Mr. E.C.O. Ijeoma V. Petromed Oil Nigeria Limited & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
As Plaintiff, the Appellant had taken out a writ of summons in the Registry of the High Court of Rivers State (hereinafter the High Court) with the following endorsement, against the Respondent:-
The plaintiff’s claim against the Defendants jointly and severally in as follows:- The sum of N120,000,000.00 (one Hundred and Twenty Million Naira) being and representing special and general damages for permanent injuries and disability received by the plaintiff in the course of performing this official duties with the 1st Defendant’s Company”
The claim was repeated at paragraph 31 of the statement of claim dated and filed on the 6/7/96 which also contained the particulars of the special damages claimed. The Respondents filed a statement of defence to the claims and the matter proceeded to trial in the course of which they challenged the jurisdiction of the High Court to entertain the action by way of a preliminary objection. The objection was that the claims by the Appellant are in the category of admiralty matters over which the Federal High Court has exclusive jurisdiction. After hearing the parties on the objection, the lower court in a ruling delivered on the 29/9/05 upheld the objection, declined jurisdiction and struck out the Appellant’s case. Being aggrieved by that decision, the Appellant caused a Notice of Appeal to be filed against it on the 23/12/05 setting out two grounds of complainant. With the leave of the court granted on the 4/7/07, the terms of ground 1 contained on the Notice of Appeal were amended and the Amended Notice of Appeal deemed properly filed. Briefs of argument were then filed by the learned counsel for the parties to the appeal in line with the practice of the court. The Appellants’ brief was filed on 23/4/07 while the Respondent’s brief filed on the 26/2/08 was deemed properly filed on the 5/5/08 when the application for leave to file the brief out of time was granted.
From the two (2) grounds of appeal, the following two (2) issues were formulated at page 2; paragraph 3.01 & 3.02 of the Appellant brief for determination in the appeal.
“3.01. whether the state High court (Learned Trial Judge) lacks jurisdiction to entertain suit NO. PHC/B33/96 filed by the plaintiff/Appellant against the Defendants/Respondents in the High Court of Rivers State (Ground 1).”
3.02. If the answer to issue No.1 is in the positive, whether the proper order for the Learned Trial Judge to make was not to transfer suit NO. PHC/833/96 to the Federal High Court, instead of striking out same (Ground 2).”
These issues were adopted by the learned counsel for the Respondent at paragraph 2 on page 1 of the Respondent’s brief. Learned counsels are right and so I agree with them that these brief and succinct issues are the pertinent questions that require answers for the complete disposal of the appeal. I would therefore review briefly, the submissions of learned counsel thereon and determine the positions canvassed their in line with the law as settled by the binding relevant judicial authorities.
ISSUE 1.
After conceding that parts of the Appellant claims relates to or are in respect of admiralty or maritime matters which by virtue of section 3 of the Admiralty Jurisdiction Decree No. 59 of 1991 (after now Decree No. 59) are within the exclusive jurisdiction of the Federal High Court, Learned counsel for the Appellant argued that the claim for special damages arose out of a contract of employment and are triable by the lower court. He cited the case of ORTHOPAEDIC HOSPITAL MGT BOARD v. GARBA (2002) 4 NWLR (part 7BB) 538 at 546 and said it was therefore wrong for the lower court in the circumstances to have declined jurisdiction over the Appellants, claims since they are not entirely maritime. It was the contention of learned counsel, relying on the case of ALUMINIUM MANUF. CO. (NIG.) LTD V. N. P.A. (1987) 2 SC 254 at 264, that either the lower court or the Federal High court can assume jurisdiction over the Appellants’ claims. We were urged by him to resolve the issue in the negative and hold that the lower court had jurisdiction to entertain the Appellants’ claim.
For the Respondent, it was submitted that the Appellant’s claim were not dual in nature, i.e. both contractual and tortuous but purely the latter. Since the thrust of the complaint by him was that the Respondents had breached a duty of care owed to him as an employee and that loss had thereby been suffered by him.
Paragraphs 26 28 of the Appellant’s statement of claim were referred to and it was further argued that apart from a passing reference to breach of contract in paragraph 27 of the statement of claim, no foundation was laid by the Appellant for a claim in contract as no violation or particulars of any term of the contract was set out.
That the Appellant had at the trial characterized his claim as one in negligence particularly at page 47, lines 11 – 14 and 48, lines 20 – 22 and so the claim was not in contract, which the Appellant can set up at this stage. The case of IDIRISU v. OBAREMI (2004) 11 NWLR (part.884) 396 at 410 was relied on for the submission.
