HONOURABLE FAROUK LAWAN v. ZENON PETROLEUM & GAS LIMITED & ORS
(2014)LCN/7276(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of June, 2014
CA/A/89/2013
RATIO
WORDS AND PHRASES: JURISDICTION
Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Such authority is controlled or circumscribed by the statute which created the court or by condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 AND ALADEJOBI V. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (1376) 66, 81.
Where a court lacks Jurisdiction, the entire proceedings no matter how well conducted will amount to a nullity. Indeed, the only order open to a court that lacks jurisdiction over a matter is to strike out the matter or, where the rules of the court permits, transfer the case to the court with the requisite jurisdiction. See AMOBI V. NZEKWU (2014) NWLR (1392) 510,536 AND BELIEVERS FISHERIES DREDGING (NIG) LIMITED V. UTB TRUSTEES LIMITED (2010) 6 NWLR (1189) 85, 205. per JOSEPH E. EKANEM, J.C.A.
WHETHER A COURT CAN HEAR A CLAIM OUT OF THE AMBIT OF ITS JURISDICTION
Once the claims fail within the jurisdiction of the court (as donated by the enabling statute) as determined by the facts, the court is vested with jurisdiction. Once the reverse is the case, the court cannot assume Jurisdiction as it is not vested with it. See ODEYEMI V. OPAYORI (1976) 9 – 11 SC 31, IKINE V. EDJORODE (2001) 92 LRCN 3288, 3310, ABDULRAHMAN v. AKAR (2006) 13 NWLR (996) 127, 144, ONWUDIWE V. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (988) 382, 428, EMEKA v. OKADIGBO (2012) 18 NWLR (1331) 55, 89 AND EGBEDU V. INSPECTOR – GENERAL OF POLICE (2006) 5 NWLR (972) 146, 162. per JOSEPH E. EKANEM, J.C.A.
JUSTICE
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE – WILSON Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
HONOURABLE FAROUK LAWANAppellant(s)
AND
1. ZENON PETROLEUM & GAS LIMITED
2. MR FEMI OTEDOLA, CON
3. THE SPEAKER HOUSE OF REPRESENTATIVES OF THE NATIONAL ASSEMBLYRespondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of the Federal Capital Territory, Abuja Judicial Division (CORAM U. P. KEKEMEKE, J) in suit No. FCT/HC/CV/3839/2012 delivered on the 30th day of January, 2013. In the ruling, the High Court of the Federal Capital Territory (hereinafter referred to as “the lower court”) dismissed the preliminary objection of the appellant which sought a striking out or dismissal of the suit.
A summary of the facts forming the background of this appeal is as follows; by a resolution of the House of Representatives made on 8th January 2012, an ad – hoc committee of the said House was set up to verify and determine the actual subsidy requirement and monitor the implementation of the petroleum subsidy regime in Nigeria. The appellant was the head of the ad-hoc committee. The 2nd respondent (the Chairman of the 1st respondent) claimed that the appellant contacted him, informing him that the 1st respondent was going to be indicted by his committee for purchasing foreign exchange from the Central Bank of Nigeria without importing petroleum products unless the 1st and 2nd respondents paid a bribe of US $3, 000,000:00 (Three Million United States Dollars). Inspite of the 2nd respondent’s explanations, the appellant persisted in making calls to the 2nd respondent calculated to intimidate the 1st and 2nd respondents to meet his demand.
On the 18th day of April 2012, the appellant presented the report of his committee before the 3rd respondent indicting, inter alia, the 1st respondent. Following alleged continuous harassments by the appellant and on the advice of security agencies, the 1st and 2nd respondents variously handed over to the appellant and another person, marked currency notes totaling US$620,000 (Six Hundred and Twenty Thousand United States Dollars). After the name of the 1st respondent was said to have been de – listed from the list of indicted companies, the appellant allegedly persisted in making phone calls to the 1st and 2nd respondents for them to pay up the balance of the sum of money allegedly demanded. The 1st and 2nd respondents further alleged that the 3rd respondent and another person conspired to relist the 1st respondent with the aim of intimidating them to drop their complaints against the appellant and 3rd respondent to the police.
On account of the above allegations, the 1st and 2nd respondents sued the appellant, 3rd respondent and two others, Viz; the Clerk of the National Assembly and the National Assembly at the lower court claiming the following reliefs;
1. The sum of N100, 000,000,000. (One Hundred Billion Naira) against the Defendants as general damages for the acts of intimidation, loss of goodwill and patronage occasioned by the acts of the Defendants.
2. The sum of N150, 000,000,000. (One Hundred and Fifty Billion Naira) against the Defendants as exemplary damages for their oppressive and arbitrary action.
Upon the receipt of the originating process the appellant entered a conditional appearance and filed a notice of preliminary objection challenging the Jurisdiction of the court to entertain the suit and/or the competence of the suit. Before the preliminary objection was argued, the 1st and 2nd respondents discontinued the action against the Clerk of the National Assembly and the National Assembly. Their names were accordingly struck out of the suit. After taking arguments from both sides, the lower court, as earlier stated, dismissed the preliminary objection.
