Nigerian National Petroleum Corporation & Anor. V. Odidere Enterprises Nigeria Limited (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the Ruling of Hon. Justice A. I. Chikere, sitting at the Federal High Court, Abuja, delivered on the 18th July, 2006.
The Respondent as the plaintiff instituted this suit against the Appellants as Defendants and claims as per paragraph 18 of the 2nd Amended Statement of Claim filed on the 5th December, 2001, the following reliefs:-
Paragraph 18 – Whereof the plaintiff claims against the Defendants jointly and severally as follows:-
a.) In respect of the 1st Contract:
(i) Cost of procurement of Letter of Credit = US-Dollar 74,250 or N6,088,500 (Naira equivalent as at the date of filing the Writ of Summons).
(ii) Loss of profits arising from defendants’ breach = US-Dollar 300,000 or N24,600,000 (Naira equivalent as at the date of filing the Writ of Summons).
(b) In respect of the 2nd contract:
(i) Cost of procurement of Letter of Credit = US-Dollar 120,000 or N9,840,000 (Naira equivalent as at the date of filing the Writ of Summons).
(ii) Loss of profits arising from defendants’ breach = US-Dollar 370,000 or N30, 340,000 (Naira equivalent as at the date of filing the Writ of Summons).
(c) Interest:
In respect of the 1st contract:
(i) The sum of US-Dollar 25,440.43 being accrued interest on the sum of US-Dollar 74,250.00 at calculated from the 1st July, 1991 to 30th April, 2001 at the rate of 3% per annum.
(ii) Interest on the sum of US-Dollar 74,250.00 at the rate of 3% per annum from the 1st day of May 2001 till the date of judgment.
(iii) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
(iv) The sum US-Dollar 47,615,99.00 being accrued interest on the sum of US-Dollar 300,000.00 calculated from 7th June 1996 to 30th April, 2001 at the rate of 3% per annum.
(v) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
(d) In respect of the 2nd Contract:
(i) The sum of US-Dollar 37,142.78 being accrued interest on the sum of US-Dollar 120,000.00 calculated from 1st May 1992 to 3rd April 2001 at the rate of 3% per annum.
(ii) Interest on the sum US-Dollar 120,000.00 at the rate of 3% per annum from 1st day of May 2001 till the date of judgment.
(iii) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
(iv) The sum of US-Dollar 58,726.39 being accrued interest on the sum of US-Dollar 370,000.00 calculated from 7th June 1996 to 3rd April 2001 at the rate of 3% per annum.
(v) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
The Appellants filed an Amended Statement of Defence on 31st January, 2003 and trial commenced.
By a motion on notice dated 20th October, 2005, the Appellants’ through their counsel filed an application challenging the jurisdiction of the Federal High court to continue hearing the suit before it on the grounds of non-compliance with Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 in that the subject matter of dispute is a contract and alleged breach of contract. The Respondent did not file any Counter Affidavit to the Appellants’ Motion on Notice.
However, both parties filed written submissions for and against the motion challenging the jurisdiction of the trial court. In a considered ruling delivered on the 18th July, 2006 the learned trial judge refused to uphold the Motion on Notice and struck out the same. The Appellants are dissatisfied with the said Ruling and appealed to this court with the leave of this court granted on the 10th May, 2007. The Appellants filed a Notice of Appeal on the 21st May, 2007 containing four (4) grounds of appeal. The grounds of appeal without their particulars are hereby reproduced
Grounds of Appeal
- The learned trial judge erred in law by holding that the lower court has jurisdiction to entertain the suit before it on the ground that the subject matter of same relates to Issues of administration and control of the Nigerian National Petroleum corporation when the Respondent’s claims before the lower court arose from matters of a simple contract.
- The lower court failed to exercise its discretion judiciously and judicially by falling to decline jurisdiction to further entertain the substantive suit before it, when it was clear from the totality of the material available that it had no jurisdiction to entertain the case.
- The learned trial judge erred in law by assuming jurisdiction of the Federal High court to continue to entertain the suit when it was clear that no such jurisdiction existed to entertain the suit as constituted.
- The learned trial judge erred in law by failing to make an order transfering the suit to the High Court of the Federal Capital Territory or striking same out, when the Federal High Court has no jurisdiction to entertain the suit.
