Nigerian National Petroleum Corporation V. Slb Consortium Limited (2008)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, .J.C.A
The Respondent herein as Plaintiff at the Federal High Court Lagos, (henceforth to be called ‘Lower Court’) claimed in its original summons dated and filed on the 30th of June 2000 against the Appellant herein and two others, namely ELF Petroleum Nigeria Ltd and Mobil Producing Nigeria Unlimited the following reliefs: –
“(i) A declaration that the 1st Defendant acted ultra vires its powers and unlawfully when it purportedly by its letter of July 7,1999, advised the Plaintiff that it had cancelled the Consulting Services Agreement dated March 1, 1999.
ii) A declaration that the 1st Defendant cannot legally and/or lawfully cancel the Consulting Services Agreement executed with the Plaintiff on March 1, 1999.
(iii) A declaration that the purported cancellation of the Consulting Services Agreement by the 1st Defendant violated the Plaintiff Constitutional right to fair hearing and is therefore illegal, unconstitutional, null and void, and of no effect whatsoever.
(iv) A declaration that there is a valid and subsisting Consulting Services Agreement contact executed by the Plaintiff and the 1st Defendant dated March 1, 1999.
(v) A declaration that the 2nd and 3rd Defendants are not entitled to refuse to continue to render necessary assistance to the Plaintiff or to require or cause the Plaintiff to withdraw from the project site or in any way act as If the Consulting Services Agreement made on March 1, 1999, has been terminated.
(vi) A declaration that in entering into the Consulting Services Agreement dated March 1, 1999, with the Plaintiff the 1st Defendant was acting for itself and on behalf of the 2nd and 3rd Defendants.
(vii) AN ORDER setting aside and/or annulling the 1st Defendant’s decision conveyed in its letter of July 7, 1999 by which the Consulting Services Agreement executed between the Plaintiff and 1st Defendant on March 1, 1999, was purportedly unilaterally cancelled.
(viii) AN ORDER of injunction restraining the Defendants from taking any step(s) to effectuate the decision conveyed in the 1st Defendant’s letter of July 7, 1999, wherein it purportedly cancelled the Consulting Services agreement executed with the Plaintiff on March 1, 1999 whether by themselves, their agents, servants, privies or
howsoever or treating the Consulting Services Agreement as having been determined or prevent or refuse the Plaintiff from continuing to execute and perform the contract as provided for under the Consulting Services Agreement executed on March 1, 1999 with regard to the Amenam/Kpono Field Development Project.
(ix) (a) AN ORDER of specific performance of the Consulting Services Agreement contract made between the Plaintiff and the 1st Defendant on March 1, 1999, or alternatively.
The sum of US$ 19,840,467.00 (Nineteen million, Eight Hundred and Forty Thousand, Four Hundred and Sixty Seven United States’ Dollars) or its Naira equivalent as SPECIAL DAMAGES against the 1st Defendant being the sum payable for outstanding services under the Consulting Services Agreement made between the Plaintiff and the 1st Defendant on March 1, 1999, which was illegally cancelled by the 1st Respondent.
The cost of this action as shall be assessed by the Court.”
In the course of the proceedings, the names of the 2nd and 3rd Defendants at the lower Court were struck out, leaving only the Appellant who subsequently filed a counter affidavit in opposition to the Respondent’s claims.
Issues having been joined, the originating summons was heard. At the conclusion of hearing and in a reserved and considered judgment delivered on the 24th day of July 2001, Jinadu J concluded thus:-
“I have gone thoroughly over and examined the facts, circumstances and the legal position of the case and I find and hold that there was a valid contract called Consulting Services Agreement between the plaintiff and the defendant entered into on March 1, 1999 as evidenced by exhibit SE1 and that the agreement was binding on the parties thereto. There is no doubt in my mind and I also find and hold that the defendant breached the said Agreement unlawfully by issuing exhibit SE2 dated 7th July 1999 to the plaintiff by which the defendant cancelled the agreement through intention not to proceed any further with the Agreement and since then the agreement was at (sic) end and is no longer subsisting ……..The contract having come to an end by the breach the remedy of the innocent party is not insisting that it still subsists, but that he should be compensated.
The plaintiff herein is accordingly entitled to be compensated for the breach of the Agreement.”
