Ababa F. Adole & Anor. V. Pipelines and Products Marketing Co. Ltd. (PPMC) & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the ruling of the Kaduna State High Court in suit No. KDH/KAD/530/95 delivered on the 23rd day of June, 2004 in which the appellant’s suit was struck out for want of jurisdiction.
By a writ of summon dated the 2nd day of August, 1995, against the respondents and subsequently filed a statement of claim dated the 15th day of November, 2002, filed on the 25th day of November, 2002 and the appellants by his paragraph 19 of the statement of claim, claims as follows:-
“1. A declaration that the termination of appointments of the Plaintiffs on 1st August, 1994 (Mr. J.E. Kokya, Mr. Ababa Francis Adole and Mr. Abubakar Kabir) was based on the queries Ref. Nos. – PPMC/HQ/PER/3595 dated 3rd January 1994, PPMC/HQ/PER/C.12185 dated 14th Sept., 1993 and PPMC/HQ/PER/C.15791 dated 14th September, 1993 for which the Plaintiffs were accused of illegal “off allocation” of products, swapping of marketers not officially programmed to load products and of receiving gratification for favoritism to marketers.
- A declaration that receiving gratification is a criminal offence for which no disciplinary action can be taken except proved in accordance with the laws of the land.
- An order declaring that none of the allegations was proved by the Disciplinary Committee set up by the Management Executive Committee of the Defendants.
- An order holding that the purported termination of appointment of the Plaintiffs on the unproved allegations, was wrongful, illegal, null and void and of no effect.
- An order directing that the Plaintiffs to be reinstated and be paid all their entitlements from the date of the purported termination of appointments to date of judgment.
- General damages in the sum of N5 million for unlawful termination of appointment. ”
Sequel to a preliminary objection raised by the learned counsel for the respondents/defendants, Mr. Suleiman Akasawua, Esq, relying on the authority of EDEGBERO v. NEPA & ORS. (2002) 18 NWLR (PT.798) AT 95 – 97, the learned trial Judge in his ruling held inter alia as follows:-
“Accordingly by virtue of the Supreme Court decision in EDEGBEROS case and the effect of Section 230(1) 1979 as amended section of Decree No. 107 of 1993. I hereby strike out the suit for want of jurisdiction. I advice the Plaintiff to file their suit before the Federal High Court, Kaduna.”
The learned trial Judge on the issue of transfer at pages 32 – 33 of the record held:-
“The next issue now is whether this Honourable Court having held that it has no jurisdiction, it can transfer the matter to the Federal High Court. I have been referred to the case of WINDIBIRI & 1 OR VS. NJILA (2002) FWLR part 132 page 96 at 134 paragraph A – C and Section 22(3) Federal High Court Act CAP 134 LFN 1990. It was held by the Court of Appeal that by virtue of Section 22(3), the ‘High Court of a State may transfer a matter before it to the Federal High Court where the rules of such court so permit.”
Dissatisfied with the ruling dated the 23rd day of June, 2004, the appellants who was the plaintiff filed a notice of appeal dated the 7th day of October, 2004 filed on the 28th day of October, 2004 at pages 34 – 35 of the record containing two grounds of appeal as follows:-
“GROUND 1
The learned trial Judge erred in law when in refusing to transfer this case to the Federal High Court, he held: ………”
GROUND 2
The learned trial Judge was in error when he failed to exercise his discretion to cause the transfer of the action to the Federal High Court.”
In accordance with the rules of practice and procedure of this Court briefs of argument were filed and exchanged between counsel to the parties.
The appeal came up for hearing on the 23rd day of April, 2009, counsel to the parties adopted their respective briefs.
In the appellant’s brief dated the 4th day of October, 2006, deemed filed on the 28th day of November, 2006, two issues were formulated for the determination in this appeal as follows:-
“1a). Whether the learned trial Judge has the competence to transfer the suit to the Federal High Court?
1b). If the answer to the above question is in the positive, then has the learned trial Judge exercised his discretion judicially and judiciously in refusing to transfer the case?”
The respondents on the other hand, also formulated two issues in the respondent’s brief dated the 11th day of January 2007 filed on the 12th day of January, 2007, as follows:-
“1. Whether the learned trial Judge has the jurisdiction to transfer the case to the Federal High Court?
- Whether this, Honourable Court has the jurisdiction to transfer the case to the Federal High Court?”
The appellants filed a reply brief dated and filed on the 23rd day of January, 2007.
Arguing issue No.1(a) in the appellant’s brief, learned counsel for the appellants, Z. Oche, Esq, referred to page 33 of the record containing the ruling and Section 5 of the Kaduna State High Court (Civil Procedure) Rules, 1991 and Order 46 rule 1 which provides that subject to particular rules, the Court may in all causes of matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not. He conceded that although there are no expressed provisions in the Kaduna State High Court (Civil Procedure) Rules, for the transfer of a suit to the Federal High Court he is nevertheless of the view that the provisions or order 46 rule 1 of the High Court (Civil Procedure) Rules, are leeways and the Hon. Judge could have fall back onto the said provisions. It is further submitted that even in the absence of any provisions, the Hon. Judge, has the inherent powers to effect the transfer to ensure that the case is heard and determine on its merit. See SOLEYI VS. SONIBARE (2002) FWLR (PT.95) 221 at 234.
It is argued by the learned counsel for the appellants that by the provisions of Section 236 of the 1979 which was not repealed by Decree 107, 1993, the High Court has unlimited jurisdiction and the High Court could have relied on the said provisions in transferring the case to the Federal High Court.
