act, is void by virtue of Section 7 (6) (b) thereof. He contended that in abatement, the transfer could be based on former jurisdiction but in ab initio, the power to transfer cannot be based on anything and cannot stand on anything from the beginning citing GARBA VS. FEDERAL CIVIL SERVICE COMMISSION (1988) 2 SC 221 AT 233.
Learned counsel also contended that when Section 7(6) (b) of the Federal High Court (Amendment) Act No. 60 of 1991 and its proviso is read alongside Section 22(3) of the Federal High Court Act, 1973, it could lead to a contradiction. He submitted that in this circumstance, Section 7(6)(b) and the proviso to the Federal High Court (Amendment) Act is said to have impliedly repealed Section 22(3) of the Federal High Court Act citing OLU OF WARRI VS; KPEREGBEYI (1994) 4 NWLR (PT.339) 416 AT 438.
Learned Counsel further submitted that the State High Court by virtue of Order 10 of the High Court (Civil Procedure) Rules of Bendel State as applicable to Delta State only has jurisdiction to transfer matters in which it has jurisdiction but declined same for another High Court due to administrative convenience. Other than in such situations, it has no option but to remove same from its cause list by the only available means of striking out citing OKOYE V S. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501 and YAKUBU VS. GOVERNOR OF KOGI STATE (1997) 7 NWLR (PT. 527) 391. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD VS. ISAIAH (2001) 11 NWLR (PT 723) 168, where the Supreme Court adopted the method of striking out from the High court cause list, and the Court of Appeal in MPIDI BARRY VS. OBI ERIC (1088) 8 NWLR (PT. 562) 404. Learned Counsel urged that same course of striking out be followed in this case as the State High Court lacks the jurisdiction to transfer a case to the Federal High Court where it lacks jurisdiction to try same. Learned Counsel urged us to set aside the Ruling of the Delta State High Court Sapele, dated 8th July, 2002 and strike out same for want of jurisdiction.
In the Respondents brief, learned Counsel for the Respondent Mr. Lamikanra submitted that the decision of the learned trial Judge transferring this suit to the Federal High Court was based on the provisions of Section 22 (3) of the Federal High Court Act 1973 and the question is whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria 1999, this Section of the Act is still extant. Mr. Lamikanra submitted that it is the view of the lower court that Section 22(3) of the Act is still valid and effective to enable a State High Court exercise the power to transfer causes in which it has no jurisdiction to the Federal High Court.
Learned Counsel submitted that the Federal High Court Act has been substantially amended by the provisions of Section 2 of Decree No. 60 of 1991. He submitted that this section amends Section 7 of the principle Act by repealing the original Section 7 and substituting therefore a new Section 7. Learned Counsel referred particularly to Section 7(6) (b) thereof and submitted that by virtue of Statutory Instrument No.9 of 1993, the Federal High Court Amendment Act No. 60 of 1991 came into force on the 26th day of August, 1993. He submitted that from that date, all cases pending before a State High Court, in respect of which the proper court of trial ought to be Federal High Court, will abate and be transferred to the Federal High Court. Learned Counsel further submitted that Section 22(3) of the Act and Act No. 60 of 1991 are by virtue of Section 315 of the 1999 Constitution deemed to be existing law and are therefore incorporated into the said Constitution as if they are enactments of the National Assembly, and that Decree No. 60 of 1991 did not expressly or impliedly repeals or nullifies the provisions of Section 22(3) of the Act. That the amendment only affected Sections 7 and 58 of the Act and not any other Section. It is the view of learned Counsel that Section 22(3) of the Act invests the High Court with the power to transfer causes in respect of which it used to but no longer has jurisdiction to the Federal High Court. He submitted that the provision of Section 22(3) of the Act is not inconsistent with the provisions of Act No. 60 of 1991 or the provisions of the 1999 Constitution. That it is still an extant law by virtue of the provisions of 1999 Constitution which deems it an existing law and not by the provisions of 1979 Constitution. Mr. Lamikanra submitted that all cases decided under and by virtue of the 1979 constitution, particularly as regards the purport and effect of Section 22 (3) of the Act are wholly inapplicable to the consideration of the issue for determination citing OLADIRAN VS. THE STATE (1986) 1 NSCC 62 AT 76 PER OPUTA, JSC; and ADISA VS. OYINLOLA (2000) 10 NWLR (PT. 674) 116.