As is the practice in this court, parties filed and exchanged briefs of argument. In the Appellants’ brief settled by Dr. Olumide Ayeni, Esq., the following two issues were distilled from the grounds of appeal for determination, to wit:-
1) Whether the Federal High Court lacks the jurisdiction to entertain, or continue to entertain, and determine the suit as constituted.
2) Whether the decision of the Federal High Court to continue to assume jurisdiction to entertain and determine the suit as constituted was perverse having regard to all the circumstances and material before the lower court.
In the Respondent’s brief settled by Oluwole Aladedoye, Esq., learned counsel formulated a lone issue for determination, to wit;
“Whether the trial court was right to have assumed jurisdiction over this case.”
At the hearing of the appeal on 11th February, 2009, the learned counsel for the Appellants, Dr. Ayeni, Esq., adopted and relied on the Appellants joint brief of argument filed on the 30th June, 2008 and the joint reply filed on the 19th November, 2008 and urged the court to allow the appeal. The Respondent through his counsel, Aladedoye, Esq., adopted and relied on the Respondent’s brief of argument filed on the 6th November, 2008 and urged the court to dismiss the appeal.
I have considered the issues as formulated by the respective learned counsel and it appears to me that the Respondents’ lone issue could be subsumed in the Appellants’ issue 1, and a determination of this issue will determine this appeal one way or the other. Issue 2 as formulated by the Appellants is therefore unnecessary.
Issue 1
Whether the Federal High Court lacks the Jurisdiction to entertain, or continue to entertain, and determine the suit as constituted.
Arguing this issue, learned counsel for the Appellant, Dr. Ayeni, Esq., referred to the Ruling of the trial court in which it dismissed the preliminary objection and submitted that the trial judge relied exclusively on the Respondents’ 2nd Amended Statement of Claim as constituted, particularly paragraph 18 thereof. It is submitted that at the time the Ruling was delivered, trial of the substantive suit was already in progress as the Respondent had called in PW1 who testified and was crossed examined and several documents were tendered as Exhibits and that there were sufficient materials before the trial court and the court and parties approached the whole suit on the footing of a trial of issues arising out of contract especially the proceedings of 24th May, 2004.
Learned counsel therefore submitted that the trial judge was in error to have confined his consideration of the issue of jurisdiction to the averments of the Statement of Claim at that stage of the proceedings.
The case of NIGERIA DEPOSIT INSURANCE CORPORATION VS CENTRAL BANK OF NIGERIA & ANOR (2002) 7 NWLR (PT.766) 272, at 296, per Uwaifo, JSC, was relied upon to say that objection to jurisdiction should only be taken after a statement of claim is filed is a misconception. It is submitted that it would be of no adverse consequence that the issue of jurisdiction was raised after trial has commenced if there are enough materials justifying the issue to be raised, as it is a threshold issue and can be raised at any stage of the proceedings before judgment and even for the first time on appeal. He cited in support the cases of ELUGBE Vs OMOKHAFE & 5 ORS (2004) 18 NWLR (PT.905) 319; ELABANJO & ANOR Vs DAWODU (2006) 15 NWLR (PT.1001) 76. It is thus submitted that jurisdiction being a fundamental gateway to an assumption of power can be raised at any time as the practice is not immutable.
Learned counsel further submitted that if the lower court had proceeded on the basis of consideration of all materials before it, it would have find that it ought to have declined jurisdiction to further entertain the suit to avoid an exercise in futility. It is also submitted that the 2nd Amended Statement of Claim is clear on the Subject matter of adjudication as being on nothing other than issues of breach or otherwise of two simple contracts. It is his submission that there is no single paragraph of that pleading where the word “contract” or the phrase “breach of contract” was not made explicitly, and secondly that paragraph 18 (a) (b) and (c) of the 2nd Amended Statement of Claim contains reliefs which demonstrate that the subject matter of the suit is about nothing more than two simple contracts and damages sought therein in accordance with the rule in HADLEY VS. BAXENDALE (1854) 9 EXCH 314 AT 354, which laid down the rule on damages for breach of contract. Learned Counsel referred to the case of UNION BANK OF NIGERIA LTD VS. ODUSOTE BOOKSTORES LTD (1995) 5 NWLR (PT.421) 558 and Exhibits A, A1, A2, B, C series, D, E, F, G, H, I, J and K tendered in the proceedings and the testimony of PW1 and submitted that the suit as constituted relates to nothing other than two matters of simple contract.