Aggrieved by the ruling, the appellant filed a notice of appeal containing nine grounds of appeal. In accordance with the rules of this court, parties filed their briefs of argument. In the appellant’s brief of argument settled by Kehinde Ogwunwumiju, Esq. of Counsel, four issues are formulated for the court’s determination. The issue are:
(i) Whether or not the lower court was right when it assumed Jurisdiction to entertain this action despite the fact that the necessary/proper parties were not before it (Grounds 1 and 2)
(ii) Whether or not the suit before the lower court disclosed any reasonable cause of action against the appellant (Grounds 6, 7, 8 and 9).
(iii) Whether or not the lower court was right to have assumed Jurisdiction to entertain this matter having regard to the provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Ground 5).
(iv) Whether or not the lower court was right to have assumed Jurisdiction to entertain this suit having regard to the unambiguous and clear provision of Section 3 of the Legislative Houses (Power and Privileges) Act (Grounds 3 and 4).
In the 1st and 2nd respondent’s brief settled by Victor Ogude, Esq. of counsel, one issue is decocted for the court’s determination of this appeal, Viz;
“Whether or not the decision of the lower court affirming jurisdiction to adjudicate over the respondents suit was right having regard to the facts and materials placed before it”.
In the appellant’s brief of argument, the following arguments are proffered;
ISSUE ONE: Whether or not the lower court was right when it assumed Jurisdiction to entertain this action despite the fact that necessary/proper parties were not before it.
Counsel set out the definition of necessary parties as stated in the cases of AKINDELE V. ABIODUN (2009) 11 NWLR (1152) 356, 381 AND YUSUF V. ADEYEMI (2009) 15 NWLR (1165) 616, 629 – 630. It was his view that the proper and necessary parties were the ones against whom the suit was discontinued, Viz; the National Assembly and the Clerk of the National Assembly. This, according to him, is because the ad – hoc committee and the House of Representatives against whom the 1st and 2nd respondents have a grouse are components of the National Assembly. He added that the main reliefs and complaints of the 1st and 2nd respondents were against the parties whose names were struck out. He noted that the appellant was not sued in his capacity as the Chairman of the ad – hoc committee.
He went on to submit that the court lacks Jurisdiction to entertain a suit where a necessary party is not a party thereto. To buttress his submission, counsel cited and relied on AWONIYI v. REGISTERED TRUSTEES OF THE AMORC (2000) 10 NWLR (676) 522, OKONTA v. PHILIPS (2010) 18 NWLR (1225) 320, 326 – 327 AND UZODINMA v. UDENWA (2004) 1 NWLR (854) 303, 350.
Continuing, counsel expressed the view that the failure of the lower court to consider the submission of the appellant’s counsel on the issue under consideration rendered its decision a nullity. He urged the court to resolve the issue in appellant’s favour.
ISSUE TWO – Whether or not the suit before the lower court disclosed any reasonable cause of action against the appellant.
Counsel stated that it was apparent from the lower court’s ruling that it assumed Jurisdiction on the basis that the statement of claim disclosed a cause of action in the tort of intimidation against the appellant. He submitted that the tort of intimidation is unknown to the Nigerian Law of Torts. He further submitted that the case of MORGAN V. FRY (1968) 2 QB 710 relied on by the 1st and 2nd respondents is inapplicable being a post – 1900 decision which he stated does not apply in view of Section 23 of the High Court Act Cap 510 Laws of the Federal Capital Territory of Nigeria. He argued that reliance by the lower court on the “WINFIELD AND JOLOWICZ ON TORT BY WVH ROGERS 10TH ED., Page 23 Chapter 3 was erroneous as Nigerian Courts will not readily and ordinarily rely on foreign authorities. He cited and relied on INAKOJU v. ADELEKE (2007) 4 NWLR (1025) 423, 593 – 595, among other cases, to strengthen his stance.
Counsel went on to submit that even if the tort of intimidation was to be imported and relied on, it would be found that a cause of action in intimidation had not arisen as, according to him, the 1st and 2nd respondents did not comply with the demand before bringing the action and the report of the ad – hoc committee had not been made a resolution of the house, and a white paper had not been issued accepting the findings therein. To support his submission, counsel cited and relied on OSIGWE V. PSPLS MGT CONSORTIUM (2009) 3 NWLR (1128) 378, COOKEY V. FOMBO (2005) 15 NWLR (947) 182 AND SECTION 62 (1) AND (4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (as amended).
Continuing counsel opined that the lower court erred in relying on Section 6 of the Constitution of Nigeria to assume Jurisdiction to entertain a non – existent cause of action contrary to the decision of the Supreme Court in ADESANYA V. PRESIDENT (1981) 1 SC 88.
