Federal Housing Authority V. Peter Oteh (2009)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, JCA

This is an appeal against the Ruling of the Federal Capital Territory High Court, Abuja in Suit No. FCT/HC/CV/358/04 – PETER OTEH (In business as Peter Oteh & Company) v. FEDERAL HOUSING AUTHORITY delivered on the 25th day of May 2004.

According to the endorsement on the Writ of Summons, the Plaintiff now Respondent sued the Defendant now Appellant for the following reliefs:-

“(1) The sum of N366,141.22K being outstanding balance/debt due to the Plaintiff from the Defendant on payment Certificate No. 03, on account of executed contract.

(2) 21% interest on the said sum from November 1997 till Judgment is entered.

(3) 10% interest on the Judgment sum from the date of Judgment till the sum is liquidated.”

At the lower Court, the Appellant brought an application to strike out the suit for lack of jurisdiction by virtue of Section 251(1)(p) of the 1999 Constitution of the Federal Republic of Nigeria.

The learned trial Judge after hearing the application on the issue of lack of jurisdiction struck it out and assumed jurisdiction in the matter.

Dissatisfied with the Ruling, the Appellant now appealed to this Court.

The learned Counsel for the Appellant formulated two issues for determination as follows:-

(1) Whether the lower Court (i.e. The Federal Capital Territory High Court of Justice) has jurisdiction to entertain this matter (i.e. Suit No. FCT/HC/CV/358/04?

(2) Whether the Plaintiff’s cause of action and/or claim was not statute barred?

At the hearing, Learned Counsel for the Appellant stated that the application to hear this appeal on the Appellant’s brief alone was granted on 16th day of October 2008, because the Respondent has failed to file Respondent’s brief of argument He then adopted the said Appellant’s brief and relied on it in urging this Court to allow the appeal.

Issue 1

The learned Counsel for the Appellant submitted that by virtue of the provisions of Section 251 (1)(p) of the 1999 Constitution the lower Court lacked jurisdiction to entertain Suit No. FCT/HC/CV/358/04. The Appellant being a Federal Government Agency and the payment for the contract being from the revenue of the Federal Government under the provisions of Section 251 (1)(a) of the 1999 Constitution.

He went further in his submissions that Jurisdiction as defined in the Supreme Court case of A.G. Lagos State vs. Dosumu (1989) 3 NWLR Part 111 Page 552 at 662 which decision was followed by this Court in Akande vs. Alagbe (2001) F.W.L.R. Part 38 Page 1350 at Page 1372 Paragraphs C – G., relate to and is determined not only by the cause of action but also the parties before the Court.

Learned Counsel referred to Sections 2, 3, 7 and 9 of the Federal Housing Act Cap. 136 Laws of the Federation 1990 and the cases of:-

Military Administrator Benue State vs. Abayilo (2000) FWLR Part 45 at Page 602 and Federal Housing Authority vs. John Shoy International limited (2004) All FWLR Part 214 Page 132 at 142 Paragraph G, to show that the Appellant is a Federal Government Agency.

It was also submitted on behalf of the Appellant that by virtue of the provisions of Section 251 (1) (p) of the 1999 Constitution only the Federal High Court has exclusive jurisdiction to entertain matters in which the Federal Government and/or any of its agencies is a party no matter what the claim is. Learned Counsel relied on the following cases:-

NEPA VS. Edegbero (2003) All FWLR Part 39 Page 1556:

F.G.N. vs. Oshiomole12004) All FWLR Part 209 Page 972;

Federal Housing Authority vs. John Shay International Ltd (supra).

The Plaintiff/Respondent’s claim before the lower Court are as stated earlier in this Judgment.

A careful perusal of the said Plaintiff/Respondent’s claim at the lower Court showed that it is a simple debt or liquidated money demand and it is what constitutes the subject matter of the action. It is no longer recondite that it is only the Plaintiff’s Writ of Summons and Statement of Claim that determine the Jurisdiction of the Court.