The following cases were also relied upon; Federal Government of NIGERIA vs OSHIOMOLE (2004) 3 NWLR (PT.860) 305 AT 326; TUKUR Vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 577 AT 549: and THE REGISTERED TRUSTEES OF LIVING CHRIST MISSION vs. ADUBA (2000) 3 NWLR (PT.64) 14;
It is therefore submitted that from the circumstances of the case, it is clear that the subject matter of proceedings in the lower court was on nothing other than matters of two simple contracts without more and entitlement to consequential reliefs of damages within the rule of HADLEY vs BAXENADALE (supra).
Dr. Ayeni, Esq., referred to the case of ONUORAH vs. KADUNA REFINING AND PETROCHEMICAL COMPANY LTD (2005) 6 NWLR (PT.921) 393 and submitted that the lower court was not conferred with the jurisdiction to entertain claims founded on contract as in the instant case and that the status of both Appellants in the lower court have no role or consideration whatsoever in deciding the issue whether the lower court had jurisdiction or not to continue to entertain the suit as constituted before it. It is also submitted that although the 1st Appellant and not the 2nd Appellant, is an Agency of the Federal Government, yet the suit before the court as constituted by the Respondent has nothing to do with the administration or management and control of any of the Appellants, but has to do with trial of issues relating to breaches of contract flowing from those contracts.
The case of INTEGRATED TIMBER AND PLYWOOD PRODUCTS LTD VS. UNION BANK OF NIGERIA PLC (2006) 12 NWLR (PT.905) 483; at 499, per Ogbuagu, JSC wherein it was stated that “special damages for value of furniture exported to Belgium and loss of earnings on investment have nothing to with admiralty matters.” Learned counsel referred also to the case of NATIONAL ELECTRIC POWER AUTHORITY VS. EDEGBERO (2002) 18 NWLR (PT.798) 79, which he submitted is distinguishable on the facts with the present appeal, where the Supreme Court held that a contract of employment with NEPA, a Federal Government Agency and its employees as being a matter relating to administration or management and control of a Federal Government as a matter falling within Section 251 (1)(p) of the 1999 Constitution, but not a matter of simple contract between Federal Government Agency on the one hand and a complete outsider as in the instant appeal. Learned Counsel also relied on the following cases; NIGERIAN NATIONAL PETROLEUM CORPORATION VS. OKWOR (1998) 7 NWLR (PT. 559) 637 AT 650; FUMUDOH VS. ABORO (1991) 9 NWLR (PT.214) 210 AT 233; AND ASO MOTEL KADUNA LTD VS. DEYEMO (2006) 7 NWLR (PT. 978) 87, to drive home his argument that the suit the subject matter of the present appeal is one founded on simple contracts and has nothing to do with the administration, or management and control of any of the Appellants and that it is only the High Court and not the Federal High Court that has jurisdiction to entertain the claims of the Respondent. Learned Counsel therefore urged the Court to resolve this issue in the affirmative and to allow the Appeal.
Responding, Learned Counsel for the Respondent submitted that it is settled law that the jurisdiction of a Court over a suit is determined by the Plaintiff’s Claim before the Court, citing in support the cases of;
A.D.H. LTD VS. A.T. LTD (2006) 10 NWLR (Pt.989) 635; ONUORAH VS. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) 6 NWLR (PT.921) 393; TUKUR vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517; AND ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2004) 14 NWLR (PT. 788) 538.
Learned counsel submitted that an examination of the 2nd Amended Statement of Claim shows that issues pertaining to the revenue of NNPC, admiralty, administration, management and control of NNPC, an agency of Federal Government and matters of mines and minerals pervade the length and breadth of the Respondent’s claim before the lower court. Learned counsel referred specifically to paragraphs 1, 8, and 18 of the 2nd Amended Statement of Claim and Section 251 (1) (a) (g) (n) and (p) of the 1999 Constitution and submitted that the claim of the Respondent against the Appellants is for cost of procuring Letters of Credit in respect of a contract for the carriage of Goods by sea and that the sums of money claimed from the Appellants, the 1st Appellant being an agency of Federal Government is from the revenue of the Federal Government. It is therefore submitted that it is the Federal High Court that has exclusive original jurisdiction to determine the suit, learned Counsel also referred to Section 1(1) (h) of the Admiralty Jurisdiction Act, cap 15, Laws of the Federation 2004 and submitted that Admiralty matters are exclusively within the jurisdiction of the Federal High Court, citing in support the case of ALRAINE SHIPPING LTD VS. E. A. CHEMICALS (2001) 12 NWLR (PT. 728) 759AT 771. Learned Counsel further submitted that the reliefs sought in this case by the Respondent are directed at the revenue of the Appellants, the 1st Appellant being an Agency of the Federal Government and that if the Respondent’s Claims are granted, same would be satisfied by revenue generated by NNPC and PPMC. It is thus submitted that where an action pertains to the revenue of any agency of Federal Government, the Federal High Court has the exclusive original jurisdiction to entertain such cases, citing also the case of L. M. B. LTD VS. P. T.F. (2006) 5 NWLR (PT. 974) 463 at 475, per I. T. Muhammad, JCA (as he then was).