ISSUE THREE – Whether or not the lower court was right to have assumed Jurisdiction to entertain this matter having regard to Section 251 of the Constitution of the Federal Republic of Nigeria (as amended).
Referring to Section 251 (1) (a) and (r) of the Constitution of Nigeria counsel submitted that contrary to the decision of the lower court, this matter relates to some specific issues in which the Federal Government or its agencies are involved particularly as it borders on the revenue of the Federal Government of Nigeria and may affect the validity of the decision taken by the Federal Government or any of the agencies. Thus, he concluded, only the Federal High Court has Jurisdiction to entertain the suit as the cause of action (tort) arose from the decision of an agent of the Federal Government. The following cases were cited to support his argument – NDIC V. OKEM ENTERPRISES LTD. (2004) 10 NWLR (880) 107, 182, F.A.A. V. JOHN SHOY INT’L LTD (2005) 1 NWLR (908) 637, 656 AND SBN V. DE LLUCH (2004) 18 NWLR (905) 341, 357 – 358.
ISSUE FOUR – Whether or not the lower court was right to have assumed Jurisdiction to entertain this suit having regard to the unambiguous and clear provision of Section 3 of the Legislative Houses (Power and Privileges) Act.
Counsel referred to Section 3 of the Legislative Houses (Power and Privileges) Act Cap 12, Laws of the Federation and stated that the totality of the complaint of the 1st and 2nd Respondents centres on words spoken by the appellant and the other defendants on the floor of the House or on words written in a report to the House of Representatives or its committee which were privileged.
He finally urged the court to allow the appeal and strike out the action.
As earlier stated, counsel for 1st and 2nd respondents decocted one issue for the court’s determination, Viz;
Whether or not the decision of the lower court affirming Jurisdiction to adjudicate over the respondent’s suit was right having regard to the facts and materials placed before it.
Arguing the lone issue, he submitted that the appellant could not take refuge under the provision of the Legislative House (Power and Privilege) Act as none of the acts of the appellant complained of took place before the House or a committee thereof. He added that the allegations against the appellant did not question or challenge any resolution or Legislative duty of the House of Representatives. He added that Jurisdiction in respect of a claim is determined by reference to the endorsement on the plaintiff’s writ of summons and statement of claim.
He cited and relied on ADELEKE v. O. S. H. A. (2006) 16 NWLR (1006) 608 AND EGBEDU v. IGP (2006) 5 NWLR (972) 146, 162 to strengthen his submission. He stated that the case of the 1st and 2nd respondents against the appellant is that the appellant as distinct from the committee he headed and the House made personal demands for bribe from them and continuously harassed and intimidated them. Thus, he opined, the subject matter of their claim falls within the tort of intimidation and conspiracy which falls outside the purview of the Jurisdiction of the Federal High Court as set out in Section 251 of the Constitution of Nigeria. He cited and relied OAMEN V. OWENAN (1993) 8 NWLR (311) 358, 368 to buttress his argument.
He was of the view that neither the appellant nor the 3rd respondent is an agent or organ of the Government and that the mere fact that an arm or agency of Government is sued in a civil proceeding does not automatically confer exclusive Jurisdiction in respect of the suit on the Federal High Court. In support of the view, counsel referred to and relied on ACHEBE V. NWOSU (2003) 7 NWLR (818) 103, NNPC v. SLB CONSORTIUM (2008) 16 NWLR (1113) 297 AND FMB V. OLLOH (2012) 9 NWLR (773) 319.
Counsel submitted that the lower court was right in holding that the complaint of the 1st and 2nd respondents disclosed a wrong over which it could adjudicate on the basis of Section 6 (6) of the Constitution of Nigeria. He stated that Section 23 of the High Court Act of Federal Capital Territory allows that court to apply the principles of common Law and doctrines of equity including post 1900 principles and the doctrines thereof. Referring to the case of BELLO V. AG OYO STATE (1986) 2 NSCC (11) 1257, he submitted further that even if the tort of intimidation is not known to Nigerian Law, the doctrine of Ubi Jus Ibi Remeduim enjoins our courts to provide a remedy to a litigant who approaches the court for redress for civil wrongs.
In respect of the contention of appellant’s counsel that his oral submission on the effect of the discontinuance of the suit against some of the parties at the lower court was not addressed, he stated that the proceedings of 8th November, 2012 and 22nd November, 2012 did not reflect or support the same. Again, he stated, non-joinder of a party is not sufficient to defeat a case. He relied on BELLO V. INEC (2010) 8 NWLR (1196) 388 to strengthen his submission.
He finally urged the court to dismiss the appeal for being devoid of merit.
