Olayemi & Ors V. Fha (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C.

This appeal is against the Judgment of the Court of Appeal, holden at Lagos, delivered on the 12th of July, 2017 wherein the Court below allowed in part, the appeal lodged by the Respondent, against the judgment of the trial Federal High Court, Lagos Judicial Division.

The facts leading to the appeal reveal that by a Writ of Summons, and Statement of Claim, dated 7th September 2012, the Appellants, as Plaintiffs approached the trial Court, seeking essentially declaratory reliefs with respect to the administrative actions and decisions of the Respondent, as an agency of the Federal Government, which actions were inimical to the interest of the Appellant. The Appellants claimed against the Respondent, as follows:

1. A Declaration that the exercise of the Defendant’s power in putting the Plaintiffs’ lands into parcels and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the Defendant as required by law, is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.
2. The purported advertisement in the Nigeria Newspapers and particularly on the Guardian Newspaper of Monday April 2nd, 2012 and This day Newspaper of Monday January 31st, 2011, saying that the land belongs to the Defendant and calling for contractors, consultants for the purpose of mobilizing into the Plaintiffs’ and, without same having been first acquired by the acquiring authorities and vested same in the Defendant, is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.
3. That the Defendant is vested only with the land shown in survey plan No. LS/D/BG/63, being the only land acquired by the acquiring authorities and vested same in the Defendant, thereby excluding the Plaintiffs’ land as contained in Survey Plan Number KESH/L/1106 and dated 4th October, 1980, less by 4.107 hectare as declared by the Honourable Minister, Ministry of Lands, Works, and Housing vide their letter to the Plaintiffs’ Reference No. LA/LA/LA/447/Vol. 1/3 dated December 15th, 2010.

​The Appellants, who sued in a representative capacity, for themselves and on behalf of the entire members of Kuje Amuwo Land, Amuwo Odofin Local Government Area of Lagos, are contending that the Respondent had gone beyond the land acquired by the Government, for the construction of FESTAC Town.

​It is the Appellants story that sometime in 1975/76, the Federal Government of Nigeria acquired parcels of land in Amuwo Odofin Local Government Area of Lagos State for the Festival of Arts and Culture held in 1977. The said acquisition was first documented by the Federal Government in the Official Gazette No. 54, Volume 62 of 6th November 1975 and Official Gazette No. 45, Vol. 63 of 9th September 1976. The Official Gazettes were admitted in evidence as Exhibit B14. The said acquisition was also documented by the Lagos State Government in the Indenture Registered as No. 74 Page 74, Vol. 1878 of 11th May 19881 which was admitted in the trial Court as Exhibit D11. The Appellants admitted during the trial that they were duly informed of the acquisition of the land and were also adequately and promptly compensated. Under the Indenture of 11th May, 10-8B, the Federal Government was granted 2024.60 hectares of land covered by Survey No. LSD/BG/63, inclusive of the 544 Hectares in Official Gazette No. 54 and the5.940 Hectares in Official Gazette No. 45. The Survey Plan No. LSD/BG/63 was also relied on at the trial.

Sequel to the acquisition, the Appellants commissioned a Surveyor to survey the un-acquired portion of their land, which exercise resulted in Survey Plan No. KESH/L/1106. The Appellants stated that they observed that sometime in 2010, the Respondent went beyond the acquired land, and is now encroaching into the portion left for the Appellants. They stated that the Respondent put the Appellants’ family land into parcels and advertised same for sale. The Appellants stated that they took up the issue and lodged a formal complaint through a Human Rights Organization called the Forum the Promotion of Human Right and Justice (FORIGHTS) which Organization lodged a Petition vide a letter dated 13th October, 2010, with the Honourable Minister of Works and Housing which is the Parent Ministry of the Respondent, attaching to the said letter, the Appellants’ survey Plan No KESH/L/1106, and the Respondent’s survey Plan No. LSD/BG/63. The Petition lodged on behalf of the Appellants by FORIGHTS was duly investigated by the Honourable Minister of Lands, Housing and Urban Development vide an Internal Memo dated 3rd June, 2010 and the referred the Survey Plans of both parties to the Federal Unit for Charting. At the conclusion of the Charting exercise, the Appellants were informed by the Honourable Minister, via two letters (Exhibits B5 and B6) dated 19th October 2010 and 15th December, 2010 respectively, that the Appellants’ family land falls substantially outside the Government acquisitions less 0.79% that is, 4,107 Hectares, and they were enjoined by the said letters to deal freely with the un-acquired portions of their land. Notwithstanding the above, the Respondent proceeded, in excess of their powers, to put the Appellants’ family land into parcels and advertised same for sale to members of the public. This prompted the Appellants into approaching the trial Court seeking essentially to nullify the Respondent’s actions.

