Nigeria Deposit Insurance Corporation V. Attorney-general Nasarawa State & Ors (2007)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J.C.A.
This is an appeal against the Ruling of Hon. Justice S. J. Adah of the Federal High Court sitting in Abuja delivered on 7/10/2004.
The facts which led to the proceedings in the trial court are as follows:
On 16/01/1998, the Central Bank of Nigeria revoked the banking licence of Commerce Bank Plc. and appointed the Appellant, Nigeria Deposit Insurance Corporation, NDIC the Official Receiver/Provisional Liquidator. The appointment was affirmed by the Federal High Court per Sanyaolu J. on 03/04/1998. In the course of its duty as Liquidator, the Appellant discovered that the Bank in liquidation has a property, an expanse of land at Mararaba Guruku, Nasarawa State on which some people had trespassed. On 17/12/2003, the Appellant sought and obtained the leave of the trial court to sue as liquidator. Pursuant to the leave of court, the Appellant took out a Writ of Summons against the Respondents, The Respondents entered a conditional appearance on 28/01/2004 and on 26/03/2004, they filed a Notice of Preliminary Objection challenging the jurisdiction of the lower court to adjudicate upon the suit of the Appellant, The trial court in a considered ruling found that it is the High Court of Nasarawa State that should hear the suit. It therefore declined jurisdiction in the Appellant’s suit and accordingly struck it out.
Aggrieved with the ruling of the trial court, the Appellant filed this appeal,
For purposes of ease of reference and good grasp, the Appellant’s claim in the trial court, from the endorsement on the Writ of Summons is hereunder reproduced verbatim as follows:
“a) A declaration by the Hon, Court that the actions and omissions of the 1st and 2nd Defendants in granting titles and permissions to or standing by while, 5th to 147th defendants trespass into and put up buildings without the consent of the Plaintiff, on the same plot, are improper, illegal and void.
b) A declaration that 5th – 147th Defendants are trespassers into the said plot.
c) A declaration by the Hon. Court that the Plaintiff is the rightful occupier of the expanse of land covered by the Customary Right of Occupancy No. 2637 and the Right of Occupancy issued to Commerce Bank Plc (In-liquidation) granted by the 1st and 2nd Defendants along the Keffi-Abuja Road in Mararaba-Guruku, Karu local Government of Nasarawa State and is entitled to exclusive grant of Statutory Right of Occupancy over the said plot.
d) A declaration that any of or all the Customary Right of Occupancy and Certificate of Occupancy issued by 1st and 2nd Defendants to any of the Defendants over the land are null and void.
e) An order of the Hon, Court against the 1st & 2nd defendant to pay to the Plaintiff the sum of N10m. each as damages, for all their actions, omissions, facilitations in the 5th – 147th Defendants trespass into the Plaintiff’s plot.
f) An Order of the Hon Court that each of the Defendants particularly 5th – 147th to pay to the Plaintiff the total sum of N202, 509, 480. 00 being the total of the different sums claimed from the respective 5th – 147th. Defendants very well stated in the Statement of Claim.
g) An Order of the Hon. Court that each of the Defendants pays the “sum of the money claimed by the Plaintiff or to vacate immediately the various spaces occupied by them in the plot. –
i) And an Order of the Court restraining the Defendants or any other person from further tampering with the Plaintiff’s plot.
And an order of perpetual injunction by the Hon. Court restraining the Nasarawa State Government and I or Karu Local Government Council, their privies and agents from granting any application for statutory / customary Right of Occupancy or any other form of title over any portion of the land (or the whole) to any of the Defendants or any other persons,”
In the Notice of Appeal, five grounds were presented by the Appellant. They are without their particulars verbatimly reproduced, hereunder as follows:
“GROUND 1
1) The Hon. trial court erred in law when it declined jurisdiction to entertain this action, the action being a liquidator’s action.
GROUND 2
2) The Hon. trial court erred in law when it declined jurisdiction to entertain this action brought by Nigeria Deposit Insurance Corporation which is a Federal Government Agency.
GROUND 3
3) The learned trial judge erred in law when he refused to hold that capacity of the Plaintiff as a liquidator is more material in vesting jurisdiction in Federal High Court than the mere incidental issue of nature of claim.
GROUND 4
4) The learned trial court erred in law when it failed to interprete Ss.39(1) and 51(1) and any other provision or section of the land Use Act to be subject to S.251(1)(e) of the Constitution of the federal Republic of Nigeria 1999.
GROUND 5
5) The Hon. trial court erred in law when it struck out the suit instead of making an order of transfer to the High Court of Nasarawa State.”
The Appellant filed its brief of argument, the 1st & 2nd Respondents filed a Joint brief of argument and the 3rd & B21 Respondents also filed a Joint brief of argument. However, the 4th 6th, 7th/A1-8th/A25 and 19th/B1-38th/ B13 Respondents Failed to file their Briefs of Argument.
Learned counsel for the Appellant formulated four issues for the determination of the appeal. Verbatim, they are:
“1. Whether by virtue of Section 251(1) (e) of the Constitution the provisions of Companies and Allied Matter Act and other statutes, the Federal High Court is not conferred with exclusive jurisdiction to entertain a Liquidators action as in this case.