In the case of:- Onuorah vs. K.R.P.C. Ltd (2005) 6 NWLR Part 921 at Page 393, it was held by the Supreme Court that:-

“Although it is sometimes necessary for the Court to hear some evidence first for the purpose of determining the issue of jurisdiction, where however pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the Plaintiff’s pleading, that is, his Statement of Claim and not on the defendant’s statement of defence.”

See also the case of:- Omnia Nig. Ltd vs. Dyktrade Ltd (2007) 15 NWLR Part 1058 Page 576 at 598 – 599.

As stated earlier, the Plaintiff/Respondent’s Claim is a simple debt and it is my view that the Federal High Court does not have exclusive jurisdiction on simple debt arising from breach of contract.

The jurisdiction of the Federal High Court is prescribed by the Constitution of the Federal Republic of Nigeria 1999.

Section 251 for purposes of clarity says:-

“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other person subject to Federal taxation;

(e) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;

(d) connected with or pertaining to banking, banks other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:

Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;

(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;

(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;

(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;

(h) diplomatic, consular and trade representation;

(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;

(j) bankruptcy and insolvency;

(k) aviation and safety of aircraft;

(1) arms, ammunition and explosives;

(m) drugs and poisons;

(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);

(0) weights and measures;

(p) the administration or the management and control of the Federal Government or any of its agencies;

(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and

(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly;

Provided that nothing in the provisions of paragraphs (p). (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

Upon critical perusal of the above quoted section of the Constitution and all its subsections, it showed that the subject matter of the present action which is premised on payment of a simple debt arising from a simple contract between the Appellant and the Respondent does not fall by any interpretation within the section.

It is my view that Section 251 does not confer an unlimited jurisdiction on the Federal High Court, rather the subjects that the Court can entertain has been expressly stated as listed above. In other words the Federal High Court can and shall only entertain and assume exclusive jurisdiction inter alia on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies.

In Okoyode vs. FCDA (2006) All FWLR Part 298 Page 1200 at 1226 Rowland JCA of blessed memory opined as follows:-

“I am of the view that for the provision of Section 251(1) (p) (q) and (r) to apply, the suit must involve the administration or management and control of the Federal agency. It must be a declaration or injunction challenging the validity of executive decision or action of the Federal agency. One of the conditions enumerated in Section 251(1)(p) must be present to vest jurisdiction on the Federal High Court. Other than that the Federal High Court cannot and does not have exclusive jurisdiction ……………………………………………..The claim of the Plaintiff here arose from a breach of a contract entered into by the Defendant, the Federal Capital Development Authority. It is the claim of the Plaintiff that determines the jurisdiction of the Court……………………………………………………………. The amount being claimed according to the Plaintiff’s claim is that of a simple debt. A claim of simple debt, simpliciter is still within the jurisdiction of the High Court of the Federal Capital Territory regardless of whether a party entitled is an agency of the Federal Government……………………………………………………………………….. In this case, the Plaintiff’s claim is for a simple debt owed to him by the Defendant, and not one challenging the validity of the executive decision of the Hon. Minister of the Federal Capital Territory to reduce the contract sum paid to him, which is a different matter altogether.

The High Court of the Federal Capital Territory therefore has jurisdiction to entertain it and I so hold.”

Also in the case of Onuorah VS. K.R.P.C. Ltd (2005) 6 NWLR Part 921 Page 393 at 405 the Supreme Court on the interpretation of Section 230 under 1979 Constitution and now Section 251 in 1999 Constitution held as follows:-

“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 contracts as in the instant case……………………………………………………………All other items not included in the list would therefore still be within jurisdiction of the State High Court. In the instant case, since disputes founded on contract 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 the following cases:-

Adelekan VS. Ecu-Line NV(2006)12 NWLR Part 993 Page 33 at 52;

Integrated Timber and Plywood Product Ltd VS. Union Bank of Nigeria PLC (2006) 5 S.C. Part 2 Page 52 at 61.