Learned Counsel further submitted that in examining whether Section 22 (3) of the Act is inconsistent with any of the provisions of the 1999 Constitution, Section 251 vis-a-vis Section 272 of the 1999 Constitution must be considered. Learned Counsel submitted that it is clear that the legislature intend to preserve Section 251 of the 1999 Constitution of the matters stated therein to the exclusive jurisdiction of the Federal High Court to the exclusion of any other court. That Section 272 subject to the provision of Section 251 invests the State High Court with considerable wide power but not as provided under the 1979 Constitution where the State High Court exercised concurrent jurisdiction with the Federal High Court. To that extent learned counsel submitted that the provision of Section 22(3) of the Federal High Court Act is not in collision with the 1999 Constitution, but complementry in that it recognizes and gives effect to the exclusive jurisdiction of the Federal High Court to the exclusion of any other court.
Mr. Lamikanra also submitted that the State High Court is a Superior Court of record and referred to the powers of the court under Section 6(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that the aim of the Constitution is to facilitate access of every person, authority or Government to the courts established for the Federation of Nigeria where they may lawfully ventilate their grievances. Learned counsel further contended that by Section 74 of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990, the State High Court is enjoined to take judicial notice of all statutes and enactments whether adjectival or substantive, thus, making the State High Court not only bound by statutory enactments but also bound by its own rules of practice and procedure, the High Court (Civil Procedure) Rules 1988 of the then Bendel State, applicable to Delta State. Learned Counsel referred to Order 2 Rule 2, Order 10 Rules 4, 5 and 6; Order 24 Rule 3 and Order 47 Rule 1 and submitted that reading Section 22 (3) of the Federal High Court Act with these adjectival provision and the provisions of the 1999 Constitution read as a whole, the State High Court has the power to transfer causes in respect of which it has no jurisdiction and in respect of which it has determined that the Federal High Court is the proper court of trial to the Federal High Court. Mr. Lamikanra submitted that it is in the interest of justice to do so as it aids and facilitates the speedy dispensation of justice as provided for under Chapter IV of the 1999 Constitution. He also submitted that the power of transfer is not in any way prejudicial to the interest of the Respondent.
Mr. Lamikanra further submitted that where the words of a statute are clear and unambiguous, effect must be given to it, and when the statute being construed is a great document of a state such as the Constitution, the construction must be liberal and progressive and plain words must be given to their literal meaning citing FAWEHINMI VS. IGP (2000) 7 NWLR (PT. 665) 481 AT 520; and FAWEHINMI VS. IGP (2002) 7 NWLR (PT. 767) as per Uwaifo JSC on the Construction of Section 308 of the 1999 Constitution. Learned Counsel concluded that there is nothing in any of the provisions of the 1999 Constitution which expressly or impliedly repeals or nullifies the effect of Section 22 (3) of the Federal High Court Act, or which denudes a State High Court of the power to transfer causes in respect of which it has determined that it has no jurisdiction, to the Federal High Court.
It is also the view of Mr. Lamikanra that it is in the interest of justice that the power of the State High Court to transfer must not only be preserved but reinforced. That unless this power of transfer is preserved, the Court of Appeal would not under Section 16 of the Court of Appeal Act be able to transfer such a cause: to the Federal High Court when it has determined that the State High Court has not jurisdiction.
Learned Counsel for the Respondent Mr. Lamikanra, has filed a Respondent’s notice and contended that the decision of the court below dated and made on the 8th day of July, 2002, be affirmed on grounds other than those contained or set out in the said decision appealed from. Learned Counsel relied on the provisions of Sections 6, 251, 272 and 315 of the Constitution of the Federal Republic of Nigeria, 1999. Learned Counsel finally submitted that the power of transfer is derived from the 1999 Constitution and that Section 22(3) of the Federal High court Act is an integral part of the 1999 Constitution by virtue of Section 315 of the said constitution. It is his view that Section 22(3) is in consonance with Section 251 of the Constitution to the extent that any jurisdiction conferred on the Federal High Court must be exercised to the exclusion of any other court. Therefore, a State High court which transfers a cause it has determined should be tried by the Federal High Court is fully Compliant with the 1999 Constitution. This court is therefore urged to dismiss the appeal and affirm the order of the learned trial Judge transferring the suit to the Federal High Court.