(Ground 1)
- Whether the Hon. Court was right to hold that irrespective of the parties and the capacity in which an action is commenced, the sole determinant of the jurisdiction of the Federal High Court, as in this case, is the nature of the claim. – (Ground 2 & 3).
- Whether the provisions of Section 39(1) and 51(1) or the Land Use Act can override the exclusive jurisdiction conferred on the Federal High Court by Section 251 (1) of the Constitution of the Federal Republic of Nigeria. 1999. (Ground 4).
- Whether the Hon. trial court was right to have struck out the matter on the ground that state High Court is the appropriate court instead of an order of transfer
(Ground 5). ”
Learned counsel for the 1st and 2nd Respondents also, formulated one sole issue for the determination of the appeal and verbatim, it is:
“Whether the fact that a suit as a Liquidator’s action simpliciter confers exclusive jurisdiction on the Federal High Court irrespective of the nature of claim (Grounds 1, 2, 3 & 4)”
The 3rd and B21 Respondent’s counsel equally formulated two issues for the determination of the appeal. I hereunder reproduce them verbatim as follows:
“1. Whether the Nasarawa State High Court is vested exclusively with the Jurisdiction to entertain a matter of title or trespass to land which subject matter is situated at Maraban-Gurku in Karu Local Government Area of Nasarawa State, irrespective of the mere incidence of a Federal Government Agency being a party.
- Whether the trial court must transfer a suit upon discovering that it has no jurisdiction over a matter bordering on title / trespass on a land situated in Nasarawa State when no application to that effect had been mode by the applicant.”
At the oral hearing of this appeal on 7th day of November, 2006, learned counsel for the Appellant, Mr. Chukwuma – Machukwu Ume adopted his brief of argument and commended to the court the -case of: Y. Ibrahim v. S. I. Obaie (2005) 8 WRN p. 75 at p.78 – 79
He urged the court to uphold the appeal and set aside the decision of the trial court.
In reply, learned counsel for the 1st and 2nd Respondents, Mr. Ishaku Usman adopted his brief of argument and urged the court to dismiss the appeal.
Learned counsel for the 3rd and B21 Respondents made no appearance, they were duly served with hearing notices and in accordance with the provisions Of Order 6 Rule 9(5) of the Court of Appeal Rules, 2002, the appeal was deemed as argued on their Joint brief already filed in court.
The 4th- 6th, 7th/A1- 8th/A25 and 19th/B1-38th/B13 Respondents having failed to file their respective briefs of argument within the statutory period pursuant to the provisions of the rules of court, this court by its order on 18/10/2006 granted that the appeal be heard only on the brief of argument of the Appellant, the Joint brief of argument of the 1st and 2nd Respondents and the Joint brief of argument of the 3rd and B21 Respondents accordingly.
I have perused the Briefs of argument of the Appellant, the 1st & 2nd Respondents and the 3rd & B21 Respondents. I find the issues raised in the brief of the Appellant all-embracing enough for the resolution of the grievance of this appeal. I am adopting the said issues identified by the Appellant on the authority of the cases of:
(1) Aduku v. Adejoh (994) 5 NWLR (Pt.346) p.582 and
(2) Ikegwuoha v. Ohawuchi (996) 3NWLR (Pt 435) p. 146.
I shall however also take issues one and two together.
ISSUES ONE & TWO
It was submitted by the Appellant’s counsel that the duties and functions of a Liquidator being regulated by the Companies and Allied Matters Act, it is the Federal High Court that has exclusive jurisdiction to adjudicate upon civil matters-arising therefrom. Appellant’s counsel argued that a Liquidator is a person appointed to wind up a company’s business’ affairs, especially by selling off its assets. The appointment of a Liquidator is therefore a prelude to putting an end to the running and business of a company, Commencement of an action to recover any of the company’s properties being a part of the process of winding up the company’s business’ affairs is clearly a civil matter under the Companies and Allied Matters Act, (hereinafter referred to as CAMA). Reference was made to the provisions of Section 425(1) of the CAMA as those empowering the Liquidator to institute actions in the winding up processes of a company. White by the provisions of Section 38(3) of the Banks and Other Financial Institutions Decree (hereinafter referred to as BFID), the Governor of the Central Bank of Nigeria may appoint the Nigeria Deposit Insurance Corporation (hereinafter referred to as NDIC) as the official Receiver or Provisional Liquidator of a company to be wound up and such appointment shall be deemed to have been made by the Federal High Court. He relied on the case of:
NDIC v. FMB (1997) 2 NWLR (pt. 490) p. 735 at p. 742.
It was observed further by the Appellant’s counsel that the provisions of Sections 423 and 424 vest the properties of the company in the Liquidator either on the Liquidator’s motion and or by the order of court. Reliance was placed on the case of: Anakwenze Vs. Tapp Industry Ltd (1991) 7 NWLR (Pt. 202) p. 177 at p. 182.
