Rahman Brothers Limited V. Nigerian Ports Authority (2019)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.
This is an appeal against the judgment of the Court of Appeal Holden at Benin in appeal No. CA/B/289/2006 delivered on the 13th day of May, 2010 in which the Court affirmed the finding of the trial Court of negligence against the respondent/cross appellant, but reduced the quantum of damages awarded in favour of appellant from N242,530,889.50k to 420,000,000 on the ground that appellant’s claims were in the nature of special damages which were not strictly proved by the rules of Court.
This appeal is therefore against the reduction of award of damages and arrears of rent made in favour of the respondent by the lower Court.
It is important to note that the respondent has cross appealed against the decision of the lower Court affirming the jurisdiction of the trial Court to entertain a cause of action based on negligence.
The facts of the case can be briefly stated as follows:
By a Statement of Claim filed at the Federal High Court in suit No. FHC/B/CS/11/1998 appellant, as plaintiff claimed against the respondents, then defendants as follows:
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“WHEREUPON the plaintiff claims against the defendants jointly and severally the sum of TWO HUNDRED AND FORTY-TWO MILLION FIVE HUNDRED AND THIRTY THOUSAND EIGHT HUNDRED AND NINETY-NINE NAIRA FIFTY KOBO (N242,530,899:50) as DAMAGES FOR NEGLIGENCE caused by the defendant resulting in the loss of 13.365 Teak logs (9,448,029) cubic metres volume.”
On the other hand, the 2nd defendant, who is respondent/cross appellant in the instant proceedings, counter claimed against the plaintiff/appellant/cross respondent as follows:-
“22. Wherefore the 2nd Defendant claims from the plaintiff:
i. the sum of N12.5 million under its indemnity obligation to the 2nd Defendant as prescribed by the terms of licence as well as under the general law
ii. The sum of N1,317,123 being the outstanding balance of rents payable in respect of the appropriated area under licence to date of fire incident.”
The respondent was appellant’s landlord at the New Wart Port in Delta State who let out a storage space (facility) to the appellant to store teak log of wood for sale to oversea customers. The tenancy arrangement was regulated by
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documents including exhibit D2/I which convenated to indemnify the respondent against all loses, etc, arising from any fire incident in the rented storage space.
Incidentally a fire incident happened a kilometre away from the facility but spread to the storage space and destroyed appellant’s teak log of wood. The fire was caused by unknown person engaged in rat hunting by bush burning and took place during the harmattan season
It is the case of appellant that officials of the respondent were negligent by their failure in their duty of care in not putting out the fire before it spread to the storage facility and caused the damage, hence the action, the relief of which had earlier been reproduced in this judgment.
It is, however the case of the respondent/cross appellant that it owed no duty of care to appellant to put off a fire that started a kilometre away from the demised storage facility and also relied on an indemnity clause iv of exhibit DW/1. Respondent also claimed for arrears of rent as earlier reproduced in this judgment.
It is not in dispute that the claim of appellant is grounded in negligence and that the lower Courts concurrently so found and awarded appropriate damages.
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The issues calling for the determination of the appeal and cross appeal are as follows:
(a) For the appeal:
“(i) Whether the Court of Appeal rightly or wrongly set aside the award of special damages of N242,530,889:50 made in favour of the appellant by the trial Court on the ground that being an item of special damages, same was neither specially pleaded nor strictly proved
(ii) Whether the learned Justices of Court of Appeal were correct or incorrect in entering judgment in favour of the Respondent/Cross Appellant on its counter claim for the sum of N1,317,123.00 as arrears of rent…”
(b) For the Cross Appeal:
(iii) Whether the Court of Appeal rightly or wrongly held that the trial Court had the jurisdiction to entertain the Appellant’s claim which is essentially based on the tort of negligence…
(iv) Whether the Court of Appeal rightly or wrongly held that the Appellant is entitled to general damages of N20 Million for negligence…
(v) Whether the Learned Justices of the Court of Appeal were right or wrong in their rejection of the Cross-Appellant’s submission that in the light of clause IV of
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Exhibit DW/1, the Cross – Appellant is not liable to the Appellant for the fire incident
(iv) Whether the Learned Justices of the Court of Appeal, on the state of the pleading and scanty evidence placed before it, rightly held the Cross Appellant liable for negligence…”
From the above issues, it is clear that the first issue raised by learned senior counsel for the respondent/cross appellant, PROF TAIWO OSIPITAN, SAN in the brief deemed filed and served on 26/9/18 on the question of the jurisdiction of the Federal High Court to hear and determine the matter arising from the Tort of Negligence be considered and resolved first before any other issue depending on which way the resolution goes. In that respect, we have to abandon the traditional method of considering and resolving issues arising in an appeal before proceeding to those raised in the cross appeal.
It is the submission of learned Counsel for the Cross Appellant that the lower Court was in error when it held that the trial Court had jurisdiction to hear and determine the suit as constituted because the respondent/cross appellant is an agency of the Federal Government when the issue is
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whether the Federal High Court has jurisdiction to hear and determine matters of negligence and breach of contract; that it is not enough that an agency of the Federal Government is a party to the suit, the cause of action must also be within the jurisdiction of the Federal High Court as conferred by the provisions of Section 251 (1) of the Constitution of the Federal Republic of Nigeria,1999, as amended (hereinafter referred to as the 1999 Constitution as amended); that the case of N.P.A. PLC vs LOTUS PLASTICS LTD & ANOR.(2005) 12 S.C. (pt. 1) 19; NEPA vs EDEGBERO & ORS (2002) 18 NWLR (pt. 798) 79 relied upon by the lower Court in coming to its conclusion on the issue are inapplicable to the facts of the case and are therefore distinguishable, which learned senior counsel then proceeded to do by identifying the following features:
(a) that in the lotus case there was allegation of breach of statutory duty as the foundation of the claim whereas in the instant case the claim is based on respondent/cross appellant’s breach of duty of care which is founded on negligence;
(b) the relationship of landlord and tenant which exists in this case is missing in the lotus case;
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(c) the relationship of bailment/bailee for reward between the plaintiff and defendant in the lotus case is also missing in the instant case, and;
(d) subject matter jurisdiction which is central to the instant is also missing in the lotus case; etc.
