PETROLEUM (SPECIAL) TRUST FUND v. FIDELITY BANK & ORS (2021)

PETROLEUM (SPECIAL) TRUST FUND v. FIDELITY BANK & ORS

(2021)LCN/5087(SC)

In The Supreme Court

On Friday, December 10, 2021

SC.196/2009

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

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

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

PETROLEUM (SPECIAL) TRUST FUND APPELANT(S)

And

1. FIDELITY BANK PLC 2. CENTRAL INSURANCE COMPANY LIMITED 3. RAFS NIGERIA LIMITED 4. LAWAL INUWA RAFINDADI RESPONDENT(S)

RATIO:

THE EQUITABLE REMEDY OF SPECIFIC PERFORMANCE

The term ‘specific performance’ denotes the rendering of a promised performance through a judgment or decree; a Court ordered remedy requiring precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. Specific performance is an equitable remedy that lies within the purview of the Court’s discretion to award whenever the common law remedy is inadequate, either because damages would be insufficient or could not possibly be established. Also termed ‘Specific Relief; ‘Performance in specific’. See BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

THE PROVISIONS OF THE CONSTITUTION SHOULD BE GIVEN STRICT INTERPRETATION

It is a cardinal doctrine of interpretation, that the words of a Constitution ought not be construed with debilitating or stultifying narrowness. See UNITED STATES VS. CLASSIC 313 US 299; NAFIU RABIU VS. KANO STATE (1981) 2 NWLR 293; AG FEDERATION VS. AG ABIA STATE (supra) per Uwais, CJN @ 21 paragraphs A-F.
Thus, whenever a Court is inevitably confronted with the interpretation of a constitutional provision, as in the instant case, the provisions of the Constitution as a whole ought to be read in determining the object of the provision. See NAFIU RABIU VS. THE STATE (1980) 8-11 SC 130 @ 148; (1980) 8-11 SC (Reprint) 85.
I think, it was in JUSTICE RALIAT ELELU-HABEEB (CHIEF JUDGE OF KWARA STATE) VS. AG FEDERATION (2012) 2 SC (pt. 1) 145, that this Court aptly reiterated the trite fundamental doctrine:
The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

JURISDICTION VESTS THE COURT WITH THE AUTHORITY TO HEAR AND DETERMINE A SUIT

The issue of jurisdiction of a Court of law is very important in the adjudication process. It is indeed the life blood of any adjudication, the fiat, and the stamp of authority to adjudicate. The live wire of a case is jurisdiction and being a threshold issue, any proceeding conducted without jurisdiction come to naught, no matter the outcome of the proceedings. It is because of the critical importance of the issue of jurisdiction that it can be raised at any stage of proceedings even at the Apex Court for the first time. PER MARY UKAEGO PETER-ODILI, J.S.C.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is an out-flow of the judgment of the Court of Appeal, Abuja Judicial Division, holden at Abuja, delivered on December 14, 2006 in appeal no. CA/A/43/05. By the judgment in question, the Court below, coram I. T. Muhammad, JCA (now CJN), Adekeye, JCA (later JSC), and Uwa, JCA, affirmed the ruling of the trial FCT High Court delivered on October 12, 2004, thereby striking out the Appellant’s suit (NO. FCT/HC/CV/931/2002) and the Respondent’s counter-claim, for lack of jurisdiction.

BACKGROUND FACTS
The facts and circumstances surrounding the appeal are gleanable from the record of appeal, transmitted 10 this Court on July 14, 2009. The suit was instituted by the Appellant in the trial Court vide a writ of summons. By the statement of claim thereof, dated August 29, 2002, the Appellant claimed against the Defendant (FSB International Bank PLC) the following reliefs:
a). The sum of N33,065,868.70 being Advance payment to RAFS Limited for the execution of National Rural Water Supply in Rivers State Lot RV 31A for a totaled contract sum of N66,131,737.56.

b). The plaintiff further claims from the Defendant interest of 100% on the judgment sum and the cost of this action until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.

Interestingly, the case took a dramatic turn. On 17/07/2003, the Defendant filed a notice of preliminary objection, thereby seeking an order “striking out this suit for want of jurisdiction.” The preliminary objection was predicated upon two grounds:
1. “The suit has not been commenced in the proper forum.
2. The plaintiff lacks the locus stand to institute the action.”

By the statement of defence thereof, the 3rd and 4th Respondents (3rd and 4th Defendants’) not only denied the Appellant’s claim in toto, but equally counter-claimed and thereby sought against the Appellant the following reliefs:
a). AN ORDER directing the plaintiff to issue to the 3rd Defendant forthwith a completion certificate, being the agreed acknowledgment of completion of the extent of work for which the 3rd Defendant was mobilized.
b). AN ORDER awarding special damages to the 3rd Defendant in the sum of N33,065,868.68 for breach of contract.
c). The cost of this action

By the amended statement of claim, dated 01/12/2003, the Appellant claimed against the Respondent (Defendants) jointly and severally:
a. The sum of N33,065,868.70 being advance payment to the 1st Defendant for the execution of the National Rural Water Supply in Rivers State Lot RV.31A, for a totaled contract sum of N66,131,737.56.
b. The plaintiff further claims from the Defendant interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed N33,065,868.70) plus the cost and interest therein.

Parties’ learned counsel were opportuned to address the trial Court upon the 3rd and 4th Respondents’ preliminary objection on 13/07/04 and 24/09/04, respectively.

On 12/09/04, the trial Court, coram Mukhtar, J (as he then was) delivered the vexed ruling to the conclusive effect:
By the doctrine stare decisis, the decisions of both the Supreme Court and the Court of Appeal are binding on this Court and this Court has no choice than to simply follow such decisions.
It is not in dispute that the PTF is an agency of the Federal Government and is a party in this case. It is, therefore, unnecessary to examine the nature of the claim or relieves sought. The simple determine factor is the status of the plaintiff being an agency of the Federal Government. That automatically derobes this Court of jurisdiction to go in to the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court.
The preliminary objection succeeds on this ground. It follows therefore, that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.

On its part, the Court below having been seized of the Appellant’s appeal (CA/A/43/05), delivered the vexed judgment to the conclusive effect:
In the final analysis, any matter within the jurisdiction of the Federal High Court under the above provisions of the Constitution, is outside the general jurisdiction of High Court of Federal Capital Territory Abuja under Section 257 (1) of the 1999 Constitution or a High Court of a State. I therefore resolve the second issue in favour of the Respondents. Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with the counter-claim, for want of jurisdiction.
I hereby affirm the ruling of the trial Court, delivered on 12th of October, 2004 striking out the Appellant’s suit and counter-claim, for want of jurisdiction.
This appeal fails for lacking in merit.
I award N10,000.00 cost in favour of the Respondents.

On 21/09/2021, when this appeal at long last came up for hearing, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument. Thus, warranting the Court to reserve judgment to today.

Most particularly, the Appellant’s brief, settled by Kyonne l. Mando Esq., on 14/09/2020, spans a total of 17 pages. At pages 2-3 of the brief, three issues call for determination:
2.0 Whether the Court was right when it held that it is parties in a suit and not the plaintiffs claim that determines a Court’s jurisdiction? (Distilled from ground 1)
2.01 Whether the lower Court erred in law when it applied the decision in NEPA vs. EDEGBERO (2002) 18 NWLR (part 788) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2)
2.02 Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy kobo) only being the Advance Payment Guarantee by the 1st Respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the Appellant’s can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the Appellant’s claim (Distilled from Ground 3)

The issue no. 1 is argued at pages 4-10 of the Appellant’s brief. In the main, it’s submitted that the Court below erred when it found that it’s parties and plaintiffs claim that determine, jurisdiction of a Court, and accordingly dismissed the Appellant’s appeal.

Further submitted, that in law parties do not necessarily determine jurisdiction. Rather, what determines jurisdiction is the plaintiff’s claim. See AG FEDERATION VS. AG ABIA STATE(2001) 11 NWLR (pt. 725) 689 @ 729 paragraphs F-D; ONUORAH VS. KADUNA REFINING PETROCHEMICAL COMPANY (2005) 5 NWLR (pt. 921) 393 @ 405.
The Court is urged to so hold.

The issue no. 2 is argued at pages 10-13 of the said brief, to the effect that the case of NEPA VS. EDEGBERO (2002) 18 NWLR (pt. 789) 79 does not apply to the Appellant’s case, as the facts in the two cases are distinct and quite distinguishable from one another.

It’s argued, that the Appellant’s claim was based on the Deed of Guarantee dated June 6, 1998, issued by the 1st Respondent in favour of the Appellant, thereby guaranteeing the advance payment of the sum of N33,065,868.70. Having collected the said sum, the 3rd Respondent abandoned the contract, while Appellant recalled the sum guaranteed.

That looking at the Appellant’s claim, the case of NEPA VS. EDEGBERO (supra) is not applicable to the Appellant’s claim.