In addition, it was submitted that for the purpose of determining jurisdiction, it is utterly immaterial whether a claim is party maritime or partly under a contract of employment since it is the law that once the facts of a claim bring it within the purview of a statute, the statute must be given legal effect SHELL DEV. CO. V MAXDN (2001) 9 NWLR (part 719) 541 at 552 – 3 was cited as authority for that position. According to learned counsel, the facts of the Appellants’ claim squarely fall within the ambit of section 2(3) (d) (i) and (iii) of Decree No. 59 and since the provisions are clear and unambiguous, they should be given their plain and ordinary meaning. Reliance was placed on A. G. FED. v. ABOLE (2005) 11 NWLR (part 936) 369 for the submission and EKUNOLA V. CBN (2006) 14 NWLR (part 1000) 292 on duty of the court to promote the general purport, spirit or intendment of legislation. It was the case of the Respondent that the lower court had no option but to give effect to the above sections of Decree No.59 and in law, to strike out the suit when it decided that it had no jurisdiction to entertain the claims, on the authority of OKOYE v. NIG. CONSTR. & FURNITURE CO. LTD. (1991) 7 SCNJ (part 2) 365.
Learned counsel also said the case of ALUMINUM MANUF. CO. V. NPA (supra) is in applicable here because “there was no statute expressly conferring exclusive jurisdiction over the claim before the court on another court” in that case unlike in the Appellant’s claim.
Furthermore that the case was decided when the state High Court enjoyed unlimited jurisdiction over civil suits under section 236(1) of the 1979 Constitution, a position which changed in the 1999 Constitution with the provisions in section 251 to which section 272(1) was made subject.
Finally it was said that the lower court was right to have declined jurisdiction in view of the provisions of section 2(3)(d)(i) and (iii) of Decree No. 59. Learned counsel urged us to dismiss the ground of appeal as lacking in merit (it is meant to urge the court to resolve the issue in favour of the Respondent since the appeal is to be determined on the issue formulated and not the grounds of appeal).
I should start a determination of this issue by a restatement of the law on the issue of a court’s jurisdiction generally. The now commonly know position of the law is that jurisdiction is so fundamental and crucial in judicial administration since it is the authority and power vested by statutes in the courts or tribunals to take a formal notice of and then hear and determine legal disputes between parties that approach them for resolution. In the case of NATIONAL BANK v. SHOYOYE (77) 5 sc 181, OBASEKI JSC, defined jurisdiction in the following words at page 190:-
“By the term jurisdiction is meant the authority “which a court has to decide matters which are contested before it or take cognizance of matters presented in a formal way for its decision.”
As a consequence of the nature of jurisdiction therefore, a court can only adjudicate on a controversy or dispute between parties or litigants when it has the jurisdiction to do so. An objection to the jurisdiction of a court to try a case brought to it by litigants goes beyond mere irregularity that can be cured by procedural amendments or corrections but touches on the root of competence and legality of the court’s authority over the case. A defect therefore in jurisdiction of a court is one of competence of the court which renders all proceedings of the court a nullity also initio since it is extrinsic to adjudication. That is one reason for the position of the law that the issue of challenge or objection to jurisdiction can be raised at any stage in the proceedings of a case from the court of trial to the final court in the judicial hierarchy in Nigeria, i.e. the Supreme Court. The law is that being the vital foundation or basis for the assumption of judicial authority and power over a case, it is never too late at all stages of proceedings in any of our courts of law to raise the issue of jurisdiction for the 1st time. See OBIKOYA v. REGISTRAR (1975) 4 SC 31, ATT. GENL. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (111)552, STATE V. ONAGORUWA (1992) 2 SCNJ 1, BRONIK MOTORS V. WEMA BANK (1983) 1 SCNLR 296.
Another fundamental principle of law is that the jurisdiction or power of a court must be expressly provided and is not a matter or issue of inference. ARIYO V. OGELE (1968)1 ALL NLR 1. In the case of MANDARA V. ATT. GEN. OF THE FEDERATION (1984) 1 SCNLR 341 at 342, Obaseki, JSC puts it so eloquently thus:
“Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive and I find this to be so in all our laws including all the previous constitutions of this country.
Jurisdiction is a power clearly visible to all beholders of the constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.” As a result, where jurisdiction is not expressly conferred by the constitution or relevant statutes, then it cannot properly be inferred or assumed by a court of law.