In his reply, appellant’s counsel submitted that the doctrine of Ubi Jus Ibi Remeduim cannot be relied upon by a court to entertain an action when it lacks the jurisdiction to do so or where such an action is not Justiciable. For this submission, he cited and relied on DONGTOE V. CSC PLATEAU STATE (2001) 9 NWLR (717) 132, 135 AND NWANKWO V. NWANKWO (1992) 4 NWLR (238) 693, 710 – 711, among other cases. He submitted further that the factors needed for the application of the doctrine of Ubi Jus Ibi Remeduim as set out in BELLO V. AG OYO STATE SUPRA. are absent in this case. He thereafter referred to Page 278 lines 9 to 18 of the record of appeal and stated that it bears out his contention that the lower court ignored his submission on the effect of the discontinuance of the action against some of the parties.
On his part, Chief M. I. Ahamba, KSC, SAN, of counsel for the 3rd respondent/conceded the resolution of issues 1 and 3 in appellant’s favour and consequently had nothing to urge against the appeal being allowed. His brief terse as it is, in essence attacked the decision of the lower court by asking that the appeal be allowed and setting out reasons for this stance. A respondent is not permitted to attack the Judgment of a lower court even if he was among the parties that lost in that court except he has cross – appealed. See BUHARI V. OBASANJO (2003) 113 LRCN 2471, 2491 AND CROSS RIVER STATE WATER BOARD v. NUGEN CONSULTING ENG. LTD. (2006) 13 NWLR (998) 589, 615. I shall therefore discontinue this brief.
The issues formulated by the appellant are more comprehensive than the single issue formulated by the 1st and 2nd respondents. I shall therefore adopt the issues formulated by the appellant in determining this appeal. In doing so, I shall start with issue three which attacks the substantive Jurisdiction of the lower court to entertain the suit. See OGUNLANA V. DADA (2010) 1 NWLR (1176) 534, 557 – 558 AND NYA V. EDEM (225) 4 NWLR (915) 345, 370.
ISSUE THREE – Whether or not the lower court was right to have assumed Jurisdiction to entertain this matter having regard to the provision of section 251 of the Constitution of the Federal Republic of Nigeria, 1999.
It was the contention of counsel for the appellant that the lower court had no jurisdiction to entertain the suit in view of section 251 of the Constitution of the Federal Republic of Nigeria (“the Constitution” for short) as according to him the matter borders on the revenue of the Federal Government of Nigeria and may affect the validity of a decision taken by the Federal Government or its agencies. Counsel for the 1st and 2nd respondents answered that the suit has nothing to do with the revenue of the Federal Government of Nigeria nor does it affect the validity of a decision of the Federal Government.
Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Such authority is controlled or circumscribed by the statute which created the court or by condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 AND ALADEJOBI V. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (1376) 66, 81.
Where a court lacks Jurisdiction, the entire proceedings no matter how well conducted will amount to a nullity. Indeed, the only order open to a court that lacks jurisdiction over a matter is to strike out the matter or, where the rules of the court permits, transfer the case to the court with the requisite jurisdiction. See AMOBI V. NZEKWU (2014) NWLR (1392) 510,536 AND BELIEVERS FISHERIES DREDGING (NIG) LIMITED V. UTB TRUSTEES LIMITED (2010) 6 NWLR (1189) 85, 205.
The claims of the plaintiff as contained in the writ of summons and the statement of claim determine the Jurisdiction of court. The enabling statute vesting the Jurisdiction has to be considered in the light of the reliefs sought. Once the claims fail within the jurisdiction of the court (as donated by the enabling statute) as determined by the facts, the court is vested with jurisdiction. Once the reverse is the case, the court cannot assume Jurisdiction as it is not vested with it. See ODEYEMI V. OPAYORI (1976) 9 – 11 SC 31, IKINE V. EDJORODE (2001) 92 LRCN 3288, 3310, ABDULRAHMAN v. AKAR (2006) 13 NWLR (996) 127, 144, ONWUDIWE V. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (988) 382, 428, EMEKA v. OKADIGBO (2012) 18 NWLR (1331) 55, 89 AND EGBEDU V. INSPECTOR – GENERAL OF POLICE (2006) 5 NWLR (972) 146, 162.
The jurisdiction of the High Court of the Federal Capital Territory, Abuja is provided for in Section 257 (1) of the Constitution which provides that;
“Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other Jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital, Abuja shall have Jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
This provision makes the High Court of the Federal Capital Territory a court of general or unlimited Jurisdiction subject however to the limitations placed by the provisions of Section 251 and any other provisions of the constitution. See TRADE BANK PLC V. BONILUX (NIG) LIMITED (2003) 9 NWLR (825) 416, 430.
Counsel for the appellant placed reliance on Section 251 (1) (a) and (r) of the Constitution in submitting that the lower court has no Jurisdiction over the matter.
Section 251 (1) (a) and (r) of the Constitution provides as follows;
(1) “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other Jurisdiction as may be conferred on 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 causes and matters”.
(a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(r) Any 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.
