EMEKA O. KANU v. SWEET ASUZU & ANOR

CORAM

PARTIES

EMEKA O. KANU APPELLANTS

1. SWEET ASUZU2. NIGERIA RAILWAY CORPORATION RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant as Plaintiff, issued a Writ of Summons at the Abia State High Court, Aba Division, claiming against the Respondents for “a declaration that the Temporary Occupancy Licence dated 13/9/93 granted to the Plaintiff’s predecessor-in-title and acquired by the Plaintiff by a Transfer receipt dated 10th November, 1993, is valid and subsisting and has not been revoked; a declaration that the Plaintiff is to the exclusion of every other person the Lawful Licensee of that piece or parcel of Land situate at Aba Railway Station measuring 55M x 33M and more particularly shown on Plan No. EB 884 attached to a TOL dated to the Plaintiff’s predecessor-in-title Mr. James N. Chigbundu; an Order of perpetual Injunction restraining the Defendants, their Servants, Workers, Privies and Agents from further trespassing on the Plaintiff’s Land; N100,000,000.00 (One Hundred Million Naira) as general damages against the Defendants for their acts of trespass on the Plaintiff’s Land.” The 1st Respondent as 1st Defendant at the trial court, by a Motion on Notice sought for an order dismissing or striking out this Suit for want of jurisdiction in that the proper defendants are not before the Court; an Order dismissing this suit for want of party jurisdiction, the 2nd Defendant being an agency of the Federal Government of Nigeria; and or an Order striking out the names of the Defendants as been improperly joined.” The application was duly heard and the Learned Trial Judge held that the 2nd Defendant was an agency of the Federal Government and that it had no jurisdiction to entertain any suit in which it was a party. The suit was accordingly struck out. Aggrieved by the decision of the Learned Trial Judge, the Appellant lodged this appeal.

HELD

Appeal Dismissed.

ISSUES

Whether the trial court was right, when it held that the high court of Abia State lacked jurisdiction to hear and determine land matters where a federal government agency is a party to the suit?

RATIONES DECIDENDI

ISSUE OF JURISDICTION – EFFECT THEREOF WHEN A COURT HAS NO JURISDICTION TO ADJUDICATE A MATTER

“The Law is firmly settled that issue of jurisdiction is very fundamental to adjudication because if a Court has no jurisdiction to adjudicate or entertain a matter the proceeding will be null and void and of no effect ab initio.”

JURISDICTION –FUNDAMENTAL NATURE OF JURISDICTION

“In the case of Afro Continental (Nig.) Ltd. & Aroor V. Cooperative Association Of Professional Inc. (2003) 5 NWLR (PART 813) 303 at 318 G – H to 319A KALGO, JSC had this to say:-
‘It is well settled that jurisdiction is the body and Soul of every judicial proceedings before any Court or tribunal and without it all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a case.”
And in the recent case of Economic And Financial Crimes Commission & Ors. V. Philip Odigie (2013) 17 NWLR (PART 1384) 607 at 622 G – H to 623 A – B this Court PER YAKUBU, JCA, said thus:
“The Paramount and quintessence of jurisdiction in an action in Court for adjudication is aptly captured, in the judicial words on marble by my Lord Bello, CJN (now of blessed memory) that jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction; the action will be like animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise ……….. Therefore, jurisdiction is the green light that gives the Court, the authority to proceed with consideration and determination of the matter placed before it for adjudication.”

JURISDICTION OF COURT – DUTY OF COURT WHEN FACED WITH AN ISSUE OF JURISDICTION

“When jurisdiction of a Court is challenged therefore, the issue must be promptly attended to by the Court seised of the matter so as to settle it one way or another.”