In addition, over the years, the law has been established that as a matter of application of the substantive law on jurisdiction, a court of law is said to have the requisite jurisdiction over a case or matter brought to it and therefore the competence to determine same if the following broad requirements are met:
(a) that the court is properly Constituted as regards members and their qualifications;
(b) that 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
(c) that the case comes before the court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of its jurisdiction.
MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 595, (62) 2 SCNLR 341, ROSSEK V. ACB LTD (1993) 8 NWLR (part 312) 382, ABACHA V. FAWEHINMI (2000) 6 NWLR (part 660) 228, APADI V. BANUS (2008) 13 NWLR (part 1103) 204. As recently as December, 2008, the Supreme Court in the case of DREXEL ENERGY AND NATURAL RESOURCES LTD. V. TRANS INT’L BANK LTD. (2008) 18 NWLR (part 1119) 399 at 417 has held that the above requirements or preconditions are conjunctive and the non fulfillment or absence of any of them automatically robs the court of the jurisdiction to hear and determine the suit. The case was also reported in (2009) ALL FWLR (part 456) 1823.
In the premises of the above principles of law, I would now consider closely, the claims by the Appellant in order to find out which between the lower court and the Federal High Court has the requisite jurisdiction to entertain them. This again, is another established principle of law that it is the plaintiff’s claims which determine the jurisdiction of a court. Put another way, in the determination of whether or a not a court has the jurisdiction to entertain a case, the writ of summon and/or statement of claim filed by the Plaintiff is/are the relevant determinants of the question ADEYEMI V. OPEYORI (1976) 9 -10 SC 31, EGBUONU V. B.R.T.C (1997) L2 NWLR (part 531) 29, NIGERIAN SHIPPERS COUNCIL V. UNITED WORLD LTD INC. (2001) 7 NWLR (part 713) 576, JOMBO V. P.E.F.M.B (2005) 14 NWLR (part 945) 443.
I have at the beginning of this judgment set out the endorsement on the writ taken by the Appellant as plaintiff and repeated in the Statement of Claim. That is the substratum of the claims before the lower court and the basis of the claims as set out in paragraph 7, 8, 9, 10, 12, 27, 28 and 29 of the statement of claim can be summarized as follows:-
that the Appellant, employed by the Respondents had suffered injuries in the course of carrying out the instructions by the Respondents on board a ship due to the Respondent’s negligence. The facts of the claims as pleaded in these named paragraphs of the statement of claim clearly disclose the following:-
(a) that the Appellant was working on board the Respondent ship;
(b) that he suffered injuries in the course of carrying out the duties assigned to him by the Respondent on board the ship;
(c) That the injuries he suffered were as a result of the negligence on the part of Respondents.
The question I ask here is whether the above facts pleaded in the Appellants’ claim can be said to be general maritime claims. In other words, are the Appellants’ claims as pleaded general maritime claims?
Under section 2(3) (c) and (d) (iii) of Decree No. 59, a general maritime claim is defined as:-
“2(3) A reference in this Decree to a general maritime claim is a reference to
(c) a claim for loss of life or for personal injury sustained in consequence of a defect in a ship or in the apparel or equipment of a ship;
(d) Subject to subsection (4) of this section, a claim including a claim for the loss of life or personal injury arising out of an act or omission of:
(i) The owner or charterer of a ship;
(ii) A person in possession or control of a ship;
(iii) A person for whose wrongful act or omission the owner charterer or person in possession or control of the ship is liable.”
As can easily be seen the crux of the Appellants’ claim was/were -the personal injuries he suffered aboard the Respondents, ship for which they are in control or possession at the material time. The injuries were said by the Appellant to have resulted from the ship’s intricate electrical connections which could only be detected by experts and the Respondent did not provide him with safety gadgets to check the effect of electrical currents. By his pleadings therefore the Appellant has shown that:
(1) the Respondents are owners of the ship aboard which he suffered the injuries -see paragraph 4 of the statement of claim.
(2) that the Respondent were at the material time in possession and control of the ship- see paragraph 7 of the statement of claim.
(3) that the injuries suffered by Appellant were personal injuries.-
see paragraphs 14, 17, 26 and 30 of the statement of claim.
