CORAM

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IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT

KUMAI BAYANG AKA’AHS JUSTICE, SUPREME COURT

AMINA ADAMU AUGIE JUSTICE, SUPREME COURT

PAUL ADAMU GALINJE JUSTICE, SUPREME COURT

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PARTIES

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ROE LIMITED

APPELLANTS 

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UNIVERSITY OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, JURISDICTION, PRACTICE AND PROCEDURE, STATUTES, WORDS AND PHRASES

 

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SUMMARY OF FACTS

The Appellant a private limited liability Company with its head office at Lagos, Nigeria, instituted this suit against the Respondent for failure to pay the balance  of two million eight hundred and one thousand three hundred and three naira, nine kobo (N2,801,303.09) for contract awarded by the Respondent to computerize some of its departments. As a result of the Respondent’s refusal to pay the outstanding balance despite several demands, the Appellant took out a writ of summons at the Enugu State High Court, holden at Nsukka dated 16th of October, 2001 in which he claimed the following reliefs:-

” (a) The sum of N2,801,303.09 (Two Million Eight Hundred and One Thousand, Three Hundred and Three Naira, Nine Kobo) being the outstanding balance owed the plaintiff by the defendant for the contract performed for the defendant,

(b) 5 % interest on the judgment debt from the date of judgment until it is fully liquidated.”

This claim was accompanied by a 15 paragraphs affidavit in which the Appellant asked the court to place the suit on the undefended list because it was convinced that the Respondent had no defence to the suit. The writ of summons was served on the Appellant. Instead of filing a Notice of Intention to defend the suit, the Appellant filed a notice of preliminary objection in which it challenged the jurisdiction of the trial court.

The trial court upheld the preliminary objection on the ground that the action was statute barred and that the contract was a business between the Appellant and a Federal Government Agency which by Section 251 (1)(p)(q)(r) is justiciable only at the Federal High Court since such transaction comes within the term ‘administration’ or ‘management and control of a Federal Government Agency’. The Appellant’s suit was accordingly struck out.

Dissatisfied with the decision of the trial Court, the Appellant filed an appeal at the Court of Appeal which was unsuccessful as same was dismissed on the 30th of November, 2006.

Aggrieved further by the decision of the Court of Appeal, the Appellant lodged the instant appeal vide an Appellant’s Notice of Appeal (dated 4th January, 2007 and filed on the 5th January, 2007) and containing two grounds of appeal.

 

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HELD

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Appeal allowed.

 

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ISSUES

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1.Whether Section 251(1)(p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999 vests jurisdiction in the Federal High Court in matters pertaining to recovery of debt owed by the Federal Government or any of its agencies under a simple contract?
2.And or whether the decision in NEPA vs Edegbero & Ors (2002) 18 NWLR (Pt. 798) 79 is to the effect that once a Federal Government Agency is a party in a suit, the State High Court has no jurisdiction to entertain the suit?

3. Whether the Respondent can validly for the first time without leave of court raise on appeal the Public Officers Protection Act?

4. And or whether the Public Officers Protection Act applies to breaches of contract?

 

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION- WHETHER A GROUND OF APPEAL CAN SUPPORT MORE THAN AN ISSUE

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“This court has in a number of decided cases deprecated the rather increasing habit of some counsel who appear before it of showing very little care in the way and manner papers relating to appeals are drafted. The pronouncement of this court on proliferation of issues are made to guide counsel in the way and manner issues for determination of appeal are to be drafted. Several years after the introduction of brief writing, some counsel have shown little interest in learning from the decisions of the courts how issues are to be drafted. No wonder therefore, learned counsel for the Respondent found it difficult to tie the four issues to the grounds of appeal. The rule is that an issue can be tied to several grounds of appeal, but a ground of appeal cannot support more than one issue. Where issues framed by either Appellant or Respondent are in excess of the grounds of appeal, the issues in excess of the grounds of appeal which do not seem to arise from those grounds of appeal are liable to be struck out. See Ayangade vs O.A.U T.H. C.M.B (2001) 7 NWLR (Pt. 711) 187; Dung vs Gyang (1994) 8 NWLR (Pt. 362) 315; Labiyi vs Anretiola (1992) 8 NWLR (Pt. 258) 139.”– Per GALINJE, J.S.C.