On account of the use of the phrase “Notwithstanding anything to the contrary contained in this Constitution”. In Section 251(1) of the Constitution, and the phrase “subject to the provision of Section 251”. In Section 257 (1) of the Constitution, the Federal High Court has Jurisdiction over the matters set out in Section 251 (1) (a) and (r) to the exclusion of the High Court of the Federal Capital Territory or any other Court. See NATIONAL DEPOSIT INSURANCE CORPORATION v. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (880) 107, 182.
In determining whether or not the Federal High Court has Jurisdiction under Section 251 (1) (a) and (r) of the Constitution, the court must consider (a) the parties and (b) the subject matter of the suit. The mere fact that the Federal Government or any of its organs or agencies is a party to the suit is not enough to vest Jurisdiction in the Federal High Court. The subject matter of the suit must fall within the subjects or any of the subjects set out in Section 251 (a) and (r) of the Constitution. See ONUORAH V. KADUNA REFINING AND PETROCHEMICAL COMPANY LIMITED (2005) 125 LRCN 818, 831, 834, 836 ALSO REPORTED IN (2005) 6 NWLR (921) 393, NATIONAL UNION OF ELECTRICITY EMPLOYEES V. BUREAU OF PUBLIC ENTERPRISES (2010) 7 NWLR (1194) 538, 573, ADETAYO V. ADEMOLA (2010) 15 NWLR (1215) 169, 191, SALIM v. CONGRESS FOR PROGRESSIVE CHANGE (2013) 6 NWLR (1351) 501, 543, ENTERPRISE BANK LIMITED V. ARASO (2014) 3 NWLR (1394) 256, 291, ACHEBE V. NWOSU (2003) 7 NWLR (818) 103, 128 – 129 AND F.M.B.N. V. OLLOH (2002) NWLR (773) 319.
I think it should be mentioned for the sake of completeness that the case of NATIONAL ELECTRIC POWER AUTHORITY V. EDEGBERO (2002) 103 LRCN 2280 which is often cited by many counsel to fortify the proposition that once the Federal Government, its organ or agency is a party to a suit, it is the Federal High Court that has exclusive Jurisdiction in the case does not support such a proposition.
The reason is that the ratio of a case is based on the facts of the case before the court. In other words, the ratio of a case is moulded or shaped by the facts thereof. See ONYIA V. STATE (2009) 166 LRCN 209, 223. The case of NEPA V. EDEGBERO Supra, involved the validity of an executive or administrative action or decision of an agency of the Federal Government, namely; the termination of the appointment of staff of National Electric Power Authority. See ONUORAH V. KADUNA REFINING AND PETROCHEMICAL COMPANY LIMITED SUPRA, AND NATIONAL UNION OF ELECTRICITY EMPLOYEES V. BUREAU OF PUBLIC ENTERPRISES SUPRA.
I shall therefore consider the two factors that come to play when the Jurisdiction of the Federal High Court comes into question under Section 251 (1) (a) and (r) of the Constitution;
The Parties: A party to the suit must be the Government of the Federation, its organ, or a person suing or being sued on behalf of the said Government or any of its agencies. There is no doubt that the legislative powers of the Federal Republic of Nigeria are vested in the National Assembly which consists of the Senate and the House of Representatives. It has powers to make laws for peace, order and good governance of the Federation or any part thereof with respect to matters within the exclusive and the concurrent Legislative Lists as prescribed.
See Sections 4 (1) (2) (3) (4) (a) and 47 of the Constitution of Nigeria. The Speaker of the House of Representatives is elected under Section 50 (1) (b) of the Constitution, while the House may appoint a committee of its members for a special or general purpose under Section 62 (1) of the Constitution. It follows therefore that the Speaker of the House as the 3rd respondent and the head of such a committee as the appellant are agents of the Government of the Federation provided they act in their official capacity.
It is however my view that where any of such persons is alleged to have acted outside the limit or bounds of his authority or in his private pursuit, he cannot claim to be acting as an agent of the Government of the Federation or bind the Government in such a circumstance. See AZUBUIKE V. GOVERNMENT OF ENUGU STATE (2014) 5 NWLR (1400) 364, 392. In the instant case, the appellant is alleged to have used the occasion of his being the head of a committee of the House of Representatives to continuously harass and intimidate the 1st and 2nd respondents to part with a bribe of US$3,000,000.000 (Three Billion United States Dollars). The 3rd respondent is alleged to have sought to intimidate the 1st and 2nd respondents to drop their complaints against them by conspiring with another to relist the name of the 1st respondent on the list of Companies indicted by the ad – hoc committee headed by the appellant. Going by the above, it is my view and I agree with counsel for the 1st and 2nd respondents that neither the appellant nor the 3rd respondent can be classified as agents or organs of the Government of the Federation in this instance. In the case of AKEGBEJO V. ATAGA (1998) 1 NWLR (534) 459, 467 this court held that a State High Court has no Jurisdiction where agents of the Federal Government are sued in their official capacities in respect of the executive or administrative actions of the Federal Government or its agency. This is not so in this case. Indeed counsel for the appellant noted in his brief that the appellant was not sued in his capacity as the chairman of the ad – hoc committee.