At the trial, the Respondent filed a Notice of Preliminary Objection by which the Respondent contended that the Trial Court lacked the jurisdiction to entertain the suit, on the basis that it is a land matter.

By its ruling, delivered on 1st November, 2013, the trial Court resolved the objection in favour of the Appellants, and held that it had the requisite jurisdiction to, try the case. In continuation of trial, some witnesses were called, one of whom is Mr. O.O. Onabanjo, (who was PW1 for the Appellants and a subpoenaed witness for the Respondent, as DW2). He gave evidence to the effect that although the two letters (Exhibits B5 and B6), stated that the Appellants’ land fell outside of the acquisition of the Federal Government, there is another Charting exercise, conducted by the Surveyor-General of the Federation, with Ref. No. HUD/LA/S5A,VOL.1/42, dated 14th February, 2011, (Exhibit D18), canceling out the earlier Charting Exercise of 11th October, 2010 and affirming that the Appellants’ land was found to fall within the acquisition by about 75%. Mr. O.O. Onabanjo (PW1/DW2) stated further that the Appellants were duly informed of Exhibit D18 and its findings vide a letter dated 5th April 2011, (Exhibit D19), which Mr. O.O. Onabanjo said he wrote himself and signed. The Appellants however contended that Exhibit D19 was not delivered to them.

​After plenary trial in the suit, parties duly filed and exchanged final written addresses. In its written address, the Respondent again raised the issue of the trial Court’s jurisdiction to entertain the Appellants’ Suit. The Trial Court in its judgment held that having earlier determined that it had substantive jurisdiction to hear the suit, it would amount to sitting on appeal against its own judgment if it proceeds to determine same a second time. Based on the joinder of issues on the pleadings filed and exchanged by the parties, as well as the oral and documentary evidence adduced the trial Court entered judgment for the Appellants and granted all the reliefs they claimed.

The Respondent was dissatisfied with the judgment of the trial Court, and lodged an appeal at the Court below. In its judgment, the Court below held that the trial Court lacked the jurisdiction to try the case, and the case was struck out.

Aggrieved by this decision, the Appellants appealed to this Court and in their Amended Brief of Argument, the following three issues were raised for determination:

1. (a) Whether the lower Court was right when it failed to consider the main issue in controversy before it on the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any of appeal?

(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief in their principal claim is sustainable in law?

2. Whether the lower court was right to have made a consequential order striking out the Appellant suit?
3. Is the decision of the lower Court in dismissing the Appellants’ preliminary objection to grounds of the Respondent’s appeal, sustainable in law?

The Respondent also distilled three issues in its Respondent’s Brief of Argument. The Issues are:

1. Whether the lower Court’s decision to dismiss the Appellants’ preliminary objection was not right and perfectly sustainable in law?
2. Whether the lower Court was not right when it considered the Respondent’s issue one challenging the substantive jurisdiction of the trial Court and determined the issue in the Respondent’s favour, by holding that the trial Court lacked the substantive jurisdiction to entertain the appeal?
3. Whether the order of the lower Court striking out the Appellants’ suit was not the proper order to make having found that the trial Court lacked the substantive jurisdiction to entertain the suit?