The main issue now before this court is whether the State High Court has by coming into force of the Constitution of the Federal Republic of Nigeria 1999, the power to transfer a suit to the Federal High Court in which it lacks jurisdiction to try same.
The decision of the learned trial Judge transferring this suit to the Federal High Court was based on Section 22 (3) of the Federal High Court Act No. 134 Laws of the Federation of Nigeria 1990. The Section provides:-
22(3) “Not withstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a state or of the Federal Capital Territory, Abuja, on the ground that such cause or matter was taken in the High Court instead of the court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law, shall by virtue of this subsection be deemed also to include power to make rules of court for the purpose of this subsection.”
It is the submission of the learned Counsel for the Appellant that the cases relied upon by the learned trial Judge in transferring the suit; CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) and ALUMINIUM MANUFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (supra) could be distinguished from the instant appeal, since it was the Federal High Court jurisdiction to transfer that formed the basis of the appeal and in both it was held that the Federal High Court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction to the State High Court. Learned Counsel contended that the State High Court has no commensurate power to transfer suits vice-versa, since the coming into force of the 1999 Constitution. He submitted that the State High Court enjoyed such power under Section 230 (2) of the 1979 Constitution and not under Section 22 (3) of the Federal High Court Act citing Aluminium Manufacturing case (supra).
The learned Counsel for the Respondent however contended that the Section 22(3) of the Federal High Court Act is still extant by virtue of the Section 315 of the 1999 Constitution which deemed it to be existing law. That the Federal High Court (Amendment) Decree No. 60 of 1991 did not expressly or impliedly repeals or nullifies the Provisions of Section 22(3) of the Federal High Court Act. That Section 22 (3) of the Act vest on the High Court the power to transfer causes in respect of which it used to but no longer has jurisdiction to the Federal High Court.
Now the question is whether, the cases relied upon by the Lower Court in arriving at its decision transferring the suit to the Federal High Court based on Section 22(3) of the Federal High Court Act could be distinguished with the present appeal. In arriving at its decision, the Lower Court relied on its previous Ruling in the unreported suit No. S/120/99 – MONDAY VS. UNITED GEOPHYSICAL (NIG) LTD dated 10th June, 2002. In that suit, the Lower Court places reliance heavily on the cases of CHIEF P.I. MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) and ALUMINIUM MANFACTURING (NIG) LTD VS. NIGERIA PORTS AUTHORITY (supra). In these two cases, it was the Federal High Courts jurisdiction to transfer that formed the basis of the appeal and in both it was held that the Federal High Court could rely on Section 22 (2) of the Federal High Court Act to transfer a suit in which it had no jurisdiction to the State High Court. The case of MOKELU VS. FEDERAL COMMISSIONER FOR WORKS & HOUSING (supra) was decided before the coming into force of the 1979 Constitution, when the Federal High Court was the Federal Revenue Court and derives its jurisdiction from Federal Revenue Act of 1973 and the State High Court derived their unlimited jurisdiction from the Constitution of the then Northern and Southern Regions. Section 22 (3) of the Federal High Court Act gave the State High Court a commensurate right to transfer to the Federal High Court cases, in which it has come to the conclusion that it has no jurisdiction to try instead of striking out the suit.
It is to be observed that before the promulgation of the 1979 Constitution, High Courts both in Northern as well as Southern States of Nigeria were regarded as courts of unlimited jurisdiction by virtue of their status as superior courts of record. Thus, prima facie, the High Court being a superior court of record was a court of unlimited jurisdiction. The jurisdiction is described as unlimited only because it is presumed to exist in any case unless it is expressly curtailed by statute, as has been done in several regional or state laws before the promulgation of the 1979 Constitution. The coming into force of the 1979 Constitution had a considerable impact on the jurisdiction of the High Courts of the States, while prior to that Constitution there was no express vesting of judicial power in the judicature and the jurisdiction of the High Courts of the States was to be found in the states legislation which tended to vary from state to state, a change was effected by Section 236 (1) of the 1979 Constitution.