On the basis of the conclusion herein, the learned trial Judge awarded to the Respondent the sum of US$19,840,467.00 against the Appellant.
Being dissatisfied and aggrieved with the decision of the trial Court, the Appellant appealed to this Court challenging among others, the competence of the suit on the ground that the Respondent is not a juristic person and that an originating summons is not the appropriate procedure of commencing this suit.
This Court, Coram Oguntade, Aderemi and Chukwuma Eneh, JCA as they then were, upheld part of the decision of the lower Court where the Appellant was adjudged to have breached the contract between the parties.
The Court set aside the award of general and compensatory damages on the ground that it was not specially pleaded and strictly proved. A fresh hearing on the claim for damages by the lower Court was ordered in the following words: –
“The claim of the plaintiff for damages ought to be heard de novo in a proceeding where parties should file pleadings and call evidence in proof of the damages claimed.”
By a statement of claim dated the 13th March 2003, the Respondent in pursuance of the Order of the Court of Appeal claimed against the Appellant the following reliefs: –
“(i) The sum of USD$224,973.00 against the Defendant being the total sum of unpaid invoices for work done under Consulting Services Agreement entered into by the parties on March 1, 1999, and breached by the defendant with interest at the rate of 35% per annum on the aforesaid sum from June 30, 1999 until payment.
(ii) The sum of USD6, 922,560.00 (six million nine hundred and twenty two thousand five hundred and sixty United States Dollars) being loss of profits suffered by the Plaintiff owing to the breach of the Consulting Services Agreement entered into by the parties on March 1, 1999 by the Defendant with interest at the rate of 35% per annum on the aforesaid sum from July 7, 1999 until payment.
(iii) The sum of USD$ 19,840,467.00 (Nineteen million, eight hundred and forty thousand, four hundred and sixty seven United States Dollars) being general damages suffered by the Plaintiff owing to the breach of the Consulting Services Agreement entered into by the parties on March, 1999.
(iv) Costs.”
In reply, the Appellant filed a statement of defence dated 10th June 2003. Issues were therefore joined and the matter proceeded to trial. At the end of the trial and in a reserved judgment which was delivered on the 10th November 2004, Abutu J. entered judgment for the Respondent in the sum of: –
(a) US $ 244,973 being the unpaid invoices – and
(b) US S 6,910,080 being damages for loss of profit.
The total sum awarded stood at US $ 7,155.053.
The present appeal is against the judgment of Abutu J. The appeal came up for hearing on the 24th of January 2008 where learned counsel for the parties adopted their respective briefs of argument and judgment was accordingly reserved.
On a close perusal of the record of the appeal, it apparently appeared that more clarifications were required on the issue of whether the Federal High Court which heard the case has the requisite jurisdiction to entertain the matter. For this reason parties were summoned to further address the Court on the issue of the jurisdiction of the lower Court to entertain the claims of the Respondent. This procedure was adopted because it is not open to this Court to raise issues which the parties did not raise for themselves, either at the trial or during the hearing of the appeal. However if it is expedient to raise such a point because it is so material to the determination of the appeal, parties must be given an opportunity to make their comments thereupon before the Court takes a decision on the point.
See Kuti v. Balogun (1978) 11 NSCC 21.
In a further address. Mrs Olufunke Adekoya, learned senior counsel for the Appellant submitted that the Respondent’s claim as formulated before the Federal High Court IS founded on contract and therefore it is not within the jurisdiction of that Court. Learned senior counsel referred to S. 251 (I) (a-r), which confers exclusive, but limited jurisdiction on the Federal High Court on those matters listed in the section aforesaid and contends that parties cannot confer jurisdiction on the Court and that lack of jurisdiction cannot be waived.
In aid learned senior counsel cited on minister of Works & Housing v. Thomas (2002) 2 NWLR (Pt. 752) 742 at 774; Onuorah v. K. R. P. C. (2005) 6 NWLR (pt. 921) 393 at 405; FRN v. Ifegwu (2003) 15 NWLR (pt. 842) 113 at 188.
Finally, learned senior counsel urged this Court to set aside the judgment against which this appeal lies and also set aside this Court’s order for fresh trial on the claim for special damages.
