Arch. D. N. Iwuoha & Ors V. The Nigerian Council for Management & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE P. A. GALINJE, J.C.A.

By a writ of summons and a statement of claim both filed on the 23rd of January, 1994, the Appellants herein, who are the Plaintiffs at the High Court of Lagos State claimed against the Respondents who are the Defendants at the lower Court the following reliefs at paragraphs 25 and 26 of the said statement of claim thus:-

“25….. The total sum of N19,387,221.69 from the defendants jointly and severally being the aggregate sum and interest as at December 31, 1994 due all three plaintiffs in consonance with the pleadings in this statement of claim together with interest on that sum or on their respective shares at the rate of 23.5% as well after as before judgment from January 1, 1995 until completely paid.

26. The first plaintiff separately claims the sum of N14,761.85 pleaded in paragraph 19 of this statement of claim together with interest thereon at the rate of 23.5% as well after as before judgment from the date of service of the writ in this suit on the defendants until complete payment.”

Pleadings were filed and exchanged. Hearing was in progress, when the Respondents as defendants at the lower Court filed a notice of objection to the continued hearing of this suit on 5th May, 2004. The notice which is dated 22nd May, 2003 was brought pursuant to section 230 of the 1979 Constitution as amended by Decree 107 of 1993 and now restated under S. 251(1) of the Constitution of the Federal Republic of Nigeria 1999 and the inherent jurisdiction of the court. The grounds upon which the objection was raised as set out in the notice read as follows:-

“1. The Defendants are agencies of the Federal Government established and empowered under the Nigerian Council for Management Development Act Cap. 300, Laws of the Federation, 1990.

2. Under and by virtue of section 230 of the 1979 Constitution as amended by Decree 107 of 1993 which section is now restated as section 251(1)(p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999, jurisdiction in respect of actions against an agency of the Federal Government not withstanding the nature of the claim is vested exclusively in the Federal High Court.
3. This Honourable Court, being a State High Court, lacks the jurisdiction to entertain, hear and/or determine this suit.”

In line with the order of the trial Court, written addresses were filed and adopted. In a reserved and considered ruling, which was delivered on the 19th day of January, 2004, Lufadeju J. declined Jurisdiction on the ground that the Respondents are Federal Government agencies. She cited as authority for her decision the case of National Electric Power Authority v. Edegbero (2002) 18 NWLR (Pt. 798) 79 at 101 paragraphs B – D.

Being dissatisfied and aggrieved by the ruling aforesaid the Appellant have appealed to this Court. Their notice of appeal which is dated 2nd February, 2004 and filed on the 3rd February, 2004 contains four grounds of appeal.

In line with the relevant rules of this Court, parties filed their respective briefs of argument.

When this appeal came up for hearing on the 14th May, 2008, learned counsel for both parties identified and adopted their respective briefs of argument.

For the Appellants, three issues were distilled from the four grounds of appeal, for the determination of this appeal. The three issues, which are set out at page 2 of the Appellants’ brief of argument, are hereunder reproduced as follows:-

“1. Whether section 230(1)(P), (Q), (R), and (S) of Decree 107 of 1993 re-enacted under section 251(1) of the 1999 Constitution covers causes or matters relating to contractual obligations or simple contracts involving the defendants/respondents.

2. Whether the 1st defendants/respondents or any of the defendants/respondents in this suit is an Agent or Agency of tile Federal Government of Nigeria for the only reason that they were creation (sic) of the Nigerian Council for Management Development Act, Cap 300, Laws of the Federation of Nigeria 1990 and/or whether any such inference is discernible from the pleadings.
3. Whether in ay event, the learned trial Judge should have struck out the suit of the appellants in view of the provisions of section 22(2) and (3) of the Federal High Court Act Cap 134 Laws of the Federation of Nigeria 1990,”

Three issues were also formulated for the Respondents. These issues as reflected at page 3 of the respondents’ brief of argument read as follows: –

“1. Whether the 1st Respondent and indeed all the respondents are agents/agencies of the Federal Government of Nigeria.

2. Whether the High Court has jurisdiction in respect to claims arising from the exercise of the agency’s management and administrative functions.
3. Whether the High Court has the power to transfer suits in which it lacks jurisdiction to the Federal High Court,”‘

I have read through the ruling, which is the subject of this appeal and the briefs of argument of both parties, and I am of the firm view that the only issue calling for the determination of this appeal is, whether the Lagos State High Court has jurisdiction to entertain the claim of the Appellants.