Liquidation is the business and this include the recovery and gathering of the company’s properties for its effective and effectual winding up, Institution of actions in this regard is usually the responsibility of the Liquidator. Therefore, the court that is vested with jurisdiction to adjudicate upon actions at the instance of a Liquidator especially where the Liquidator has been appointed by the court like the instant case, is, the Federal High Court. In this regard, Section 650 of CAMA defines “Court” to mean the Federal High Court.Learned counsel for the Appellant argued that the leave granted the Appellant to institute legal proceedings against the Respondents and an interim injunction restraining the Nasarawa State Government and Karu Local Government Council from entertaining applications for the granting of title to statutory/customary rights of occupancy to the property the subject matter of the action filed in the trial court were rightly made within the jurisdiction of that court on 17/12/2003. Nothing can divest the Federal High Court of that jurisdiction. The action can not then be transferred to the State High Court thencefrom.
For purposes of ease of reference and good ‘grasp of the matter of the jurisdiction of the Federal High Court in actions pertaining to winding up of companies in liquidation, the provisions of Sections 249 (1), 251 (i) (e), & 252 (1) of the Constitution of the Federal Republic of Nigeria,1999 and Section 19 of the Federal High Court Act, 1990 are hereunder reproduced as follows:
The 1999 Constitution, Sections,
” 249, – (1) There shell be a Federal High Court,”
“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-
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act,.”
“252. (1) -For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the Notional Assembly, the Federal High Court shall have all the powers of the High Court of a 5tate.”
The Federal High Court Act, Section
“19. – (1) The Court shall have and exercise jurisdiction throughout the Federal, ”
Appellant’s counsel submitted that the effect of the above quoted provisions is that 2 Liquidator can commence actions in respect of the assets and properties of a company in liquidation, wherever such may be located in Nigeria in the Federal High Court most convenient for a litigant.
Continuing, Appellant’s counsel observed that by the provisions of Section 7(1) (c) (i) of the Federal High Court Act, the Federal High Court is vested with jurisdiction to determine matters arising from the operation of companies incorporated under the Companies and Allied Matters Act. This is an exclusive jurisdiction by reason of provisions of Section 8 (1) of the Federal High Court Act which expressly preclude the High Courts of a State and the Federal Capital Territory,
Abuja from continuing to exercise jurisdiction in such matters. In furtherance of the provisions of Section 251(i) (e) of the Constitution, Section 11 of the High Court of the FCT, Abuja Act provides that:
“The Court does not have jurisdiction in a dispute or matter in respect of a question in relation to which the jurisdiction is excluded by the provisions of the Constitution of the Federal Republic of Nigeria”.
The Appellant’s counsel further contended that the recovery of the properties of a company in liquidation involves revenue in that a certain percentage of such revenue goes to the NDIC, the Appellant who is an agent of the Federal Government. The Federal Government in turn uses such revenue in running the daily affairs of NDIC. He urged the court to hold that it is the Federal High Court that has jurisdiction to adjudicate upon actions of a Liquidator in the instant case, NDIC, to recover or gather the properties of Commerce Bank- Plc, a company in liquidation.
It was further contended by the Appellant’s counsel that, the nature of an action is of no moment in determining whether the Federal High Court has jurisdiction or not but rather the parties involved in the action. He submitted that NDIC is a Federal Government Agency. The action in the trial court was commenced by NDIC in its capacity as a Liquidator. Reliance was placed on the provisions of Section 9(1) & (2) of the NDIC Act by which the Federal Government has the total and controlling shares of NDIC. He also on this issue referred to the cases of:
(1) Ajaokuta Steel Co. Ltd v. Corp. Ins. Ltd (2004) 16 NWLR (pt. 899) p. 369 at p- 372;
(2) NIPOST v. Adepoju (2003) 5NWLR (pt. 813) p. 224 at p- 230.
(3) Idoiboye-Obu v. NNPC (2003) 2 NWLR (pt. 805)p. 589 at p. 594;
(4) NERDC v. Gonze Ltd (2000) FWLR (pt. 21) p. 842 at p. 845;
(5) NEPA v. Edegbero & 15 Ors. (2002) 18 NWLR (pt. 798) p. 79at p. 83 and
(6) FGN Vs. Oshiomhole (2004)25 WRN p. 50 at p.63.
He opined that in the consideration of exclusive jurisdiction of the Federal High Court in actions, it is the status of parties that has supremacy over the cause/nature of the action.
It was further canvassed in favour of the Appellant that the Federal Government has exclusive responsibility to regulate banks and other financial institutions pursuant to the provisions of the NDIC Act, Cap. 301, Laws of the Federation, 1999 which established NDIC, a statutory corporation. Reliance was placed in respect of this power of the Federal Government on the provisions of the Constitution of the Federal Republic of Nigeria, 1999, 2nd Schedule, Item 6, of the Exclusive Legislative List. It is therefore clear that it is the Federal High Court that has been vested with exclusive jurisdiction to entertain actions instituted by NDIC, irrespective of the nature of the actions or claims. The trial court, the Federal High Court, Abuja was therefore in error to have declined jurisdiction in this matter, Clearly, the Federal High Court is imbued with exclusive jurisdiction to entertain action falling within the categories of matters listed in -Section 251 (i)(e), indeed subsection (i) (a) – (s) of the 1999 Constitution. He relied on the cases of:
(1) University of Agriculture, Makurdi v. Jack (2000) FWLR (pt. 20)0. 720 at p. 724 and
(2) Iwegbedion v. Selo-Ojemen (2004) 12 NWLR (pt. 887) p. 411 at p. 416.