On his part, learned senior counsel for appellant/cross respondent in the reply brief deemed filed on 26/9/18 submitted that the lower Court is right in holding that the trial Court has jurisdiction over the cause of action relying on the case of NPA PLC vs. Lotus Plastics Ltd supra which was an action instituted at the Federal High Court for breach of contract of bailment and negligence; NEPA vs Edegbero supra; Adebiyeye vs NEPA (1993) 12 NWLR (pt. 644) 706; NPA vs. Eyamba (2005) 12 NWLR (pt. 939) 441 – 442 etc; that the claim of the respondent relates to the administrative management and control of the port by the respondent who is an agency of the Federal Government and urged the Court to resolve the issue against cross appellant.
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
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a nullity of proceedings no matter how well conducted. It is for the above reasons that it is further settled law that when raised in a proceeding, it must be specifically dealt with and resolved. See Onyema vs. Oputa (1987) 3 NWLR (pt. 60) 259; A.G of the Federation vs. Sode (1990)1 NWLR (pt. 128) 580; Ishola vs Ajiboye (1994) 6 NWLR (pt. 352) 506; Madukolu vs Nkemdilim (1962) 2 SCNLR 341.
Section 251 (1) of the 1999 Constitution, as amended, governs the jurisdiction of the Federal High Court and 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 suing or being sued on behalf of the said Government is a party;
(b) Connected with or pertaining to the taxation of companies and other bodies established or carrying on
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business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customers and excise duties and export duties, including and claim by or against the Nigerian Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and exercise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) any Federal enactment relating to copyright, patent,
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designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its agencies;
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(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly: Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is
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conferred by Subsection (1) of this section.”
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 before the trial Court is grounded on negligence and landlord and tenant relationship. There is no allegation of breach of statutory duty placed on the respondent/cross appellant by the respondent in the Statement of Claim neither was any issue joined thereon.
The substance of the ground challenging the jurisdiction of the trial Court in this matter is subject-matter jurisdiction i.e whether the Federal High Court has jurisdiction to hear and determine an action based simply on negligence on the part of a landlord to prevent a fire from spreading to and destroying the properties/goods of the tenant in possession.
It is for the above established facts that I hold the considered
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view that the lower Court was in error in relying on the case of NPA PLC vs. LOTUS PLASTICS LTD, supra, as well as NEPA vs EDEGBERO supra in coming to the conclusion that trial Court has jurisdiction to hear and determine the action thus:
“Also, after a careful consideration of the decisions of the Supreme Court in N.P.A vs. LOTUS PLASTICS LTD & ANOR (supra) as well as NEPA vs EDEGBERO, I am of the firm view that from the pleadings and evidence adduced in support of the claim for negligence, the lower Court was quite right to assume and exercise jurisdiction in the circumstances…”
I agree with the submission of learned senior counsel for respondent/cross appellant that…
“the relationship between the Appellant and the Respondent is purely contractual. There existed a Landlord and Tenant relationship between the parties whereby in consideration of rent and royalties paid by the Appellant; the Respondent let out a space at the Warri Port where the Appellant stacked its teak logs of wood in order to prepare and export them overseas. The negligence, which was the Appellant’s cause of action, is an offshoot of the contractual relationship
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which resulted in the Appellant’s plea that as its Landlord, the Respondent owed her a duty of care to put out the fire. The respondent allegedly breached the duty of care which resulted in the destruction of the Appellant’s teak logs of wood…”
See paragraph 5.5 at page 20 of the “Respondent’s Brief in Response to Appellant’s brief dated 9th March, 2012 and Cross Appellant’s Brief in respect of the Notice of Cross Appeal filed on 12th March, 2012.”
Once again i have to repeat that though 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 jurisdiction of the Federal High Court is therefore exercisable over the parties and subject matter of the suit.
See:
1) DG. S.S.S. v. Ojukwu (2006) 13 NWLR (Pt. 998) 575 at 586 -587, Paras. G-C.
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2) NEPA v. Edegbero (2002) 12 SC (Pt.11) 119 @133 Per Tobi, J.S.C.
3) Mudiaga Erhueh v. INEC (2003) 5 NWLR (Pt. 812) 70 at 76.
4) Onuorah v. Kaduna Refining Company Limited (2005) 6 NWLR (Pt. 821) 393 at 405.
5) National Union of Electricity Employees Association v. Bureau of Public Enterprises (2010) 2 – 3 SC 27 at 67.
It is for the above reasons that I hold the considered view that the trial Court lacked the jurisdiction to hear and determine the suit as constituted and that the lower Court is in error in holding otherwise.
The cross appeal therefore succeeds on this issue and the claim and counter claim of the parties before the trial Court in suit No FHC/B/CS/I1/1998 are hereby struck out for want of jurisdiction.
Parties to bear their costs.
Appeal dismissed, Cross Appeal allowed.
SC. 410/2010
