Tochukwu Nwagwu & Anor V. Dr. R.A. Osemenam & Anor (2006)
LawGlobal-Hub Lead Judgment Report
Z. A. BULKACHUWA, J.C.A.
The 1st Respondent as plaintiff before the Federal High Court Benin initiated an action against the Appellants as 1st and 2nd Defendants and the 2nd Respondent as the 3rd Defendant whereby in a further amended statement of claim filed on the 19/6/1997 he claimed against them jointly and severally the following reliefs;
“Whereof the Plaintiff claim against the Defendants jointly and severally as follows;
(a) The sum of N100,000.00 Naira special damages.
Particulars of Special Damages
(i) Damaged parts of the car
N : K
Side Panel RR LH 41,500.00
Rear Booth lid 10.250.00
Rear Bumper 7,500.00
Applique 13,000.00
Rear Windscreen 12,350.00
Rear Door LH 13,100.00
Rear Light L/R 6,725.00
Rear door glass L/R 6,210.00
Reverse light housing L/R 3,500.00
Rear Chasis LH 25,500.00
Front seat L/H 9,500.00
Dash board cover 5,000.00
Upper roof straightening 9,500.00
Panel beating material 10,000.00
Spraying material 42,000.00
Mechanical material 8,000.00
Electrical material 10,000.00
Towing of car from Akure – Lagos 8,500.00
General labour 35,000.00
275,235.00
(ii) Cost of hotel accommodation and feeding on 4th – 6th April, 1996 – N2,000.00
(iii) Cost of towing the car from the scene of accident to the Police Station N 700.00
(iv) Cost of towing the car from Umunedu Police Station to Akure 8,000.00
(b) Loss of use by Plaintiff’s family of N150.00 per day from 5/4/96 till judgment and till payment of judgment debt.
The sum of N1 Million Naira exemplary general damages for loss, damage, inconveniency(sic) and trauma experienced as a result of the Defendants’ negligence.
By an application filed on the 5/12/97 before the lower court the 1st and 2nd Appellants as Applicants prayed the court to strike out the suit as it lacks jurisdiction to adjudicate on the plaintiffs claim. The application was moved and in a considered ruling delivered on 26/3/98 the lower court ruled that it has the competence to adjudicate on the matter.
The 1st and 2nd Defendants being dissatisfied have now appealed to this court vide Notice and Grounds of Appeal dated and filed on the 6th April, 1998 subsequently amended by an order of this court of the 27th September, 2001.
Based on the sole ground of appeal the Appellants formulated a sole issue vis: –
“Whether the learned trial Judge was correct in assuming jurisdiction based on the claim before the court.”
For a better understanding of the claim that was before the lower court I reproduce here under the under listed averments as contained in the Pliantiff/1st Respondent’s amended statement of claim (see pages 2 – 5 of the records):-
“FURTHER AMENDED STATEMENT OF CLAIM (PURSUANT TO COURT ORDER)
- The Plaintiff is a senior lecturer at the Federal University of Technology, Akure, Ondo State and the owner of Daewoo motor car registered as No. LA 5243 SM (hereinafter called “the car”).
- The 1st Defendant is the servant employed by the 2nd Defendant as a driver and at all times material to this suit, the driver of Mercedes Benz Luxurious bus No. 1M9892Z with the inscription of the 2nd Defendant on both sides.
- The 2nd Defendant is a Limited liability company registered in Nigeria and carries on business inter alia as operator of luxurious bus No. 1M 9892 Z driven by the 1st Defendant, its servant at all time material to this action while the 3rd Defendant is the insurer of the luxurious bus via a third party insurance policy.
- The Plaintiff aver that on Monday the 4th day of March, 1996 he was driving the car along Onitsha-Agbor highway in the company of his sister, on his way from Onitsha.
- At a point near Umunede, on a straight road where there are pot-holes which forced all motorists to slow down, the 1st Defendant recklessly and negligently drove, managed and controlled the 2nd Defendant’s luxurious bus that he caused or permitted same violently to collide with the rear of the Plaintiff’s car and to knock the car out of the road and into the bush.
PARTICULARS OF NEGLIGENCE
(a) Driving at a speed which was excessive in the circumstance.