The Appellant had relied on the case of NEPA VS. Edegbero (supra) in his submissions that the Lower Court lacked jurisdiction to entertain the matter on appeal. But the claim in NEPA vs. Edegbero arose from unlawful dismissal which revolves round a contract of employment. The Supreme Court held that it is the Federal High Court that has jurisdiction to entertain the suit. The case has established a new doctrine and concept of party jurisdiction. By party jurisdiction, it means where the parties are agencies of the Federal Government irrespective of whatever they claim, whether for declaration, injunction or damages, it is the Federal High Court that has jurisdiction. By subject matter jurisdiction, it means where the subject matter is within the Jurisdiction of the Federal and State High Courts, irrespective of the parties, both Courts have concurrent Jurisdiction. That was why the Supreme Court in the case of Jack vs. UNMAD (2004) All FWLR Part 200 Page 1506, (2004) 5 NWLR Part 865 Page 208 held that both the State and The Federal High Courts have concurrent jurisdiction on Fundamental Human Rights irrespective of the parties.

In view of the foregoing it is my conclusion that the case of NEPA vs. Edegbero relied upon by the Appellant has not divested the lower Court of its Jurisdiction to hear simple debt matters. Consequently the lower Court i.e. High Court of the Federal Capital Territory can entertain suits on simple debt or liquidated money demand involving F.G.D, A. and other Federal Government agencies since it has been shown that jurisdiction conferred on the Federal High Court by Section 251 of the 1999 Constitution does not include dealing with any case of simple contract or damages, Consequent upon the above view, the Ruling of the lower in which it assumed jurisdiction in this matter, delivered on 25th day of May 2004 is hereby affirmed.

This issue No. 1 is therefore resolved in favour of the Respondent and against the Appellant.

Issue 2

Whether the Plaintiff’s cause of action and or claim(s) is not statute barred.

The learned Counsel for the Appellant contended that the Plaintiff/Respondents main/principal claim from which the 2nd and 3rd claims flow is statute barred by virtue of Section 7(1) and (6) of the Limitation Act, laws of the Federation of Nigeria 1990 and as such ought to be dismissed in its entirety.

The learned Counsel for the Appellant referred to Exhibit 2 before the lower Court which is the payment certificate issued and dated 13/12/95.

He went further that the Plaintiff’s motion exparte for an order of the lower Court to issue and enter the suit for hearing under the undefended list and marking the Writ of Summons accordingly was filed on 4th November 2003.

He went further that the Writ of Summons was filed and issued on the 15th day of January 2004.

It was submitted on behalf of the Appellant that the cause of action in this case arose on 13/12/95, and that by virtue of the provisions of Section 7(1) (a) of the Limitation Act Cap. 525 Laws of the Federation of Nigeria the action is statute barred. He referred to the following cases:-

P. N. Uddoh Trading Company Ltd vs. Abere (2001) FWLR Part 57 Page 900 at 916 – 917;

Muemue vs. Gaji (2000) All FWLR Part 16 Page 2764.

It was also submitted that 4th of November 2003 the date on which the motion exparte was filed should not be reckoned with because Order 23 Rule 1 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 1989 did not make provision for an application by way of motion exparte as condition precedent before the Writ of Summons is filed.

He relied on following:-

Ramadan (Nig) Ltd VS. Afribank Plc (2005) All FWLR Part 285 Page 482; Healthcare Products Nig. Ltd vs. Bazza (2003) All FWLR Part 162 Page 1937; United Bank for Africa VS. Barrister E. N. Ekpo (2005) All FWLR Part 241 Page 376; Okpere VS. Rugoji (2004) All FWLR Part 194 Page 463.

He finally urged that the appeal be allowed and dismiss the Plaintiff’s Claim. I will start the analysis of this issue under consideration by defining cause of action. A cause of action is every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to Judgment of the Court.