In reply, learned counsel for the 1st & 2nd Respondents submitted that in considering whether or not a court has jurisdiction to entertain an action, one of the relevant materials to be ascertained is the nature of the plaintiff’s claim as disclosed in his Writ of Summons.
Jurisdiction connotes the entire basis of taking cognizance of matters presented to the court formally for the purpose of deciding them. He referred to the cases of:
(1) Onuorah v. K.R.P.C. Ltd (2005) 6 NWLR (Pt. 921) p. 393 at p. 397;
(2) F.B.N Plc. v. Jimiko Farms Ltd. (1997) 5 NWLR (pt. 503) p. 81 at p. 92;
(3) Adeyomi & Ors v. Opeyori (1976) 9 & 10 SC p.31 at p.51;
(4) Egbuziem v. N.R.C (1994) 3 NWLR (pt.303) p.23 and
(5) Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) P 517
1st & 2nd Respondents’ counsel argued that being a Federal Government Agency alone is not sufficient reason to vest exclusive jurisdiction on the Federal High Court, rather such a matter involving a Federal Government Agency like the Appellant in the instant case, must possess the following co-existing conditions:
(1) If the action or proceeding is brought against the Federal Government or any of its agencies;
(2) If the action or proceeding is for declaration or injunction;
(3) If the action or proceeding affects the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.
According to him, the third condition is not present in the instant case, the trial court can not therefore exercise jurisdiction over the Appellant’s claim. He referred to the cases of:
(1) University of Agriculture, Mokurdi v. Jack (2000) 11 NWLR (pt. 679) p. 658 at p. 671 – 672 and
(2) Minister of Works & Housing v. Tomas & Ors. (2001) 48 WRN p. 119 at p. 147
Continuing, 1st & 2nd Appellant’s counsel argued that although Section 230 (i) (e) of the Constitution (Suspension and Modification) Decree, No. 107 of 1993 conferred exclusive jurisdiction on the Federal High Court in civil causes arising from the operation of companies under the Companies and Allied Matters Act and the Common law, it is not every act of a company that is covered by the provision, He referred to the cases of:
(1) Jamal Steel Structures Ltd v. ACB (1973) 1 All NLR (Pt. 1) p. 208 and
(2) Bi Zee Bee Hotels Ltd v. Allied Bank Ltd (1996) 8 NWLR (Pt. 4652p. 176.
“Furthermore, counsel for the 1st & 2nd Appellants submitted that it is not the intendment of the provisions of Section 251 (i) (e) of the 1999 Constitution and the Companies and Allied Matters Act, 1990 to confer exclusive jurisdiction on the Federal High Court merely because a suit is at the instance of a Liquidator in the process of winding up a company.
The properties accruing to the Appellant from a company in liquidation can not constitute revenue of the Federal Government. However, actual collection of revenue by the Federal Government or any of its agencies must be involved for the Federal High Court to have exclusive jurisdiction, In the instant case, the Appellant is not directly involved in a matter of revenue collection, hence the trial court lacks jurisdiction to determine the claim of the Appellant.
The learned counsel for the 3rd and B21 Respondents on the other hand contended that the fact that NDIC is a Federal Government Agency and has been appointed a Liquidator for the winding up of Commerce Bank Plc. does not confer exclusive jurisdiction on the trial court, the Federal High Court. The import of Section 251 of the 1999 Constitution according to him is that, for the Federal High Court to have exclusive jurisdiction, the suit must be a civil matter arising from the management and control of the Federal Government or that of any of its agencies and also the operation and interpretation of the Constitution.
The major reason I am taking issues one and two together is because they both touch on the jurisdiction of the trial court, the Federal High Court and indeed the competence of the Appellant’s suit before that court. Put in another way, whether the Federal High Court possesses jurisdiction to adjudicate upon the case of the Appellant. The Appellant sued as a Liquidator of Commerce Bank Plc, a company being wound up, to recover -and claim damages in respect of some landed properties of the said company in liquidation.
Jurisdiction is a radical and crucial question of competence. A defect in competence is offensive to and indeed strangulates adjudication. A defect in competence is therefore fatal in that it renders the entire proceedings, trial and findings invalid, null and void “abinitio” however brilliantly they must have been conducted and concluded. See the cases of:
(1) Oke v. Oke (2006) 17 NWLR (Pt.1008) p.224 and
(2) Ezenwosu v. Ngonadi (988) 3 NWLR P 31 – 32 (Pt. 81) p 168.