(4) that the Respondent were responsible for the injuries due to their omission to put up a sign board of warning about the danger of electrical connections in the ships tank, to provide safety gadgets and to provide good medical facilities and doctor aboard the ship – see paragraphs 8, 9 and 12 of the statement of claim. For these reasons, the Respondents are liable for being negligent – see paragraph 27 of the statement of claim. It would appear that the foundation of the Appellants claim has completely fallen within the purview of a general maritime claim as defined by the provisions of section 2 (3) (c) and (d) of Decree No. 59 set out above. This position can not seriously be disputed in view of the facts demonstrated earlier. It may also be recalled that the Appellant’s counsel had conceded that the claims for personal injuries are claim which come under section 3 of the Decree No. 59 and within the exclusive jurisdiction of the Federal High Court pursuant to section 251(1)(g) of the 1999 Constitution. These personal injuries claims are the principal or substantive claims upon which the Appellants’ case was premised. In any event, even the claims for salaries, wages or allowances made by the Appellant would appear to be covered by the provisions of the Decree No. 59 (now Admiralty Jurisdiction Act, CAP As Laws of the Federation of Nigeria, 2004).
Section 2(3) (r) makes the following provisions:-
“2(3)(r) a claim by a master, or a members of the crew, of a ship for-
(i) wages; or
(ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out the contract of employment or by operation of law, including by operation of the law of a foreign country.”
The provisions are clear and simple in their intendment and purport. They make claims for wages or salary and allowances by a master or crew members of a ship as an employee part of the definition of a general maritime claim.
By paragraphs 1 and 7 of the statement of claim, the Appellant had averred that he was employed as a “SECOND MATE” with the 1st Defendant (Respondent) on board whose ships he worked. At the time material to the claims, the Appellant was therefore a crew member of the ship in question. The claims he made for salary were based on an alleged breach of the contract of employment with the Respondents.
In my view,-these facts unavoidably bring the Appellants’ claim within the ambit of the above provision of section 2(3)(r) of Decree No.59 to make them a general maritime claim.
section 3 (b) of the Decree No. 59 provided that
“3. subject to the provisions of this Decree, the admiralty jurisdiction of the court shall apply to-
(b) all maritime claims wherever arising.”
The court referred to in the Decree was the Federal High court.
From the above provisions, the jurisdictions of the Federal High court apply to all claims in the nature of maritime claims. As I stated before now, the facts of the Appellants’ claim for alleged breach of contract of employment clearly made the claim a general maritime claim over which the Federal high court enjoys exclusive jurisdiction to entertain under the combined effect of the provisions of the Decree No. 59 of set out within judgment and section 251(1)(g) of the 1999 constitution. see I.T.P.P. LTD. v. UBN PLC (2006) 12 NWLR (part 995) 483 at 508. In this regard, the case ALUMINIUM MANUF. CO. v. NPA, (supra) cited by the learned counsel for the Appellant does not apply here since as demonstrated, the Federal High court does not share jurisdiction over the Appellants claim with the Lower court. The Lower court has no jurisdiction over the claim and it would have been futile in law to have assumed and pretended to exercise against jurisdiction that did not exist. The jurisdiction of a court where conferred by a statue, as is the case here, is binding and only the court expressly conferred or vested with such jurisdiction can lawful assume and exercise same. Our courts being creatures of the law, either the Constitution or statutes, have a sacred duty not only to interpret and apply the law as it is, but to also ensure compliance with and promotion of the purport of the law. That is a binding duty, NKUWEZIRI V. OKENWA (2000) 15 NWLR (part 691) 526, EKUNOLA V. CBN (2006) T4 NWLR (1000) 292, ABIOYE V. YAKUBU (1991) 5 NWLR (part 190) 130, FBN PLC v. AKPARA, BONG COMM. BANK (2006) 1 NWLR (part 962) 438. For that reason, the lower court was right to have declined jurisdiction upon the finding that the Appellants’ claims are in respect of a general maritime claim as defined in Decree No. 59. The finding and decision of the lower court is on “terra firma” (firm terrain) in law on the issue and I have not seen reason to disturb same in this appeal. In the result, I resolve the issue and answer the question posed therein in the positive as stated above.
The next and last issue is what was proper or appropriate order to have been made by the lower court when it decided it had no jurisdiction over the Appellants claim?