JURISDICTION – DETERMINANT OF THE JURISDICTION OF COURT

“In order to decipher or determine which of the two Courts has or is endowed with jurisdiction recourse must be had to the endorsement on the Writ of Summons and the Statement of Claim. See 1. PDP Vs. Timipre Sylva & Ors. (2012) 13 NWLR (PART 1316) 85 at 127 E – F Per RHODES – VIVOUR, JSC who held that:-
‘Jurisdiction of a Court to entertain a Suit is resolved by scrupulous examination of the Writ of Summons, the Statement of Claim and the reliefs claimed. No other document should be examined.’
2. Dr. Taiwo Oloruntoba-Oju & Ors. Vs. Pro. P.A. Dopamu & Ors. (2008) NWLR (PART 1085) 1 at 22H to 23 A per OGUNTADE, JSC.”

CANON OF INTERPRETATION OF A CONSTITUTION OR STATUTE – MODE OF INTERPRETING THE PROVISIONS OF A CONSTITUTION OR STATUTE

“Now, it has long been settled that the provisions of Constitution or of statute must be construed literally by giving the words in such Constitution or statute their ordinary grammatical meanings. Adjunct to this is that in ascertaining the real or true meaning or import of the provisions being construed or interpreted, the provisions of the Constitution or statute must be construed as a whole. See the case of Jolly Jevoru Nyame Vs. F.R.N. (2010) 7 NWLR (PART 193) 344 at 399 C – H Per ADEKEYE, JSC who held:-
‘In the interpretation of the provision of a statute or the Constitution where the language used is plain and unambiguous effect must of necessity be given to its plain and ordinary meaning. It is that clear and unambiguous language that best conveys the intention of the lawmaker. The lawmaker must be taken to have intended the meaning expressed in such clear and unambiguous language and the Court will not be at liberty to go outside the very provision in an attempt to ascertain the intendment and purpose of the provision. The obvious duty of the Court in such a situation therefore is not the determination of what the lawmaker meant, but the meaning of the plain language used which best expresses his intention. Sections 257(1) and (2) of the 1999 Constitution and Section (4) of the Penal Code are both written in ordinary plain language which according to the literal approach best represent the intention of the lawmakers. Furthermore, it is the general principle of law governing the interpretation of our Constitution that it should be given an interpretation which would serve the interest of the Constitution and carry out its object and purpose. Its relevant provisions must be read together and not disjoint and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. Effect should be given to every word.’ –

JURISDICTION OF COURT – SOURCES OF THE JURISDICTION OF COURT

“It must be borne in mind that Courts are a creation of the Constitution or a statute. It is such constitution or the statute that must be scrutinized or examined to discover the scope and extent of jurisdiction committed to each of the Courts. See Nyame V. FRN SUPRA PAGE 393 G – H per ADEKEYE, JSC who also said::-
‘Courts are creature of the Constitution, Decrees, Acts, laws and Edicts and they cloak the Courts with the Powers and jurisdiction of adjudication. If the Constitution, Decrees Acts Laws and Edicts do not grant jurisdiction to a Court or tribunal, the Court and parties cannot by agreement endow it with jurisdiction. The jurisdiction is defined as the authority of a Court to exercise judicial power which is the totality of the powers a Court exercises when it assumes jurisdiction and hear a case.”

JURISDICTION – DETERMINATION OF THE JURISDICTION OF COURT

“It must be borne in mind that Courts are a creation of the Constitution or a statute. It is such constitution or the statute that must be scrutinized or examined to discover the scope and extent of jurisdiction committed to each of the Courts. See Nyame V. FRN SUPRA PAGE 393 G – H per ADEKEYE, JSC who also said::-
‘Courts are creature of the Constitution, Decrees, Acts, laws and Edicts and they cloak the Courts with the Powers and jurisdiction of adjudication. If the Constitution, Decrees Acts Laws and Edicts do not grant jurisdiction to a Court or tribunal, the Court and parties cannot by agreement endow it with jurisdiction. The jurisdiction is defined as the authority of a Court to exercise judicial power which is the totality of the powers a Court exercises when it assumes jurisdiction and hear a case.
“A Court is competent to entertain a case when
(a) it is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another and
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 it jurisdiction and
c. The case comes before the Court initiated by due process of law and upon condition precedent to the exercise of jurisdiction Madukolu Vs. Nkedilim (1962) 2 SCNLR Pg. 34; Oloviode Vs. Oyebi (1984) 5 SC”