Mr. Oloyede, learned counsel for the Appellants argued forcefully that the Lagos State High Court has jurisdiction to hear and determine the Appellants’ claims which were based on contract of service between the parties. Learned counsel cited the authorities In Felix Onuorah v. Kaduna Refining and Petrochemical Co. Ltd (2005) 2 S.C (Pt 11) 1; Omosanwan v. Chiedozie (1998) 9 NWLR (Pt. 566) 447 at 484; Barclays Bank v. Central Bank of Nigeria (1976) 1 ALL NLR (Pt. 1) 409

Mr. Odu, learned counsel for the Respondent relied heavily on the authority in N.E.P.A. v. Edegbero (2002) 12 NWLR (Pt. 798) 79 (Supra) and contended that the Lagos State High Court has no jurisdiction to entertain the claims of the Appellants on the ground that the Respondents are Federal Government agencies, In a further argument, learned counsel submitted that the decision in Onuorah v. Kaduna Refinery and Petrochemical Co. Ltd was reached per incuriam because the attention of that Court was not drawn to the case of NEPA v. Edegbero (Supra) by the parties, Learned counsel then urged this Court not to follow the decision in Onuora v. K.R.P.C. Ltd (Supra). On what a ‘decision per incuriam’ is, learned counsel referred this Court to the decision in Adisa v. Oyinwola & Ors (2000) 10 NWLR (Pt.674) 116 at 181 – 182 where their Lordship of the apex Court said: –

“A case is decided per incuriam where a statute or rule having statutory effect or other binding authority which would have affected the decision, had not been brought to the attention of the Court.”

And submitted that whilst the Supreme Court has the jurisdiction and power to depart from or overrule a previous decision, it will only do so after satisfying the necessary ingredients and principles warranting a departure. According to the learned counsel, it is established that before the Supreme Court will overrule any of its previous decisions, it must be established that such previous decisions were erroneous and they constituted a vehicle of injustice. In aid, learned counsel cited Gabriel A. Tewogbade v. Mrs. v. A. Obadina (1994) 4 NWLR (Pt. 338) 326 at 351 paragraphs B – C, D – F.

In a further argument, learned counsel submitted that the claim of the Appellant is based on the administration and/or management and control of the Respondents. In aid learned counsel referred to the meaning of the expression “administration and management”, as enunciated by this Court in Warri Refinery and Petrochemical Co. Ltd v. Benson Agbuj (2005) 5 NWLR (Pt. 917) 63 at 90 paragraph E – G.

Finally, learned counsel urged this Court to hold that the Respondents being Federal Government agencies, ought to have been sued at the Federal High Court in accordance with section 230(1)(q),(r) and (s) of 1979 Constitution as amended by Decree 107 of 1993 (now Section 251(1)(p)(q) (r) of the 1999 Constitution. Learned counsel in conclusion urged this court to uphold the ruling of the lower Court which followed the Supreme Court decision in NEPA v. Edegbero (Supra) to decline jurisdiction in this matter.

The law is settled in a myriad of decisions that the relevant document to consider in order to determine whether a trial Court has Jurisdiction to determine a particular matter is the Plaintiffs claim before that Court as endorsed on the writ of summons or statement of claim. The statement of defence is irrelevant. This much was alluded to by the trial Judge, at page 3 of her ruling, which is found at page 126 of the record of this appeal. At paragraph 1, the learned trial Judge said: –

“It is the claim of the plaintiff at the trial court that determines the jurisdiction of that Court, See:- Tukur v, Government of Taraba State (1997) 6 NWLR (Pt. 510)

2. Adewunmi vs. A.C.B. (1998) 6 NWLR (Pt. 552) p.154 – 549.
3. Adefulu v. Okulaja (1998) 5 NWLR (Pt.550) 406.”

Having thus held that it is the claim of the Plaintiff that detemines the jurisdiction of a trial Court, the trial Judge veered into the bush and thereby occasioned a fatal crash by resorting to a consideration as to whether the lower Court had jurisdiction to hear and determine the claim of the Appellants on the basis of the parties before that Court.

In Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587 at 608 paragraphs D – G, Ogbuagu, JSC in a unanimous decision by the Supreme Court said: .