Mr. Adewale Adesokan, learned counsel for the Respondent in reply submitted that the claims of the Respondent at the lower Court sought for declaratory reliefs and S.251 (I) (r) of the Constitution of the Federal Republic of Nigeria 1999 confers jurisdiction on the Federal High Court to entertain declaratory actions. In a further argument, learned counsel contended that the crux of the matter was not the breach of contract, but the directive of the Federal Government to the Respondent to cancel the contract and so the suit concerned administration, management and control of the Appellant by the Federal Government as provided for under S. 251 (I) (r) of the 1999 Constitution of the Federal Republic of Nigeria. For this reason, learned counsel further contended that the Federal High Court rightly assumed jurisdiction on this matter. In support, learned counsel cited Obi v. INEC (2007) II NWLR (Pt. 1046) 565 at 636-637 and 653; Ladoja v. INEC (2007) 2 NWLR (Pt. 1047) 119 at 185.
On the status of the Appellant as an agent of the Federal Government, learned counsel submitted that once a party is an agent of the Federal Government, the matter falls within the jurisdiction of the Federal High Court To buttress this submission, learned counsel cited NEPA v. Edegbero & Ors (2002) HI NWLR (pt. 798) 79 at 97 paragraphs E-F; Minister of Works & Housing v. Shittu & Ors (2007) 16 NWLR (Pt. 1060) 351 at 374-375; FHA v. Johnson International Ltd (2005) 1 NWLR (pt. 908) 637 at 651.
On the substantive appeal, learned counsel submitted that same is incompetent because leave was not obtained before filing it According to the learned counsel, the decision of the Federal High Court on the 10th November 2004 was not a decision of that Court sitting at first instance within the meaning of S. 241 (1) (a) of the Constitution, since the same Court had delivered a judgment on the same issue on the 24th July 2001.
Finally learned counsel urged the Court to hold that the Federal High Court had Jurisdiction to hear the matter against which this appeal lies.
In her reply on point of law Mrs. Adekoya, learned senior counsel for the Respondent submitted that where a Court of Appeal is faced with two conflicting decisions of the Supreme Court it is bound to follow the latter one. In aid she cited Dahiru v. Kamale (2005) 9 NWLR (Pt. 929) 8 at 41. On the competence of the main appeal, learned senior counsel drew the attention of the Court to the definition of de novo in the Blacks Law Dictionary and as enunciated in Manuda Biri & Anor v. Tukur Mairuwa & Anor (1996) 8 NWLR (Pt. 467) 425 and urged the Court to hold that the appeal is competent.
The issue of jurisdiction is a threshold issue and a lifeline for continuing any proceeding. It can be raised at any stage of proceeding and even at the Court of Appeal or the Supreme Court for the first time by the parties or suo motu by the Court as soon as sufficient facts or materials are available as to raise the issue of jurisdiction. See Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Ndaejo v. Ogunnava (977) 1 SC 11;
Chacharos v. Ekimpex Ltd (1988) 1 NWLR (Pt. 68) 88; Bakare v. A.G.
Federation (1990) 5 NWLR (Pt. 152) 516; Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157
Where an issue of jurisdiction is raised it is proper and more expedient to have the issue resolved first before delving into the substantive matter.
This IS so because if there is no jurisdiction the entire proceedings are a nullity no matter how well conducted. 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. Sec NDIC v. CBN (2002) 7 NWLR (Pt. 766) 271; Bakare v. A. G. Federation (1990) 5 NWLR (Pt. 152) 516; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.
In the instant appeal therefore, the address proffered by the parties on the question of whether the Federal High Court had jurisdiction to hear and determine the Respondent’s claims shall be considered first.
The Respondent’s initial claims have been clearly reproduced elsewhere in this judgment. The relevant document to consider in order to determine whether a trial Court has jurisdiction to determine a particular matter is the Plaintiffs claim before that Court as endorsed on the writ of summons or statement of claim. The statement of defence is irrelevant. See Nkuma v. Odili (2006) 6 NWLR (pt. 977) 587 at 608 paragraphs D-G, where Ogbuagu, JSC said: –
“Afterwards, it is now settled, that it is the plaintiff’s claim that determines the jurisdiction of a trial court.