EXCLUSIVE JURISDICTION OF THE FEDERAL HIGHT COURT – INTERPRETATION OF SECTION 230(1)(S) OF THE 1979 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“In the case of NEPA VS. Mrs. B. Edegbero & Ors. (2002) 18 NWLR (PART 798) 79 at 95 – 97 the Supreme Court of Nigeria per OGUNDARE, JSC, held thus:-
“It is not in dispute that the defendant-NEPA-is a Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of the plaintiffs and others. In the light of all these, therefore, the action on hand came squarely within the provision of Section 230(1) (s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have myself read the proviso to paragraphs (q), (r) and (s) of sub-section (1) of Section 230 all over again: I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial Judge, with profound respect, appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso.
Their Lordships of the Court of Appeal were equally in error to affirm the decision of the Learned trial Judge. They based their own conclusion on the cases Nigerian Deposit Insurance Corporation (Liquidator of United Commercial Bank Ltd.) V. Federal Mortgage Bank of Nigeria Ltd. (1997) 2 NWLR 735 at 756; Ona V. Atanda (2000) 5 NWLR 244 and Egbuonu V. Borno Radio (1997) 12 SCNJ 99; (1997) 12 NWLR 29. With profound respect to their Lordships of the Court below they wrongly applied these cases to the matter before them in the Federal Mortgage Bank case what came up for decision is the interpretation of the proviso to paragraph (d) of Section 230(1) of the 1979 Constitution. That paragraph read:
b. banking, banks, other financial institutions, including any action between bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory note 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;.’-

JURISDICTION OF THE FEDERAL HIGH COURT – CIRCUMSTANCES WHEN THE FEDERAL HIGH COURT MAY ASSUME JURISDICTION OVER A SUBJECT MATTER

“For the Federal High Court to have jurisdiction under section 230 of the 1979 Constitution or Section 251 of the 1999 Constitution the following must co-exist.
(a) The parties, or a party must be the Federal Government or its agencies;
(b) Subject matter of the litigation.
That is to say jurisdiction is the combination of parties and subject matter. The words used in this piece of legislation are plain as plain can be and have been interpreted by this Court on several occasions. See: N.E.P.A. V. Edegbero (2002) 18 NWLR (PT. 798) P. 79; Oloruntoba-Oju V. Abdul-Raheem & 3 Ors. (2009) 5 – 6 SC (PT. 11) P.57; (2009) 13 NWLR (PT. 1157) 83.”

JURISDICTION OF THE FEDERAL HIGH COURT – DETERMINATION OF THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT

“See also Dr. Oju Taiwo Oloruntoba & Ors. Vs. Professor S. O. Abdul-Raheem & Ors. (2009) 5 MJSC (Pt.11) 1 at 35 A – C where the Supreme Court said:-
‘In the determination of the exclusive jurisdiction of the Federal High Court in respect of Section 251(1) of the Constitution, the Court must carefully examine the facts of the case to see whether they justify the application of that section. In the case of Trade Bank Plc. V. Benilux (Nigeria) Ltd. (2003) 9 NWLR Pt. 825 page 416, the Supreme Court held that “It is only on careful examination of the pleadings filed by the parties in a cause or matter namely the statement of claim not the defence that the Court can ascertain whether or not the Federal High Court have exclusive jurisdiction pursuant to Section 251(1) (p)(q)(r) of the 1999 Constitution”
Section 251(1)(p)(q) and (r) of the 1999 Constitution provides that:-
‘Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by the Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause or matter relating to:
(p) The administrative or the management and control of the Federal Government or any of its agencies.
(q) Subject to the provision 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 proceeds 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.
The community reading of the foregoing provision reproduced above is that the Federal High Court is vested with the power to enter into adjudication of any action or proceedings seeking declaratory or Injunctive Reliefs which is the fulcrum of the cause of action of the Appellants.
Section 251(1) creates a situation whereupon by party jurisdiction-one of the parties must be a Federal Government Agency and by subject-matter jurisdiction it must be an action or proceedings 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.” (Underlined mine)”