It is further submitted that it is common ground that the 1st Appellant in this case is an Agency of the Federal Government, referring to the cases of, NNPC VS. TIJANI (2006) 17 NWLR (PT. 1007) 29 AT 42, PER FABIYI, JCA, (as he then was); MINISTER OF WORKS & HOUSING VS. SHITTU (2007) 16 NWLR (PT.1060) 351 at 374; NEPA VS. EDEGBERO (2002) 18 NWLR (PT. 798) 79 per as 95-97 PER OGUNDARE, JSC (of blessed memory) and also the case of NNPC VS. OKWOR (1998) 7 NWLR (PT. 559) 637 at 651, per UBAEZENU JCA, AND OLORUNTOBA-OJU VS. DOPAMU (2008) 7 NWLR (PT.1085) 1 at 31-32 per Mohammed JSC. It is thus argued that the subject matter before the lower Court is within the exclusive jurisdiction of the Federal High Court. Learned Counsel distinguished the case of ONUORAH VS. KADUNA REFINING & PETROCHEMICAL CO. LTD (SUPRA) cited by the Learned Counsel for the Appellants and submitted that in ONUORAH VS. KRPC LTD {supra}, none of the parties was an agency of the Federal Government and had nothing to do with the procurement of letters of credit which falls within the Admiralty Jurisdiction of the Federal High Court and submitted that the case is inapplicable to the circumstances of the present case. Learned counsel referred to the case of INEC VS. RAY (2004) 4 NWLR (Pt.892) 92 at 729 per OGUNBIYI, JCA, and submitted that the reliance placed by the Appellants on Onuorah’s case is misplaced. The Court was urged to resolve this issue in favour of the Respondent and to hold that the trial judge was right to have assumed jurisdiction on the matter.
In their reply brief, the Dr. Ayeni Esq., counsel for the Appellants contended that it is not the law that the mere fact that the 1st Appellant being a Federal Government Agency qua party to the suit in the lower Court automatically brings the suit within the ambit of section 257(1) (p) of the Constitution of the Federal Republic of Nigeria 1999. It is submitted that since the decision of the Supreme Court in NEPA VS. EDEGBERO (supra) relied upon by the Respondent was decided, there have been several decisions where the issue had been revisited and resolved that merely being an Agency of the Federal Government will not automatically vest jurisdiction in the Federal High Court to entertain the suit. It is submitted that there must be additionally present subject matter of jurisdiction over the facts or issues giving rise to the complaint or suit. In aid of this submission, Learned Counsel referred to the case of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. SIRPI-ALUSTEEL CONSTRUCTION LTD (2008) 1 NWLR (PT. 1067) 128 at 150 where this Court, per Galadima, JCA, held inter alia that, the fact that a party to a suit is a Federal Government Agency does not place it under the exclusive jurisdiction of the Federal High Court. And the fact that a party is an Oil Mining Company does not mean that actions in respect of commercial contracts in which it is a party are only suable in the Federal High Court. The case of OKOROMA VS. UBA & ORS (1991) 1 NWLR (Pt.587) 359 was also relied upon.
