CORAM

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Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

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PARTIES

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BARNAX ENGINEERING COMPANY NIGERIA LIMITED

APPELLANTS 

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1. GOVERNMENT OF RIVERS STATE

2. ATTORNEY GENERAL OF RIVERS STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COMPANY, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Appellant entered into a contract of supply with the 1st Respondent. The subject of the contract of supply was that the Appellant would supply to the said 1st Respondent four (4) Princess Cruise Boats. According to paragraph 8 of the claim, “most of the negotiations of the contract” between the parties, took place in Abuja. Eventually, negotiations were concluded and the contract came into being as a result of which, the Appellant, in performance of his own part, placed orders overseas and eventually supplied the four Princess Cruise Boats to the Respondents.

Thereafter, the Appellant, on the request of the Respondents, forwarded the documents pertaining to the purchase to the Respondent and expected his payment, having fulfilled his part of the contract. Having waited without success for his payment, the Appellant petitioned to the Presidency to intervene in the matter. The verification and conclusion of the contract was made by a Committee set up by the Respondents in Port Harcourt, including several letters the Appellant wrote to the Respondents demanding payment. The Respondents paid the sum of N9,853,610.90 (Nine Million, Eight Hundred and Fifty Three Thousand, Six Hundred and Ten Naira, Ninety Kobo) as part-payment of the originally owed sum.

The Appellant issued a writ, not in the Rivers State High Court, but in the Federal Capital Territory High Court, Abuja, under the undefended list procedure claiming the balance of the debt.

By the judgment of the learned trial Court, the Respondents were ordered to pay the Appellant the sum of N186,365,852.99 as per the Appellant’s claim filed under the Undefended List.

The Respondents Appealed to the Court Below and the Court below allowed the Respondents’ appeal and set aside the judgment of the trial Court delivered on 25th October, 2005 on the grounds that the trial court lacked jurisdiction to entertain the matter.

Aggrieved by the decision, the Appellant made this appeal before this Court.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the High Court of the Federal Capital Territory Abuja, has jurisdiction to entertain a suit bordering on contract, where the parties to the contract reside in Port Harcourt and the contract entered and to be executed in Port Harcourt?

 

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RATIONES DECIDENDI

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JURISDICTION – THE NECESSITY OF JURISDICTION IN OUR SYSTEM OF JURISPRUDENCE – MEANING OF TERRITORIAL/GEOGRAPHICAL JURISDICTION – HOW TERRITORIAL JURISDICTION MAY BE DETERMINED IN A CASE FOR BREACH OF CONTRACT

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…our common law system of jurisprudence perforce stipulates that a Court must have jurisdiction to determine any matter before it.

It is a threshold issue and cannot be compromised.

My Lords, territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area. See MEGATECH ENGINEERING LIMITED v. SKY VISION GLOBAL NETWORKS LLC (2014) LPELR-22539(CA), or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter. See MAILANTARKI v. TONGO & ORS (2017) LPELR-42467(SC).

In DARIYE v. FRN (2015) LPELR-24398 (SC) this Court held that territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise is statutory and is conferred on the Court by the statute creating it.

It is settled that in cases of breach of contract, the territorial jurisdiction to hear the case can be determined by reference to the following: (a) where the contract was made (lex loci contractus); (b) where the contract is to be performed (lex loci solutions); (c) where the defendant resides. See ARJAY LIMITED v. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (820) 577, 604-605; KRAUS THOMPSON ORG. LTD v. UNIVERSITY OF CALABAR (2004) 9 NWLR (Pt. 879) 631 at 661; EGBO v. LAGUMA (1998) 3 NWLR (Pt.80) 109 at 126-127; MARTINS (NIG) LTD v. UPL (1992) 1 NWLR (PT. 217) 322 at 331; BAND LANLEYIN v. RUFAI (1959) SCNLR 475; OKAFOR v. EZENWA (2002) 13 NWLR (PT.784) 319; UNIVERSITY PRESS LTD v. IK MARTINS (NIG) LTD (2000) 4 NWLR (PT.654) 584 at 598-599; I.K MARTINS (NIG) LTD v. UPC (1992) 1 NWLR (PT. 217) 322 @ 331. – Per H. M. Ogunwumiju, JSC

 

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HIGH COURT OF FCT – WHETHER THE HIGH COURT OF FCT HAS JURISDICTION TO ENTERTAIN A SUIT WHERE THE CONTRACT WAS PERFORMED OUTSIDE FCT AND THE PARTIES RESIDE OUTSIDE FCT

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My Lords, the rules of the High Court of the FCT are clear and straight forward.