The Court is urged to so hold.

The issue no. 3 is argued at pages 13 to 15 of the brief, to the effect that the Appellant’s claim does not in any way relate to the Revenue of the Federation, as found by the Court below at page 145 lines 15-25 of the record of appeal.

The Court is urged to so hold.

Conclusively, the Court is urged upon to allow the appeal.

Contrariwise, the 1st Respondent’s brief of argument was settled by Abimbola Kayode on 08/10/2020. It spans a total of 15 pages. At page 6 thereof, a sole issue has been couched:
“Whether the Court of Appeal was right to have affirmed the ruling of the lower trial Court striking out the Appellant’s suit on the ground that the FCT High Court had no jurisdiction on the matter.”

The sole issue is argued at pages 7-15 of the Respondent’s brief, to the effect that the Appellant’s claim is beyond the purview of simple contract. It is a claim in respect of the discharge of its functions under Decree No. 25 of 1994 as an Agency of the Federal Government. That’s, it relates to its administration, management and control, and not from simple contract. See Section 3 of Petroleum (special) Trust Fund Act, Cap p. 14 LFN, 2004.

It is argued that the Appellant’s reliance on AG FEDERATION VS. AG ABIA STATE (supra) et al, is bordered on a misconception of the judgment of the Supreme Court in those two cases. The Court is urged to so hold. Conclusively, the Court is urged upon to so hold and dismiss the appeal.

Having amply considered the nature and circumstances surrounding the present appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, I am amenable to adopting the three issues of the Appellant for determination of the appeal on merits anon.

ISSUE NO. 1
The first issue raises the question of whether or not the Court below was right when it held that it is parties in a suit and not the plaintiff’s claim that determines a Court’s jurisdiction. This issue is distilled from ground 1 of the notice of appeal.

As copiously alluded to above, the trial Court held in the vexed ruling resulting in the instant appeal, that the Appellant being an agency of the Federal Government of Nigeria:
Automatically derobes this Court of jurisdiction to go in the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court. The preliminary objection succeeds on this ground. It follows therefore that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.

On the part thereof, the Court below, in a considered judgment, the subject of the instant appeal, held to the conclusive effect:
Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with claim, for want of jurisdiction.

With possible deference, I would want to hold without much ado, that both the Court below and the trial FCT High Court had erred in their findings, to the conclusive effect that the trial Court lacked jurisdiction to entertain and adjudicate upon the instant matter (FCT/HC/CV/931/2002) giving rise to this appeal.

Indeed, this Court has had the cause to reiterate in a plethora of authorities, the doctrine that jurisdiction is a fundamental threshold issue and thus indispensable in administration of justice. And the reason being, that a Court of law or Tribunal can only be competent to entertain and adjudicate upon a matter or appeal before it when:
(a) It’s appropriately constituted in regard to both quorum and qualifications of the members thereof.
(b) The subject matter (Res) is aptly within the purview of its jurisdictional competence, and there is no any feature inherent there in; and
(c) The action (or appeal, as the case may be) is commenced by due process of law, upon fulfillment of any condition precedent.
See the locus classics – MADUKOLU VS. NKEMDILIM (1962) 1 All NLR 587; AG LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (pt. 111) 552; SKENCONSULT VS. UKEY (1981) 1 SC 6; BOT VS. BOT Appeal No. SC.255/2010, judgment on May 7, 2021 (unreported).
Undoubtedly, it would tantamount to a futile effort to set down issues, deliberate on the evidence led and proceed to resolve those issues, one way or the other, if the Court seized of the matter is devoid of jurisdictional competence. As aptly held by this Court:
The substratum of a Court is no doubt jurisdiction. Without it the labourers there in, that is both litigants and counsel, on the one hand, and the judge, on the other hand labour in pain.
See LAGOS STATE VS. DOSUNMU (supra), per Eso, JSC. It is not at all controversial, that the jurisdiction of the Federal High Court is eminently as circumscribed by the provisions of Section 251 (1), (p), (q), (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (which provisions are in pari materia with Section 230 (q), (r), and (s) of the erstwhile 1979 Federal Constitution):
(1) Notwithstanding 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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases 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.
(b) Connected with or pertaining to taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation.
(c) Connected with or pertaining to customs and excise duties and export duties, including any claim by or againstthe Nigeria Customs Service or any member of office thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties.
(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, 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 notes and fiscal measures;
Provided that this paragraph shall not apply to any dispute between an individual customs and his bank in respect of transactions between the individual customs and the bank;
(e) Arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks business names, commercial and industrial monopolies, combines and trusts, standards of good and commodities andindustrial standards;
(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal port, (including the constitution and powers of the port, authorities for Federal ports) and carriage by sea;
(h) Diplomatic, consular and trade representation;
(i) Citizenship, naturalization and aliens, deportation of person who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) Bankruptcy and insolvency;
(k) Aviation and safety of aircraft;
(l) Arms, ammunition and explosives;
(m) drugs and poisons;
(n) Mines and mineral (including oil fields, oil mining, geological surveys and natural gas).
(o) Weights and measures.
(p) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions 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 proceeding 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; and
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly;
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 of treason, treasonable felony and allied offences.

In the instant case, it is obvious that so much reliance has been placed by the two Courts below on the decision of this Court in NEPA VS. EDEGBERO(supra), to arrive at their findings, albeit erroneously, that because the Appellant was a Federal Agency, the trial FCT High Court was automatically devoid of jurisdiction to entertain the matter. That analogy does not, by any stretch of imagination, appeal to me! Interestingly, the most often cited pronouncements of this Court in NEPA VS. EDEGBERO(supra) was the one attributed to Ogundare, JSC @ (pages 95) viz:
It is not in dispute that the defendant (NEPA) is a Federal Government Agency… It is also not disputed that the cause of action in the 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 that plaintiffs and others. In the light of all these, therefore, the action on the other 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 my self read the proviso to paragraph (q), (r), and (s) of Subsection (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 Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the provision 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 performances against the Federal Government or any of its agencies could still come before a State High Court.
Regrettably, it is on the basis of the pronouncement of His Lordship Ogundare, JSC that the two Courts below came to the conclusion, albeit erroneously, that once a party is an agency of the Federal Government, without more, the Federal High Court must assume exclusive jurisdiction in the matter.
Indeed, the fundamental doctrine is well settled, beyond per adventure, that in construing the provisions of Section 251 (1) of the 1999 Constitution, as amended, certain important factors ought to be taken in to account. They are (i) the parties in the matter; and not the least (ii) the subject matter (res) of the litigation. As aptly held by this Court in NEPA VS. EDEGBERO (supra):The Court must consider both (i.e subject matter) in construing the parties, the Court will have no difficulty in identifying any agency of the Federal Government in certain matters. The case law and the law of agency will certainly be of help in relevant cases in this appeal, both counsel agree that the Appellant, the National Electric power Authority is an agency of the Federal Government. They are correct. It cannot be otherwise. See Adebilije vs. NEPA (1998) 12 NWLR (pt. 577) 219. Per Niki Tobi, JSC @ 1573 paragraphs E-H.
What’s more, according to the learned jurist, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government on any of its agencies:
The matter must arise from the operation and interpretation of the constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by the Federal Government or any of its agencies. It is for the purpose of emphasis. Per Niki Tobi, JSC. Not unexpectedly, Uwais, CJN, cherishingly postulated:
The clear intendment of the modification to Section 230 of the 1979 (in parimateria with Section 251 (1) of the 1999 Constitution (supra) by the Constitution (Suspension and Modification) Decree 107 of 1993, was to confer on the Federal High Court exclusive jurisdiction in respect of the matters specified under Subsection(1) (a) to (s) thereof. The postulates of Uwais, CJN and Niki Tobi, JSC, copiously alluded to above, formidably form the integral aggregate of the lead judgment delivered by Ogundare, JSC.

The doctrine is settled, that it is the aggregate of the lead judgment and the concurring judgments or opinions that crystallize into the entirety of the decision of the Court seized of the matter or appeal. See OLORUNTOBA – OJU VS. ABDURAHEEM (2009) 6 MJSC (pt. 1) 1 @ 56 paragraphs E-F.

In the circumstance, the first issue ought to be, and it is hereby resolved in favour of the Appellant.

ISSUE NO. 2
The second issue raises the question of whether or not the Court below erred in law when it applied the decision in NEPA VS. EDEGBERO (supra) the facts in issue to decide that on issue of administration, management and control to Appellant’s claim. Distilled from ground 2 of the notice of appeal.

Flowing from the discussion under the foregoing first issue, it is my view that the decision of this Court in NEPA VS. EDEGBERO (supra) is quite distinct, and distinguishable from the facts and circumstances of the instant case. Unlike the case of NEPA VS. EDEGBERO (supra) which had to do with master and servant (Employer and Employee) relationship, the instant case is purely contractual, and therefore within the purview of the trial FCT High Court’s jurisdiction. And I so hold.