JURISDICTION OF THE FEDERAL HIGH COURT – EXCLUSIVE NATURE OF THE JURISDICTION OF THE FEDERAL HIGH COURT

“It is also no longer in doubt that the Supreme Court has fully reaffirmed and reiterated its decision in NEPA VS. Edegbero Supra that any action or Suit having the Federal Government or any of its agencies as defendant or parties will deprive the State High Court of Jurisdiction. Only the Federal High Court shall have exclusive jurisdiction in such matter irrespective of the subject matter of the action. See the case of Benson Agbule Vs. Warri Refinery & Petrochemical Co. Ltd. (2013) 6 NWLR (PART 1350) 318 delivered on 14th December, 2012 where at page 348 F – H per OGUNBIYI, JSC who said:-
‘On a gruesome and careful determination of the case NEPA V. Edegbero (2003) 1 MJSC 69; (2002) 18 NWLR (pt. 798) 79, this Court per Ogundare, JSC while interpreting the Constitutional enactment as provided in paragraphs (q), (r) and (s) of section 230 (1), held the following pronouncement at pages 80 – 81 of the report and said:-
“From what I have said earlier in this judgment the aim of paragraphs (q), (r) and (s) of sub section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party. A State High Court would not long have jurisdiction in such matters notwithstanding the nature of the claim in the action”
And at pages 351 H to 352 A – E his Lordship of the Supreme Court held reiterating decision in Edegbero’s case thus:
“The principle in the case of NEPA V. Edegbero has also been applied with affirmative approval in the later case of Olutola V. University of IIorin (2005) 3 MJSC 151 at Pp. 173 – 174; (2004) 18 NWLR (pt. 905) 416 wherein this court per Ejiwunmi, J.S.C. held and said:-
“In the case at hand, it is not in doubt that Decree No. 107 of 1993 had removed the jurisdiction of State High Courts to hear and determine causes and matters including declaratory actions against the Federal Government or its agencies.”
From the foregoing conclusion, the questions as to parties and subject matter are seen to be of paramount significance. With the question of parties having been settled therefore the subject matter of consideration does not in my view also pose any difficulty especially having regard to the reliefs sought by the appellant which same are also similar to the ones claimed by the respondents in the case of NEPA V. Edegbero (Supra). It has been clearly pronounced by this court per Ogundare, JSC in the same case as stated supra that the aim of sub paragraphs (q), (r) and (s) to section 230 (1) of the 1979 Constitution as amended by Decree No. 107 of 1993 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any it its agencies was a party; the consequential effect is that the State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.” (Underlined mine).
It must be noted that CHUKWUMA -ENEH JSC who was on the Panel express misgiving or hardship the decision may pose in Land matters but his Lordship agreed with the leading judgment. His Lordship pondered and said on page 357 E – F of the report thus:
“The cited case has held that section 230(1) paragraphs (q) (r) and (s) has vested exclusive jurisdiction in the Federal High Court in matters involving the Federal Government and its agencies. Unarguably the respondent defendant is an agency of the Federal Government. The difficulty with this decision is that it has not given due consideration to the nature of the subject -matter of a case as exemplified in Land cases between individuals and agencies of the Federal Government. And in that regard it has raised more difficult problems for the Courts vis-a-vis when a Court is competent to deal with a matter as expounded in Madukolu v. Nkemdilims (1962) 1 ANLR 587; (1962) 2 SCNLR 341.”
ALAGOA, JSC reaffirmed the settled position reached in NEPA v. Edegbero Supra. Thus;