(b) Failing to keep any or any proper look-out or to have any/ or any sufficient regard for the vehicle that was in front.
(c) Colliding with the rear of the car being driven by the Plaintiff.
(d) Knocking the car with occupants out of the road and into the bush.
(e) Failing to see the Plaintiff’s car in sufficient time to avoid colliding with it or at all.
(f) Failing to apply his brakes in time or at all, to stop, slow down, steer, swerve or in any other way manage or control the said bus so as to avoid the said collision.
- The Plaintiff aver that the 2nd Defendant’s negligence contributed to the loss and damage suffered by him.
PARTICULARS OF NEGLIGENCE
(a) Failure to employ a competent servant to drive its luxurious bus.
(b) Failure to train properly or at all its servant on his duties to other road users and on need to drive carefully so as not to collide with other vehicles from the rear or at all.
7, ALTERNATIVELY, the Plaintiff pleads and shall rely on Res Ipsa Loquitor in paragraphs 5 and 6 above.
- In spite of the collision, the Defendant’s bus was only able to stop after hitting 2 other vehicles and at a long distance.
- After the Defendants’ vehicle finally stopped, the driver left the engine running and disappeared only to emerge very much later with the explanation that he ran away for his safety and for fear of attack by angry motorists and the crowd generally.
- The plaintiff aver that there was a police checking post along the same road and close to the scene which post was manned by armed policemen and at which post the Plaintiff and all other motorist must slow down or stop unless waived on and that the aforesaid event occurred not long after the Plaintiff was waived on by the police.
- The Plaintiff aver that during the period of disappearance in paragraph 10 above, colleagues of the 1st Defendant, travelling in the same bus made desperate attempts to disrupt the mechanical state of the bus especially the braking system and the fan belt which attempts were challenged and frustrated by the Plaintiff and police officers from the aforementioned police post who arrived at the scene.
- The Plaintiff avers that officers from the Motor Traffic Division of the Nigeria Police and Vehicle Inspectors investigated the event, inspected the vehicles, took measurements and drew a sketch map of the scene of the incident.
- After the investigation at the scene, the vehicles were towed to and parked in the premises of the police at Umunede where they were properly examined and records taken.
- The Plaintiff hereby pleaded and shall rely on the followings at the trial (sic).
(a) Nigeria Police force – abstract of record of accident dated 15/5/96.
(b) The certificate of insurance attached to (a) above.
(c) The vehicle inspection report dated 15/5/96 attached to (a) above.
(d) The vehicle inspection report dated 2/5/96 attached to (a) above
(e) The sketch map of the accident dated 4/3/96.
(f) 2 photographs of the car in the bush where it ended up with its occupants after the collision.
(g) Receipt for the amount of N700 paid for the towing of the car from the scene to the police station at Umunede.
- Consequence upon paragraph 5 above, the Plaintiff spent two nights in a hotel at Umunede. The receipt issued by the hotel for N2,000.00 is hereby pleaded and shall be relied upon at the trial.
- On the 5th of March, 1996 at the request and in the company of the 1st Defendant, the Plaintiff met with a director of the 2nd Defendant, one P.N Emerah in his office who, during discussions orally accepted responsibility to repair the car and also agreed to sign an undertaking to the effect. He apologized profusely to the Plaintiff for his servant’ negligence.
- Immediately after the aforementioned meeting, the said P.N Emerah sent his administrative officer, the 1st Defendant and a panel beater to inspect and assess the damage done to the car at which inspection it was agreed that the car was not a complete write-off as it can be repaired and brought back to its original shape.
- On the 11th day of March, 1996 the Plaintiff travelled to the 2nd Defendant’s office at Onitsha for the purpose of signing the undertaking as earlier agreed.
- The Plaintiff avers that he prepared a draft undertaking which was amended and corrected by the administrative Secretary in the office and presented to the Managing director of the 2nd Defendant, P.N Emerah himself for endorsement. The Plaintiff hereby pleads and shall rely at the trial on the draft undertaking.
- After keeping the Plaintiff waiting for over five hours, the said P.N Emerah came out of his inner office and declared that the company was no longer prepared to undertake responsibility as was earlier agreed.
