CORAM
PARTIES
SOCIO-POLITICAL RESEARCH DEVELOPMENT
1. MINISTRY OF FEDERAL CAPITAL TERRITORY
2. HAJIYA MAIMUNA BELLO AJANAH
3. HAJIA HADIZA ABDULLAHI
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant before the High Court of the Federal Capital Territory, Abuja took out a writ of summons filed along with it a statement of claim against the Respondents. Several applications filed by the Respondents in the matter were heard and refused. The judge before whom they commenced trial retired and it was consequently re-assigned to another judge before whom a motion for stay of proceedings was granted pending appeal. The Respondents alleged that the Appellant, without any notice to them, moved the trial Court to discharge the order of stay of proceedings earlier granted by the same Court when they were served with notice of motion for judgment filed by the Appellant. The Respondents filed a motion for the stay of proceedings and a motion for preliminary objection to the Appellant’s motion for judgment. The trial Court refused both applications, which were struck out. What was then left before the trial Court was the Appellant’s motion for judgment and counter affidavit of the Respondents. The Respondents meanwhile, had filed an interlocutory appeal entered by the Court below as No.CA/A/32/2002. The trial Court overruled the objection of the Respondents and entered judgment for the Appellant based on the motion for judgment. The Respondents were dissatisfied and filed their appeal to the Court below praying that Court to strike out the interlocutory appeal No.CA/A/32/2003 on the ground that it was similar to the substantive appeal filed. From the records, both parties pursued to its logical conclusion, appeal No. CA/A/113/2004 where the Court below held that the Respondents were agencies or agents of the Federal Government and as such the FCT High Court had no jurisdiction to entertain the Appellant’s action despite the fact that its claim was based on a simple contract. That is the basis of the Appellant’s appeal to this Court.
HELD
Appeal Dismissed
ISSUES
1. Whether it is proper for the respondents to maintain Appeals No.CA/A/32/2002, CA/A/113/2003 and CA/A/113/2004 before the Lower Court or neglect to serve their Notice of Appeal, Record of Proceedings and appellant’s brief in Appeal No. CA/A/113/2004 on the appellant?
2. Whether the 1st respondent is indeed an agency of the Federal Government. Whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government?
3. Whether the respondents validly raised ground 2 of their grounds of appeal which challenges the legal personality of the appellant?
RATIONES DECIDENDI
NOTICE OF APPEAL – WHETHER THE FILING OF MORE THAN ONE NOTICE OF APPEAL AFFECTS THE VALIDITY OF THE APPEAL
“Further, granted that there were more than one appeal filed by an appellant, this Court, in several decisions, remains constant that the filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal. See the decisions of Sowemimo, JSC, as he then was and Obaseki, JSC; in Iteshi v. The State (1975) 9 – 11 SC 41; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710. –
DOCTRINE OF WAIVER – ELEMENTS AND EFFECT OF THE DOCTRINE OF WAIVER
“It is thus, clear that the appellant/respondent had effectively taken all the necessary steps that led to the subject matter of this appeal consequent upon that the appellant is estopped and has waived any right to complain, as one cannot eat one’s cake and have it, or as one cannot, at the same time, approbate and reprobate. The doctrine of waiver postulates an abandonment of a right. Two elements for waiver to work need to co-exist; firstly, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver, and in this situation the complaint of the appellant on the multiplicity of appeals before the Court below; secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognising the act or omission. It has been established in this appeal that the appellant adopted all the issues formulated by the respondents as appellants at the Court below. He argued those issues before the said Court and that Court, accordingly, entered its judgment. Can the appellant, then be heard to complain? I do not think so. He who comes to equity must come with clean hands. –
JURISDICTION OF A COURT – DETERMINATION OF THE JURISDICTION OF A COURT
“My lords, I think the first thing we need to settle in this appeal is the barometers or determinants of jurisdiction of a Court. There are several decided authorities which lay the principle that the jurisdiction of a Court is determined by the nature of the plaintiff’s claim placed before it as indorsed in the writ of summons. See: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Tolarin&Ors v. Akinnola (1994) 4 SCNJ, 30, Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Co. (2001) KLR (Pt.77) 331; A.G Abia State v. A-G Federation (2003) 4 NWLR (Pt.809) 138; Onuorah v. KRPC Ltd. (2005) 21 NSCQR 130. (2005) 6 NWLR (Pt.921) 393)”. –
JURISDICTION OF THE FEDERAL HIGH COURT – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN CLAIMS BASED ON SIMPLE CONTRACT