A nullity “in law has been defined as a void act and the effect thereof is that such an act has no legal consequence. A void act such as a null proceeding is not only bad and of no legal consequence. It is incurable and can not be salvaged. See the cases of:-
(1) Saleh v. Monguno (2006) 15 NWLR (Pt, 1001) p. 26 at p.74
(2) Mobil Prod (Nig.) Ltd v. LASEPA(2002) 18 NWLR (Pt. 798) p. 1 at p. 31 – 32 (pt. 81) p. 168;
(3) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 34 and
(4) Offia v. Ejem (2006) 11 NWLR (pt. 992) p. 652
A court must of necessity be vested with jurisdiction before it can proceed on any voyage or Journey of adjudication. The issue of jurisdiction is so serious and exceptional in all matters, so much so that it is settled that it cannot even be compromised by parties in an action or even the court. Parties cannot for Instance by consent or agreement confer jurisdiction on a court where a court has none. The competence of a court to adjudicate upon a matter is a legal and constitutional prerequisite without which a court is a lame duck, See the cases of:
(1) Ezomo Vs. Oyakhire (1985) 1 NWLR (pt. 2) p.195:
(2) NDIC v. CBN (2002) 7 NWLR (pt. 766) p. 272 and
(3) Saleh v. Monguno (2003) 1 NWLR (pt.801) p.221.
It is an age long settled principle of law that a court is said to be competent or possess jurisdiction to entertain and determine a matter placed before it if:
(a) it is properly constituted as regards qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) 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) the case comes before the court initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction.
All the three conditions stated above must co-exist for the court to be vested and clothed with proper competence and jurisdiction. See the cases of:
(1) Madukolu Vs. Nkemdilim Supra at p. 587 and
(2) A. – G., Anambra State Vs. A. – G., Federation (1993) 6 NWLR (Pt. 302) p. 692
The issue of jurisdiction is a hard-and-fast and an incurable principle of law, albeit the determination of courts’ competence however depends on the peculiar circumstances of each case.
Furthermore, in determining the jurisdiction of a court, the enabling law vesting jurisdiction on it has to be examined in the light of the relief or reliefs sought. This is so because courts are creations of statutes and their jurisdiction is therefore confined, limited and circumscribed by the statute creating them. Court can not in essence give themselves or expand their jurisdictional horizon by misappropriating or misconstruing statutes. See the cases of:
(1) African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) p 137;
(2) Onwudiwe Vs. FRN (2006) 10 NWLR (Pt.988) p.382 and-
(3) A.P.C Ltd Vs. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) p. 404
The Constitution of the Federal Republic of Nigeria is the grundnorm of the country, it is in fact the “fons juris” from which all other laws flow and derive their validity. It is the organic law which prescribes the rights, duties, powers and responsibilities of all the organs deriveable from it. Courts are organs created by the Constitution and it is the Constitution majorly and principally that defines their jurisdiction. It is the substantive law which makes provisions for the procedural laws or other statutes applicable in the various courts established by it. See the case of:
Rosseck v. ACB (1993) 8 NWLR (pt.312) P. 382 at p. 439.
By virtue of the provisions of Section 251(1)(a) of the 1999 Constitution, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, relating to the revenue of the Government of the Federation in which the said Government on any organ (agency) thereof or a person suing or being sued on behalf of the said Government is a party. Sub-paragraphs (b) – (s) of sub-section (1) show the categories of matters which are within the exclusive legislative list of Part 1 of the 2nd Schedule of the 1999 Constitution.
In particular and with special relevance to the instant case is Section 251 (1) (e) which provides for matters arising from the operation of the Companies and Allied Matters Act or any other enactment replacing -that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
Also Sub-paragraphs (p), (q), (r) & (s) relate to suits challenging or touching on the administration, management and control of the Federal Government or any of its agencies. These are within the exclusive jurisdiction of the Federal High Court. See the cases of:
(1) University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) p. 707;
(2) Adebileje v. NEPA (1998) 12 NWLR (Pt. 577) p. 219;
(3) University of Agric. Makurdi v. Jack (2000) 11 NWLR (pt. 679) p. 658;-
(4) NEPA v. Edegbero Supra p.79 and
(5) FHA v. John Shoy Int. Ltd (2005) 1 NWLR (pt. 908) p.637
Section 272(1) of the 1999 Constitution provides that the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other -liabliity in respect of an offence committed by any person, subject to the provisions of Section 251 and other provisions of the Constitution.
It is patently clear from the foregoing that any matter within the exclusive jurisdiction of the Federal High Court SHALL be outside the jurisdiction of either the High Court of a State or the High Court of the Federal Capital Territory, Abuja as the provisions of Sections 272 and 257 of the 1999 Constitution are made subject to the provisions of Section 251 or the same Constitution. See the cases of:
(1) Tukur v. Govt of Gongola State (1989) 4 NWLR (pt. 117) p. 517;
(2) Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) p.139 and
(3) Yusuf v. Obasanjo (2003) 16 NWLR (pt. 847) p.554
In essence, Sections 272, 257 and indeed the provisions of other statutes are proxies of Section 251 regarding the jurisdiction of the Federal High Court and are subject to face the grilling of the said Section 251, as well as the other superior provisions of the Constitution whenever an occasion calls for this.