For the Appellant it was the submission of learned counsel that section 22(3) of the Federal High Court Act, Laws of the Federation of Nigeria, 1990 provides that no cause or matter shall be struck out on the ground that it was filed in the state High Court instead of the Federal High Court. He therefore averred that it was wrong for the lower court to have struck out the Appellant case instead of transferring it to the Federal High Court as was enjoined by this section. According to him, since the cause of action accrued to the Appellant in the case in 1995, he could not re-file the case at the Federal High Court as the limitation period has caught in to make it statue barred. That the lower court should have transferred the case in the spirit, letter and tenor of section 22(3) of the Federal High court Act. The cases of OMISADE v. AKENADE (1987) 4 sc 109 at 130 -2 and 146 and ALUMINIUM MANUF. Co. V. N.P.A (supra) were relied on the interpretation of section 22(3) of the Federal High Court -Act 1973 as amended by the Federal Revenue court (Amendment) Act, 1975. It was the further argument of learned counsel that though the word “may” was used in the section, it has been interpreted to be mandatory and so the lower court had no option but to transfer the case to the Federal high court. Reliance was placed on the decision of this court in the case of OTUBU v. UNIV. OF JOS (2002) FWLR (109) 1717 at 1735 on the power of the tower court to make the transfer and we were invited to invoke the powers vested by section 16 of the Court of Appeal Act to order the transfer since the lower court had failed to do so. On the authorities of OTUBU v. UNIV. OF JOS (supra), WINDIBIZIRI v. NJLLA (2002) FWLR (part 132) 96 at 100-1, ADEBILEJE v. NEPA (1998) 12 NWLR (part 577) 219 at 229 and G & C LINES v. HENGRACE (2000) FWLR (7) 1099 at 1109, this court was said to have such orders before.
The learned counsel for the Respondent had submitted on the issue, that the scope of the lower court’s power of transfer pursuant to section 22(3) of the Federal High court Act 1973 was recently considered by the supreme court in the cases of AWOLEYE v. BOARD OF CUSTOMS & EXECISE (1990) 2 NWLR (part 133) 490 and FASAKIN FOODS LTD V. SHOSANYA (2006) 10 NWLR (part 987) 126.
According to learned counsel, the decision of the Supreme Court was that since the power to enact laws regulating the practice and procedure in state High court was vested in state Houses of Assembly by the Constitution, section 22(3) was void for being inconsistent with those provisions. Further, that the state High courts have no power or jurisdiction to act under the provisions of section 22(3). It was also contended that though the 1979 constitution which conferred the power to transfer on the state High courts was in operation at the time the Appellants’ case was filed, the decisions of the supreme court on section 22(3) is applicable since the decision of the lower court was delivered in the absence of rules enacted by the Rivers state House of Assembly empowering the lower court to make the transfer. Further that the lower court was right to have struck out the Appellant’s case.
Finally, and once again, learned counsel urged the court to dismiss the Appellants’ second ground of appeal for being ill founded and lacking in merit.
Now, the provisions of section 22(3) of the Federal High court Act, CAP L34, LFR, 1990 had been considered and applied in many cases as shown in the cases cited by the learned counsel in their respective submissions on the issue. From these cases, the decisions reached on whether the state High Court can validly transfer a matter or case brought before it in which it lacks jurisdiction to entertain, to the Federal High Court appear divergent. For instance just three (3) years after the enactment of that Act in 1973 and one (1) year after its amendment in 1975, it was held in the case of MOKELU v. FEDERAL COMM. FOR WORKS & HOUSING, (1976) NSC, 187 at 190, that under the provisions of the section; i.e. section 229 of the Act, the High Court of a state could transfer a matter taken in that court rather than the Federal High Court to the latter. This was the position up to the time the cases of ALUMINIUM MANUF. CO. V. NPA and OMISADE V. AKANDE (both supra) were decided in 1987 and even later as in the case of PAICO (PRESS & BOOKS) V. CBN (2001) 3 NWLR (part 700) 347 at 373. However in the case of AWOLEYE V. BOARD OF CUSTOMS & EXECISE (supra) at page 493 of the report, the decision of the Supreme Court and therefore the position of the law, was that:-
“Since the commencement of the constitution of the Federal Republic of Nigeria, 1979, and the unlimited jurisdiction conferred on the High court by section 236 thereof, the state High court can no longer exercise the powers 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.”
per Nnamani, JSC. This position, a clear departure from the earlier decisions, was restated and expounded in more details by the Supreme Court in the of FASAKIN FOOD LTD V. SHOSANYA (supra) which was decided by a full panel of seven (7) Justices. The only issue submitted to the Supreme Court for determination in the case was:-
“whether the provision of section 22(3) of the Federal High court dealing with the transfer of suits form the High court of a state to the Federal High court is inconsistent with section 239 of the 1979 Constitution.”