Learned Counsel contended that the subject matter of the suit in the lower Court in the instant appeal relate to matters of simple contract having no relevance or relationship to any special contract in furtherance of a specific statutory duty of the 1st Appellant. Learned Counsel also submitted that the decision of this Court, Lagos Division in NIGERIAN NATIONAL PETROLEUM CORPORATION VS. SLB CONSORTIUM LTD (2008) 16 NWLR (PT.1113) 297 settles all contentions in this appeal in favour of the Appellants with finality. It is submitted that, the court per Galinje, JCA after reviewing the cases of ONUORAH and ADELEKAN as well as other authorities held that from the authorities considered, the Supreme Court has consistently held that it is the claim of the claimant that determines the jurisdiction of the Court and not the parties. The decisions of the Supreme Court in ONUORAH VS. KRPC AND ADELEKAN VS. ECU-LINE NV have clearly overruled the decision in NEPA VS EDEGBERO (supra),
On whether by the statement of claim and Section 1(1)(h) & (3) Admiralty Jurisdiction Act, 1991, the suit is within the Admiralty jurisdiction of the Federal High Court, learned counsel for the Appellants contended that the whole circumstances of this case takes it outside the ambit of the Admiralty jurisdiction of the Federal High Court. It is submitted that in INTEGRATED TIMBER AND PLYWOOD PRODUCTS LTD vs. UNION BANK OF NIGERIA PLC (2006) 12 NWLR (PT.995) 483 at 499, the Supreme Court considered very similar factual circumstances and claims to the present appeal and affirmed the question as contended by the present Appellants.
On whether this suit is by the combined provisions of Section 251 (1) (n) of the 1999 Constitution and Section 259 Minerals and Mining Act Cap M12 LFN, 2004 and the averments in the statement of claim within the jurisdiction of the Federal High Court, it is contended that the facts and circumstances of the present appeal have nothing to do with mines and minerals issues particularly in the light of the fact that similar issues have been considered affirmatively by the Supreme Court of Nigeria. The following cases were referred to; THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS ISAIAH (2001) 11 NWLR (PT.723) 168 at 184, per Ogwuegbu, JSC; BARRY & ORS VS ERIC & ORS (1998) 8 NWLR (PT.562) 404. at 421-423; THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. VS. MAXON (2001) 9 NWLR (PT.719) 541 at 555 per Pats-Achionu, JCA (as he then was).
On whether by the averments in the statement of claim, the suit is within the jurisdiction of the Federal High Court as a matter pertaining to the Revenue of the Federal Government. It is submitted for the Appellants that the case of LEAD MERCHANT BANK LTD vs PETROLEUM (SPECIAL) TRUST FUND (2006) 5 NWLR (PT.974) 463 at 475, relied upon by the Respondent, is inapplicable for the reasons that nowhere did it decide upon the provisions of Section 251 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 on matters “relating to the Government of the Federation or any of its agencies” as it only reiterates the decision in NEPA vs. EDEGBERO (supra), Secondly, that it only mention section 251 (1) (a) of the 1999 Constitution as it relates to the Petroleum (Special) Trust Fund and made no pronouncement on its purport, thirdly, that the word ‘revenue’ is define as “Gross Income or receipts” and the phrase gross income to mean “gross earnings,” Learned counsel referred to the case of MOKELU VS FEDERAL COMMISSIONER FOR WORKS (1976) 3 SC 35, on the interpretation of the word “Revenue” to mean money or money’s worth coming to the purse of the Federal Government. It is thus contended by the Appellants that the present appeal is one founded on simple contract and nothing pertaining to money or money’s worth coming to the purse of the Federal Government. In urging the court to discountenance the Respondent’s argument and to allow the Appellants’ appeal in its entirety and strike out the suit before the Federal High Court, the following cases were relied upon by the learned counsel; FIRST FUELS LTD VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (2007) 2 NWLR (PT.1018) 276; and ELABANJO VS. DAWODU (2006) 15 NWLR (PT.1001) 76. The court was urged to allow the appeal.
The main question to be resolved in this appeal is whether the Federal High Court had jurisdiction to entertain the Respondent’s claim as constituted.
Jurisdiction has always been a threshold issue and life wire for continuing any proceedings. It can therefore be raised at any stage of the proceedings and even at the Court of Appeal or the Supreme Court for the first time by the parties or even suo motu by the court as soon as sufficient facts or materials are available as to raise the issue of jurisdiction. see ELABANJO VS. DAWODU (2006) 15 NWLR (PT.1001) 76; BAKARE VS. A.G. FEDERATION (1990) 57 NWLR (PT.152) 576; and OYAKHIRE VS. STATE (2006) 15 NWLR (PT.1001) 157.
Where therefore an issue of jurisdiction is raised, it is proper and more expedient to have the issue resolved first before delving into the substantive matter, because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. Therefore if the issue of jurisdiction is taken first and it is resolved that there is no jurisdiction, it is then unnecessary to delve into the substantive matter. See NDIC VS. CBN (2002) 7 NWLR (PT.766) 272; ODOFIN VS AGU (1997) 3 NWLR (PT.229) 350; and BAKARE VS A.G. FEDERATION (1990) 57 NWLR (PT.152) 516.