In the circumstance, the second issue ought to be, and it is hereby resolved in favour of the Appellant.

ISSUE NO. 3
The third issue raises the vexed question of whether or not the Appellant’s claim for the sum of N33,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only being the advance payment guarantee by the 1st Respondent as per the Deed of Guaranty dated 6th June, 1998, in favour of the Appellant can be related to the revenue of the Federation to oust jurisdiction of the FCT High Court from adjudicating on the Appellant’s claim. The third issue is distilled from ground 3 of the notice of appeal.

The ratio decidendi of the judgment of the Court below the present third issue relates to, could be found at page 145 lines 15-25 of the Record of Appeal thus:
“The Appellant advances the claimed sum to the 3rd Respondent in exercise of its power as provided under Section 2(d) (vi) and (g) Petroleum (Special Trust Fund) Decree No. 25 of 1994 the claim is therefore for a revenue of the Federal Government i.e. Advance Payment in my view come under the management administration and control of the Appellant and relates to the revenue of the Federal Government. As a result, any claim by the Appellant or against it pursuant to or consequent upon the exercise of its administrative functions under the Act is to be determined by the High Court and FCT or State High Court… ”

By virtue of the provision of Section 162 (1) of the 1999 Constitution, as amended (supra), the Federal Government is mandated to maintain a special account to be called the federal account into which shall be paid all revenues collected by the Government of the Federation. The exceptions thereto are the proceeds from the personnel of the Armed Forces, the Nigeria Police Force, the Ministry or Department of Government charged with the responsibility for Foreign Affairs, and the residents of the Federal Capital Territory (FCT), Abuja.

The Court below came to the conclusive finding regarding the second issue thus:
The Appellant’s claim not being that of a breach of contract by the third Respondent but out of the Appellant’s administrative function of managing its revenue or funds, the lower Court it not conferred with the jurisdiction to entertain the suit… The claim thus, is for the recovery of the money which emanated from the purse of an agency of the Federal Government, the Appellant and not for damages arising out of a breach of contract. See Federal Housing Authority vs. John Shoy International Limited (2005) NWLR (pt. 908) 637 at 65.

The extant Section 162 (1) of the 1999 Constitution, as amended, provides:
162: Distributable Pool Account
1. The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, Nigeria Police Force, the Ministry or department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.

Regarding the actual meaning of the term ‘revenue,’ Section 162 (10) of the 1999 Constitution (supra), has, unequivocally provided:
(10) For the purpose of Subsection (1) of this Section, “revenue” means any income or returns accruing to or derived by the Government of the Federation from any source and includes –
a. any receipt, however, described, arising from the operation of any law;
b. any return, however described, arising from or in respect of any property held by the Government of the Federation;
c. any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any Company or statutory.
Invariably, the term ‘revenue’ denotes an income derivable from any and all (lawful) incomes, gross income or gross receipts. It simply means a source of income; the periodic yield or interest from investment, et al. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1577.
It must be postulated, at this point in time, that the provisions of Section 162 of the 1999 Constitution (supra) strictly deal with distribution or allocation of accruable revenue among the Federal Governments State Governments, Local Governments, the Legislature, the Judiciary, et al.

By virtue of the proviso to Section 251(1) of the 1999 Constitution (supra):
provided that nothing in the provision 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.

Instructively, the rationale of ‘Specific Performance’ being inherent in Court’s jurisdiction is not far-fetched. Undoubtedly, fundamental objective of ‘Specific Performance’ is that the common law remedy of damages was often inadequate. It would thus in effect compel the promisee to sell his right to performance for a pecuniary consideration. As aptly posited by Hansbury almost eight decades ago:
“The object of the equitable remedy is to put A into the same position, by personal compulsion of B as he would already have been in if B had performed voluntarily what now he is being compelled to do. ”
See HAROL GREVILLE HANBURY MODERN EQUITY: THE PRINCIPLES OF EQUITY 3rd Edition (1943) 445 @ 446.
What’s more, Keeton aptly reiterated the fundamental objectives of the equitable doctrine of specific performance, thus:
In essence, the remedy of specific performance enforces the execution of a contract according to its terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. In specific performance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt for which the offender may be imprisoned until he is prepared to comply with the decree. Actually … it is not strictly accurate to say that the Court enforces execution of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court.
See G.N. KEETON: AN INTRODUCTION TO EQUITY: 5th Edition 1961 @ 304; BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687.

Having amply considered the provisions of the 1999 Constitution as a whole vis-a-vis the provision of Section 162 of the Constitution (supra), I am unable to appreciate let alone uphold, the highly misconceived summation, that the sum of N33,065,868.70 only being the Advance Payment made by the Appellant to the 3rd Respondent for the execution of the rural water supply in Rivers State, related to the revenue of the Federation. And I so hold.

It ought to be reiterated, at the tail-end of this judgment, that as an appellate Court we sit to review the decisions of the Court below strictly on points of law. However, as aptly reiterated by this Court not too long ago:
We must bear in mind at all time that, we are bound by the findings thereof provided there is sufficient evidence on record upon which the Court below came to the said conclusions of facts. See NafiuRabiu vs. Kano State (1980) SCNJ 130, (1981) 2 NCLR 293 quoting with approval Denning, J. (as he then was) in Bracegirdle v. Oxley (1947) 1 All ER 126 @130 PARAGRAPHS D-F.
See FEKOLOMOH VS. THE STATE (2021) 6 NWLR (pt. 1773) per Saulawa, JSC @ 493 paragraphs B-E; KINGMAN VS. SEAGER (1938) 1KB 397; DURNELL VS. SCOTT (1939) 1 All ER 183.

In the circumstances, the third issue is hereby resolved in favour of the Appellant.

Hence, having resolved all the three issues raised by the Appellant in favour thereof, and against the Respondents, the appeal resultantly succeeds, and it is hereby allowed by me.

Consequently, the judgment of the Court of Appeal, Abuja, Judicial Division, delivered on December 14, 2006 in appeal No. CA/A/43/05 is hereby set aside.

The suit – FCT/HC/CV.931/2002 is hereby remitted to the trial FCT High Court for trial on the merits.
Parties shall bear their respective costs of litigation.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment, just delivered by my learned brother, Ibrahim Musa Mohammed Saulawa JSC and to underscore the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Abuja Division or lower Court or Court below, Coram: Ibrahim Tanko Muhammad, Olufunmilola Oyinlola Adekeye JJCA (as they then were) and Chidi NwaomaUwa JCA, delivered on 14th December, 2006 wherein the Court below dismissed the appellant’s appeal for want of jurisdiction.The appellant (as plaintiff) was also unsuccessful at the High Court of FCT where his action and counter-claim were struck out for want of jurisdiction by Hussein Mukhtar J (as he then was).

FACTS BRIEFLY STATED
The appellant (as plaintiff) commenced the action in the High Court of Federal Capital Territory, Abuja vide a suit on the undefended list and Particulars of claim filed on 5th September, 2002. The appellant obtained leave to issue and serve the Writ of Summons out of jurisdiction on 10th October, 2002 and filed an amended statement of claim. The reliefs sought by the Appellant as per the Amended Statement of Claim dated 1st December, 2003 and file on 4th December, 2003 were:
a. The sum of N33,065,868.70 (Thirty-Three Million, Sixty-Five Thousand, Eight Hundred and Sixty-Eight Naira, Seventy kobo) being Advance payment to the 3rd Defendant for the execution of National Rural Water Supply in Rivers State. Lot RV 3/A for total contract sum of N66,131,237.56.
b. The plaintiff further claims from the Defendants interest at 10% on the judgment sum and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein. (See pages 34 of the Record)

The amount of N33,065,868.70 claimed by the Appellant was the value of the Advance payment Guarantee issued by the 1st Respondent on behalf of Rafs Nigeria Limited (3rd Respondent) as per the Deed of Guarantee (See pages 9-10 of the Record).

THE 1ST RESPONDENT’S CASE
The 1st Respondent (1st Defendant at the High Court) filed a Notice of Intention to Defend and an accompanying Affidavit on 17th December, 2002 disputing the Appellant’s claims against it.

The trial Court took argument from the parties on the Proprietary of the action being heard under the undefended list procedure.
The trial Court In its ruling delivered on 25th February, 2003 having been satisfied that the Notice of Intention to Defend filed by the 1st Respondent threw some doubt on the case of the Appellant, transferred the suit to the general cause list and ordered pleadings to be exchanged between the parties.

Thereafter the 1st Respondent was granted leave to issue and serve Third Party Notice on Central Insurance Company Ltd (2nd Respondent); Rafs Nigeria Limited (3rd Respondent) and Lawal Inuwa Rafindadi (4thRespondent) respectively. The trial Court ordered all the Respondents to file and serve their respective Statement, of Defence before the 31st March, 2003 and they also filed Conditional Appearance to the Appellant’s.