It is an established principle at law that the plaintiff’s claims in the Writ of Summons and the averments in his Statement of Claim determine whether or not a given case comes within the jurisdiction conferred on a court. This is to say that in determining the jurisdiction of a court, the enabling law vesting jurisdiction in the court has to be examined in the light of the relief or reliefs sought by a plaintiff. The moment the relief sought comes with in the jurisdiction of the court as portrayed by the facts of the relief sought, the court must assume jurisdiction as it then has jurisdiction to do so.
Contrariwise, the moment the relief sought does not come within the jurisdiction of the court as portrayed by facts, the court must reject jurisdiction as it has no jurisdiction in the matter. See the cases of:
(1) Babale v. Abdulkadir(1993) 3 NWLR (pt. 281) p.253;
(2) O.H.M.B. v. Sarba (2002) 14 NWLR (pt. 788) p.538;
(3) Trade Bank Plc. v. Beni Inx Nig. Ltd (2003) 9 NWLR (pt. 825) p. 416;
(4) A. P.C Ltd v. NDIC (NUB Ltd) Supra at p. 404 and
(5) Onwudiwe v. FRN Supra at p. 382
There is no doubt that the Federal Government like any individual or body can appoint an agent or agency for any or all of its purposes. There is a confluence of opinion of parties in this case that the Appellant is duly appointed and a creation of the Federal Government. There is therefore no need in belabouring this settled fact.
The Appellant’s claims before the trial court although relate to the issue of title to land, trespass and damages consequent upon this, it is also clear that the action is in discharge of the Appellant’s duties for which it was created as an appointed Liquidator to wind up the business affairs of Commerce Bank Plc, a company in liquidation.
One of such duties is the commencement of an action for the recovery and gathering of any of the company’s properties, a civil matter under the relevant provisions of the Companies and Allied Matters Act. The enabling statutes in this regard are the provisions of Section 425(1) of the Companies and Allied Matters Act and Section 38(3) of the Banks and Other Financial Institutions Decree which are promulgated by Acts of the National Assembly.
It can therefore be readily appreciated that the intendment of the Appellant’s action is to bring the litigation which concerns, affects and reflect on its running as an agency of the Central Bank of Nigeria and in turn of the Federal Government which is a matter coming within and is regulated under the Exclusive legislative list of the Federal Government, basically, under the jurisdiction of the Federal High Court. See Section 251 (1) (e) of the 1999 Constitution. I also refer to the case of: NIPOST v. Adepoju (2003) 5 NWLR (Pt. 813) p. 224 at p. 245
in which the interpretation and application of the provisions of Section 230(1) (a) – (e) of the 1979 Constitution which are in “pari material” with the provisions of Section 251(1) of the 1999 Constitution was considered and it
was held that the Federal High Court is vested with jurisdiction in that regard.
I am at one with the learned counsel for the Appellant in referring to and relying on the provisions of Sections 7(1) (e) (i) & 8(1) of the Federal High Court Act and Section 11 of the High Court of the FCT, Abuja Act, which vest the Federal High Court with jurisdiction to the exclusion of the High. Courts, of a State and the Federal Capital Territory, Abuja to determine matters arising from the operation of companies incorporated under the Companies and Allied Matters Act.
With the combined reading of the above referred provisions of statutes which are in consonance with the provisions of the 1999 Constitution relating to the case under consideration, it is definite that the intention of the law makers is to confer jurisdiction upon the Federal High Court over suits concerning the Federal Government in respect of its functions and all the organs or agencies it uses for the performance of those functions. Seethe cases of:
(1) University of Abuja v. Ologe (1996) 4 NWLR (Pt.445) p. 706 and
(2) Ali v. CBN (1997) 4 NWLR (Pt. 498) p. 192.
In summation, any matter within the exclusive jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution is outside the general or even specific jurisdiction of the High Courts of a State or the FCT, Abuja under Sections 272(1) and 257(1) of the 1999 Constitution respectively.
In the instant case, the trial court possesses jurisdiction to hear and determine the claims of the Appellant. I have no hesitation in resolving issues one and two in favour of the Appellant and I so do.
ISSUE THREE
The Appellant’s counsel submitted that a State High Court can only assume jurisdiction over land matters where the Federal Government or any of its agencies is not a party in the action. He referred to the case of:
Ona v. Atenda (2000) 5 NWLR (Pt. 656) p.244 at p.269 – 270.
The Court of Appeal held in that case that the import of Section 251 of the 1999 Constitution is that in all land matters within the FCT, Abuja, the High Court of the FCT, Abuja has jurisdiction where the parties in the case are private individuals. Where however, one of the parties is the Federal Government or one of its agencies, the Federal High Court assumes exclusive jurisdiction. This position of the law was affirmed by the Supreme Court in the case of:
NEPA v. Edegbero Supra.