In brief, the decision of the Supreme Court on the issue is as follows:-
“Under the 1979 Constitution, section 233 conferred on the National Assembly the legislative power or authority to make laws to provide for the practice and procedure of the Federal High court while section 239 made similar provision in relation to the practice and procedure of a High court of a state but assigned the legislative authority on the issue to the state House of Assembly concerned. In the instant case to the extent that section 22(3) of the Federal High court Act set out that a state High court, when it comes to the conclusion that it has no jurisdiction, transfers the matter before it to the Federal High court, is obviously not in conformity with the express provision of section 239 of the 1979 constitution which vests Legislative authority on the state House of Assembly to legislate on such matters.” page 145.
The above position is quite succinct and precise on the application the provisions of section 22(3) of the Federal High Court in respect of cases or matters brought or filed before the High court of a State. Emphatically, the section is not in conformity with section 239 of the 1979 Constitution and therefore a State High Court can not properly exercise any authority or power purportedly vested therein to transfer a case or matter over which it has no jurisdiction, to the Federal High court. It was also the decision of the Supreme Court that the High court of a state can only apply Rules of practice and procedure enacted or legislated by the state House of Assembly pursuant to section 239 of the constitution, 1979, in dealing with cases or matters brought before it. That it would be wrong to flirt with the Rules of the Federal High court in the present appeal. This is an affirmation of the established position of the law that the Law and Rules of Practice made for one court do no apply and cannot be binding on another court either concurrent, lower or higher in the judicial hierarchy. see NNEJI v. CHUKWU (1988) 3 NWLR (part 81) 184, TUKUR v. GOVT. OF GONGOLA STATE (1988) 1 NWLR 39 at 50, KOMONIBO v. N.A. (2003) 6 NWLR (part 762) 94 at 114.
The decision of the Supreme Court in FASAKIN FOOD LTD V. SHOSANYA being the most recent on the issue is the current position of the law which is binding on this court. See NEPA v. ONAH (1997) 1 NWLR (pt.485) 680, JOSHEA V. STATE (2000) 5 NWLR (part 658) 591. Perhaps I should mention here that I am aware of the view and statement of the late and erudite Pats-Acholonu, JSC in the case of ASSOCIATED DISCOUNT HOUSE LTD V. AMALGAMATED TRUSTEES LTD. (2006) 10 NWLR (part 989) 635 at 649 (a case decided one (1) week after the decision in FASAKIN FOODS LTD. vs. SHOSANYA) reechoing the earlier interpretation of section 22(3) of the Federal High court. However the learned jurist had himself said that the issue was not relevant in the appeal before him. The view and statement on the issue was therefore purely and merely obiter in the circumstances of the appeal before the apex court.
In the present appeal, there was no suggestion that the Rivers state House of Assembly had pursuant to section 234 of the 1999 constitution or section 274 of the 1999 constitution enacted or legislated laws that provide for Rules of practice and procedure which empower or even permit or allow the lower court to transfer to the Federal high court a case or matter in which it decided that it has no jurisdiction to entertain. In fact neither the High court Law of Rivers State CAP 62 nor the High court (civil procedure) Rules Law CAP 63 both contained in volume 3 of the laws of Rivers state of Nigeria, 1999 contain provisions which confer or vest the Lower court with the power or jurisdiction to transfer a matter before it to the Federal High court on any ground whatsoever. In the absence of such laws and Rules, my view and decision on the issue in consonance with the law is that the lower court cannot validly transfer the Appellant’s case after a finding that it has no jurisdiction to entertain same to the Federal High court. Under the law, the only power or authority the lower court possessed in the circumstances was to strike the case out of its cause list. That was the proper and appropriate order to make.
OKORODE V. OYEBI (1984) 5 SC 1, CBN V. KATTO (1994) 4 NWLR (part 339) 446, NDIC v. CBN (2002) 7 NWLR (part 706) 272 at 300 and FASAKIN FOODS LTD v. SHOSANYA (supra) at 149, LAKANMI v. ADEWE (2003) 10 NWLR (part 828) 353, Since the Lower Court lacked the jurisdiction to order the transfer, the application of section 16 of the court of Appeal Act by this court urged by the learned counsel for the Appellant, would not arise. The section only vests this court with the jurisdiction of the Lower court where and when it existed in that court. Where it did not exist, as in the present appeal, the section is inapplicable. The lower court was therefore right in striking out the Appellant’s case in the absence of jurisdiction to entertain same and the authority or power to transfer it to the Federal High Court.
In the final result, with the resolution of the two issues against the Appellant, the appeal is left bereft of any merit. Consequently it fails and is dismissed accordingly. The parties are to bear their respective costs in the appeal.
Other Citations: (2009)LCN/3381(CA)