In the view of the learned counsel for the appellants going by the provisions of Section 22(3) of the Federal High Court Act, the lower court has the power to transfer the suit in this appeal to the Federal High Court.
According to the learned counsel for the appellants, relying on his submission and authorities cited, the lower court has the jurisdiction to transfer the case to the Federal High Court.
In conclusion, learned counsel for the appellants urged the court to allow the appeal and order for the transfer of the suit to the Federal High Court relying on the provisions of Section 16 of the Court of Appeal Act, Cap 75, Laws of the Federation of Nigeria, 1990.
In his response in the respondent’s brief, learned counsel for the respondents, Suleiman Akasawua, Esq., commenced by stating that the appellants argued their appeal as if issue of jurisdiction is a matter left to the discretion of the learned trial Judge.
It is respectfully submitted that the issue of the jurisdiction of the lower court is unavoidably that of law. See INTERCITY BANK PLC VS. ALI (2002) FWLR (PT.126) 838 at 849. It is further submitted that since the Kaduna State High Court (Civil Procedures Rules Cap 68 Laws of Kaduna State, 1991 do not vest the learned trial Judge with the jurisdiction to transfer the case to the Federal High Court, the learned trial Judge does not have the power to exercise his discretion to do so contrary to the provisions of the law.
Relying on AGU VS. ODOFIN (1992) 3 S.C.N.J. 161 at 177, learned counsel for the respondents submitted that the law is trite that where a court as in this case, has no jurisdiction to hear the action, the only order that it can validly make is the one of striking out the suit.
According to the learned counsel for the respondents this Court lacks the jurisdiction to transfer the case in the instant appeal to the Federal High Court as sought by the learned counsel for the appellants.
Concluding his submission learned counsel for the respondents urged the court to dismiss the appeal and affirm the ruling of the learned trial Judge.
Having carefully examined the issues formulated by the counsel to the parties in this appeal, I find that issue No.1(a) of the appellant and issue No.1 of the respondents are virtually the same though slightly different in their wordings, I therefore adopt issue No.1(a) formulated by the learned counsel for the appellants in the determination of this appeal which can be conveniently be considered along with issue No.1(b) also formulated by the appellants.
Although the learned counsel for the appellant’s submission in his reply brief is said and well funded supported by authorities, I do not find it necessary to consider the submission in the reply brief having adopted issues Nos. 1(a) and (b) of the appellants for the determination of this appeal.
As reference was made by both the appellants and the respondents to the provisions of Order 22(3) of the Federal High Court Act 1990 in their respective briefs of argument, it is pertinent to reproduce the said provision which 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 purposes of this subsection.” (Underline mine).
It was held in N.A. WILLIAM & ORS. VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 S.C. 145 at 152 – 153 that Rules of Court are meant prima facie to be obeyed and no favour should be shown for not obeying same.
I painstakingly examined the provisions of the High Court (Civil Procedure) Rules Cap 68 Volume II 1991, the Laws of the Kaduna State of Nigeria, applicable to the instant appeal as the writ of summons was filed on the 31st day of July, 1995, but I was unable to find any provision enabling the learned trial Judge to transfer a suit to either the Federal High Court or the High Court of the Federal Capital Territory Abuja.
Reference was made to the case of PROFESSOR OTUBU VS. UNIVERSITY OF JOS, (supra) and Section 16 of the Court of Appeal, Act, Cap75 Laws of the Federation of Nigeria, 1990, which provides:
“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
I have read the case of PROFESSOR OTUBU, relied upon by the learned counsel for the appellants but no reference was made to the provision of the Plateau State High Court enabling the learned trial Judge to transfer the case to the Federal High Court.
In any event from the clear provisions of Section 16 of the Court of Appeal, Act, reproduced above, this Court is only empowered to make any order which the High Court would have made. In the instant appeal, in my respectful view, the learned trial Judge carefully considered the issue in his ruling which arise in the instant appeal, and came to the right conclusion in my view that as there is no provisions in the Kaduna State High Court (Civil Procedure Rules) empowering him to transfer the suit to the Federal High Court, it will be wrong for him to do so. I am in complete agreement with the decision.
In the circumstances, I therefore agree with the learned trial Judge that he is not empowered by the provisions of the Kaduna State High Court (Civil Procedure) Rules 1991, applicable to the instant appeal to transfer the suit as submitted by the learned counsel for the appellants.
It is settled law that it is both elementary and also fundamental principle of interpretation of statute that where the words of a statute are plain, clear and unambiguous, effect should be given to them in their ordinary and natural meaning except where to do so will result in absurdity. See NNONYE VS. ANYICHIE (2005) 2 NWLR (PT.910) 623 at 645.
Applying, the literal rule of interpretation to the provisions of Order 22(3) of the Federal High Court, Rules, 1990, I am of the humble view that the said provision is not mandatory on the Kaduna State High Court but advisory only where the (Civil Procedure) Rules of the High Court provides for a transfer to the Federal High Court or to the High Court of the Federal Capital Territory Abuja. The Kaduna State High Court in my opinion is not bound by the Federal High Court Civil Procedure, Rules.
The main principle is that, for an appellate court to interfere with the exercise of the discretionary power vested in the court below, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. See ALSTHOMSA VS. SARKI (2005) ALL FWLR (PT.246) 1385; (2005) 3 NWLR (PT.911) 208 at 224 – 225, CEEKAY TRADERS LTD VS. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (PT.222) 132 and RASAKI A.
Other Citations: (2009)LCN/3340(CA)