The Respondent equally filed a Motion on Notice dated 20th January, 2020 challenging Grounds 4, 5, 6, 10, 11, 12 and 13 of the Appellants’ Amended Notice of Appeal, and prayed this Court for the following reliefs:

1. An Order of this Honourable Court striking out Grounds 6, 12, and 13 of the Appellants’ Amended Notice of Appeal dated 10th December 2019 and filed on the 12th December, 2019.
2. An Order of this Honourable Court striking out Grounds 4, 5, 10, and 11 of the Appellants’ Amended Notice of Appeal dated 10th December 2019 and filed on the 12th December, 2019
3. An Order of this Honourable Court striking out Issues 1(a) and 1(b) as well as Issue 2 of the Appellants’ Amended Brief of Argument, dated 10th December 2019 and filed on the 12th December, 2019.

​The argument of learned Counsel on behalf of the Respondent, simply put, is that Grounds 5, 6, 12 and 13 are grossly incompetent, due to the fact that they represent fresh issues being raised for the first time before this Court, without leave first being sought and obtained. According to learned Respondent’s Counsel, Grounds 4, 5, 10 and 11 and their particulars are highly argumentative. He argued that instead of simply stating its complaints against the part of the judgment appealed against, the Appellants’ have constructed arguments and cited judicial authorities which have no place in the Notice of Appeal.

Learned Counsel for the Respondent maintained that the highlighted grounds of appeal being incompetent, Issues 1(a & b) and 2 distilled from the incompetent grounds of appeal are unsustainable and liable to be struck out.

He cited and relied on a plethora of authorities in aid of his stance and urged this Court to strike out the incompetent grounds of appeal, as well as Issue 1 (a) and (b), and Issue 2.

​In response, it is submitted for the Appellant that the attacks of Grounds 6, 12 and 13 of Amended Notice of Appeal do not constitute fresh issues, as they are jurisdictional in nature, and therefore do not require the leave of this Court. A host of authorities were cited in aid.

On the attack that Grounds 4, 5, 10 and 11 are argumentative and therefore incompetent, learned, Senior Counsel for the Appellants submitted that the said grounds are not incompetent for merely referring to case law authorities. He posited that the Respondent has not stated that it was in any way misled by the complaints in the said grounds, relying on the case of Military Administrator of Benue State v. Ulegede (2001) 17 NWLR (Pt.741) 193 @ 312; amongst others.

It is his view that the Issues 1 (a) and (b) and 2 are competent issues, which are not in any way proliferated, and urged this Court to so hold and dismiss the Respondent’s Motion on Notice.

I have carefully examined the Motion on Notice filed on behalf of the Respondent. It appears clear to me that the main point raised in said Motion is the competence of some of the grounds/particulars of the grounds of appeal some issues formulated by the Appellants.

​I have had a look at the Grounds 4 5, 10 and 11 of the Amended Notice of Appeal. I have gone through the submissions made in the matter and come to the conclusion that the attack is on the format and not the substance of appeal.

I think I must be guided on this issue by what this Court stated in the case of the Military Administrator of Benue State v. Ulegede (2001) 17 NWLR (Part 741) 193 at page 212-213, per Ayoola, JSC, that:

“Where the parties to an appeal and the Court are not misled by the contents of a ground of appeal, complaints about its form becomes a technicality which does not occasion a miscarriage of justice and is inconsequential.”

On the fact that Grounds 6, 12 and 13 constitute fresh issues for which leave must be sought for and obtained, I go along with the submissions made by learned SAN for the Appellants in his reply, that these grounds constitute jurisdictional issues for which no leave is required. I find support in several decisions of this Court that an Appellant on appeal from the Court below may not take a point which he has not taken or argued in the Court below. This is in accord with the principle that an appeal is an avenue of rehearing of the case in an appellate Court. An Appellant may however challenge the judgment of the Court below on the ground which was not decided by that Court, particularly where it has raised a substantial point of law, more so, on the issue of jurisdiction. See: Our Line Ltd v. SCC (Nig) Ltd &Ors (2009) LPELR 2833 SC.