Or 9 Rule 3 of the FCT High Court Civil Procedure Rules, 2004 applicable when the cause of action arose provides as follows:

“All suits for specific performance or breach of contract shall where the contract ought to have been performed or where the defendants reside or carry on business in the Federal Capital Territory be commenced and determine in the Federal Capital Territory”.

Thus, in the circumstances of this case, the contract was performed in Port Harcourt and the Respondents as Defendants live or were situated in Port Harcourt being the location of the seat of government of Rivers State the suit cannot be instituted in the FCT High Court. In fact, Order 9 Rule 3 envisages that the contract must have been performed within the Federal Capital Territory to clothe the High Court with jurisdiction to determine the suit. In the Appellant’s own view, it is Order 9 Rule 4 of the High Court of the FCT Civil Procedures Rules, 2004 that applies to the circumstances of this case.

Order 9 Rule 4, provides:

“All other suits shall where the defendant resides or carries on business or where the cause of action arose in the Federal Capital Territory, Abuja”

Order 9 Rule 4 relates to “all other suits” and not for specific performance or breach of contract as provided for in Order 9 Rule 3. The argument of the Appellant that the cause of action or that most of the negotiation took place in Abuja is misconceived as it is clear that the provisions cannot vest jurisdiction in the circumstances on the High Court of the FCT. – Per H. M. Ogunwumiju, JSC

 

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CONTRACT – WHERE THE PARTIES TO A DISPUTE HAVE BY AGREEMENT IN WRITING CHOSEN A DESIGNATED FORUM FOR RESOLVING THEIR DISPUTES

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…where the parties to a dispute have, by agreement in writing, chosen a designated forum for resolving their disputes (if any), it would not matter if in the fact that the Court which had been chosen in their agreement does not have the territorial jurisdiction to entertain the dispute, as long as the Court has the jurisdiction to entertain the subject matter of the dispute, that suffices to clothe the Court with jurisdiction. See EGBO v. LAGUMA (1988) 3 NWLR (PT.80) 109 @ 126-127. – Per H. M. Ogunwumiju, JSC

 

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COURTS – WHETHER A COURT ESTABLISHED BY THE CFRN 1999 CAN GRANT OR MAKE ANY ORDER OR RELIEF THAT IS CONTRARY TO CFRN 1999

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No Court created or established by the 1999 Constitution (as altered), has jurisdiction or powers to grant or make any order or relief that is contrary to the Constitution or any statutes and as may have been determined by extant decisions of the Courts of the land. An appeal must succeed based on the provisions of the Constitution as the foundation of the state or upon such decisions as may have been established by the Court. Without a doubt, a Court must not only have subject matter jurisdiction but also territorial jurisdiction to competently and properly adjudicate on any dispute brought before it. If a Court does not have territorial jurisdiction over the events or persons in respect of whom it seeks to preside, then the Court cannot bind such persons to an obligation or adjudicate any rights involving them. – Per H. M. Ogunwumiju, JSC

 

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JURISDICTION – WHERE EACH COURT GETS ITS JURISDICTION FROM

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The jurisdiction of each Court is specifically provided for in the relevant provisions of the 1999 Constitution, as amended. The jurisdiction of the High Court of the FCT is clearly limited to the Federal Capital Territory by virtue of Section 255(1) thereof, while Section 270(1) provides for the establishment of a High Court for each state of the Federation. – Per K. M. O Kekere-Ekun, JSC

 

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JURISDICTION – WHETHER A DEFECTIVE ORIGINATING PROCESS CAN ACTIVATE A COURTS JURISDICTION – WHERE JURISDICTION IS LACKING

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It is equally settled that a defective originating process cannot activate the Court’s jurisdiction. See Braithwaite Vs Skye Bank Plc (2012) LPELR – 15532 (SC) @ 22 C – D; PDP vs Okorocha (2012) LPELR – 7832 (SC) @ 47 F – G; African Newspapers of Nigeria vs F.R.N (1985) 2 NWLR (Pt.6) 137; Audu vs APC (2019) 17 NWLR (Pt.1702) 379.