……… In other words, jurisdiction of a trial court is determined by the subject matter and claim before the court. Thus in considering whether the court has jurisdiction to entertain the suit, it is the plaintiff’s claim as endorsed on the writ of summons or statement of claim and not the defence.”
See also Adeyemi v. Opeyori (1976) 9-10 SC 31; Western Steel Works
Ltd v. Iron Steel Workers Union of Nigeria (987) 1 NWLR (Pt. 49)
284; A.G Anambra State v. A. G. Federation (1993) 6 NWLR (Pt. 302)
692; Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659: Oba
Aremo v. Adekanye (2004) 13 NWLR (Pt. 891) 572.
The Respondent’s claims, which gave rise to this appeal, are the ones endorsed in its amended statement of claim dated 29th July 2003. These claims read as follows: –
“(i) The sum of USD$224,973.00 against the Defendant being the total sum of unpaid invoices for work done under Consulting Services Agreement entered into by the parties on March 1, 1999, and breached by the defendant with interest at the rate of 35% per annum on the aforesaid sum from June 30, 1999 until payment.
(ii) The sum of USD6,922,560.00 (six million nine hundred and twenty two thousand five hundred and sixty United States Dollars) being loss of profits suffered by the Plaintiff owing to the breach of the Consulting Services Agreement entered into by the parties on March 1 , 1999 by the Defendant with interest at the rate of 35% per annum on the aforesaid sum from July 7, 1999 until payment.
(iii) the sum of USD$ 19,840,467.00 (Nineteen million eight hundred and forty thousand, four hundred and sixty seven United States Dollars) being general damages suffered by the Plaintiff owing to the breach of the Consulting Services Agreement entered into by the parties on March 1, 1999.
(iv) Costs.”
These claims were filed after the Court of Appeal had ordered for trial de novo on the claim for damages.
The claims herein are specific in nature. They are not in the nature of declaratory actions. Mr. Adesokan, learned senior counsel for the Respondent made reference to reliefs 7-10 and 1-6. The claims as set out above do not fall into the learned counsel’s description. I think there is a misunderstanding of the claims, which gave rise to this appeal on the part of the learned counsel for the Appellant. The initial claims were determined by Jinadu j. and appeal from that decision was heard and a decision rendered.
The present appeal is against the trial de novo of the claims for damages.
Learned counsels argument on declaratory actions as well as the authorities cited in that regard are irrelevant. Mrs. Adekoya, learned senior counsel for the Appellant also fell in to the same error when she alluded to the fact that the reliefs before the lower Court are declaratory. For the avoidance of doubt, I hereby reproduce part of the address as follows:-
“I submit that the reliefs which are being sought in the matter all arise from consulting Services Agreement between the parties. Even though these reliefs are declaratory, the order to restrain the appellant in this matter in failing to continue with the agreement, the order for specific performance and in alternative an order for damages could not have been determined by the lower court except there was a determination of a valid consultancy services.”
With utmost respect to the learned counsel on both sides, this Court cannot rehear appeal that had already been heard by this Court. In other words, this Court has no jurisdiction to rehear an appeal that was heard and determined by this Court unless it is submitted for rehearing by the Supreme Court. The Appeal before this Court for which parties were summoned for further address, is the appeal against the decision of Abutu J. which arose from the claims for damages which I have set out elsewhere is this judgment.
The claims of the Respondent as formulated before the lower Court are clearly founded on the Consulting Services Agreement, which was entered into by both parties. That agreement was admitted as exhibit 3. The learned trial Judge clearly admitted in his judgment that the Respondent’s claims are founded on contract at page 397 paragraph I of the record in the following words: –
“The contract in this case as shown in Article 2 of Exhibit 3 is for a period of 39 months and I so find. The Plaintiff worked for only four months before the contract was terminated. The plaintiff has been prevented from working for remaining 35 months. I find that after the termination of the contract the plaintiff still kept some of the essential staff in the hope that the defendant might rescind its decision to terminate the contract.
I therefore have no doubt that the Respondent’s claims are founded on contract. On whether any suit in which a Federal Government, Ministry, Agency, Functionary or Parastatal is sued is justifiable only at the Federal High Court? There are conflicting decisions of the Apex Court on this issue.