Whatever jurisdiction conferred on States High Courts by the provisions of Section 272 of the 1999 Constitution or any other law, the Land Use Act inclusive, is subject to the limitations contained in the provisions of Section 251 (1) of the 1999 Constitution. Sections 39 (1) & 51 (1) or any other provisions of the Land Use Act dealing with cases where title to land is an issue cannot to be interpreted to vest jurisdiction on the High Courts of States. To do this will be tantamount to whittling the exclusive jurisdiction conferred on the Federal High Court by Section 251(1) of the 1999 Constitution as this will also bring about inconsistency, thereby making those sections of the Land Use Act null and void. He relied on the cases of:
(1) KLM Airlines v. Kumzhi (2004) 8 NWLR (t. 875) p. 231at p. 240 – 241 & 243;
(2) Alhaji Kanada v. The Governor of Kaduna State (1986) 4 NWLR (Pt. 35) p. 361at p. 377 – 378;
(3) Alegbe v. Oloyo (1983) 1 NCLR p. 317 and
(4) Oloyo v. Alegbe (1983) 2 SCNLR p. 35
Appellant’s counsel argued further that the -provisions of the 1999 Constitution .at all times override the provisions of the Land Use Act.
He referred to the cases of:
(1) Wahabi Lemboye & 3 Ors v. A. O. Ogunsuyi & 2 Ors (1992) 1 FLRN p. 99 at p. 107;
(2) Chief Nkwocha v. Governor of Anambra State & Ors (1983) 4 NCLR p. 719 and
(3) Akande & Anor, v. Alade & Ors. (1984)5 NCLR p. 724.
He stated that the Courts have consistently held that in view of the provisions of Section 236 (1) of the 1979 Constitution, and Sections 251(1) & 272(1) of the 1999 Constitution, the Federal High Court shall have exclusive jurisdiction in actions wherein the Federal Government and or any of its agencies are parties irrespective of whether title to land is involved and despite the provisions of Sections 39(1) and 51(1) of the Land Use Act. Reliance was placed on the cases of:
(1) Obiteh v. Obiki (1992) 5NWLR (pt.243)p. 599;
(2) Ogunlola v. Eyakola (1990) 4 NWLR (pt. 146) p. 632;
(3) Makanjuola v. Balogun (1986) 3 NWLR (pt. 108) p.192;
(4) Ekretsu v. Oyobebere (1997) 9 NWLR (pt. 266) p. 438 and
(5) Oyegoke v. Iriguna (2002) 5 NWLR (pt. 760) p. 417
Hence, although the Land Use Act being an Act of National Assembly and an existing Law, it is not an integral part of the Constitution, any provision of the Act which is therefore inconsistent with the provisions of the Constitution is null and void to the extent of its inconsistency.
In reply, learned counsel for the 1st & 2nd Respondents submitted that the main issue involved in the case of the Appellant is that of declaration of title to land hence, the trial court, the Federal High Court lacks jurisdiction to adjudicate upon it.
Learned counsel for the 3rd & B21 Respondents submitted that only the Nasarawa State High is vested with exclusive jurisdiction to entertain a matter of title I trespass arising in and over a piece of land situated at Mararaba – Guruku, Nasarawa State over which a Right of Occupancy had been issued, irrespective of whether a Federal Government Agency, in the instant case, NDIC, is a party or not. He relied on the provisions of Section 39(1) of the Land Use Act.
He opined that the jurisdiction conferred on the Federal High Court by the provisions of Section 251 (1) (e) of the 1999 Constitution does not in any way erode the powers of the State High Courts.
Regarding the provisions of Sections 39(1) and 51(1) of the Land Use Act relating to the jurisdiction of the States High Courts in matters of title to land, I want to straight away say that these Sections or indeed any provision of the Land Use Act are not exceptions to the exclusive jurisdictional authority conferred on the Federal High Court as already exhaustively discussed under issues one and two above.
The cases of:
(1) Ona v. Atenda Supra;
(2) NEPA v. Edegbero Supra and
(3) Y. Ibrahim v. Obaje (2005) 8 WRN p.75 at p.78-79
cited by Appellant’s counsel are very instructive. In-land matters where the Federal Government or any of its agencies is a party, the court vested with jurisdiction to adjudicate upon the matter is the Federal High Court and not the States or FCT High Courts.
I am also not in doubt that the Land Use Act even though an integral part are not intended to be opposed to or override any of the provisions of the 1999 Constitution especially Section 251(1) of
that Constitution. Issue three is also found in favour of the Appellant accordingly.
ISSUE FOUR
The Appellant’s counsel submitted that the trial court was palpably in error when it struck out the Appellant’s suit filed before it.
He argued that the appropriate order in the circumstance should be that of transfer to the appropriate State High Court in line with the provisions of Section 22(2) of the Federal High Court Act, 1990. The trial court has no discretion to exercise as to whether to strike out the matter or make an order of transfer. The law has mandated it to make an order of transfer in all cases that it finds or holds that it has no jurisdiction not being the appropriate court. He relied on the cases of;
(1) Petrojessica Enterprises Ltd v. Leventis Technical Company Ltd (1992) 5 NWLR (pt. 244) p. 675 at p. 694 and
(2) Mokelu v. Federal Commissioner for Works & Housing (1976) All NLR p.224 at p.229
Appellant’s counsel urged that in the alternative to his arguments under the other issues, that is, if this court finds that the trial court was right to have declined jurisdiction in adjudicating upon the Appellant’s case, this court should reverse the order of striking out and transfer the case to the appropriate court pursuant to the power of this court under the provisions of Order 1 Rules 19 & 20 of the Court of Appeal Rules, 2002.