- Consequently, the Plaintiff aver that he caused a letter to be written by his solicitors to the Defendants which letter was replied by the Defendants ‘solicitor. The Plaintiff hereby plead and shall rely at the trial on letters dated 21/3/96 (the Defendants are hereby notified to produce the original) and the reply dated 25/4/96.
- The Plaintiff aver that he later arranged and towed his car from Umunede police station to Akure. The receipt issued for the amount of N8,000. 00 paid for the towing is hereby pleaded and shall be relied upon at the trial.
- The Plaintiff aver that he subsequently informed Boonec Automobile Engineering Services Company which normally service, repair and maintain the car in good condition prior to the accident whose staff followed him to Akure to inspect the extent of damage done to the car and the cost of repairing same after which inspection he was issued an estimate of repairs dated 26th June, 1996 which is hereby pleaded and shall be relied upon at the trial.
- The Plaintiff aver that consequent upon these matters aforesaid, he could no longer make use of the car personally or convey his wife and children to and from their office and schools respectively as he does prior to the negligent act of the Defendants but had to make alternative transportation arrangement for the family.
- The Plaintiff avers that the 1st Defendant who was charged with dangerous driving was found guilty and convicted as charged by the Umunede. Chief Magistrate Court on 17/6/96. At the trial of this suit the Plaintiff will rely on the certified true copy of the judgment.
- By reason of these matters aforesaid, the Plaintiff has suffered loss and damage.
PARTICULARS OF LOSS AND DAMAGE
(a) Damage to the following parts of the cars: –
Side panel RR LH 41,500.00
Rear booth lid 10,250.00
Appliqu 13,000.00
Rear Windscreen 12,350.00
Rear Door LH 13,100.00
Rear Light L/R 6,725.00
Rear door glass L/R 6,210.00
Reverse light housing L/R 3,500.00
Rear Chasis LH 25,500.00
Front seat L/H 9,500.00
Dash board cover 5,000.00
Upper roof straightening 9,500.00
Panel beating material 10,000.00
Spraying material 42,000.00
Mechanical material 8,000.00
Electrical material 10,000.00
Towing of car from Akure – Lagos 8,500.00
General labour 35,000.00
275,235.00
(b) Cost of towing the car on 2 occasion – 8, 700.00
(c) Cost of hotel accommodation and feeding – 2,000.00
(d) Loss of use as a result of which an average of N150.00 is spent daily on taxis.
(e) Inconveniency and trauma occasioned by the Defendant’s negligence. ”
In a nut shell the claim was necessitated being that the Appellants were jointly and severally negligent and responsible for the loss sustained by the 1st Respondent when the 1st Respondent’s vehicle with registration number LA 5243 SM was damaged in a collision, on Onitsha – Agbor Highway as a result of the reckless and negligent conduct of the 1st Appellant who was a servant of the 2nd Appellant while driving the 2nd Appellant’s Mercedes Benz Luxurious Bus with Registration No. 1M 8992 Z which vehicle was then insured with the 2nd Respondent.
In ruling that it had jurisdiction to adjudicate on the matter the lower court held as follows;
“The tort of negligence which is the law governing the situation is not the main claim. It is ancillary to the main claim which is settlement of the claim of the Plaintiff/Respondent by an insurance company since the statement of claim alleged admission of liability by the 1st and 2nd defendants.
The tort of negligence of Delta State cannot even apply because the accident occurred on a Federal Highway and the issue of negligence is not on the focus as 1st and 2nd Defendants had accepted liability. Moreover all cases involving insurance claims are to be entertained in the Federal High Court. ”
The gravement of the Appellant’s appeal based on the above finding is as to the propriety of the decision that the combined effect of Decree No. 61 of 1993 and Decree No. 107 of 1993 vested exclusive jurisdiction in the Federal High Court to entertain a claim of accident wherever it occurs in Nigeria and as to whether the Federal High Court has jurisdiction to entertain the suit for the reason that the main claim involved settlement of a claim by an insurance company as against the tort of negligence being the ancillary claim.