“The question having now been settled that the 2nd Respondent Otibhor Okhae Teaching Hospital Irrua is an agency of the Federal Government, the next relevant question is whether the Appellant’s claim relates to the administration or management and control of the 2nd Respondent. Paragraph 25 of the Statement of Claim is a claim in aggravated and/or exemplary damages for defamation, negligence and breach of Doctor/Patient Confidence which undoubtedly relates to the administration or management of the Oribhor Okhae Teaching Hospital, Irrua sued as the 2nd defendant in the Trial Court and is 2nd Respondent in this appeal and in the Lower Court. The effect of paragraphs (p), (q) and (r) of Section 251 “(1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See the Federal Government or any of its agencies is a party. See NEPA V. Edegbero (2002) 103 LRCN 2280 AT 2281 – 2282. The proviso to section 251 (1) of the 1999 Constitution does not in any way detract from the exclusive jurisdiction conferred on the Federal High Court by virtue of Section 251 (1) (p) and (r). Consequently the proviso cannot apply.
From the foregoing, the sole issue for determination must be resolved in favour of the Respondents against the Appellant and it is hereby so resolved. The Appeal lacks merit and is hereby dismissed. The Judgment of the Court of Appeal Benin Division delivered on the 27th February, 2004 upholding the ruling of Amaize J. of the Ekpoma High Court, Edo State delivered on the 13th May, 2002 is hereby affirmed. Parties are however to bear their own costs”.
(Underlined mine)
In his own Judgment in the said case my Noble Lord who presided over the matter, I. T. Muhammad, JSC held on page 227 C – E put it in the following pungent manner viz:
“I have had the privilege of reading in draft the judgment just delivered by my learned brother, Alagoa, JSC. I am in agreement with him that the trial court lacked jurisdiction to entertain the matter as one of the parties that is, the 2nd Respondent is an Agency of the Federal Government. The law is unequivocally stated by the 1999 Constitution (as amended) in section 251 (1) (p), (q), (r) and by this Court that where in matter, one of the parties is the Federal Government or any of its Agencies, it is only the Federal High Court that has exclusive jurisdiction. A State High Court lacks jurisdiction to entertain such a matter.
See National Electric Power Authority V. Edegbero 1 2002 118 NWLR (PART 789) 79.”
(Underlined mine)
The settled position of the Law is that where there are two conflicting decisions of the Supreme Court the Lower Court or Courts is or are bound by the latter decision and must follow it.
See: Cyril O. Osakue Vs. Federal College Of Education (Technical Asaba & Ors. (2010) 5 SCM 185 at 203 B – F per OGBUAGU JSC who said:
“The amendment on section 230 of the 1979 Constitution, conferred additional jurisdiction on the Federal High Court which is exclusive to it hence by the opening words in section 230(1), it states or uses the words.
“notwithstanding anything to the contrary contained in this Constitution 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 or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising.”
This is in spite of the proviso thereto. In other words, the aim of paragraphs (1), (r) and (s) of sub-section (1) of section 230, was to vest exclusive jurisdiction in the Federal High Court in matters, notwithstanding the nature of the claim in the action. While paragraph(s) talks of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance.
It is now settled that where there are two conflicting judgments of this court, the lower court or courts, is or are bound by the latter decision and must follow and apply it. See the case of Chief Okpozo V. Bendel Newspaper Corporation & Anor. (1990) 5 NWLR (PT. 153) 652 @ 661, 663 C.A.
As for hierarchy of the courts, it is now settled that the ratio decidendi of a case, is the reason for the decision, the principle of the decision.  A court lower in the judicial hierarchy is bound by the ratio decidendi of a higher court not necessarily the Obiter dictum.”

CASES CITED

Not Available

STATUTES REFERRED TO

Central Bank of Nigeria Act|Constitution of the Federal Republic of Nigeria 1979, Decree No. 107 of 1993|Constitution of the Federal Republic of Nigeria 1999|Land Use Act|

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