In the instant appeal, Section 22 of the Federal High Court Act, and Section 15 of the Court of Appeal Act relied on by the Appellants in Ground 13 of the Amended Notice of Appeal, wherein they questioned the powers of the Court below to transfer the case to the appropriate State High Court; are substantial points of law, for which no leave of this Court is required.

Lastly, it was contended on behalf of the Respondent that the Appellants’ Issue 1 is incompetent, having been proliferated and is also a composition of two issues. While I agree with the submissions of learned Counsel for the Respondent that it is unacceptable and inelegant to have sub-issues in a lone issue, I however tow the line of this Court, per Tobi, JSC in Salami & Anor v. Lawal (2008) LPELR 2980), where it was held that:

“… I do not know sub-issue in a Brief. I know issue; not sub-issue. There is no provision in Order 6 of the Supreme Court Rules for sub-issues. I shall therefore take as sub-issues as part of the main Issue.”

Accordingly, Issue 1 (a) & (b) are taken as one whole issue and are therefore not proliferated.

Based on the foregoing, the Respondent’s prayers in its Motion on Notice dated 20th January, 2020 are refused and the Motion on Notice is hereby dismissed.

The Appellant’s three issues are adopted in the resolution of this appeal.

ISSUES ONE AND TWO are taken together

Issue One

1. (a) Whether the lower Court was right when it failed to consider the main issue in controversy before it on the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any ground of appeal?

(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief in their principal claim is sustainable in law?

​Issue Two

Whether the lower Court was right to have made a consequential order striking out the Appellants’ suit?

It is submitted for the Appellants that the Court below was in error to hold as it did, that the trial Court lacked the jurisdiction to entertain the case before it. Learned Senior Advocate for the Appellants argued that the Court below failed to consider the central issue upon which the Respondent’s appeal was based, but proceeded to make out another case for the Respondent.

He contended that a careful perusal of the Respondent’s complaint in Ground One of its Notice of Appeal and its Issue one raised therefrom, would reveal that the issue of jurisdiction Court below, are separate and distinct from the grounds upon which the earlier challenge to the jurisdiction of the trial Court was brought.

It is the view of Learned Silk that main issue in controversy before the Court below was not the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit, but against the subsequent decision of the trial Court, that it would amount to sitting on appeal against its own decision, ifit decides again on the issue of its jurisdiction, having done so at the interlocutory stage.

He opined that the Court below was in error to have countenanced the arguments of Counsel on the substantive jurisdiction of the trial Court, as that issue was not covered and/or within the confines of any of the grounds of appeal before the Court below. He called in aid the following cases, amongst others:

Nsirim v. Amadi (2016) 5 NWLR (pt. 1504) 42;

GokeOlaolu v. FRN (2016) 3 NWLR (Pt. 1498) 133;

Okelola v. Boyle (1998) NWLR (Pt. 539) 532

He maintained that the law is settled that an appeal is determined on the basis of issues traceable to the grounds of appeal contained in the Notice of Appeal and any determination of an appeal on arguments and issues outside the grounds of appeal amounts to a nullity citing the case of Comptroller, Nigeria Prisons Services & Ors v. Adekanye (2002) 15 NWLR (Pt. 790) 318.

​Learned SAN posited that the decision of a Court which is not on the central issues canvassed by the parties before it (as done by the Court below in the instant case), cannot be sustained in law. He placed reliance on the case of Oguebego v. PDP (2016) NWLR (Pt. 1503) 446 at 483.

He noted that the decision of the Court below that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit, was premised on its findings that the Appellants’ Relief three, as sought in Paragraph 36 of their Statement of Claim, is their principal claim, adding that such finding of the Court below, is wrong, unsupportable by the records of appeal and unsustainable in law. He invited the attention of this Court to the Writ of Summons and the Statement of claim of the Appellants, while relying on the case of Aniakor v. Nigeria Police Force (2014) 15 NWLR (Pt. 1429) 155 at 174, amongst others.