 

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FEDERAL HIGH COURT-WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN A CLAIM FOR DEBT ARISING FROM A SIMPLE CONTRACT

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In the instant case the Appellant’s claim has nothing to do with administration or the management and control of the University of Nigeria, an agent of the Federal Government. It was a claim for debt arising from a simple contract which has been held in a myriad of decisions that the Federal High Court has no jurisdiction to entertain. In Onuorah vs KRPC (2005) 6 NWLR (Pt. 921)393, the Appellant entered into a contract to purchase specified number of empty tins from the Respondent at an agreed amount which he paid to the Respondent. Before delivery was made to the Appellant the Respondent increased the price of the tins and asked the Appellant to pay the difference between the old and the new prices. The Appellant refused and insisted that the Respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently, the Appellant filed an action at the Federal High Court in which he claimed:-

(a) An order of court declaring the purported price increase as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase.

(b) An order of specific performance directing the defendant to supply the plaintiff the remaining empty tins not later than 30 days from the date of judgment.

(c) N1,000,000 general damages.

The Federal High Court granted the first and 2nd reliefs. The Respondent appealed and raised the issue of jurisdiction for the first time at the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the Federal High Court had no jurisdiction and the suit was struck out. At the Supreme Court it was argued that the Respondent being a subsidiary of NNPC which in turn is an agent of the Federal Government, the trial Federal High Court had jurisdiction to entertain the Appellant’s claims. On the other hand, it was contended on behalf of the Respondent that the trial court lacked jurisdiction to entertain the Appellant’s claims because it was based on simple contract and that only a state High Court has jurisdiction to hear and determine the suit.

This court, per Akintan JSC held at page 405 paragraphs A – D as follows:-

“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State H/gh Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court that court therefore had no jurisdiction to entertain the appellant’s claim. The lower court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim.” See Seven-Up Bottling Co. Ltd vs Abiola & Sons Bottling Co. Ltd (20010) 13 NWLR (Pt.730) 469; Trade Bank Plc vs Benilux (Nig) Ltd (2003) 9 NWLR (Pt. 8251416 at 430 & 431

In Adelekan vs Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33 at 52, this court in a lead judgment delivered by Onnoghen JSC (as he then was) held:-

“The provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial court.”– Per GALINJE, J.S.C.

 

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JURISDICTION-HOW JURISDICTION OF A COURT IS DETERMINED

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“The law is very well settled beyond any argument that the jurisdiction of a court is determined by the nature of the claim before it. See Tukur vs Govt of Gongola State (1989) 4 NWLR (Pt. 17) 517.”– Per GALINJE, J.S.C.

 

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FEDERAL HIGH COURT-EXCLUSIVE JURISDICTION OF THE HIGH COURT

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“The Federal High Court is a special court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria and any other jurisdiction as may be conferred upon it by an Act of the National Assembly. A court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very clear and unambiguous import into them something which is not contained in them. Section 251, has clearly made provisions for action against Federal Government or any of its agencies in any other court in the Proviso after sub-paragraph(s) which reads thus:-

” 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 act/on is based on any enactment, law or equity.”– Per GALINJE, J.S.C.

 

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DOCTRINE OF STARE DECISIS-WHETHER COURTS ARE BOUND TO FOLLOW DECISIONS OF HIGHER COURTS THAT ARE RECENT