“Afterwards, it is now settled, that it is the plaintiffs claim that determines the jurisdiction of a trial court.

……. In other words, jurisdiction of a trial court, is determined by the subject matter and claim before the court. Thus In considering whether the court has Jurisdiction to entertain the suit, it is the plaintiff’s claim as endorsed on the writ of summons or statement of claim and not the defence.”

See Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Western Steel Works Ltd v. Iron Steel Workers Union of Nigeria (1987) 1 NWLR (P. 49) 284; A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) 692; Akinfolarin v. Akinola (1994) 3 NWLR (Pt. 335) 659; Oba Aremo II Adekanye (2004) 13 NWLR (Pt. 891) 572.

Although I have set out the claims of the Appellants before the lower Court elsewhere in this judgment, I wish to state that the nature of the claims is best explained in paragraph 14 of the Appellants’ statement of claim, which they filed on the 23rd January, 1995 at the registry of the lower Court. For the avoidance of doubt, I reproduce hereunder paragraph 14 of the said statement of claim as follows:-

“The plaintiffs say that in response to draft agreements which they had forwarded to the defendants under cover of their letter No, 2.01/CMD/2FC of June 5, 1992 the plaintiffs subsequently forwarded 10 copies of each of the agreement between the plaintiffs and the defendants to the defcndat1ls under cover of another letter No. 2.01/CMD/2P of December 2, 1992. This was after review of the draft agreement on their by all the parties to this suit. The agreements were duly executed by the parties to this suit and dated on or about November 30, 1992.”

From the contents of the paragraph of the statement of claim which I have reproduced herein above, the claims of the Appellants as formulated before the lower Court are clearly founded on the agreement which was entered into by the parties on the 30th of November, 1992, The learned trial Judge clearly admitted in her judgment that the Appellants’ claims are founded on contract at page 126 paragraph 3 of the record of this appeal in the following words:-

“In the instant case, the claim of the plaintiffs’ against the Defendants’ briefly put, is for payment of sums of money under the terms of a contract for the provision of professional services plus interest.”

I therefore have no doubt that the Appellants’ claims are founded on contract. There are however conflicting decisions of the Supreme Court on this issue whether any suit in which a Federal Government, Ministry, Agency, Functionary or Parastatal is sued is Justiciable only at the Federal High Court.

In NEPA v. Edegbero & Others (Supra), which was cited and relied upon by the Respondents, the employees of the Appellant including the Respondents embarked on an industrial action in August 1994. The respondents’ appointments were by a letter dated 10th August, 1994 terminated. The Respondents instituted various suits claming in each case-

1. A declaration that the purported termination of the Respondents’ appointments was irregular, wrongful, null and void and of no effect whatsoever.
2. An Order reinstating the Respondents and payment of their salaries and all their entitlements.
3. A perpetual injunction restraining the Appellant from harassing, intimidating and violation of the Respondents’ right.

It was contended at the High Court that the High Court had no jurisdiction, since NEPA is an agent of the Federal Government. Reference was made to S.230(1)(Q)(R) and (S) of the 1979 Constitution as amended by Decree 107 of 1993, which is equivalent to S.251(1)(a) -(r) of the 1999 Constitution of the Federal Republic of Nigeria. The High Court and the Court of Appeal overruled the objection on jurisdiction.

On further appeal to the Supreme Court, it was held:-

“It is not in dispute that the defendant – NEPA – is Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The decision is for declaration and an injunction and the principal purpose of it is to nullity the decisions of the defendant terminating the appointment of the plaintiffs and others. In the light of all these, therefore the action on hand came squarely within the provisions of S.230(1)(s) of the 1999 Constitution. A careful reading of paragraphs (q)(r) and (s) reveals that the intention of the law makers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party…..”

The decision which was delivered on the 13th December, 2002, effectively overruled the decision of this Court in Hon. Minister for Works and Housing v. Tomas Nigeria Ltd Ors. (2002) 2 NWLR (Pt.752) 742 which was delivered on the 6th July, 2001. At page 788, paragraphs E – F, the Abuja Division of this Court held thus:-

“Unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a special Court with limited but exclusive jurisdiction clearly specified under S.251 of the constitution. There is no wherein the constitution or any other enactment where it is stipulated that any suit in which a Federal Government, Ministry, Agency functionary or parastatal is sued is justiciable in the Federal High Court, except those specified under S.251 of the Constitution.”