Learned Silk posited that by the tenor of the 3rd Relief the Appellants are seeking to give effect to the letters dated 19th October 2010, and 15th December 2010 wherein the Parent Ministry of the Respondent determined the extent of the portions of the Appellants’ land which remained un-acquired and the portions subject to the acquisitions carried out vide Gazette Nos: 54, Vol. 62 of 6th November 1975 and 45, Vol. 63 of 9th September, 1976.

​According to Learned SAN, the3rd Relief sought by the Appellant is in no way a declaration of title to land; neither is it a trespass claim, but simply a relief for effect to be given to an administrative decision of a parent ministry of the Respondent, whose administrative and executive action in respect of the Appellants’ land, is the subject of the Appellants’ suit.

He argued that whilst Courts are entitled to consider the reliefs sought by a party for the purpose of determining the principal relief, this Court in Ekagbara & Anor v. Ikpeazu &Ors (2016) 4 NWLR (Pt. 1503) 411, held that in determining a party’s principal relief, due regard must be had to the facts upon which those reliefs are predicated, as contained in the Statement of Claim, as the reliefs do not exist on their own but are a product of the facts giving rise to them.

He submitted that by the facts copiously pleaded in the Appellants’ Statement of Claim, the 3rd Relief sought by the Appellants is not their principal relief, insisting that since Reliefs one and two can gallantly stand on their own and can be determined in the absence of Relief three, then Relief three cannot be the principal relief to divest the trial Court of the jurisdiction to entertain the Appellants’ suit.

Learned Senior Counsel stated that Reliefs one and two, being the principal reliefs sought by the Appellants, the trial Court, by virtue of Section 251(1)(r) of the 1999 Constitution, as amended, had the jurisdiction to entertain same. He drew the attention of this Court to the decision in NPA v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62, where it was held that the administrative acts of an Agency of the Federal Government is within the purview of Section 251(1)(r) of the 1999 Constitution, as amended. He referred also to Sections 4(1)(b) & 10(1) and (2) of the Federal Housing Authority Act, Cap F14, LFN 2004.

It is the opinion of Learned SAN that the cases of Ademola v. Adetayo (2010) LPELR 155; Dosumu v. NNPC (2013) LPELR 20655 and Pan-Ocean v. Mene-Okotie (2015) LPELR 25128, relied on by the Court below in arriving at its conclusion that the trial Court had no jurisdiction to entertain the Appellants’ suit, are all misplaced, and distinguishable from the case at hand, because the facts in those cases are not in my way similar to the issues in thiscase.

In conclusion, he urged this Court to hold that the trial Court had the substantive jurisdiction to entertain the Appellants’ suit, and resolve this issue in favour of the Appellants.

On whether the Court below was right to have made a consequential Order striking out the Appellants’ suit, it is contended for the Appellants that the consequential order was wrong. According to learned Silk, by the provisions of Section 22 of the Federal High Court Act, the Federal High Court is empowered to transfer a case, where it finds that it is without subject matter jurisdiction to hear same, to the appropriate High Court of a State. He relied on the case of Braithwaite v. S.C.B (Nig) Ltd (2012) 9 NWLR (Pt. 1305) 304 at 323.

He urged this Court to hold that the Court below, having held that the trial Court had no jurisdiction to entertain the Appellants’ suit, (which is not conceded), it ought not to have struck out the Appellants’ suit, but transferred same to the appropriate State High Court with the jurisdiction to determine the case.

​In its response to the above, it is argued on behalf of the Respondent that all the submissions of the Appellants on the issue that there was no ground of appeal at the Court below, challenging the substantive jurisdiction of the trial Court to entertain the Appellants’ suit, misconceived and not borne out of the Records before the Court

Learned Respondent’s Counsel contended that the issue of jurisdiction can be raised at any time even for the first time on appeal and there must not be a specific ground challenging the jurisdiction of the Court in issue. He maintained that the issue of jurisdiction being so pivotal in the adjudication of cases, can even be raised viva voce Reliance was placed on a host of authorities, including: Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 5 NWLR (Pt. 244) 675, where it was held that jurisdictional issues can be raised at any time, at whatever stage, by any means, even orally in open Court.