In keeping with Order 11, Rule 4, High Court of FCT (Civil Procedure) Rules, 1989, the third parties were joined as co-defenders by the trial High Court and pleadings ordered to be exchanged.

The joinder of the third parties as co-defendants necessitated the filing of an Amended Statement of Claim by the Appellant on 4th December, 2003. (See pages 31-35 of the record).

The 1st Respondent also filed an Amended Statement of Defence on 22nd January, 2004. See pages 27-30 of the record).

On 13th July, 2004 when the suit came up for hearing, learned Counsel to the 31d & 4th Respondents moved the Court by way of a Preliminary Objection dated and filed on 17th July, 2003 challenging the Court’s jurisdiction to entertain the suit on the grounds that the suit has not been commenced in the proper forum and that the Plaintiff lacks the locus Standi to institute the action. (See pages 14-15 & 40-45 of the record).
The Appellant replied to the objection. All the other Defendants supported the objection.

RULING OF THE TRIAL HIGH COURT
After argument of counsel to the parties in respect of the Notice of Preliminary objection, the learned trial Judge in a considered ruling delivered on 12th October, 2004 found as follows:
i. The Appellant is a statutory entity established by Decree No. 1994, that is, the Petroleum (Special) Trust Fund Decree, 1994 and by the authority of APENA V NUPPP (2003) 8 NWLR (PT. 822) PG 426 is an agency of the Federal Government
ii. By Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Federal High Court is conferred with exclusive jurisdiction with regards to matters involving the Federal Government or any of its agencies and that the nature of the claim is irrelevant and that the High Court of FCT lacks the jurisdiction to determine matter involving the PTF as an agency of the Federal Government on the authority of NEPA v Edegbero (2002) 18 NWLR PT (798) 79.

In the ruling on the Notice of Preliminary Objection, the learned trial judge held as follows:-
“The law is trite that the claim before the Court in the reliefs claimed by the plaintiff is what determines jurisdiction. The subject matter in the plaintiff’s claim borders on contract, as shown in the writ and the statement of claim.
However, the provision of Section 251 (1) of the 1999 Constitution has been interpreted in a number of decisions by the Supreme Court and the Court of Appeal notably in NEPA v Edegbero (supra) and the more recent decision of the Court of Appeal in FGN v Oshiomhole (supra) … By the doctrine of stare decisis, the decisions of both the Supreme Court and the Court of Appeal are binding on this Court and this Court has no choice than to simply follow such decisions.
It is not in dispute that the PTF is an agency of the Federal Government and is a party in this case. It is, therefore, unnecessary to examine the nature of the claim or reliefs sought. The simple determining factor is the status of the plaintiff being an agency of the Federal Government. That automatically derobes this Court of jurisdiction to go into the matter. By Section 251(1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court.

The Preliminary Objection succeeds on this ground. It follows therefore that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.”

The Court consequently struck out the suit of the appellant and the counter-claim of the 3rd & 4th Respondents for want of jurisdiction. (See pages 40-45 of the record)

APPEAL TO THE COURT OF APPEAL
Being dissatisfied with the ruling of the trial High Court, the Appellant filed a Notice of Appeal to the Court of Appeal on 22nd October, 2004 challenging the said ruling (See pages 56-59 of the record)

The Court of Appeal in the said judgment stated particularly at pages 154-155 of the record thus:
“In the final analysis, any matter within the jurisdiction of the Federal High Court under the above provisions of the Constitution is outside the general jurisdiction of the High Court of Federal Capital Territory Abuja under Section 257(1) of the 1999 Constitution or a High Court of a State. I therefore resolve the second issue in favour of the Respondents. Having also held that the case relates to the management, administration and/or control of the Appellantand relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with the counter-claim, for want of jurisdiction.
I hereby affirm the ruling of the trial Court, delivered on 12th of October, 2004 striking out the Appellant’s Suit and counter-claim, for want of jurisdiction.
This appeal fails for lacking in merit.
I award N10,000.00 costs in favour of the Respondents.”

At the hearing on 21/9/2021, learned counsel for the appellant’s, K. I. Mando Esq., adopted the brief of argument filed on 14/9/2020 and therein raised three issues for determination as follows:-
1. Whether the lower Court was right when it held that it is parties in a suit and not the Plaintiff’s claim that determines a Court’s jurisdiction? (Distilled from ground 1)
2. Whether the lower Court erred in law when it applied the decision in NEPA vs EDEGBERO (2002) 18 NWLR (part 786) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2)
3. Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty-Three Million Sixty five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only being the advance payment Guarantee by the 1st respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the appellants can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the appellant’s claim. (Distilled from Grounds 3)

Learned counsel for the 1st respondent adopted the brief of argument filed on 8/10/2020 and raised a single issue as follows:-
Whether the Court of Appeal was right to have affirmed the ruling of the lower trial Court striking out the appellant’s suit on the ground that the FCT High Court had no jurisdiction on the matter.

For the 2nd respondent, I.Y. Umar Esq., of counsel adopted the brief argument filed on 23/8/2021 and deemed filed on 21/9/2021. He identified a single issues thus:-
Whether the appellant’s claim falls within the preview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 so as to divest the High Court of Justice of the Federal Capital Territory and indeed all States High Court with the jurisdiction to hear and determine same.

Learned counsel for the 3rd & 4th respondents, Samson Aduikwu Eigege Esq., adopted the brief of argument filed on 9/2/2021 and deemed filed on 21/9/2021 and also adopted the issues formulated by the appellant.

I see the sole issue crafted by the 2nd respondent as covering the field in the determination of this appeal and I shall make use of it.

SOLE ISSUE
Whether the appellant’s claim falls within the purview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 so as to divest the High Court of Justice of the Federal Capital Territory and indeed all States High Court with the jurisdiction to hear and determine same.

Canvassing the position of the appellant, learned counsel submitted along the following lines:
(a) Because it was wrong for the Court of Appeal to have held that the Appellant’s claim is covered by the provisions of Section 251(1) of the 1999 Constitution.
(b) Because there is no provision in Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999which vests exclusively in the Federal High Court to entertain claim relating to breach of contract, resulting in a claim for an Advance payment Guarantee as in Appellant’s claim.
(c) Because Appellant’s claim does not relate to the Revenue of the Federation.
(d) Because the Court of Appeal misapplied the principle in NEPA Vs. EDEGBERO (supra) amongst other decision to dismiss Appellant’s appeal.
He cited the following judicial authorities among others:-
1. NEPA V Edegbero (2002) 18 NWLR (pt. 789) 79.
2. Onuorah V Kaduna Refining Petroleum Company Ltd (2005) 6 NWLR (pt. 921) 393
3. Adeyemi v Opeyori (1976) 9-10 SC 31
4. A.G. Kwara State v Olawale (1993) 1 NWLR (pt. 272)645.

Learned counsel for the 1st respondent advanced the position that the appellant’s claim is beyond the purview of a simple contract as the subject matter is derivable from the activity of appellant as an agency of the Federal Government which relates to its administration, management and control.

That a community reading of the provisions of Section 3(1) (v), (g), (i) and 2 of the Petroleum (Special) Trust Fund Act, Cap P14, LFN, 2004will reveal that the award of the contract and the supply under National Rural Water Supply Programs comes within the purview of the administrative functions of the appellant as donated to it by the enabling law.

For the 1st respondent, it was submitted that any claim by the appellant arising from or against any of its contractors in pursuance of the execution of its administrative functions under this Act are to be determined exclusively by the Federal High Court of FCT. He cited NEPA v Edegbero (2002) 18 NWLR (pt. 798) 79 at 95.

Learned counsel for the 2nd respondent submitted that the appellant’s claim falls within the purview of the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 so as to direct the High Court of the Federal Capital Territory and indeed all the states High Court with the jurisdiction to hear and determine the same for the following reasons:-
a. The cause of action arose or emanated from, or consequent upon the performance of the administrative functions of the Appellant (an agency of the Federal Government). Therefore, the Appellant’s claim is predicated on the management, administration and control of the Appellant as contemplated under the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 and not on advance payment guarantee and/or breach of contract.
b. The Appellant’s claim for the sum for N33,065,868.70 also relates to the revenue of the Appellant (an agency of the Federal Government) within the meaning and contemplation of the provisions of Section 251 (1) (a) of the Constitution of the Federal of Nigeria, 1999 and Section 7 (1) (a) of the Federal High Court Act, 2004.
c. The Court of Appeal was right in tis judgment delivered on the 14th of December, 2006 which affirmed the ruling of the High Court delivered on the 12th of October, 2004 striking out the Appellant’s suit want of jurisdiction.

He cited the following judicial authorities among others:- Attorney General, Kano State v. Attorney-General, Federal (2007) LPELR-618 (SC), (2007) All FWLR (pt.364) 204; Chief Albert Abiodun Adeogun&Ors v. Hon. John Olawale Fashogbon (2008) LPELR-131 (SC) 22, paragraph B-C; Ports & Cargo handling Services Co. Ltd &Ors v. Migfo Nigeria Ltd &Ors (2012)LPELR-9725 (SC); and Dr. Ahmed Mohammed Salik v. Alhassan Uba Idris &Ors (2014) LPELR-22909 (SC).