The appellant’s pleadings clearly revealed the lack of jurisdiction in the trial Court. It has been held in a plethora of decisions of this Court that jurisdiction is extrinsic to the adjudication. Where it is lacking, every step taken in the proceedings will amount to a nullity, no matter how well conducted. See Madukolu Vs Nkemdilim (1962) SCNLR 341. I am unable to fault the findings of the lower Court in this regard. – Per K. M. O Kekere-Ekun, JSC

 

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JURISDICTION – WHERE A COURT LACKS STATUTORY JURISDICTION

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I would like to restate that the issue of the jurisdiction of a Court of law to entertain and adjudicate over a matter/case is one of exact law that has to be applied in any given case and that it is either that a Court has statutory jurisdiction in a matter or it lacks jurisdiction by the relevant law applicable to it. There is no halfway or hybrid situation on the issue of the statutory jurisdiction of a Court to adjudicate over a matter as the requisite judicial power and authority to entertain and decide the matter. Once a Court lacks the requisite statutory jurisdiction over a matter/case, it would be an exercise in futility to purport to assume the judicial power and authority to adjudicate over the case or conduct judicial proceedings therein, on any pretext. See Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 (SC), A. G., Lagos State v. Dosunmu (1989) 3 NWLR (pt. 111) 552 (SC), Ojokolobo v. Alamu (1987) 3 NWLR (pt. 61) 377 (SC), FRN v. Ifegwu (2003) FWLR (pt. 167) 703 (SC), Onwudiwe v. FRN (2006) 4 SC (pt. II) 70, (2006) 10 NWLR (pt. 988) 382 at 428 Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172 (SC), Manomi v. Dakat (2022) LPELR-57834 (SC). The law is also firmly settled that a Court cannot, either by mistake or misunderstanding, confer itself with statutory jurisdiction where it does not exist in a case and that parties too, cannot by agreement, acquiescence, waiver or condonation, vest a Court with such jurisdiction where it is absent, Hamzat v. Sanni (2015) 5 N WLR (pt. 1453) 486 (SC), Odom v. PDP (2015) 6 NWLR (pt. 1456) 527 (SC), Osi v. Accord Party (2017) 3 NWLR (pt. 1553) 387 (SC), Mainstreet Bank Capital Ltd. v. Nig. R.E (2018) 14 NWLR (pt. 1640) 423 (SC). – Per M. L. Garba, JSC

 

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JURISDICTION – THE SCOPE OF TERRITORIAL JURISDICTION OF THE FCT HIGH COURT – HOW JURISDICTION IS DETERMINED IN AN ACTION BASED ON CONTRACT – CONDUCT OF LAWYERS WHEN FILING CASES

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As demonstrated in the lead judgment, the FCT High Court lacks the statutory territorial jurisdiction to adjudicate over a contract entered into, executed and partly paid for by parties who resided in Port Harcourt, Rivers State, at the material time, which was/is a place outside the Federal Capital Territory for which it was established or created under Section 255(1) of the 1999 Constitution. The FCT is the territorial limit within which the trial FCT High Court is guaranteed in the exercise of the constitutional and other statutory jurisdiction vested or conferred on it.

The caution by Ogundare, JSC in the case of Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310, (2003) 42 WRN, 45, on the penchant for the FCT High Court to entertain and purport to adjudicate over matters or cases the facts of which arose outside the FCT is apt here. His Lordship had exhorted that:-

“I have taken pains to discuss this (sic) judgment on territorial jurisdiction of a Court in view of recent developments whereby litigants rather than suing in the proper Courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Capital Territory. Their Court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.”

In the latter case of Rivers State Government and A. G. Rivers State, (the Respondents in this appeal) v. Specialist Consult (Swedish Group) (2005) 7 NWLR (pt. 923) 145 at 171, Tobi, JSC restated the law on the jurisdiction in respect of actions based on contract, that:-

“In action based on contract, jurisdiction depends generally on one of the following three alternatives, namely:

(a) where the contract was made;

(b) where the contract ought to have been performed; or

(c) where the defendant or one of the defendants resides.