​He maintained that the central issue of the Appellants’ arguments is whether or not the trial Court had the jurisdiction to entertain the Appellants’ suit and based on all the judicial authorities, the Court below was right to hold that the trial Court had no substantive jurisdiction to entertain the suit of the Appellants.

On the issue that Relief three is not the principal claim, it is the view of learned Counsel for the Respondent that decision of the Court below that the said Relief three is the principal relief is incontrovertible. According to learned Counsel, Relief three is the foundation upon which the other two reliefs are hinged because it is only after the Court has granted Relief three, that the Court can now reach the decision whether the actions of Respondent (covered by Reliefs one and two) are/is illegal, null and/or void. He called the attention of this Court to Paragraphs 4, 17, 18, and 20 of the Appellants’ Statement of Claim and maintained that a detailed look at the averments contained therein all point to the fact that the relief sought by the Appellants is a declaration of entitlement of the land covered by Survey Plan No. KESH/L/1106.

It is his further contention that Reliefs one and two cannot stand on their own, as argued by the Appellants, as the said reliefs can only stand to be considered, after a determination that it is the Appellants, and not the Respondent, who are entitled to the land covered by Survey Plan No. KESH/L/1106 thus the Court below was right to hold, as it did, that the Relief three is the principal relief sought by the Appellants.

Relying on the case of James v. INEC (2015) 12 NWLR (Pt. 1474) 538 at 583-584, learned Respondent’s Counsel concluded by submitting that the Court below took an overview of the Appellants’ case and rightly held that the subject matter before the trial Court, being the Appellants’ entitlement to the land in issue, the trial Court lacked the jurisdiction to adjudicate over the Appellants’ case.

He therefore urged this Court to so hold, and resolve this issue against the Appellants,

​In reply, learned SAN for the Appellants posited that though the issue of jurisdiction can be raised at any time and that there is no law known in the Nigerian legal system that delimits when and how jurisdictional issues can be raised by a party there have been numerous decisions of this Court to the effect that the fact that the issue of jurisdiction can be raised at any time, does not mean that the rules of Court and procedure would be dispensed with once the issue of jurisdiction is raised. He placed reliance on these cases:

Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42 at 60-61;

Oshatoba v. Olujitan (2000) NWLR (Pt. 655) 159 at172

He again urged this Court to allow the appeal.

The case of the Appellants herein, in a nutshell, is that the Court below was wrong to hold that the trial Court (i.e. the Federal High Court) lacked the jurisdiction to entertain, the Appellants’ suit. The Respondent, argued otherwise, contending that the principal relief sought by the Appellants fall within the jurisdiction of the State High Courts, and the Court below was on firm ground to have so held.

The arguments for and against this issue boils down to whether the Relief three of the Appellants’ claims at the trial Court, is the principal relief, to vest jurisdiction on the Federal High Court.

​There is no doubt that Section 251 of the 1999 Constitution as amended, vests jurisdiction on the Federal High Court to determine cases where the agency of the Federal Government is made a party to the suit. However, the principal claims must be against such an Agency of the Federal Government, before the Federal High Court can assume jurisdiction. That in my view means that the Court has a duty to ascertain that it is the principal reliefs in the matter that is against the Federal Government or any of its agencies and not the ancillary reliefs. This, therefore, means that each case must be considered upon its peculiar facts and circumstances to determine whether a relief thereof is principal or ancillary. This Court has, in a multiplicity of its decisions, held that the fact that an action is against the Federal Government or its Agencies, does not ipso facto bring the case within the jurisdiction of the Federal High Court. The subject matter of the action must fall squarely within the jurisdiction of the Federal High Court before that Court can assume jurisdiction”

In Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 at 236 – 237, this Court held that:

“…The fact that the action was against the Respondents does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless and until other requirements of the law touching on the subject matter of the claims, is also satisfied. In other words, the subject matter of the action must fall squarely within the jurisdiction of the Federal High Court, before the Court can assume jurisdiction in a case against the Federal Government or any of its agencies.”