The counsel for the 1st & 2nd Respondents agreed with the Appellant’s submissions that the trial court in the light of the provisions of Section 22 (2) of the Federal High Court Act, should have transferred the suit to the court with requisite jurisdiction instead of the order of striking out which it made.
Contrariwise, counsel for the 3rd & B21 Respondents was of the opinion that since the trial court was not called upon either in the Writ of Summons of the Appellant or by any of the motions argued before it, to transfer the suit for hearing in the Nasarawa State High Court, the order of striking out made by the trial court by implication was the appropriate order.
Although I have found that the trial court is clothed with jurisdiction to adjudicate upon the suit of the Appellant brought before it, I consider it adroit to answer the poser raised in this issue.
This is because in the interest of justice and also for the development of the law, the court has a duty to ensure that the merits of cases are finally determined. See the case of:
Onogitere v. Itietie (1972) All NLR p. 584.
To start with, it cannot be correct as advocated by the counsel for the 3rd & B21 Respondents that since the issue of the -transfer of the Appellant’s suit to an appropriate court did not arise before the trial court, the matter can not so to speak be a subject of appeal. It is my opinion and I think I am correct to say that since the order of the trial court in this regard would not be an administrative but a judicial one made in the course of the proceedings before the trial court, such an order can be looked into on appeal, what is more, the issue of transfer is a useful adjunct to the order of striking out.
At this point it seems to me necessary to reproduce the provisions of Order 35 Rules 1, 2 & 3 of the Federal High Court (Civil Procedure Rules) 2000 for the purposes of ease of reference and good consideration of this issue. They are as follows:
“Order 35 Rules 1, 2 and 3.
(1) A cause or matter, may before evidence is taken and at the request of either party to the suit be
transferred by a Judge before whom the cause or matter is proceeded to another court of the same Division.
(2) A cause or matter may of any stage of the proceedings be reassigned to another Judge of the same Division or of any other Division by the Chief Judge whether or not the cause or matter is being heard before him.
(3) If for any reason a Judge hearing a cause or matter, and who has taken any step in the proceedings considers it necessary either at his own opinion or upon application of any party to the proceedings, to have the cause or matter transferred to another Court, the Judge shall refer the cause or matter to the Chief Judge for such necessary action as the Chief Judge may think expedient. ”
The provisions of Rule 1 are very explicit, a cause or matter in those circumstances may be transferred by the Judge of the court before whom such cause or matter is brought. He is empowered ONLY to transfer such cause or matter to another Judge of the same or any other division. This of course is subject to the provisions of Rules 2 & 3 which require the Judge before whom the matter is being heard either in his own opinion or upon application of any party to the proceedings, to refer the matter to the Chief Judge for reassignment to ‘another Judge of the same or any other Division and for such necessary action as the Chief Judge may think expedient in any given circumstance.
However, certainly, “another Court’ referred to under the provisions of Rule 3 cannot be interpreted to mean any court other than the Federal High Court. This is in view of Order 3 Rule (1) where “Court” is interpreted to mean the Federal High Court. It is very glaring that the provisions of Order 35 Rules 1, 2 & 3 relate to transfer of causes or matters for administrative convenience and for other reasons only in appropriate cases when the Federal High Court possesses jurisdiction to adjudicate upon such causes or matters.
In the instant case and in answer to the question raised in this issue, if it were true that the Federal High Court lacks jurisdiction (I have already found that the trial court is clothed with requisite jurisdiction to adjudicate upon the Appellant’s suit) I would say that the learned trial Judge did properly make an order of striking out.
The order of striking out would be proper and appropriate, it would have been the only option and way out in the circumstance.
Consequently, Issue four fails.
From my above elucidation, I find that the Appellant as a Liquidator for the winding up of the business of Commerce Bank Plc. properly instituted the suit against the Respondents before the trial court. The Federal High Court is the court vested with exclusive jurisdiction to hear and determine the said suit under Section 251(1) (e) of the 1999 Constitution. Although the Appellant’s claim is an issue of title to land, the provisions of Sections 39(1) and 51(1) of the land Use Act are not intended to be in opposition to and can not override those express provisions of the Constitution vesting’ exclusive jurisdiction in the Federal High Court in all matters arising from the operation of the Companies and Allied Matters Act. In view of this, I find the order of the learned trial Judge striking out the suit erroneous.
In sum, I allow this appeal. The ruling of the learned trial Judge delivered on 07/10/2004 is accordingly set aside. I hereby order that the suit be remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge of the Federal High Court, Abuja Judicial Division for trial.
I make no order on costs.
Other Citations: (2007)LCN/2212(CA)