For the 3rd & 4th respondents, learned counsel contended that, Section 1 (3) of the Appellant’s enabling Act expressly locates it within the presidency and subjects it to the President. The reliefs sought by the Appellant at the trial Court were for payment of a liquidated sum due to the purse of the Federal Government, by virtue of an Advance Payment Guarantee issued by the 1st Defendant on behalf of the 3rd Respondent, to whom an advance payment was made from the Federal Government fund managed by the Appellant, Ultimately, judgment in the liquidated sum claimed by the Appellant at the trial Court would have been paid into the purse of the Federal Government. That the Appellant is an organ of the Federal Government and the claim relates to revenue of the Federal Government.

He relied on NURTW v RTEAN (2012) 10 NWLR (pt. 1307) 170 at 197; A.G. Federation v A.G. Abia State (2001) 11 NWLR (pt. 724) 689 at 729; Allied Bank Nig Ltd v Akubueze (1997) 6 NWLR (pt. 509) 374 at 397 etc.

The issue of jurisdiction of a Court of law is veryimportant in the adjudication process. It is indeed the life blood of any adjudication, the fiat, the stamp of authority to adjudicate. The live wire of a case is jurisdiction and being a threshold issue, any proceeding conducted without jurisdiction come to naught, no matter the outcome of the proceedings. It is because of the critical importance of the issue of jurisdiction that it can be raised at any stage of proceedings even at the Apex Court for the first time.
In N.U.R.T.W Vs. R.T.E.A.N (2012) 10 NWLR (PT 1307) PG 170 at 189, the Supreme Court per Fabiyi J.S.C stated thus:-
“…it has been pronounced by this Court several times that jurisdiction is very fundamental. It is the live wire of a case which should be determined at the earliest opportunity. If a Court has no jurisdiction to determine at the earliest opportunity. If a Court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication.”
Similarly in ARUEZE v NWAUKONI (2019) 5 NWLR (PT. 1666) PG 469 AT 478the Supreme Court per BAGE J.S.C stated thus:
“Jurisdiction is the very basis on which any Tribunal tries a case, it is the lifeline of all trials. A trial without jurisdiction is a nullity. This vital and overwhelming importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It has even been said that it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity…”
In ADAMA v MAIGARI (2019) 3 NWLR (PT.1558) PG 26 AT 46, the Supreme Court per ONNOGHEN, C.J.N stated thus:
“jurisdiction is a fundamental issue in adjudication and should be considered and resolved first before proceeding any further because it is now trite law that a proceeding conducted by a Court/Tribunal without the requisite jurisdiction is a nullity however well conducted… ”

The law is also settled that the term jurisdiction may have meaning in different contexts. In OBIUWEUBI v C.B.N (2011) 7 NWLR (PT 1247) PG 465 AT 506 PARAS C-D, the Supreme Court per ADEKEYE J.S.C stated that:
“…jurisdiction is a term of comprehensive import embracing every kind of judicial action. The term may have different meanings in a different context. It has been defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought… ”

These authorities have followed the spirit of the locus classicus case of MADUKOLU v NKEMDILIM (1962) 1 All NLR PG 581 AT 589, where the Supreme Court per BAIRAMIAN F.J laid down the proper guidelines in determining the issue of jurisdiction of a Court of law. The Court stated that a Court is competent when:
i. “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
ii. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
iii. The case comes before the Court initiated with due process of law, and upon fulfillment of a condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.”

In this appeal, the appellant’s claim as contained in the Amended Statement of claim at page 34 of the Record reads as follows:
WHEREOF the Plaintiff’s claim against the Defendants jointly and severally is for:
“i. The sum of N33,065,868.70 being advance payment to the 3rd Defendant for the execution of the National Rural Water Supply in Rivers State. Lot RV 3/A, for totaled contract sum of N66,131,737.56
ii. The Plaintiff further claims from the Defendants interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest.”

In determining jurisdiction, it is the plaintiff claim that is at the front burner and it is not the parties that determine jurisdiction.
See A.G FEDERATION VS. A.G ABIA STATE & ORS (2001) 11 NWLR (PART 724) 689 AT 729 where in the Supreme Court held that it is Plaintiff’s claim that determines jurisdiction. Also in ONUORAH VS KADUNA REFINING & PETROCHEMICAL COMPANY LIMITED (2005) 5 NWLR (PART 921) 393 AT 405, the Supreme Court went on to hold that:
“In determining whether a Court has jurisdiction in a matter or not, the Court will examine or consider the nature of the Plaintiffs claim as disclosed in his writ of summons and statement of claim. In the instant case, the Appellant’s claims are all based on breach of simple contract between the parties. The jurisdiction of the Federal High Court, however, does not admit matters of simple contract between parties.
Consequently, the Court of Appeal was right when it held that the trial Court had no jurisdiction to entertain the Appellant’s suit.”

A reference to the appellant’s claim would clarify the situation and I shall quote it.
The Appellant’s claim at the trial Court was thus:
23. WHEREOF the plaintiff’s claim against the Defendants jointly and severally is for:
a. The sum of N33,065,868.70 (Thirty-Three Million Sixty-Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only being the advance payment to the 3rd Defendant for the execution of the National Rural Water Supply in Rivers State Lot RV.3/A, for a total contract sum of N66,131,737.56 (Sixty Six Million One Hundred and Thirty One Thousand Seen Hundred and Thirty Seven Naira Fifty Nine Kobo) only.
b. The Plaintiff further claims from the Defendants interest of 10% on the judgment sum and the cost of this action until payment of the entire sum guaranteed (N33,065,868.70) plus interest on the judgment sum.

Of note is that after the advance payment of the sum N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only was made to the 3rd Respondent as per the Deed of Guarantee, 3rd Respondent immediately abandoned the contract. Hence Plaintiff’s claim against the 1st Respondent for the said sum guaranteed.

What transpired between the 1st Respondent and the 3rd Respondent emanating in the issuance of the Deed of Guarantee is nothing, but a banker customer transaction, which transaction vests jurisdiction in the trial Court to hear and determine the suit. Certainly, the Federal High Court does not have exclusive jurisdiction to hear the suit, notwithstanding fact that the Appellant is a Federal Government Agency.
A close examination of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 will show that the Federal High Court is not conferred with jurisdiction to entertain claims founded in contract as in the instant case. Section 251(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court, because the items listed under the said Section 251(1) can only be determined exclusively by the Federal High Court. All items in the list, would therefore still be within the jurisdiction conferred on the Federal High Court, the trial Court therefore had jurisdiction to entertain the Appellant’s claim. The lower Court therefore acted wrongly in its decision that the Federal High Court has exclusive jurisdiction to entertain the claim.

The Appellant’s claim as quoted in the paragraph 4.02 above is for the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only against the 1st Respondent for the sum’ guaranteed since 3rd Respondent having collected the advance payment, abandoned the contract. The Appellant’s claim therefore relates to a breach of contract by the 3rd Respondent, resulting the Appellant recalling the advance payment sum guaranteed.

It was during the pendency of the suit, 3rd Respondent counter claimed against the Appellant, claiming N33,065,737.59 (Thirty Three Million Sixty Five Thousand Seven Hundred and Thirty Seven Fifty Nine Kobo) only being the balance of the contract sum on the ground that it had fully executed the entire contract. Therefore, looking at the Appellant’s claim, and the counterclaim, they relate to breach of contract by the 3rd Respondent for abandoning the contract or against the Appellant for failure to fully pay the 3rd Respondent. There is nowhere either in the Appellant’s claim or 3rd Respondents counterclaim where the issue of administration or management of the Appellant is raised. It is plaintiff’s claim that determines jurisdiction and not what the Defendant says. The Respondent introduced extraneous issues into Appellant’s claim, and the Court of Appeal wrongly went along the same lines. There is nowhere. in Section 251 of the 1999 Constitution asper the items listed therein where it shows that Federal High Court is conferred with jurisdiction to entertain claims founded on contract as in the instant case. The Supreme Court in ONUORAH VS KADUNA REFINING and PETROCHEMICAL COMPANY LIMITED(supra) held that in matter of breach of simple contract only the Federal Capital Territory High Court or State High Court has jurisdiction to hear such claim. I shall quote for effect the provisions of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
S. 251(1) Notwithstanding anything to the contrary …
1. 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.
2. Connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria customs services or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties.
3. Connected with or pertaining to banking, banks, other Financial Institution, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other measures.
4. Connected with or pertaining to banking, banks, other financial institution, including any action between one bank and another by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank.
5. Any matter arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or Regulating the operation of companies incorporated under the Companies and Allied Matters Act.
6. Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trust, standards of goods and commodities and industrial standards.
7. Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and power of the ports authorities for federal ports) and carriage by sea.
8. Diplomatic, consular and trade representation.
9. Citizen, naturalization and alien, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas.
10. Bankruptcy and insolvency.
11. Aviation and safety of aircraft.
12. Arms, ammunition and explosives.
13. Drugs and poison.
14. Mines and Minerals (including Oil Fields, Oil Mining, Geological Surveys and natural gas).
15. Weights and measures.
16. The administration or the management and control of the Federal Government or any off its Agencies.
17. Subject to the provision of this Constitution, the operation and interpretation of this Constitution, the operation and interpretation of this constitution in so far as it affects the Federal Government or any of its agencies;
18. Any action or proceeding 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.
19. Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an act of the National Assembly.
20. Provided that nothing in the provision of paragraph (p), (q) and (r) of this subsection shall present 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.
The Court of Appeal held thus:-
“It is no longer necessary to examine the nature of the reliefs of claim in the lower Court, to determine which Court has jurisdiction to entertain the suit, it is enough for one of the parties (plaintiff or defendant) to be the Federal Government or any of its agencies, then only the Federal. High Court has jurisdiction to entertain the suit.” Clearly, that portion of the Court of Appeal judgment is erroneous. The reason is plain and that is that the trial Court of the Federal Capital Territory (FCT) had jurisdiction to determine the suit as the subject matter is not covered in Section 251 (1) of the 1999 Constitution to warrant the Federal High Court’s exclusive jurisdiction over the appellant’s suit.