Thus in the case of ALUMINIUM MANUFACTURING (NIG) LTD (supra) decided after coming into being of the 1979 Constitution, the Supreme Court per Karibi-Whyte JSC, after highlighting the practice and procedure of the State High Court vis-a-vis the 1979 Constitution and the power of the High Court to transfer suit in which it has no jurisdiction to try under section 22(3) of the Federal High Court Act to the Federal High Court concluded as follows:-
“It seems to me that a Judge in Lagos State High Court cannot, without relying on the provisions of Section 230 (2) of the Constitution instead of dismissing an action for want of jurisdiction exercise powers under Order 22 Rule 3 of the Lagos State High Court (Civil Procedure) Rules to transfer the matter to another court. There is certainly no power to transfer the matter to the Federal High Court.”
From the above, it is clear that the High Court derives its jurisdiction to transfer from Section 230 (2) of the 1979 Constitution and not Section 22 (3) of the Federal High Court Act. Section 230(2) of the 1979 Constitution provides:-
“Notwithstanding subsection (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such Court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by law”.
Section 230(1) of the 1979 Constitution enumerates the matters which constitutes the jurisdiction of the court, where therefore reliance is solely placed on Section 22 (3) of the Federal High Court Act as was done in the instant appeal then the State High Court lacks the jurisdiction to transfer.
In E.T. AWOLEYE VS. BOARD OF CUSTOMS & EXCISE (supra) decided before coming into being of the Decree No. 107 of 1993, the Supreme Court per Nnamani JSC held that;
“Having heard the learned Counsel to the parties and read the proceedings, I am of the view that the law is well settled that since the commencement of the constitution of the Federal Republic of Nigeria 1979, The State High Court can no longer exercise the power hitherto conferred by Section 22(3) of the Federal High Court Act 1973 to transfer to the Federal High Court a matter before it in which it had no jurisdiction.”
With the coming into effect of the 1979 Constitution, its Section 236 gave the State High Court unlimited jurisdiction to do what the Federal High Court could do including the power of transfer. Therefore, the States High Courts could rely on Section 230(2) of the Constitution to either hear the suit or transfer to the Federal High Court. Where therefore, the State High Court had no jurisdiction to try a suit as was given to it by Sections 230(2) and 2.36 of the 1979 Constitution, it could not have had the jurisdiction to transfer even if it is specifically so provided as was done in Section 22(2) and (3) of the Federal high Court Act.
The salient question that arises from the foregoing is whether by the current state of the statutes and the 1999 Constitution, can the State High Court still transfer suits to the Federal High Court, where it lacks jurisdiction to try same under Section 22(3) of the Federal High Court Act.
By virtue of Section 7(1) of the Federal High Court (Amendment) Decree No. 60 of 1991, the Federal High Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to among others, mines and minerals including oil fields, oil mining, geological surveys and natural gases. This provision was reinforced by the amendment of Section 230 of the 1979 Constitution by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which stipulates in its section 230 (1) that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil matters enumerated therein. In effect, Section 7 (6) of the Federal High Court (Amendment) Act Decree No. 60 of 1991 and Section 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 jointly limited the unlimited jurisdiction of the State High Court and gave the Federal High Court Exclusive jurisdiction in certain matters and these provisions were reinforced as 251(1) of the 1999 Constitution.
In fact, Section 7 (6) of Decree No. 60 of 1991 has given finality to the concurrent jurisdiction of the State High Court to transfer suit in which it has decided that it has no jurisdiction to the Federal High Court. The Section provides:-
“Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria or of any Federal or State law shall as from the date of making the decision be null and void”.
I therefore agree with the submission of learned Counsel for the Appellant that after the commencement of the Act No. 60 of 1991, all subsequent matters ought not to even go to the State High Court because up to the stage before commencement, the jurisdiction only abated, but thereafter, it becomes a case of lack of jurisdiction ab initio. The concurrent jurisdiction of the State High Court and the Federal High Court shared transfer cases under Section 22(3) of the Federal High Court Act have been taken away by the ouster of concurrent jurisdiction to try. Therefore, the order of transfer being a decision in Section 7 (9) (b) of the Act, it is void by virtue of Section 7 6) (b) thereof. In abatement, the transfer could be based on former jurisdiction but in ab initio the power to transfer cannot be based on anything and cannot stand on anything from the beginning. In GARBA VS. FEDERAL CIVIL SERVICE COMMISSION (supra) the Supreme Court at page 233 held as follows:-
“Abatement of an action is, in my view a different thing from ouster of jurisdiction. It concedes that before the abatement provision of legislation comes into operation, the court has no jurisdiction to entertain the proceedings.”