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“Under the doctrine of stare decisis, lower courts are bound to follow the decisions of higher courts, irrespective of whether those decisions are wrong. The doctrine is meant to achieve certainty and stability in the decision of the courts. However in doing so, the lower courts must not rely on previous decisions that have been overruled. The Supreme Court is the final court in the land. The justices of the court are not super human beings that are infallible. So where they err, they take liberty to correct. In the process some of the courts’ decisions are overruled. It is on this premise that the lower courts are enjoined to follow latter or latest decisions of this court. Even if the decisions in NEPA vs EDEGBERO (supra) and Onourah vs KRPC (supra) were founded on the same facts, the decision in Onuorah vs KRPC (supra) was latter in time and the lower court was bound to follow it. Its failure to do so found no justification in the doctrine of stare decisis, and I so hold. In Obiuweubi vs CBN (2011) 7 NWLR (Pt. 1247) 465 at 501 paras C – D, this court held:-

“S.P.D.C Nig Ltd vs Isaiah (supra) was decided in 2001 while O.HMB vs Garba (supra); Olutola vs Unilorin (surpa); Osakwe vs F.C.E (supra were decided in 2002, 2004 and 2010. The position of stare decisis is not for counsel to follow the decision he likes, but to follow the decision that is more recent.”– Per GALINJE, J.S.C.

 

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QUESTIONS NOT RAISED AT TRIAL COURT-WHETHER AN APPELLANT WILL BE ALLOWED TO RAISE ON APPEAL A QUESTION NOT RAISED OR TRIED BY THE TRIAL COURT

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The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court. But where the question sought to be raised involves substantial points of law, substantive or procedural and it is plain that no further evidence could be adduced in its support, the court will allow the question to be raised and the points taken in order to prevent an obvious miscarriage of justice. See Apane vs Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29; Shonekan vs Smith (1964) ALL NLR 168 at 173.”– Per GALINJE, J.S.C.

 

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INSTITUTING AN ACTION-EFFECT OF FAILURE TO INSTITUTE AN ACTION WITHIN THE STIPULATED TIME

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“The issue of whether or not an action is filed within the time stipulated by law goes to the jurisdiction of the court. Any omission to institute proceedings within the statutory time limit deprives the court of jurisdiction to hear and determine the matter.”– Per GALINJE, J.S.C.

 

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JURISDICTION- WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS

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“Jurisdiction being the soul of adjudication can be raised at any stage of proceedings, and even at the Supreme Court for the first time. In Isaac Gaji & Ors vs Emmanuel D. Paye (2003) 8 NWLR (Pt. 823) 583 at 599 – 600 paras H – A. where this court held:-

“The general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time”. See Obiakor vs The State (2002) 10 NLWR (Pt. 776) 612 at 626; UTB Ltd & Ors vs Dolmetsch Pharmacy Nig Ltd (2007) 6 SC (Pt.1)1.”– Per GALINJE, J.S.C.

 

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PUBLIC OFFICERS PROTECTION ACT- IF APPLICABLE TO CASES OF BREACH OF CONTRACT FOR WORK DONE OR RECOVERYOF DEBT

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“The lower court was therefore not wrong when it allowed the Respondent to raise for the first time on appeal the issue of Public Officers Protection Act. However I entirely agree with learned counsel for the Appellant that the Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt. This court in F.G.N vs Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162 at 196 held:-

“The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.” See N.P.A vs Construction (1974) 1 ALL NLR (Pt. 11) 463; Soule vs L.E.D.B (1965) L.L.R 118.1 entirely agree with the previous views of my brothers.”– Per GALINJE, J.S.C.

 

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CONCURRENT FINDINGS-ATTITUDE OF THE APEX COURT TO CURRENT FINDINGS OF LOWER COURTS

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“This appeal is against the concurrent findings of the High Court and the Court of Appeal. The attitude of this court is that it will not interfere with the concurrent findings of the High Court and the Court of Appeal unless there are special and exceptional reasons that warrant such interference. Such reasons could be that the findings of the two lower courts are either not supported by evidence or that the courts have drawn wrong conclusion from accepted or proved facts and by such conduct, their conclusion has led to a miscarriage of justice. In the instant case, there are sufficient reasons for interference by this court based on the resolution of the two issues submitted by the Appellant for determination of this appeal.”– Per GALINJE, J.S.C.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1979

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

Public Officers Protection Act Cap 379 Laws of the Federal Republic of Nigeria, 1990

 

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