Similarly, in Rahman Brothers v. NPA (2019) LPELR 46415 SC, this Court posited that:

“It is settled law that the question of jurisdiction is fundamental and crucial to adjudication and that the very fact of its absence automatically results in a nullity of proceedings no matter how well conducted. It is for the above reason that it is further settled law that when raised in a proceeding, it must be specifically dealt with and resolved. There is no doubt that respondent/cross-appellant is a Federal Government Agency but it is the contention of learned senior counsel for respondent/cross-appellant that the status of the said respondent/cross-appellant as a Federal Government Agency, without more, does not confer the requisite jurisdiction on the Federal High Court to hear and determine the action as constituted particularly as the cause of action as before the trial Court is grounded on negligence and landlord and tenant relationship… Once again I have to repeat that thought… the Respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court, exercise its jurisdiction unhindered”

​The learned Justices of the Court below examined Reliefs 1, 2, and 3 of the Appellants, and concluded as follows:

“The parties are agreed on the hornbook legal position that jurisdiction is determined by the claim endorsed on the writ of summons and statement of claim. in ONUORAH vs. KPRC LTD (2005) LPELR (2707) at 15, Tobi, JSC stated: The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.” In order to ascertain if the lower Court had jurisdiction to entertain the reliefs claimed by the Respondents, I will hereunder reproduce again the reliefs claimed to seeif they can be pitchforked into enumerated jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution. The Respondents claim the following reliefs:

1) The exercise of the defendant’s power in putting the Plaintiff’s lands into parcels and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the defendant as required by law is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.

2) The purported advertisement in the Nigeria Newspapers and particularly on the Guardian Newspaper of Monday April 2nd, 2012 and Thisday Newspaper of Monday January 31st, 2011 saying that the land belongs to the defendant and calling for contractors, consultants for the purpose of mobilizing into the plaintiffs land, without same having been first acquired by the acquiring authorities and vested same in the defendant is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.

3) That the defendant is vested only with the land shown in survey plan No. LS/D/BG/63 being the only land acquired by the acquiringauthorities and vested same in the defendant, thereby excluding the Plaintiff’s land as contained in survey plan number KESH/L/1106 and dated 4th October, 1980, less by 4.107 hectares as declared by the Honourable Minister, Ministry of Lands, Works, and Housing vide their letter to the Plaintiffs reference No. LA/LA/LA/447/Vol. 1/3 dated December 15th, 2010. Once again, I restate that the Respondents do not challenge the acquisition of the land by the Government. Furthermore, I iterate that the principal relief claimed is the third relief. I say so because it is upon the declaration sought therein having made in favour of the Respondents that the action of the Appellant can be held to be in respect of land which had not been acquired. Doubtless, the Respondents have elegantly and carefully worded and couched the reliefs they claim, but the paramount consideration is not in the verbiage employed but true purport and effect of the relief. This is what constitutes the actual relief claimed. At the risk of being prolix, it is effulgent that from the totality of the averments in the Statement of Claim, the Respondents do not complain about the acquisition of their land by the Government. Their case is that the land on which the Appellant is plotting out and attempting to sell is not part of the land that was acquired. So in their carefully worded relief, they claim a declaration that the said land is not part of what was acquired. Ingenious no doubt, but it has a halo that is not ingenous. The Respondent’s case is that from time immemorial and in accordance with Yoruba Customary Law of inheritance, they are the original owners of the land acquired for purposes of building Festival Village (FESTAC Town) and the land behind it, which was not subject of the acquisition. They claim that the Appellant has been encroaching on part of their land which was not acquired by Government and seeking the declaration that, that said land is not part of what was acquired. In simple and plain language the relief number three is a declaration that the disputed land is not part of what was acquired by the Government and that it remains the land owned by the Respondents from time immemorial. In spite of the dexterity in wording the relief to mask the true purport of the relief claimed, the action, in pauciloquent terms, is a land matter.