The Subject matter of the suit: To bring a suit under the exclusive Jurisdiction of the Federal High Court in Section 251 (1) (a) and (r) of the Constitution, the suit must relate to the revenue of the Government of the Federation or the action must be for a declaration or injunction affecting the validity of an executive or administrative action or decision by the Federal Government or any of its agencies.
The claims of the 1st and 2nd respondents sound in the main in the alleged tort of intimidation as well as conspiracy. A communal reading of the statement of the claim also testifies to this. The Federal High Court is not seized with Jurisdiction to adjudicate over tort no matter the parties involved as tort does not fall into any of the provisions of the Section 251 of the constitution. It is only the High Court of the Federal Capital Territory or of a State that has Jurisdiction in such a matter. I draw strength for this position from the following cases; OAMEN V. OWENAN (1993) 8 NWLR (311) 358, 368, TANAREWA (NIGERIA) LIMITED V. ARZAI (2005) 5 NWLR (919) 593, 642 AND HALLMARK BANK PLC V. OBASANJO (2014) 4 NWLR (1397) 209, 222 and 224. This case, as crafted in the writ of summons and statement of claim, has nothing to do with the revenue of the Government of the Federation nor does it affect the validity of an executive or administrative action or decision of the Federal Government or its agency.
“Revenue of the Government of the Federation” refers to the income which the Federal Government collects and receives into its treasury, and is appropriate for the payment of its expenses. See Black’s Law Dictionary 5th Ed. P. 1185. The demand allegedly made did not contemplate payment into or out of the treasury of the Government of the Federation. The case of SBN V. DE LIUCH (2004) 18 NWLR (905) 341 cited by appellant’s Counsel does not apply in this case as it was based on the finding that it touched on banking as set out in Section 251 (1)(d) of the Constitution.
I therefore resolve issue three in favour of the 1st and 2nd respondents.
ISSUE ONE – Whether or not the lower court was right when it assumed Jurisdiction to entertain this action despite the fact that the necessary parties were not before it.
It was contended by the appellant’s counsel that the National Assembly (the original 4th defendant) was a necessary party to the suit because the grouse of the 1st and 2nd respondents is against the ad – hoc committee and the House of Representatives which are components of the National Assembly. He extrapolated that once the action was withdrawn against the National Assembly. It implies that necessary parties were not before the court and that a court lacks the Jurisdiction to entertain a suit where a necessary person is not a party.
I should pause here to state that issue one as couched by the appellant does not embrace his complaint in ground one of the grounds of appeal as to the effect of alleged failure of the lower court to pronounce on his argument on the effect of the discontinuance of the action against certain parties. This is so inspite of the fact that the Issue One is said to be distilled from grounds one and two. In deed in paragraph 4.01 of the appellant’s is brief, it is stated that the issue is distilled from only ground two of the grounds of appeal. An issue for determination must reflect the complaint in the ground of appeal and once a ground of appeal is not covered by an issue, it is deemed abandoned even when arguments have been proffered on it. See OLAIYA V. STATE (2010) 3 NWLR (1181) 423, 433 It is therefore my view that ground one of the grounds of appeal has been abandoned and I hereby strike out the same.
In any event failure of a court to consider and pronounce on an issue raised before it is not necessarily fatal to the Judgment appealed against if it has not occasioned a miscarriage of Justice. See OKOTIE – EBOH v. MANAGER (2014) 18 NWLR (905) 242, 277.
Now coming back to the issue of absence of necessary parties, it is necessary to define who necessary parties are. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties. The reason for joining a party to an action is that he should be bound by the result of the action See GREEN v. GREEN (2001) 11 WRN 90, 109 -110, AKINDELE V. ABIODUN (2009) 11 NWLR (1152) 356, 381 AND YUSUF V. ADEYEMI (2009) 15 NWLR (1165) 616, 629 – 630.
It is the law that it is only when necessary parties are before the court that a court has Jurisdiction or competence to adjudicate over a matter. See AWONIYI v. REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (2010) 10 NWLR (676) 522, OKONTO v. PHILIPS (2010) 18 NWLR (1225) 320, 326 – 327, UZODINMA v. UDENWA (2004) 1 NWLR (854) 303, 350 AND OLAWOYE v. JIMOH (2013) 13 NWLR (1371) 362.
It should however be added that where a case can be determined in the absence of those not joined in the suit, the court may proceed. It is only in those cases where it will not be right and the court cannot properly determine the issues before it in the absence of those parties whose participation in the proceedings is essential for the proper, effectual and complete determination of the issue that it will be necessary to insist on the joinder of such necessary parties. See AYORINDE v. ONI (2000) 75 LRCN 206 and CROSS RIVER STATE NEWSPAPERS CORPORATION v. ONI (1995) 1 SCNJ 218, 238.