It need be reiterated that the decision of this Court in NEPA v Edegbero (2002) 18 NWLR (pt. 789) 79 is not applicable to the case at hand as the facts in NEPA v Edegbero are distinct and distinguishable to the facts of the case under discourse.
In NEPA’s case (supra), the Respondents were employees of the Appellant (National Electric Power Authority). Following an industrial action embarked upon by the employees of the Appellant, including the Respondents in August 1994. The Respondents’ appointments were by a letter dated 10th August, 1994 terminated. The Respondents on the 17th day of August, 1994, instituted a suit against the Appellant. During the trial, Appellant’s counsel challenged the jurisdiction of the High Court of Niger State to hear and determine the matter, onthe ground that the jurisdiction of the Court was ousted by virtue of Section 251(1) (q), (r) and (s) of the 1999 Constitution (as amended) by Decree 107 of 1993, and conferred exclusive jurisdiction on the Federal High Court. The High Court overruled the Appellant on the issue of jurisdiction, holding that by virtue of the provisions to the said enactment, it can entertain the suit. The decision of the High Court was affirmed by the Court of Appeal.
On appeal to the Supreme Court. This Court considered the provision of Section 230(1)(q), (r) and (s) of the 1979 Constitution and allowed the appeal, on the basis that the Respondents’ claim arose from an Employer-Employee relationship as per Section 230(1) (q), (r) and (s) of the 1979 Constitution.

The facts in the present appeal are quite distinguishable from the facts in NEPA’s case. In the present appeal, the 3rd Respondent, a contractor, on 4th May, 1998, secured a contract from the Appellant for the execution of National Rural Water Supply in Rivers State, LOV RV4 for a contract sum of N66,131,737.59 (Sixty-six million one hundred and thirty-one thousand seven hundred and thirty seven naira fifty-nine Kobo) only.

The policy of the Appellant at the material time was that all contractors who secured contracts from the Appellant must provide ADVANCE PAYMENT GUARANTEE from either bank or insurance company. On the strength of the terms and conditions of the contract, 3rd Respondent got the 1st Respondent to issue a Deed of Guarantee, wherein, the Appellant made payment to the tune of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only to the 3rd Respondent, for the execution of the contract.

Having collected the said N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only on the strength of Deed of Guarantee dated 6th June, 1998, the 3rd Respondent abandoned the entire contract. Appellant demanded for the sum guaranteed by 1st Respondent, 1st Respondent refused to authorise the said sum. Hence the suit, during the trial, 3rd and 4th Respondents challenged the trial Court’s jurisdiction to hear the suit, on the basis that the Appellant is an agency of the Federal High Court as per theprovisions of Section 251(1) of the 1999 Constitution irrespective of Appellant’s claim, as what determines jurisdiction is parties and nothing more.

The decision in NEPA. Vs. EDEGBERO (supra) cannot apply to the Appellant’s claim because in NEPA’s case, the Respondent’s claim bordered on termination of their appointment by the Appellant, which action this Court as per Section 230(1) (p), (r) and (s) of the 1979 Constitution, which is in pari material with the provisions of Section 251 (1), (q), (r) and (s) of the 1999 Constitution.

In this instance the Appellant’s claim, is based on the Deed of Guarantee dated 6th June, 1998, which was, issued by the 1st Respondent in favour of the Appellant, guaranteeing the ADVANCE PAYMENT of the sum of N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight: Hundred and Sixty Eight Naira Seventy Kobo) only to the 3rd Respondent for the execution of Rural Water Supply in Rivers State. Having collected the said N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only the 3rd Respondent abandoned the said contract. Appellant recalled the sum guaranteed.

The Appellant’s claim does not relate to administration, management and control of the Appellant, but merely relates to a breach of contract by the 3rd Respondent, having collected the Advance Payment as perk the Deed of Guarantee.

At the risk of repetition, cases are decided on their facts. No case is decided outside its factual milieu. The facts in the Appellant’s case and NEPA’s case are not similar, therefore NEPA Vs. EDEGBERO (supra) cannot in any way apply to the Appellant’s case. Cases are decided on their peculiar facts in the light of the enabling law.

A perusal of the provisions of Section 251(1) of the 1999 Constitution, shows that there is no provision as contained in items listed therein where the Federal High Court is conferred with jurisdiction to entertain claims relating to breach of contract or simple contract as the case may be. See ONUORAH VS KADUNA REFINING PETROCHEMICAL COMPANY LTD (supra).

The 1st Respondent acted as a Guarantor to the 3rd Respondent, by issuing the Deed of Guarantee dated 6th June, 1998, guaranteeing the said sum of N33,065,868.70 (Thirty-Three Million Sixty Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only paid to the 3rd Respondent for the execution of the said Rural Water Supply, in Rivers State. Since 3rd Respondent has abandoned the contract, 1st Respondent must refund the sum guaranteed. This claim has nothing to do with administration, management and control or the functions of the Appellant.

What is evident and glaringly too, is that the appellant’s claim does not relate to the Revenue of the Federation as found by the Court below and I shall refer to it for clarity. See page 145 of the Record thus:-
“The Appellant advances the claimed sum to the 3rd Respondent in exercise of its power as provided under Section 2(d) (vi) and (g), Petroleum (Special Trust Fund) Decree No. 25 of 1994, the claim is therefore for revenue of the Federal Government i.e Advance Payment in my view come under the management administration and control of the Appellant and relates to the revenue of the Federal Government. As a result, any claim by the Appellant or against it pursuant to or consequent upon the exercise of its administrative functions under the Act is to be determined by the Federal High Court and the FCT or State High Court …” (Underlined mine for emphasis).

A consideration of Section 162(1) of the 1999 Constitution is helpful at this point.
Section 162(1) of the 1999 Constitution provided that “the Federation shall maintain a special account to be called the Federation Account into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of personnel of armed forces of the Federation, the Nigeria Police Force, the Ministry or Department of Government charged with the responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja. (Underlined mine for emphasis).
It is clear from the provisions of Section 162(1) of the 1999 Constitution, that it cannot be said that the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy kobo) only being the Advance Payment made by the Appellant to the 3rd Respondent for the execution of the Rural Water Supply in Rivers State relates to the Revenue of the Federation as held by the Court of Appeal. See ATTORNEY-GENERAL OF THE FEDERATION VS ATTORNEY-GENERAL OF ABIA STATE & ORS (supra) 689 at 749(A)- (B).

In determining jurisdiction, where however pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the plaintiff’s pleading, that is, his statement of claim and not on the Defendant’s statement of defence. See ONUORAH VS KADUNA REFINING PETROCHEMICAL COMPANY LTD (supra), ADEYEMI vs OPEYORI (1976) 9-10 SC 31 and A-G KWARA STATE VS OLAWALE (1993) 1 NWLR (Part 272) 645.

In the Appellant’s claim, Pleadings were ordered, filed and exchanged, but the Court went on to affirm the judgment of the trial Court on extraneous issue.

The Advance Payment Guarantee to the 3rd Respondent cannot correctly be said to be Revenue of the Federation. The claim also does not relate to the administration, management and or control of Appellant.

This has dovetailed into one of those instances, albeit out of the ordinary run of play when an appellate Court such as the Supreme Court has to interfere with the concurrent findings of fact of two lower Courts. The reason is simple and that is that the two Courts wrongly applied the law concerning the jurisdiction of the trial High Court in relation to Section 251 (1) of the Constitution. The trial High Court of the FCT has jurisdiction in the matter as matter was outside the ambit of Section 251 (1) CFRN which donates exclusive jurisdiction to the Federal High Court where the subject matter falls within the items so listed therein as against what is before this Court which is clearly a contractual matter meant for the state or FCT High Court.