In NEPA v. Edegbero & Drs (Supra) the employees of the Appellant including the Respondents embarked on an industrial action in August 1994. The Respondents’ appointments were by a letter dated 10th August 1994 terminated. The Respondents instituted various suits claiming in each case.
- A declaration that the purported tern1ination of the Respondents’ appointments was irregular, wrongful, null and void and of no effect whatsoever.
- An order reinstating the Respondents and payment of their salaries and all their entitlements.
J. A perpetual injunction restraining the Appellant from harassing, intimidating and violation of the Respondents’ right.
It was contended at the High Court that the High Court had no jurisdiction, since NEPA is an agent of the Federal Government. Reference was made to S. 230 (1) (q) (r) and (5) of the 1999 Constitution as amended by Decree 107 of 1993, which is equivalent to S. 251 (I) (a-r) of the 1999 Constitution of the Federal Republic of Nigeria. The High Court and the Court of Appeal overruled the objection on jurisdiction. On further appeal to the Supreme Court, it was held: –
“It is not in dispute that the defendant – NEPA – is Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The decision is for declaration and an injunction and the principal purpose of it is to nullify the decisions of the defendant terminating the appointment of the plaintiffs and others. In the light of all these, therefore the action on hand came squarely within the provision of S.230 (1) (s) of the 1999 Constitution. A careful reading of paragraphs (Q) (r) and (s) reveals that the intention of the law makers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. ”
This decision which was delivered on the 13th December 2002, effectively overruled the decision of this Court in Han. Minister for Works and Housing v. Tomas Nigeria Ltd & Ors (Supra) which was delivered on the 6th.July 2001. At page 788, paragraphs E-F, the Abuja Division of this Court said:
“Unlike the State High Court which is a Court of unlimited jurisdiction, the Federal High Court is a special court with limited but exclusive jurisdiction clearly specified under S.251 of the Constitution. There is no where in the Constitution or any other enactment where it is stipulated that any suit in which a Federal Government, ministry, agency, functionary or parastatal is sued is justifiable in the Federal High Court, except those cases specified under S. 251 of the Constitution…..”
In Felix Onuorah v. K. R. P. C. (Supra), the Appellant entered into a contract to purchase specified number of empty tins from the Respondent at an agreed amount, which he paid to the Respondent But before delivery was made to the Appellant, the Respondent increased the price of the tins and asked the Appellant to pay the difference between the old and the new prices. The Appellant refused, and insisted that the Respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently the Appellant filed an action at the Federal High Court claiming the items he paid for, an order of specific performance and N100, 000.00 general damages. The Federal High Court granted two reliefs and refused to grant general damages.
The Respondent appealed and raised the issue of jurisdiction for the first time at the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the trial Court had no jurisdiction to entertain the Appellant’s suit. On a further appeal to the Supreme Court. It was contended that the Respondent being a subsidiary of NNPC, which in turn is an organ or the Federal Government, the trial Court had jurisdiction to entertain the Appellant’s suit.
For the Respondent it was contended that the trial Court lacked jurisdiction to entertain the Appellant’s suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim.
Akintan JSC at page 6 paragraph 3 said: –
“It is settled law that jurisdiction of a Court is determined by the plaintiff’s claim as endorsed in the writ of summons and statement of claim: see Tukur v. Government of Gongola state (/989) 9 SC 1; (1989) 4 NWLR (Pt.117) 517; and Orthopaedic Hospitals Management Board v. Garba (2002) 7 SC (Pt. II) 138; (2002) 14 NWLR (Pt. 788) 538 at 563. Thus in this case, the appellant’s claim, already set out above, is the one that should be the focus of attention in determining whether the trial Court had jurisdiction to entertain the suit.”
At page 7 paragraph 2, the learned jurist had this to say:-
“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words section 230 (1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said section 230 (1) can only be determined exclusively by the Federal High Court, All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded Oil contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the Appellant’s claim. The lower court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim,”
See also Seven-Up bottling Co. Ltd v. Abiola & Sons bottling Co. Ltd
(2001) 6 SC 73; Trade Rank Plc v. Banilux Nig. Ltd (2003) 9 NWLR (Pt. 825) 416 at 430 & 431.