It is now settled that the jurisdiction of a court is determined by the plaintiff’s claim as endorsed in the Writ of Summons and the statement of claim. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction of the court. See INTEGRATED TIMBER AND PLYWOOD PRODUCTS LTD VS. UNION BANK OF NIGERIA PLC (2006) 12 NWLR (PT 995) 483; A.D.H. LTD VS. A. T. LTD (2006) 10 NWLR (PT.989) 635; NKUMA VS. ODILI (2006) NWLR (PT.977) 587. ONUORAH VS. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) 6 NWLR (PT.921) 393; THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. SIRPI-ALUSTEEL CONSTRUCTION LTD (2008) 1 NWLR (PT.1067) 128; NNPC VS.5LB CONSORTIUM LTD (2008) 16 NWLR (Pt.1113) 297.
Thus in the instant ease, the Respondent’s claims already set out above are what should be the focus of attention in determining whether the trial court had jurisdiction to entertain the suit as constituted. Generally, it is the statute creating the court that vests it with the jurisdiction. Therefore, in determining the jurisdiction of the Federal High Court vis-a’-vis the State High Court, it is the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 that would be applicable. Section 251 of the 1999 Constitution clearly sets out the powers of the Federal High Court to determine issues enumerated thereunder to the exclusion of any other court. The issue in contention here is whether the suit of the Respondent comes under subsection (1) (a) (g) (h) and (n) of Section 251 of the 1999 Constitution as contended by Respondent and therefore vest the Federal High Court with the jurisdiction to try the Respondent’s claims or the claims are completely outside the ambit of these subsections and therefore fall exclusively within the jurisdiction of the High Court and not the Federal High Court as contended by the Appellants.
Section 251(1) (a) (n) (p), of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:-
(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 cases 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) – (f) ……
(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their effluents and or such other in land waterway as may be designated by any enactment to be an international water way? All Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea.
(h) – (m) …….
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) ……..
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q-s) …….
Also, Section 1(1) (h) of the Admiralty Jurisdiction Act Cap A5, Laws of the Federation of Nigeria 2004, provides:-
(i) The Admiralty jurisdiction of the Federal High Court (in this Act referred to as “the court”) includes the following, that is –
(h)any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or an aircraft, whether the importation is carried out or not and notwithstanding that the transaction is between the bank and its customer.”
In the instant case, the claims of the Respondent arose in respect of the contract made between 26th June 1989 and February, 1990 and 26th June, 1989 and October, 1990 respectively, whereby the Appellants agreed to allocate to the Respondent 25,000 metric tons of low sulphur oil (“LPFO”) for shipment ex Bonny/Okirika to overseas buyers upon stated terms and condition.
Paragraphs 1 & 8 of the 2nd Amended Statement of claim read:-
“1. By a contract (hereinafter referred to as “1st contract”) made between 2nd June 1989 and February, 1990, the defendants agreed to allocate to the Plaintiff 25,000 metric tones of low sulphur fuel oil (“LPFO”) FOR SHIPMENT EX Bonny/Okirika to overseas buyers upon stated terms and conditions.
- By another agreement (hereinafter referred to as the “2nd contract) made between 26”’ June, 1989 and October, 1990, the defendants agreed to allocate to the plaintiff 25,000 metric tones of low sulphur fuel oil (“LPFO”) for shipment ex Bonny/Okirika to overseas buyers upon stated terms and conditions.”
The two contracts, 1st and 2nd are for shipment ex Bonny/Okirika to overseas buyers of 25,000 metric tones of low sulphur fuel oil (“LPFO”) which the Appellants agreed to allocate to the Respondent between 26th June, 1989 to February, 1990 and October, 1990, respectively. These contracts were awarded upon stated terms and conditions inter alia for the procurement of letters of credit which were duly obtained by the Respondent as conditioned by the Appellants. It is also not in dispute that the 1st Appellant, NNPC is an agent of the Federal Government.