The appeal has merit and I too allow it. I abide by the consequential orders made.
Appeal Allowed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal, like many others before it, raises the vexed issue of the jurisdiction of the Federal High Court to entertain a cause or matter where an agency of the Federal Government is a party within the meaning of Section 251(1) of the 1999 Constitution, as amended and the applicability of the decision of this Court in NEPA Vs Edegbero (2002) 18 NWLR (Pt. 788) 79; (2002) LPELR- 957 (SC) to the facts of this case.

The fact that gave rise to this appeal have been amply stated in the lead judgment. I need not repeat them here. Suffice it to say that the appellant’s claim before the High Court of the Federal Capital Territory (FCT) was for:
(a) The sum of N33,065,868.70 being advance payment to the 3rd defendant (3rd respondent herein) for the execution of the National Rural Water Supply in Rivers State Lot RV. 3/9 for a total contract sum of N66,131,737.56.
(b) Interest of 10% on the judgment sum and the cost of the action until the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.

The 3rd and 4th respondents raised a preliminary objection to the suit on the ground that the plaintiff/appellant is an agency of the Federal Government and that by virtue of Section 251(1) (p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction to determine the suit. Relying on the decision in NEPA Vs. Edegbero (supra) the Court held that the only relevant consideration is the fact that an agency of the Federal Government is a party to the suit and therefore the High Court of the FCT lacked jurisdiction to entertain it.

The Court below affirmed the decision on two grounds: (a) that the subject matter of the dispute relates to the revenue of the Government of the Federation; and (b) that it alsorelates to the management, administration and/or control of an agency of the Federal Government. The Court below was of the opinion that the sole determinant of the jurisdiction of the Federal High Court, vis-a-vis Section 251(1) of the Constitution, where the Federal Government or any of its agencies is a party, is the party and not the subject matter.

It is the appellant’s contention in this appeal that in determining the jurisdiction of the Federal High Court, the Court must consider both the parties and the subject matter. He argued that the subject matter of the dispute is a simple contract and does not relate to the revenue of the Federal Government and is therefore within the jurisdiction of the High Court of the FCT.
As observed earlier, this issue has come before this Court on many occasions.
It must be pointed out here that even in the case of NEPA Vs Edegbero (supra), this Court recognized the fact that in construing Section 230 (1) of the 1979 Constitution (now Section 251 (1) of the 1999 Constitution, as amended) both the parties and the subject matter must be considered. See pages 23 – 24 F A of the LPELR per Niki Tobi, JSC.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

I reiterate below, my concurring judgment in a recent decision of this Court, as yet unreported, in: SC. 159/2009: Edison Automotive Ind. Ltd Vs NERFUND &Ors., delivered on 7th May 2021, to wit:
“Section 251 (1) (p) of the 1999 Constitution, as amended, provides:
“251(1) Notwithstanding 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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters [relating to] –
(p) the administration or the management and control of the Federal Government or any of its agencies.”
In determining whether the Federal High Court has exclusive jurisdiction to adjudicate in any cause or matter where the Federal Government or any of its agencies is a party, the consideration goes beyond the mere fact that a Federal Government agency is a party. In cases such as: Ohakim Vs Agbaso (2010) 19 NWLR (Pt. 1226) 172 @ 236-237 G-D; Salim vs CPC (2013) 6 NWLR (Pt. 1351) 501, Ucha Vs Onwe (2011) 4 NWLR (Pt 1237) 386, this Court has heldthat, notwithstanding the presence of a Federal Government agency as a party to a suit, the subject matter of the dispute is also relevant in determining whether the Federal High Court has jurisdiction to entertain it. See also A.G. Lagos State Vs Eko Hotels Ltd & Anor. (2017) 12 SC (Pt. 1) 107; (2018) 7 NWLR (Pt. 1619) 518. …
There is a plethora of decisions of this Court as to whether matters of simple contract fall within the purview of Section 251(1) (a) – (s) and therefore the exclusive jurisdiction of the Federal High Court. In Roe Ltd. vs U.N.N. (2018) LPELR – 43855 (SC) @ 13 -19 C – E, this Court per Galinje (now Galumje) JSC, held, inter alia:
“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.”
The decision of this Court in: Onuorah vs KRPC (2005) 6 NWLR (Pt. 921) 393, was relied upon and adopted. In a more recent decision delivered on5th February, 2021 in SC 411/2021: Statoil Nig. Ltd Vs Inducon Nig, Ltd. & Anor (unreported), His Lordship Musa Dattijo Muhammad, JSC who wrote the lead judgment, reiterated the precedent already set by this Court on the issue. In that case, as in the instant case, the respondents’ claim was firmly rooted in simple contract and it was held that the Federal High Court lacked jurisdiction to entertain it.
As I stated earlier, the mere fact that the transaction was assigned to the respondent, which is a Federal Government agency, does not change the character of the subject matter from simple contract to one concerning the management and control of the said agency.”
I adopt the reasoning in the instant case where the contract between the parties is also a simple contract. Notwithstanding the fact that the appellant is an agency of the Federal Government, I hold that the jurisdiction of the High Court of the FCT has not been ousted by Section 251(1) of the 1999 Constitution, as amended.

For these and the more elaborate reasoning in the lead judgment, I allow the appeal and order that suit no. FCT/HC/CV.931/2002 be remitted to the HighCourt of the FCT for expeditious hearing on the merits.

The parties shall bear their respective costs in the appeal.

MOHAMMED LAWAL GARBA, J.S.C.: My learned brother, Hon. Justice, Ibrahim Mohammed Musa Saulawa, JSC has comprehensively considered and ably resolved the three (3) issues raised in this appeal, in the lead judgment, a draft which I read before now, and I agree that the appeal deserves to succeed for being meritorious for the reasons adumbrated therein.

I do not wish to say more that, I too allow the appeal in terms of the lead judgment.

EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING): I had a preview of the lead judgment delivered by my learned brother, Lord Justice IBRAHIM MOHAMMED MUSA SAULAWA, JSC. With due respects to my highly esteemed learned brother, I hold a different view on whether the decision of the Court of Appeal concurring with the decision of the trial Federal Capital Territory High Court it lacks the jurisdiction to entertain the suit is correct.

On 4-5-1998, the appellant awarded the 3rd respondent a contract for the construction of National Rural Water Supply in Rivers State for a contract sum ofN66,131,737.56. The 1st respondent executed a deed of guarantee/Bond that the 3rd respondent would execute the contract or would refund any payment made to it in advance to execute the project. The 2nd respondent herein issued an Insurance Performance Bond to indemnify the 1st respondent on behalf of the 3rd and 4th respondents. The 4th respondent is the Managing Director of the 3rd respondent and a guarantor to the Performance Bond for the execution of the contract. On the basis of the contract to execute the National Rural Water Supply Scheme in Rivers State, the Advance Payment Guarantee/Bond of the 1st respondent and the Insurance performance bond from the 2nd respondent, the appellant paid the 3rd respondent 50% of the contract sum (N33,065,868.70) to enable it execute the contract. The 3rd respondent collected the said sum of N33,065,868.70 and did not execute the contract and has not refunded the said money till date inspite of repeated demands from the appellant.

The above facts constitute the cause for the action in Suit No. FCT/HC/CV/931/2002. The reliefs claimed for in that suit are stated in paragraph 23 of the amended statement of claim thusly –

“a. The sum of N33,065,863.70 being advance payment to the 3rd defendant for the execution of the National Rural Water Supply in Rivers State. Lot RV 3/A for a totaled contract sum of
b. The plaintiff further claims from the defendant interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.”

The 3rd respondent herein filed a preliminary objection to the suit on the grounds that the Federal Capital Territory High Court had no jurisdiction over the suit as the appellant is an agency of the Federal Government and that the appellant lacks the locus standi to bring the suit. The trial Court upheld the preliminary objection on the ground that because the appellant is an agency of the Federal Government, it is the Federal High Court that has exclusive jurisdiction over the suit and that the Federal Capital Territory (FCT) High Court had no jurisdiction to entertain this suit and struck out the suit.

The appeal against that decision to the Court of Appeal was dismissed for lack of merit as the Court of Appeal affirmed the decision of the trial Court in its judgment of 14-12-2006.

On 26-1-2007, the appellant commenced this appeal no. SC.196/2009 by filing a notice of appeal containing 3 grounds of appeal.

The briefs filed, exchanged and adopted in this appeal are as follows – appellant’s brief, 1st respondent’s brief and then 3rd and 4th respondents brief.