In Adelekan v. Ecu-line N v. (2006) 12 NWLR (Pt. 993) 33 at 52 paragraphs F-N, the Supreme Court per Onnoghen, JSC held thus: –
“The provisions of section 251 of the Constitution of Federal Republic of Nigeria 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court. I therefore have not hesitation in agreeing with learned counsel for the cross appellant that the trial court had no jurisdiction in the matter as framed before it and ought to have struck same out.”
From the decisions I have considered herein so far the Supreme Court has 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 v. K. R. P. C. and Adelekan v. Ecu-line NV have clearly over ruled the decision in NEPA v. Edegbero (Supra). In Sanni v. Durojaiye Ademiluyi (2003) 3 NWLR (Pt. 807) 381 at 404 paragraph E-F, the Supreme Court per Tobi JSC said: –
“Where a previous decision of a court has been overruled, submissions of counsel based on the overruled judgment will not avail the party he is representing. Where a previous decision of a Court has been overruled, the decision so overruled no more represents the state of the law and counsel should no more rely on it, but should rely on the judgment which overruled the previous decision.”
In this case learned counsel relied on three earlier decisions of the Supreme Court in v. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 132; Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151 and Salati v. Shehu (1986) 1 NWLR (Pt. 5) 198 when these decisions had been uverruled in Adisa v. Oyinloa (2000) LRCN 2180 at 2227, (2000) 10 NWLR (Pt. 674) 116. The Supreme Court said the decisions which were overruled no longer represent the position of the law.
In the instant appeal, I do not think there is conflict between the decisions of NEPA v. Edegbero and Onuorah v. K. R. P. C. and Adelekan v. Ecu-Line NV (Supra). It is a clear departure by the Supreme Court from the decision in Edegbero and so I hold that the decision in Edegbero has been overruled. Since the decision in that case has been overruled it no longer represents the position of the law. I am therefore bound by the latter decisions.
In the final analysis. I am of the firm view that the Federal High Court had no jurisdiction to hear and determine the Respondent’s claims, which were founded on contract Simpliciter.
On whether the appeal herein is incompetent as a result of the failure of the Appellant to obtain leave to file same? My answer is no. The Appellant did not require leave to file the appeal which is against a final decision of the Federal High Court sitting at first instance.
The order of the Court of Appeal, per Oguntade, JCA, as he then was is at page 283 of the record and page 26 of my Lord’s judgment. The final paragraphs of that judgment read thus: –
“In the final consideration, this appeal partially succeeds. The award made on damages is set aside. In its place I make an order (sic) the claim for damages be heard de novo with liberty to parties to file pleadings and call evidence on damages only. I affirm the judgment of the lower Court on the liability of the defendant for breach of contract.”
In Mamuda Biri & Anor v. Tukur Mairuwa & Anor. (996) 8 NWLR 425, which was cited by learned counsel for the Respondent this Court defined trial de novo as a trial or hearing a matter anew, the same as if no decision had been previously rendered. On hearing de novo, a Court hears the matter as a Court of original and not an appellate jurisdiction.
Where a matter is heard de novo, no leave is required to file an appeal against a final decision in that matter.
Having considered all the issues raised in the address on the jurisdiction of the lower Court in this appeal, I agree that the lower Court had no jurisdiction to hear and determine this case. Accordingly the proper order, which it would have made, would have been an order striking out the case. Since it was not done, this Court is in a position to do just that.
Accordingly therefore the appeal is allowed and the claim of the Respondent as set out elsewhere in this judgment is struck out . This Court without doubt, has the power to set aside its own order, which was made without jurisdiction ex debito justice, See Offordile v. Egwuatu (2006) 1 NWLR (Pt. 961) 429; Menakaiya v. Manakaiva (2001) 16 NWLR (Pt. 738) 2003; Igwe v. Kalu (2000) 14 NWLR (Pt. 787) 435; Olorunfemi v. Asho (2002) 2 NWLR (Pt. 643) 143; Ogueze v. Ojiakab (1962) 1 SCNLR 112.
To that extent, the order, which directed the lower Court to conduct fresh hearing on the claim for damages, was made without jurisdiction.
Accordingly that order is set aside.
The Respondent shall pay to the Appellant cost of prosecuting this appeal which I assess at Thirty thousand Naira (N30, 000.00).
Other Citations: (2008)LCN/2772(CA)