“By the nature of the claim therefore, a State High Court and an FCT High Court are vested with general jurisdiction to entertain disputes on simple contract which is not covered by the provision of Section 251 of the Constitution. In the appeal on hand, the plaintiff/appellant’s claim as per its statement of claim has thus, nothing to do with the administration or management of the respondents who are said to be the Ministry, Federal Capital Territory and a Director and Acting Deputy Director with FCT Women Affairs and Social Development Department. In 2005, this Court, in the case of Felix Onuorah (Trading under the name & style of Ikechi Supermarket & Trading Co.) v. Kaduna Refining & Petro-Chemical Co. Ltd. (A subsidiary of Nigerian National Petroleum Corporation), clarified the issue on when the Federal High Court, could exercise its exclusive jurisdiction and when it loses that exclusivity in favour of State High Courts and the High Court of the Federal Capital Territory. The case is reported as: Onuorah v. K. R. P.C. Ltd. (2005) 6 NWLR (Pt.921) 393. This is a case where 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. But 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 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.
JURISDICTION OF THE FEDERAL HIGH COURT – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN CLAIMS BASED ON SIMPLE CONTRACT
“On the other hand, it was contended on behalf of the respondent that the trial Court lacked jurisdiction to entertain the appellant’s suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The unanimous decision of this Court, per Akintan, JSC, now (rtd.) stated, inter alia:
“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly show 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 High 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. v. Abiola& Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 andTrade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt 825) 416 at 430 & 431.
The question whether the respondent is a subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the Court is being made. This is because, as already stated above, the determining factor the Court, which in this case, is one founded on breach of contract.”
Thus by virtue of Section 251(p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or management and control of the Federal Government or any of its agencies. In the appeal on hand, the appellant’s claim as stated earlier, does not fall within the ambit of Section 251(p) of the 1999 Constitution. Further, the issue which was over-flogged by the learned counsel for the respective parties, on whether Ministry of the Federal Capital Territory or the Minister of the Federal Capital Territory are agencies or agents of the Federal Government is immaterial in this case as the focal point is on the claim of the appellant as indorsed in its writ of summons and statement of claim. Just a year after Onuorah’s case (supra), this Court, again, re-stated its position in Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at p.52, it was held as follows:
“The provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 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.”
Further, I am in agreement with my learned brother, Galinje, JSC, where he commented in the case of Roe Limited V. University Of Nigeria Appeal No.SC.42/2007, delivered on the 12th day of January, 2018, (unreported) as follows:
“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 action is based on any enactment, law or equity.”
There is not any scintilla of doubt therefore, that since the claim of the plaintiff/appellant is based on simple contract, breach of which would involve damages, the High Court of the Federal Capital Territory and not the Federal High Court is the appropriate Court for the settlement of such disputes. –
LEGAL PERSONALITY – PERSONS COMPETENT TO SUE AND BE SUED
“A plaintiff is said to be the party who brings a civil suit in a Court of law. And a party who commences an action in Court must be a person known to law, that is, a natural or an artificial person, given legal personality by statute. See; Alhaji Mailafia Trading and Transport Company Ltd v. Veritas Insurance Company Ltd. (1986) 4 (Pt.38) 802. It means that no action can be brought or commenced by or against any party other than a natural person or body of persons, unless such a party has been given by statute expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by the name, See Knight and Searle vs. Dove (1964) 2 All ER 307; Administrator Estate of General Sanni Abacha v. Eke-Spiff &Ors (2009) 3 SCM 1; (2009) NWLR (Pt.1133) 92. –
CORPORATE PERSONALITY – MODE OF PROVING A PARTY’S CORPORATE PERSONALITY
“It is clear that the respondents had challenged personality of the appellant and it is certainly a procedural requirement that whenever issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such evidence, the issue must necessarily be resolved against the party. However, the nature of the evidence that will suffice as to whether in oral or documentary, may well depend on the issue in question and the requirement of the law, See African Continental Bank Plc & Anor v. Emostrade Ltd (2002) 7 SCM 7 where the Court held that where the issue of corporate personality of a company is put in issue, only the certificate of Incorporation will suffice as proof.