The law has been established beyond peradventure that the Federal High Court does not have jurisdiction to entertain land matters. There is nothing in the Respondent’s claim which questions the acquisition of the land acquired by the Government. There is therefore no way the stipulations of Section 251 (1) (p),(q) and (r ) of the 1999 Constitution can come into play so as to vest jurisdiction on the lower Court. Indubitably, the subject matter of the Respondent’s action was not within the jurisdictional competence of the lower Court. The lower Court was wrong when it proceeded to exercise jurisdiction in the matter. The action being a land matter, it is the State High Court that is imbued with jurisdiction.”

After a thorough reading of the Appellants’ reliefs in their Amended Statement of Claim, I align myself with the position taken by the Court below that the principal claim/relief of the Appellants herein, is their Relief three, which is that the Respondent has been encroaching on part of their land which was not acquired by Government and seeking the declaration that, that said land is not part of what was acquired. I agree with the learned Justices of the Court below that the Relief number three is a declaration that the disputed land is not part of what was acquired by the Government and that it remains the land owned by the Respondents from time immemorial, making the case of the Appellants, in simple terms, a land matter.

Having stated that it is the magnitude of a relief that would determine whether such a relief ought to be classified as principal or ancillary and in addition, I agree also with the submissions put forward by the Respondent herein, that Relief three, is the most important relief sought by the Appellants, being the foundation upon which the other two reliefs are built. It is after a determination by the Court, of whether the Respondent is vested with the land shown in Survey Plan Number KESH/L/1106, that the Court can reach the decision whether or not the actions of the Respondent, in putting the said lands into plots and selling it off, was/is illegal, null and void.

​I therefore find and hold that Reliefs 1 and 2 of the Appellants’ Amended Statement of Claim are ancillary reliefs, while Relief 3, is the principal relief and therefore outside the jurisdiction of the trial Court by virtue of Section 251 (1) (p), (q) and (r) of the 1999 Constitution, as amended.

The Court below was therefore right when it held that the Trial Court lacked jurisdiction to grant the Reliefs claimed by the Appellants.

The next hurdle before this Court is to determine whether the Court below was right to have made a consequential order striking out the Appellants’ suit?

Generally, where a Court rules that it lacks jurisdiction to adjudicate on a matter, the order for it to make is to strike out the suit. However, where rules of Court provide for a transfer of such a matter, the Court should not strike out the suit but should transfer it to Act.”

the appropriate Court.

The Federal High Court Act, which govern the proceedings in the trial Court has given power to a Judge of the Federal High Court, who holds that the Court has no jurisdiction, rather than striking out a case before it for want of jurisdiction, to transfer the case to the appropriate State High Court for determination. In the instant appeal, Section 22(2) of the Federal High Court Act, is most apposite. It provides that:

“No cause or matter shall be struck out the Court merely on the ground that such cause or was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act Applying the above principle, this Court held in Braithwaite v. Standard Chartered Bank Nig. Ltd (2012) 9 NWLR (Pt. 1305) 304 that:

“Where a Judge of the Federal High Court holds that it has no jurisdiction, he can transfer the matter to the appropriate State High Court or of the Federal Capital Territory, Abuja.”

It is therefore clear that the Court below had no discretion to strike out the matter. The only option open to it was to order a transfer of the matter to the appropriate High Court of the State with jurisdiction.

Accordingly, I hold that this appeal succeeds in part, and it is therefore allowed in part.

​In the circumstance, I hereby order that the casefile be transferred to the Chief Judge of the Lagos State High Court to be assigned to any Judge in the Lagos State High Court for accelerated hearing.

I make no order as to Cost.

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SC.931/2017