In the case of Masojo vs. Oyetayo (2003) All FWLR Part 165 at Page 545, cause of action was defined to mean the facts which when proved will entitle a Plaintiff to a remedy against a defendant. See also the following cases:-

P. N. Uddoh Trading Co. Ltd vs. Abere (supra); Labode vs. Otubu (2001) All FWLR Part 43 Page 207 at 232 – 233 Paragraphs F – A; Ibrahim – Ohida vs. Military Administrator, Kogi State (2000) All FWLR Part 12 Page 2107.

It has been contended on behalf of the appellant that the claim of the Respondent at the Lower Court was statute barred.

A careful reading of the record of proceedings in this appeal showed that the last payment made by the appellant to the Respondent was made on the 14th November 1997. Therefore it would not be right to contend that cause of action in this case started on 13/12/95 i.e. the date on which Payment Certificate was issued.

The Respondent commenced his action against the appellant on 4th November 2003 by undefended list procedure wherein he brought an application for the issuance of a Writ of Summons under Order 23 rule 1 of the High Court of the Federal Capital Territory Civil Procedure Rules. The said Writ of Summons was eventually filed and issued on 15th January 2004.

It was contended on behalf of the appellant that whether 4th November 2003 or 15th January 2004 is reckoned with, the action of the Respondent was statute barred.

It must be noted that this action was brought under the undefended list procedure and in such situations an application by a Plaintiff for the Issuance of a Writ of Summons by the Registrar is usually made ex parte by the Plaintiff.

The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other relevant documents available to the applicant as exhibits, The Court will then consider the application and the documents attached if any and if the Court is satisfied that the case is one fit to be brought under the “undefended list procedure” the Court shall order that a Writ of Summons be issued by the Registrar and be marked accordingly, Another important fact is that the Writ initiated under the undefended list procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for the issuance of same by the Court, where leave is not first obtained, as required by the rules before a Writ of Summons is Issued, the Writ of Summons issued without due process of law will be incompetent and liable to be set aside See the cases of:-

Idris vs. Archibong (2001) 9 NWLR Part 718 Page 447; Cash Affairs Finance limited vs. Inland Bank Nig. Plc (2000) 5 NWLR Part 658 Page 568.

The pertinent question at this stage is that – Is the Plaintiff’s cause of action statute barred?

By virtue of Section 7(1)(a) of the Limitation Act Laws of the Federation of Nigeria 1990, actions founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. In this case under consideration it is my view that the cause of action arose on 14th November 1997 i.e, the date on which the Appellant made the last payment to the Respondent and not 13/12/95 as contended by the Learned Counsel for the Appellant. Furthermore the rules under the undefended list procedure is peculiar because where leave is not first obtained, as required by the rules, before a Writ is Issued, the Writ of Summons issued without due process of law is liable to be struck out.

The Respondent commenced his action at the lower Court on 4th November, 2003 by his Exparte application for an order of the Court to issue and enter the suit for hearing under the undefended list and marking the Writ of Summons accordingly. Therefore since the condition precedent before a Writ of Summons is taken out under the undefended list procedure is the filing of a motion Exparte praying for that order, then it is my view that the condition must be fulfilled for the Writ of Summons to be valid before the Court, And this is exactly what the Respondent did at the lower Court, therefore Respondent’s action was instituted when the Exparte application was filed.

I have earlier stated that the cause of action in this matter arose on 14th November 1997 and the Respondent commenced his action on 4th November 2003. The period between 14th November 1997 and 4th November 2003 is 10 days less than 6 years. It is only if the action is commenced after 6 years that it would become statute barred.

Consequent upon the foregoing, it is my view that the action of the Respondent at the Lower Court is not statute barred.

This issue is also resolved against the Appellant and in favour of the Respondent.

In the final result, this appeal lacks merit and it is accordingly dismissed.

There shall be no order as to costs.

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Other Citations: (2009)LCN/3417(CA)