A communal reading of the Statement of claim and the reliefs set out therein shows that the 1st and 2nd respondents have no complaints or reliefs against the National Assembly or its Clerk. Thus the question to be settled in the case can be fairly dealt with without their presence as parties in the suit. They are thus not necessary parties. All the necessary parties were before the court and so the suit was properly constituted.
I therefore resolve issue one against the appellant.
ISSUE TWO- Whether or not the suit before the lower court disclosed any reasonable cause of action against the appellant.
It was argued by appellant’s counsel that tort of intimidation is unknown to Nigerian Law especially since the case relied upon by 1st and 2nd respondents – MORGAN v. FRY (1968) 2 QB 710 is a post – 1900 case while by Section 23 of the High Court Act Cap. 510 Laws of the Federal Capital Territory, Laws of England applicable are those which were in force in England on 1st day of January 1990. Counsel for 1st and 2nd respondents expectedly argued to the contrary.
It is my view that the argument of the counsel for the appellant is, with all due respect, fallacious for the reason that tort of intimidation was not first pronounced upon or developed in the case of MORGAN V. FRY SUPRA, as suggested by him. The tort of intimidation, a specie of the general tort of unlawful interference with trade or business, existed before 1900 in English Law. See the case of ALLEN v. FLOOD (1898) AC 1, 129 referred to in CLERK AND LINDSELL’S. TORT 16TH ED. PAR. 15 – 14, PAGE 829. The fact that there is hardly any reported case decided by a Nigerian Court on it does not obliterate the fact that it is a common law tort that existed before 1900. It is a part of our inherited common Law that applies in Nigeria including the Federal Capital Territory.
It was further argued that if even the tort of intimidation exists in Nigeria the cause of action has not yet arisen in the instant case as the statement of claim does not disclose compliance with the demand. I must pause here to state that a cause of action refers to the entire set of facts that gives rise to an enforceable claim and it comprises of every fact which if traversed the plaintiff must prove to entitle him to judgment. See EGBE v. ADEFARASIN (No 1) (1985) SSC 50, 87 AND LAGOS STATE BULK PURCHASE CORPORATION V. PURIFICATION TECHNIQUES (NIG) LIMITED (2013) 7 NWLR (1352) 82, 102.
To determine whether a suit discloses a cause of action, resort must be had only to the writ of summons and the statement of claim. See ABUBAKAR v. BABEJI OIL AND ALLIED PRODUCTS LIMITED (2007) 147 LRCN 1051, 1121.
It is to be borne in mind that the tort of intimidation is constituted by the following elements;
(i) Communication of threat by A to B
(ii) The threat must be to do something unlawful so as to compel B to obey A’s wishes.
(iii) There must be intention of injuring B thereby
(iv) B must comply with the demand rather than risk the threat being carried out, See MORGAN v. FRY (1968) 2 QB 710 AND ”THE LAW OF TORT” BY GRUBB (ED.) PAR. 27, 59, P, 1245.
The grouse of the appellant is that there is no plea of compliance with the demand in the statement of claim. In paragraphs 17 – 19 of the statement of claim (set out in pages 3 and 4 of the record of appeal) it is averred that the 1st and 2nd respondents paid a part of the money allegedly demanded. Whether or not the averment can sustain the case is a matter to be dealt with after full trial. I agree with counsel for the 1st and 2nd respondents and the lower court that the weakness or perceived weakness of a plaintiff’s case is not a ground to hold that his case does not disclose a reasonable cause of action See ALALADE V. MOROHUNDIYA (2002) 16 NWLR (792) 81 AND NISSAN NIGERIA LIMITED v. YOGANATHAN (2010) 4 NWLR (1183) 135, 148. It is the law that for a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be incontestably bad. See EZEREBO v. INSPECTOR – GENERAL OF POLICE (2009) 11 NWLR (1151) 117, 130 -131. I do not think that the statement of claim in this instance falls under this description.
It was further argued that no cause of action in intimidation can arise from the report of the ad – hoc committee until it has been made a resolution of the House and a white paper issued accepting the finding therein. It is my view that since the reliefs are not hinged on a resolution of the House of Representatives or an anticipated white paper, the argument of the appellant does not hold water.
I therefore answer Issue two in the affirmative and resolve it against the appellant.
ISSUE FOUR – Whether or not the lower court was right to have assumed Jurisdiction to entertain the suit having regard to the unambiguous and clear provision of Section 3 of the Legislative Houses (Powers and Privileges) Act.
Section 3 of the Legislative Houses (Powers and Privileges) Act Cap L.12 Laws of the Federation, 2004 relied upon by the appellant, is as follows;
“No civil or criminal proceedings may be instituted against members of the Legislative House.
(a) In respect of words spoken before that House or a committee thereof; or
(b) In respect of words written in a report to that House or to any committee thereof or in any petition, bill, motion or question brought or introduced by him therein”.