I have given due consideration to the Respondents’ claims as reproduced above in line with the recent decisions of this court in the cases of SPDC (NIG) LTD VS. SIRPI-ALUSTEEL CONSTRUCTION LTD (2008) 1 NWLR (PT.1067) 128 and NNPC VS. SLB CONSORTIUM LTD (2008) 16 NWLR (PT.1113) 297) which state the position of the law as it is now that it is the plaintiff’s claim that should be considered by the court to determine whether or not the court has jurisdiction over a suit, and that the Federal High Court does not have exclusive jurisdiction in all matters involving the Federal Government or any of its agencies. It was also stated that the fact that a party is a Federal Government agency does not place it under the exclusive jurisdiction of the Federal High Court, and the fact that a party is an oil mining company does not mean that actions in respect of commercial contracts in which it is a party are only suable in the Federal High Court.
It is my candid view that in determining whether the claims as constituted are within the jurisdiction of the trial court to determine, it is the nature of the contract that must be considered by the court to ascertain whether it has jurisdiction to try the claims. The nature of the contractual agreement between the parties must be the point of focus. It is a fact that the words, “contract” and “breach of contract” were explicit in the Respondent’s claim. However, it my view that the fact that the words “contract” and “breach of contract” were explicitly used in a claim does not automatically oust the Jurisdiction of the Federal High Court to try the claim or cloth the High Court with the jurisdiction to adjudicate over the matter. The question that may be asked is, what was the nature of the contract between the parties? As can be seen from paragraphs 1, and 8 of the 2nd Amended Statement of claim, the contract was for the shipment of 25,000 metric tones of low sulphur oil (“LPFO”) to be allocated by the Appellants to the Respondent ex Bonny/Okirika to overseas buyers and claims against the Appellants the cost of procuring letters of credit in respect of a contract for the carriage of goods by sea.
Section 1(1) (h) of the Admiralty Jurisdiction Act Cap A5 LFN 2004 provides that the Admiralty jurisdiction of the Federal High Court includes any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or an aircraft whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customer. It is settled point of law which requires no argument that admiralty matters are exclusively within the jurisdiction of the Federal High Court. Therefore from the facts of this case, the shipment of 25,000 metric tones of low sulphur fuel oil ex bonny/Okirika to overseas buyers pertains to the admiralty, matters which is within the exclusive jurisdiction of the Federal High Court to try. Shipping or lifting of oil by sea to overseas buyers is not contemplated by the legislature to be within the exclusive jurisdiction of the State High Court as contended by the learned counsel for the Appellants. The jurisdiction of the State High Court does not admit of contracts relating to carriage of goods by sea where letters of credit are involved between an agency or any organ of the Federal Government as in the Instant case.
Therefore the claims of the Respondent as constituted are not matters of simple contract as vehemently argued by the Appellants. Therefore, the facts and circumstances of this case are not the same with the cases of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. SIRPI-ALUSTEEL CONSTRUCTION LTD (supra) and NNPC VS. SLB CONSORTIUM LTD (supra). Similarly, by Section 251 (9) of the 1999 Constitution, the Federal High Court has exclusive jurisdiction in admiralty matters including shipping and navigation on the River Niger or River Benue. The contract the subject matter of dispute involves shipment of goods by sea which is exclusively within the jurisdiction of the Federal High Court. Therefore, by the provisions of Section 251(1) of the 1999 Constitution and Section 1(1) (h) of the Admiralty Jurisdiction Act, the claims of the Respondent as constituted fall within the exclusive jurisdiction of the Federal High Court. The agreement entered into for the shipment of oil to overseas buyers is a matter also relating to the revenue of the Government of the Federation executed in furtherance of a specific statutory duty in which the 1st Appellant an agency of the Federal Government is the party suing or being sued. It is therefore true as contended by the Respondent’s counsel that an examination of the 2nd Amended Statement of Claim shows issues pertaining to the revenue of NNPC, admiralty, administration and control of NNPC an agency of Federal Government and therefore it is the Federal High Court that has the exclusive original jurisdiction to try the Respondent’s claims.
Based on the foregoing therefore, it is the Federal High Court by virtue of Section 251 (1)(a)(g) and (p) of the 1999 Constitution, that is vested with exclusive jurisdiction to try admiralty matters and matters pertaining to the administration or the management and control of the Federal Government or any of it agencies. This issue is therefore resolved in favour of the Respondent and against the Appellants.
The conclusion therefore is that this appeal lacks merit and it is hereby dismissed. The decision of the trial court dismissing the Appellants’ application challenging the competence of the court, delivered on the 18th July, 2006 is hereby affirmed.
The Respondent is entitled to the costs of this suit against the Appellants which is assessed at N50,000.00
Other Citations: (2009)LCN/3227(CA)