Learned counsel for the Appellant submits that the provisions of Section 156(1) of Decree 61 of 1993 relied upon by the learned trial judge was inapplicable at the time because the said Decree was transitional as it was promulgated basically as the organic law that would govern the interim government set up to administer the Federal Republic of Nigeria in 1993 hence its title of Interim Government (Basic Constitutional Provisions) Decree 1993. That the law remained in force until November, 1993 when it became extinct as it was repealed by the promulgation of the Interim Government (dissolution) Decree No. 109 of 1993.
Similarly learned counsel submits that the provisions were not relevant and inapplicable at the time the cause of action arose. That Decree 107 of 1993 Section 230(1) thereof of which the learned trial judge heavily relied upon did not rest exclusive jurisdiction on the Federal High Court particularly so with regards to the Respondents’ claim before the trial court which primarily relates to establishment of negligence. That, that being so the applicable law must be the law of the state where the cause of action arose in this instance Delta State
It is further submitted by learned counsel to the Appellants that the reliance of the lower court in assuming jurisdiction on Section 80 of the Insurance Decree No.2 of the 1997 cannot stand for as he points out the section dealt with offences only and should therefore not include civil actions founded on tort. Pointing out that in any case the Insurance Decree No.2 of 1997 was promulgated in 1997, while the cause of action in this case accrued as at 4th March, 1996, and the suit was instituted in 1996, Decree 2 of 1997 could therefore not be the applicable law having not come into force when the cause of action arose.
He urged us to allow the appeal on his argument and hold that the lower court lacks competence in the matter.
The 1st Respondent adopts the issue formulated by the Appellants and agrees, conceding that Decree No. 61 of 1993 and No. 107 of 1993 did not vest exclusive jurisdiction in the Federal High Court to determine the subject matter of the claim. He also concedes that the reliance on Section 80 of Decree No.2 of 1997 by the learned trial judge was misplaced.
The 2nd Respondent in his brief also concedes to the appeal and further submits that the combined effect of the provisions of Decree No. 61 of 1993 and Decree No. 107 of 1993 does not vest exclusive jurisdiction in matters arising from insurance claims including third party claims which envisage a claim of accident “wherever it occurs in Nigeria” on the Federal High Court as was held by the learned trial judge. Pointing out that the 1st Respondent’s claim before the lower court does not fall within the jurisdiction of the Predecessor of the Federal High Court as prescribed by Section 7 of the Federal Revenue Court Decree No. 13 of 1993, which was substantially amended by Decree No. 60 of 1991 and No. 60 of 1993 to accord exclusive jurisdiction on the Federal High Court over insurance matters which were subsequently rendered inoperative by the combined effect of Section 4 of the Federal High Court (Amendment) Decree No. 116 of 1992 and the Interim Government (Dissolution) Decree No. 109 of 1993.
The 2nd Respondent also submits that the claim of the 1st Respondent is against the Appellants for negligence and if he fails to establish the claim against the Appellants, the issue of liability against the 2nd Respondent – the Insurance Company – cannot hold for as he contends the Insurance Company is not the primary party of the suit, if the claim against the Appellants is not proved no liability will be attached to the 2nd Respondent.
On the lex forum it is the submission of the 2nd Respondent that the cause of action accrued as at 4th March, 1996, that the Insurance Decree No.2 of 1997 which was promulgated after the accrual of the cause of action cannot be the applicable law particularly so in the absence of clear provisions providing for its operation in retrospect. He also urged us to allow the appeal and hold that the lower court lacks jurisdiction in the matter.
As was shown in the further amended statement of claim earlier reproduced in this judgment, the 1st Respondent in this appeal was the plaintiff before the Federal High Court Benin wherein he sued the 1st and 2nd Appellants and the 2nd Respondent jointly and severally in respect of the loss he sustained when his vehicle with registration No. LA 5243 SM was damaged in a collision which took place along Onitsha – Agbor Highway in Delta State as a result of the reckless and negligent conduct of the 1st Appellant who was a servant of the 2nd Appellant driving the 2nd Appellant’s Mercedes Benz Luxurious Bus with Registration number 1M 9892 Z which said vehicle was ensured with the 2nd Respondent/3rd defendant.