Where the language of a statute is clear and explicit, the court is to give effect to it. See LABOUR PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) 13 NWLR (1103) 73, 100. It is clear and explicit from the provisions quoted above that immunity only attaches to a member of a Legislative House in respect of words spoken before the House or a committee thereof or in respect to the House or committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him in the House or its committee. I agree with the lower court that the complaint in the instant case does not touch on words spoken before the House of Representatives or its committee nor does it touch on words written in a report of the House or its committee. The complaint of the 1st and 2nd respondents in the main is as to words allegedly spoken through the medium of a phone by the appellant to the 2nd respondent. Those words if true are not covered by the immunity conferred on legislators by Section 3 of the Legislative Houses (Powers and Privileges) Act.
Issue four therefore falls and is resolved against the appellant.
Before I draw the curtains on this judgment, I feel it necessary to comment on the language of the appellant’s counsel towards the Judge of the lower court. Such words are as follows;
(i) “The lower court carefully selected and constructed some specific paragraphs of the pleadings. It refused to consider those paragraphs which clearly showed that the 1st and 2nd respondent’s complaints were against words spoken on the floor of the House…”
(ii) “The lower court selectively decided to base its decision on the ancillary issue of telephone conversations”.
Those words sought to paint the judge as bias and as having failed to hold the scale of Justice evenly. This, to say the least, is unfair and uncharitable. Counsel should be reminded that as Ministers in the Temple of Justice, they ought to uphold the dignity that is due a court and the Judge thereof by using sober and measured language in expressing disagreement with views of the court.
On the whole having resolved all the four issues for determination against the appellant, I come to the conclusion that the appeal is without merit. It therefore fails and is hereby dismissed with cost of N100,000.00 in favour of the 1st and 2nd respondents.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Joseph E. Ekanem, JCA just delivered.
The immunity provided by Section 3 of the Legislative Houses (Powers and Privileges) Act, Cap L. 12, Laws of the Federation of Nigeria, 2004, heavily relied on by the appellant, covers only words spoken or written before a Legislative House or a committee thereof in the course of bona fide exercise of legislative duties by a legislator. The immunity cannot reasonably be expected to apply to words spoken or written by a Legislator in the pursuit of an illegitimate business of the law maker. In the present case, the complaint against the appellant borders on alleged illegitimate communication through the medium of a telephone to the 2nd respondent by or from the appellant and the appellant cannot validly claim immunity under such circumstances.
My learned brother has rightly drawn our attention to the innuendoes contained in the arguments of the learned counsel for the appellant. No matter the level of disapproval of the decision of a learned judge by a learned counsel, the Rules of our professional conduct and ethics require that lawyers and litigants use decent language in court.
In the case of Global Transport Oceanico S. A. & Anor. v. Free Enterprises Nigeria Limited (2001) 2 SCNJ 224 at 244 per Kalgo, JSC, the Supreme Court held that it is unethical for learned counsel to use indecent words and language for Judges. See also Menakaya v. Menakaya (1996) 9 NWLR (Pt. 472) 304 at 319 – 320, per Ejiwunmi, JCA (as he then was). In the case of Abeke v. The State (2007) All FWLR (Pt. 366) 644 at 662, the Supreme Court, per Niki Tobi, JSC stated that:
“Parties do not win cases by aspersion (sic) on a judge who has no opportunity to defend himself beyond the cold records of appeal…
Let counsel refrain from bringing the judge, the unbiased umpire so to say, to the theatre of litigation and rub him with muck. That will be tantamount to reducing the height that the law has bestowed on the Judge.”
Judges themselves have a reciprocal duty to be civilized, by the use of decent words and language in dealing with lawyers and litigants who appear before them. See Ann Okwuchukwu Menakaya v. Dr. Timothy N. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 252, per Ogundare, JSC, where the Supreme Court said:
“I think we Judges owe it a duty to be restrained and civilized in dealing with those – counsel, parties and members of the public – who appear in our courts.”
It is for these reasons and the more elaborate reasons given by my learned brother that I also dismiss this appeal for lacking merit.
I abide by the orders made by my learned brother, including the order as to costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. My learned brother has comprehensively dealt with the issues involved in this appeal, I have nothing useful to add to what has been stated in the appeal.
I am in full agreement with the reasoning and conclusions reached therein.
The appeal is totally devoid of merits. I also dismiss the appeal.
I abide by the orders as to costs.
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Appearances
Kehinde Ogunwumiju Esq. (with him, B. Aduloju, Esq. and Olamide Adekunle) (Mrs)For Appellant
AND
V. O. Ogude, Esq. (With him, Kehinde Wilkey, Esq.) for 1st and 2nd respondents.
Chief M. I. Ahamba (SAN) (with him, Messrs James Ugbogu and Udochukwu Meride) for the 3rd respondent.For Respondent