There is also another settled procedure and it is this, the venue for the trial of a suit based on a breach of contract could also be determined by

(a) where the contract ought to have been performed; or

(b) where the defendant resides; or

(c) Where the defendant carries on business.”

Admittedly, all these elements of the contract upon which the suit of the appellant was filed before the FCT High Court occurred or happened outside the FCT to clearly deprive the trial Court of the territorial jurisdiction to adjudicate over the same.

Hon. Justice Kekere-Ekun, JSC, in the case of Mailantarki v. Tongo (2018) 6 NWLR (pt. 1614) 69, had described the practice of legal practitioners’ filing cases, even in the clearest and most inappropriate circumstances, at the FCT High Court when that Court lacks the requisite jurisdiction to adjudicate over such cases, thus:-

“The cause of action, which is the Primary Election of the 2nd respondent, took place in Gombe State. The Appeal Committee also sat in Gombe State. There is, therefore, no justification for the institution of the suit before the High Court of the FCT in Abuja. The filing of the suit before that Court is a clear example of “forum shopping” in the hope of securing a favourable outcome. This practice has been seriously deprecated in numerous decisions of this Court; the practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner, who filed the suit.”

His Lordship re-affirmed the scope of the territorial jurisdiction of the FCT High Court in the recent case of Audu v. APC (2019) 17 NWLR (pt. 1702) 379 at 400, that:-

“The decisions of this Court in Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310 and Mailantarki v. Tongo and Ors. (2018) 6 NWLR (pt. 1614) 69, extensively referred to in the lead judgment, have fully explained the scope of the territorial jurisdiction of the High Court of the Federal Capital Territory. It is confined and limited to the jurisdiction conferred on it by the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended. As I observed in Mailantarki v. Tongo (supra), Section 255(1) of the Constitution provides for the establishment of the High Court of the Federal Capital Territory, Abuja, while Section 270(1) provides for the establishment of a High Court for each state of the Federation. Each State High Court and the High Court of the FCT can only exercise jurisdiction in respect of matters within their territorial (or geographical) jurisdiction. See Rivers State Government v. Specialist Konsult (2005) 7 NWLR (pt. 923) 145.” – Per M. L. Garba, JSC

 

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TERRITORIAL JURISDICTION – MEANING OF TERRITORIAL JURISDICTION

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Territorial jurisdiction refers to the power or authority of a Court to adjudicate over matters which occur or arise within a territory or geographical area. See VEEPEE IND. LTD. V. O.F. (NIG.) LTD. (2023) 9 NWLR (PT. 1889) 279; AUDU V. APC & ORS (2019) LPELR – 48134 (SC); RODA V. F.R.N. (2015) 10 NWLR (PT. 1468) 427; DARIYE V. FRN (2015) LPELR – 24398 (SC). – Per Adamu Jauro, JSC

 

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JURISDICTION – THE JURISDICTION OF THE HIGH COURT OF FCT

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Some relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to the jurisdiction of the High Court of the FCT….

…Section 6(2)… Section 6(5)(d)… Section 255(1)… Section 257… Section 299…

The import of the foregoing provisions is that the jurisdiction of the High Court of the FCT does not extend beyond the geographical boundaries of the Federal Capital Territory, Abuja. Particularly, by virtue of Section 299 of the Constitution, the FCT High Court is no different from a State High Court serving the FCT. Thus, like the High Courts of the States of the Federation, the jurisdiction of the High Court of the FCT does not extend to matters arising outside the FCT. See AUDU V. A.P.C. (2019) 17 NWLR (PT. 1702) 379; MAILANTARKI V. TONGO (2018) 6 NWLR (PT. 1614) 69. – Per Adamu Jauro, JSC

 

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NEGOTIATION – MEANING OF NEGOTIATION – WHETHER NEGOTIATION AMOUNTS TO ENTERING INTO AN AGREEMENT

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Negotiation does not imply entering into an agreement or a contract. Negotiation is at best a precursor or prelude to reaching an agreement. There may well be negotiation which does not germinate into a contract or agreement as a result of the inability to reach a compromise. – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Federal Capital Territory, Abuja High Court Rules

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