Before filing the Statement of defence, the 1st and 2nd Defendants by a motion dated 4th December, 1997 prayed the lower court to strike out the suit on the grounds that the Federal High Court lacks jurisdiction to determine the matter.
The application was moved and in a considered ruling, the lower court in holding that it had competence in the matter ruled that the combined effect of the provisions of Decree No. 61 of 1993 and Decree No. 107 of 1993 vests on the Federal High Court the exclusive jurisdiction in matters arising from insurance claims, including third party claim which envisages a claim of accident whenever it occurs in Nigeria. He also held that “the tort of negligence which is the law governing the situation is not the main claim. It is ancillary to the main claim which is settlement of the claim of the Plaintiff/Respondent by an insurance company since the Statement of Claim alleged admission of liability by the 1st and 2nd defendant.”
The issue of jurisdiction is fundamental as it goes to the root of any matter that is brought before a court and determines whether the court has the authority to take cognizance of what has been presented before it. A court can be said to have jurisdiction when the following requirements co-exist conjunctively: –
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;
(c) The case comes before the court instituted by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu vs. Nkemdilim 1962 2 SCNLR 341;
Shenconsult vs. Ukey 1 SC 6.
It follows, invariably, therefore that a court must have the jurisdiction to exercise judicial powers over a matter that is brought before it, and in such instance it is the plaintiffs claim, that is the totality of the averments in the statement of claim, that determines jurisdiction.
See – Kalu vs. Odili 1992 5 NWLR (Part 240) 130;
Adelusola vs. Akinde 2004 12 NWLR (Part 887) 295. In the instant appeal a look at the 15t Respondent/Plaintiffs further amended statement of claim, will show that the claim of the plaintiff against the defendants jointly and severally was for the negligent conduct of the 15t defendant when he recklessly drove his vehicle owned by the 2nd defendant and insured by the 3rd Respondent and collided with the plaintiffs vehicle along Onitsha – Agbor road, clearly based on the tort of negligence on a highway in Delta State.
Having closely examined the said statement of claim, the ruling of the lower court and the submission of learned counsels before this court, I am disposed to upholding their submission in toto and hold that the learned trial judge was wrong to have held that he has jurisdiction to determine the matter.
“With all due respect to the learned trial judge the provisions of Decree 61 of 1993 are not applicable as at the time he applied them. This is so because the provisions of the said Decree were promulgated for the operation of the Nigerian Interim Government which came into force in 1993. This law remained in force until November 18th 1993 when it became extinct with the promulgation of the Interim Government (Dissolution) Decree No. 109 of 1993.
See Section 1 – 2 thereof which provides: –
(1) The Interim Government including the National Assembly is hereby dissolved.
(2) Accordingly the Interim Government (Basic Constitutional Provision) Decree 1993 is hereby repealed.
The cause of action arose as at March, 1996, and in determining the issue of jurisdiction, the applicable law must be the law which is in force at the time the cause of action arose. In the instant case Decree 61 of 1993 which was repealed in 1993 cannot be the applicable law.
In the same manner the Insurance Decree No.2 of 1997 which was promulgated after the cause of action arose cannot be the applicable law, particularly so when it had made no provisions for its application in retrospect.
As at 4th March, 1996 when the cause of action accrued the applicable law was Section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993 which spells out the civil causes and matters within the exclusive jurisdiction of the Federal High Court, and causes and matters pertaining to insurance were not included.
In any case the substantive claim before the lower court was that of negligence against the Appellants. The claim against the 3rd Defendant/2nd Respondent is ancillary to the substantive claim and cannot succeed unless and until the substantive claim is proved against the Appellants. The lower court was thus wrong to have held that it was the insurance claim that was the substantive claim.
In conclusion, I uphold the submission of counsel that the lower court lacks the jurisdiction to determine the matter. The appeal has merit and I hereby allow it. I set aside the finding of the lower court of 26/3/98 and substitute same with an order striking out the plaintiff/1st Respondent’s claim for want of jurisdiction.
I award cost assessed for the lower court against the plaintiff to each of the Defendants as N2,000.00 and before this court N10,000.00 to the Appellants against the 1st Respondent.
Other Citations: (2006)LCN/2140(CA)