It is not the intendment of the 1999 Constitution that a court of coordinate jurisdiction should transfer a case in which it has no jurisdiction to a court of competent jurisdiction. The order of transfer is invalid and whatever is contained in the Federal High Court Act in justification of that transfer is void and of no effect whatsoever. Now, the question is whether Section 22 (3) of the Federal High Court Act is still extant or can be said to have been impliedly repealed by Section 7 (6) (b) and the provision of decree No. 60 of 1991. It has been contended by the Respondent that Section 22 (3) of the Federal High Court Act as well as Decree No. 60 of 1991 are by virtue of Section 315 of the 1999 Constitution deemed to be existing law incorporated into the 1999 Constitution. It is therefore, submitted that unless Section 22(3)of the Federal High Court Act is inconsistent with the provisions of Decree No. 60 of 1991 or the 1999 Constitution, it is still an extant law. In interpreting statutory provisions, the general scope and perview of the statute must be looked at with a view to determining the meaning sought to be applied and then consider what was the former state of the law and what it was that the legislature contemplated. See MILITARY GOVERNOR ONDO STATE VS. ADEWUNMI (1988) 3 NWLR (PT. 82) 280. The general rule of interpretation is that a subsequent general Act does not affect the provision of a prior special or private Act, unless it is expressly provided. In other words, a subsequent general Act will not interfere and modify or repeal the provisions of a special or private Act, unless the intention is clearly manifested in the general Act. But this general rule is not without exception. Where a special or private Act is absolutely inconsistent and repugnant with a subsequent general Act, the courts are bound to declare the prior special or private Act or any of their provisions repealed by the subsequent general Act. See MILITARY GOVERNOR, ONDO STATE VS. ADEWUNMI (supra).
With the enactment of Decree No. 60 of 1991, amending certain provisions of the Federal High Court Act particularly Sections 7 thereof and its proviso clearly ousted the concurrent jurisdiction of the State High Court to try certain matters and directing all such matter already pending in the State High Court to abate and further a transfer of these matters already pending in a State High Court to the Federal High Court. Section 230(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree NO. 107 of 1993 gave exclusive jurisdiction to the exclusion of any other court to try these matters.
The State High Court therefore, has no power to try those matters. This position is further reinforced by the coming into force of the 1999 constitution in its Section 251(1) thus, limiting the unlimited jurisdiction of the State High Court. This Section gives exclusive jurisdiction to the Federal High Court in matters enumerated thereunder. It clearly excludes the jurisdiction of the High Court in such matters. It is therefore true to say that where the State High Court has no power to entertain the matter, it clearly has no power of transfer under Section 22 (3) of the Federal High Court Act. The provision of Section 23 (3) of the Act is clearly contradictory or inconsistent with the provisions of Section 251(1) of the 1999 Constitution and therefore deemed impliedly repealed by the 1999 Constitution. It therefore could not continue to invest Judges of the State High Court with the power to transfer to the Federal High Court cases outside their jurisdiction but found to be given within the jurisdiction of such Federal High Court.
The question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of the competence of the court to adjudicate in the particular proceedings. Any defeat in competence is fatal and such proceedings must be null and void. MADUKOLU VS. NKEMDILIM (1962) SCNLR 314 and SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6. Likewise, where a court has no jurisdiction to try a suit before it, it lacks the competence to transfer that suit to a court of competence jurisdiction to try the matter. What the court should do in such circumstance is to strike out the matter before it for want of jurisdiction. As the decision to transfer under Section 22(3) of the Federal High Court Act was based on the concurrent jurisdiction of the State High Court and Federal High Court, now that the position has changed giving the Federal High Court exclusive jurisdiction on all such matters, the provisions of Section 22 (3) of the Federal High Court is impliedly repealed by the provisions of the 1999 Constitution. The power of transfer is absolutely taken away by the exclusive jurisdiction vested in the Federal High Court of all matters enumerated under Section 251(1) of the 1999 Constitution. That is to say, any enactment before the coming into force of the 1999 Constitution and which contradicts any of the provisions of the said constitution after it came into force is either modified or repealed to conform with the constitution. It is therefore my considered, view that the provisions of Section 22 (3) of the Federal High Court Act stood impliedly repealed or modified by the 1999 Constitution. I am fortified in my view with the decision of the Supreme Court in OLU OF WARRI VS. KPEREGBEYI (supra) where it held as follows:-
“Where a new enactment is couched in a general affirmative language and the previous law, whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed. But when the new affirmative words are such as, by their necessity, to import a contradiction and it is clear that the two should be in conflict, the two should not stand together, the second repeals the first”.