In Felix Onuorah v. K.R.P.C. (supra) the Appellant entered into a contract to purchase specified number of empty tins from the Respondent at an agreed amount, which he paid. But before delivery was made to the Appellant, the Respondent increased the price of the tins and asked the Appellant to pay the difference between the old and new prices, The Appellant refused, and insisted that the Respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently the Appellant filed an action at the Federal High Court claiming the items he paid for, an order of specific performance and N100,000.00 general damages. The Federal High court granted two reliefs and refused to grant the claim for general damages.

The Respondent appealed and raised the issue of jurisdiction for the first time at the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the trial Court had no jurisdiction to entertain the Appellant’s suit. On a further appeal to the Supreme Court. It was contended that the Respondent being a subsidiary of NNPC which in turn is an organ or agency of the Federal Government, the trial Court had jurisdiction to entertain the Appellants’ suit.

For the Respondent it was contended that the trial Court lacked jurisdiction to entertain the Appellant’s suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim.

The Supreme Court in a unanimous decision held thus:

“It is settled law that jurisdiction of a court is determined by the plaintiffs claim as endorsed in the writ of summons and statement of claim: See Tukur v. Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR (Pt. 117) 517 and Orthopaedic Hospitals Management Board v Garba (2002) 7 SC (Pt 11) 138: (2002) 14 NWLR (Pt. 788) 538 at 563. Thus in this case, the appellant’s claim already set out above, is the one that should be the focus of attention in determining whether the trial Court had jurisdiction to entertain the suit.”

At page 7 paragraph 2, the apex Court further said:

“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words section 230(1) provides a limitation to the general rule and all embracing jurisdiction of the State High Court because the items listed under the said Section 230 (1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court that Court therefore had no jurisdiction to entertain the Appellant’s claim. The lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim.”

See also, Seven Up Bottling Co. Ltd v. Abiola & Sons Bottling Co. Ltd (2001) 6 SC 73; Trade Bank Plc v. Bannilux Nig. Ltd (2003) 9 NWLR (Pt. 825) 416 at 430 & 431.

In Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33 at 52 paragraphs F – N, the Supreme Court, per Onnoghen. JSC held thus: .

‘The provision of S.251 of the Constitution of Federal Republic of Nigeria 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. It is the Section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial court. I therefore have no hesitation in agreeing with learned counsel for the cross appellant that the trial court had no jurisdiction in the matter as framed before it and ought to have struck same out.”

From the decisions I have considered herein so far the Supreme Court has clearly departed from the decision of NEPA V. Edegbero, by holding that it is the claim of the claimant that determines the jurisdiction of the Court and not the parties. The decision of the apex Court in Onuorah v, K.R.P.C. (Supra), which is binding on this Court because it was delivered latter in time, has clearly overruled the decision in NEPA v. Edegbero (supra).

In Sule Sani v. Durojaive Ademiluyi (2003) 3 NWLR (Pt. 807) 381 at 404 paragraphs E – F, the Supreme Court per Tobi, JSC said:-

“Where a previous decision of a Court has been overruled, submissions or counsel based on the overruled judgment will not avail the party he is representing. Where a previous decision of a court has been overruled, the decision so overruled no more represents the state of the law and counsel should no more rely on it, but should rely on the judgment which overruled the previous decision.”

In this case learned counsel relied on three earlier decisions of the Supreme Court in Oyeniran v. Egbelola (1997) 5 NWLR (Pt. 504) 122 at 132: Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151 and Salati v. Shehu (1986) 1 NWLR (Pt. 5) 198 when these decisions had been overruled in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116. The Supreme Court said the decisions which were overruled no longer represent the position of the law.

From the authorities I have considered in this judgment. I am of the firm view that the decision in NEPA v. Edegbero (Supra) had been overruled and it no longer represents the position of the law.

In this appeal, since the claims of the Appellants are founded on contract, it is the State High Court that has jurisdiction to hear and determine the suit, irrespective of which parties are involved.

In the final analysis therefore I resolve the only issue identified in favour of the Appellants.

On the whole I find merit in this appeal which I allow. The decision of the lower Court is accordingly set aside and quashed. The Appellant is entitled to the cost of this appeal, which I assess at Forty Thousand Naira (N40, 000,00).

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Other Citations: (2008)LCN/2827(CA)