In Bank of Baroda v. Iyalabani Company Limited (2002) 12 SCM 7 this Court opined as follows: –
It is not sufficient for a plaintiff being a Corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “LIMITED” or “PLC”. That status which it is claiming for itself has to be proved, except it is admitted by the opposing party by tendering its Certificate of Incorporation or such other evidence as would prove its juristic personality.”
See: also Reptico S. A. Geneva vs. Afribank Nigeria Plc (2013) 9 SCM 85; (2013) 14 NWLR (Pt.13730 172; (2013) All FWLR (Pt.702) 1652; (2013) 5 SCNJ 479; (2013) 54 NSCQR 600. –
JURISDICTION – APPROPRIATE COURT TO SETTLE A DISPUTE ON BREACH OF SIMPLE CONTRACT
“I am in complete agreement with the stated position of the law that where the claim of the plaintiff is based on simple contract and its breach attracts the award of damages against a defendant which is an agency of the Federal Government, the High Court of the Federal Capital Territory or a State High Court will be the appropriate Court to settle such a dispute and not the Federal High Court. See: the proviso to Section 251(1) of 1999 Constitution as amended. See also: Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt.921) 393. –
LEGAL PERSONALITY – WHEN IS LEGAL PERSONALITY ACQUIRED?
“Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand, the capacity to sue and be sued is not thereby given by a mere recognition or acceptance of its existence, only the law confers that attribute or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. See: Lion of Africa Insurance Plc v. Esan supra at page 201; Peat Marwick Ani Ogun & Co. v. Okike (1995) 1 NWLR (Pt.369) 71. –
JURISTIC PERSONALITY – IMPLICATION OF WHEN THE LEGAL CAPACITY OF A PARTY IS BEING QUESTIONED
“The juristic personality of a plaintiff is sine qua non to the plaintiff’s capacity to institute and maintain a legal action in Court See: Madukolu v. Nkemdilim (1962) Vol.ANLR (Pt.2) 581. Where the legal capacity of the plaintiff is being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate Court. See: Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622; Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259. Once the juristic personality of an artificial person is raised, the party in question can discharge the burden only by producing the certificate of Incorporation. See: Ataguba& Company v. Gura Nigeria Limited (2005) 6 NWLR (Pt. 927) 429. –
JURISDICTION OF THE FEDERAL HIGH COURT – THE FEDERAL HIGH COURT LACKS JURISDICTION TO ENTERTAIN CLAIMS BASED ON SIMPLE CONTRACT
“Yes, the issue of whether the FCT High Court had jurisdiction to entertain the Appellant’s action has to be resolved in its favour, because its Suit was based on a simple contract, and it is settled that the Federal High Court is not the appropriate Court to hear it – Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt.921) 393.-
COURT- DISTINCTION BETWEEN JURISTIC PERSONALITY AND LOCUS STANDI
“It is an elementary principle that a Plaintiff must be accorded legal recognition before the question of standing to sue can arise. In other words, there is a distinction between juristic personality and locus standi, and the question of a Plaintiff’s legal personality to commence an action is not to be confused with the question of standing to sue. It is only a legal person; that is a person or body capable of suing or being sued that can possibly lack locus standi to bring or pursue particular actions. What this means is that the question of the existence of legal personality relates to the very existence of the Plaintiff, or the Defendant, as the case may be, whereas the question of locus relates to the existence of the right of the Plaintiff, a natural or artificial person to sue – see Bank of Baroda V. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt.785) 551 SC.
So, an association of persons, without incorporation, cannot be regarded as a legal person for the purposes of action in Court – see Fawehinmi V. NBA (No.2) (1989) 2 NWLR (Pt.105) 558 SC –
CASES CITED
Not Available
STATUTES REFERRED TO
Companies and Allied Matters Act
Constitution of the Federal Republic of Nigeria, 1999 (as amended)