From the foregoing, the provision of Section 22(3) of the Federal High Court Act is clearly inconsistent with the provision of Section 251(1) of the 1999 Constitution and therefore the provision of Section 22(3) of the Act are deemed to have been modified either by implied repeal or by modification so as to bring the law into conformity with the Constitution. The Constitution of Nigeria is the basic law of the land. It is the supreme law and any enactment that runs contrary to its provisions, that enactment shall to the extent of its inconsistency be null and void. Courts are likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court whether in order that the citizen may be deprived altogether of remedy or in order that his grievance may be remitted to some other court or tribunal.
The learned trial Judge was clearly in error, when he transferred this suit to the Federal High Court instead of striking out the same and wrongly came to the conclusion that the decision of the Supreme Court in E.T. AWOLEYE VS BOARD OF CUSTOMS & EXCISE (supra) was given per incuriam. The learned Counsel for the Respondent submitted that because Section 22(3) of the Act allows transfer of matters within the exclusive jurisdiction of the Federal High Court so, there is no conflict with the provisions of the 1999 Constitution. That is not the position, Section 22(3) does not allow transfer of matters within the exclusive jurisdiction of the High Court. Section 215(1) of the 1999 Constitution gave exclusive jurisdiction to the Federal High Court in respect of matters enumerated therein, and the State High Court ought not in the first place to have taken cognizance of the suit. It has no jurisdiction ab initio as it has no concurrent jurisdiction with the Federal High Court. In KARIMU IGE VS. ABRAHAM OBIWALE (supra) it was held that Section 31(1) of the High Court Law of Western Nigeria does not empower a Judge of the High Court to transfer an appeal to a court of competent jurisdiction where the appeal is one in which the High Court itself has no jurisdiction to try.
Learned Counsel for the Respondent also argued that by virtue of Order 2 Rule 2, Order 10 Rules 4, 5 and 6; Order 24 Rule 3 and Order 47 Rule 1 of the High Court (Civil Procedure) Rules of Bendel State as applicable to Delta State read along with Section 22(3) of the Federal High Court Act and the Provisions of the 1999 Constitution, a State High Court has the power to transfer causes in respect of which it has no jurisdiction and in respect of which it has determined that the Federal High Court is the proper court of trial to the Federal High Court. The position has now been settled on the authority of KARIMU IGE VS. ABRAHAM OBIWALE (supra) that the State High Court has no jurisdiction to transfer a matter before it to a court of competent jurisdiction where itself has no jurisdiction to try. Section 22 (3) of the Federal High Court Act to the extent that it gives the State High Court the power to transfer to the Federal High Court cases outside its jurisdiction, but found to be within the jurisdiction such Federal High Court is null and void.
In conclusion, it is my considered view that by the combined effect of Sections 7(6) (b) and 7 (9) (b) of the Federal High Court (Amendment) Act of 1991 and Section 251 of the 1999 Constitution and the case of KARIMU IGE VS. ABRAHAM OBIWALE (supra) the State High Court lacks the jurisdiction to transfer a case to the Federal High Court, where it lacks the jurisdiction to try same. The order of transfer of this suit to the Federal High Court is done without jurisdiction and same is therefore null and void. The appeal succeeds and it is hereby allowed. The Ruling of the Delta State High Court Sapele dated 8th July, 2002, which transferred this suit to the Federal High Court, Benin, is hereby struck out. The Appellants are entitled to costs assessed at N5,000.00k.
Other Citations: (2005)LCN/1848(CA)