The appellant’s brief raised the following issues for determination –
1. Whether the lower Court was right when it held that it is parties in a suit and not the plaintiff’s claim that determines a Court’s jurisdiction? (Distilled from ground 1)
2. Whether the lower Court erred in law when it applied the decision in NEPA vs EDEGBERO (2002) 18 NWLR (part 788) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2)
3. Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty-Three Million Sixty-Five Thousand Eight Hundred and Sixty-Eight Naira Seventy Kobo) only being the advance payment guarantee by the 1st respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the Appellant’s can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the Appellant’s claim? (Distilled from Ground 3)

The 1st respondent’s brief adopted and argued the issues raised for determination in the appellant’s brief.

The 3rd and 4th respondent’s brief equally adopted and argued the issues raised for determination in the appellant’s brief.

I will determine this appeal on the basis of the issues raised in the appellant’s brief. I will determine them together.

Let me start with the issue of whether the money sought to be recovered by the suit is revenue of the Government of the Federation.

Learned Counsel for the appellant argued that in view of Section 162(1) of the 1999 Constitution it is not revenue of the Government of the Federation as it is a payment made by the Appellant to the 3rd respondent for the execution of a contract.

Learned Counsel for the 1st respondent argued that the claim in the suit relates to the revenue of the Federal Government because it is a claim for recovery of money paid out from the fund of an agency of the Federal Government.

Learned counsel for the 3rd and 4th respondents argued that the money sought to be recovered by the suit is revenue of the Government of the Federation because it was paid out of the Petroleum (Special) Trust Fund established by the Petroleum (Special) Trust Fund Act Cap P. 14 LFN 2004 (2010 Reprint), that monies in this fund are derived from the sale of Petroleum Products, that monies in the fund are disbursed to the Federation Account, the NNPC and other beneficiaries determined by the President, that the balance of money left in the fund after these disbursements is the main source of the monies the appellant used to execute projects, such as the one in this case and that the monies held by the appellant in that fund is Federal Government revenue and that therefore the suit leading to this appeal relates to revenue of the Government of the Federation.

Let me now determine the merit of the above arguments.

It cannot be disputed that the Advance Payment of N33,065,863.70 made by the appellant to the 3rd respondent for the execution of the National Rural Water Supply in Rivers State was made from its Fund established by Section 1(1) of the Petroleum ( Special) Trust Fund Act Cap P14 LFN 2004 (Reprint 2010) which provides thusly – “There is hereby established a fund to be known as the Petroleum (Special) Trust Fund … into which shall be paid all the monies received from the sale of petroleum products less the approved production cost per litre…”. Subsection (3) of the said Section 1 provides that “The Fund shall be located in the Presidency and shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions under this Act other than the President”. Section 3(1) (a-c) of the said Act provides that the Board of the Fund shall be responsible for –
(a) Receiving monies accruing to the fund;
(b) Disbursing monies from the fund within the first week of every month to the Federation Account, the Nigerian National Petroleum Corporation and to such other beneficiaries as may be determined from time to time by the President.
(c) Retaining the balance of the money accruing to the fund after the disbursement specified in paragraph(b) of this subsection for the discharge of its functions under this Act.
S. 13 therein again provides concerning the sources of its funds thusly –
(1) There shall be paid and credited to the fund established by this Act-
(a) all monies accruing to the Fund by virtue of Section 3(1) of this Act
(b) such money as may from time be lent, deposited with or granted to the Fund by the Government of the Federation.
The appellant is an agency of the Federal Government under the exclusive direct control of the President. Its fund is obviously part of the public accounts of the Federation. In any case, being an agency of the Federal Government its fund is generally part of the revenue of the Government of the Federation.

Revenue means money coming to the Federal Government or its agency or money belonging to it or its agency or money to which the Federal Government or its agency has a right or is due to it or its agency or in which it or its agency has a vested right. See Mokelu V Federal Commissioner for Works & Housing (1976) LPELR- 1904 (SC) in which this Court defined revenue thusly- “To my understanding, the word ‘Revenue’ in Section 7 (I)(a) of the Federal Revenue Court Decree means money or money-worth coming tothe purse of the Federal Government. I am fortified in this understanding by the definition of Hodges, J. in the case of Stephens V. Abraham (1902) 27 V.L. R 753 when interpreting Section 157 Common Wealth of Australia Custom Act of 1901. At page 767 he said: ‘I take “revenue” to be moneys which belong to the Crown, or moneys to which the Crown has a right or which are due to the Crown’. The phrase ‘moneys which belong to the Crown or moneys or moneys to which has a right or which are due to the Crown’ in the above quotation are duties payable and they indicate moneys coming to the Crown though they have become Crown or the Crown have had vested right in them before they come into treasury. This definition is more clearly brought out by Lord Tomlin in the House of the Lords case of London, Midland and Scottish Railway Company V. Anglo- Scottish Railways Assessment Authority (1933) 150 L.T.361, where the Court was to decide whether compensation paid by the Government to railway Companies was ‘revenue’ for the purpose of Section 4(3)(ii)(d) of The Railways (Valuation for Rating) Act, 1939. At page 367 he said: ‘The word “revenue” is a word of somewhat indefiniteimport but in its ordinary sense in relation to a business undertaking, I think it connotes those incomings of the undertaking which are products of or are incidental to the normal working of the undertaking. The compensation money would not, I think, fall within the compass of the word if so defined”. The operative word in that passage, to my mind, is ‘incoming’. He went on to say: ‘Revenue therefore in my view is not given any special meaning the Act. It bears in the Act its ordinary meaning. It is not necessary to say how wide the ordinary meaning is. It is enough to say whether it is or is not wide enough to include the compensation moneys receive by the appellants from the Government in the circumstances which have been mentioned. I am satisfied that it is not’. A compensation already paid out is no more Government fund nor has Government any further right in it and a compensation to be paid out is an ‘out-going’ fund to the Government. In other words, compensation paid out is Government expenditure rather than revenue. Neither in its ordinary meaning nor in its usage can compensation paid out or to be paid out by the Government be called ‘revenue’ of theGovernment without over-straining the meaning of the word”. We uphold the conclusions reached by the learned trial Judge: (1) that “a question of compensation under Section 10 of the Public Lands Acquisition Act is not a cause or matter relating to the revenue of the Government of the Federation”; and (2) that the Federal Revenue Court had no jurisdiction to hear and determine the action. Indeed, to hold otherwise would be doing violence to the meaning of the word ‘revenue’ which in the context ought to be construed in its ordinary signification.”
In Ansaldo Nig Ltd V National Provident Fund Management Board (1991) LPELR-498(SC) this Court followed its decision in Mokelu’s case and held that – “The meaning of the word “revenue of the Government of the Federation” as contained in Section 7 Subsection (1)(a) of the Federal High Court Act. Cap. 134 of the Laws of the Federation of Nigeria, 1990 has been settled by this Court in the case of Chief P.I. Mokelu V. Federal Commissioner for Works and Housing (1976) 3 SC 35; (1976) 1 All NLR 276 at Pp.38 and 279 respectively, where this Court upheld the definition given to the words by Belgore, J. (as he thenwas) when he stated as follow – “… We think that the approach of the learned trial Judge to the issue of jurisdiction raised before him was quite correct when he said: “…To my understanding the word “revenue” in Section 7(1)(a) of the Federal Revenue Court Decree means money or money-worth coming to the purse of the Federal Government …”
See also A – G Ogun State &Ors V A-G Federation (2002) LPELR-621(SC) in which this Court used the word ‘revenue’ as defined in Section 162(10) (a-c) of the 1999 Constitution. It held thusly-
“What constitutes “Revenue” is defined in Section 162(1) as meaning: “Any income or return accruing to or derived by the Government of the Federation from any source and includes: (a) any receipt, however described, arising from the operation of any law; (b) any return, however described arising from or in respect of any property held by the Government of the Federation; (c) any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body.”

In our present case, the appellant’s claim is for the recoveryof its money from the 3rd respondent since the 3rd respondent did not build the project, it received money from the appellant to build. Since the project was not executed the appellant had a right to the refund of the money it paid by the 3rd respondent for it. The money remained that of the appellant. Therefore, the case the appellant, an organ of the Government of the Federation, filed at the Federal Capital Territory High Court relates to the revenue of the Government of the Federation.

Section 251(1)(a) of the 1999 Constitution provides that the Federal High Court has the exclusive jurisdiction to entertain and try such cases. The exact text of the said provision reads thusly –
“(1) Notwithstanding 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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases 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.”

By virtue of Subsection(s) in Section 251(1) of the 1999 Constitution, Section 7 (1)(n) of the Federal High Court Act as amended also vests jurisdiction on the Federal High Court to the exclusion of any other Court over such matters.
Section 251(1)(s) of the Constitution provide that – (s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.”
Section 7 (1)(a) of the Federal High Court Act
“(1). The Court shall to the exclusion of any other Court have and exercise jurisdiction 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.
3. Where jurisdiction is conferred upon the Court under Subsections (1) and (2) of this section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject matter.

Learned Counsel for the appellant argued that because the claim arose from an alleged breach of the contract to build the National Rural Water Supply for Rivers State the Federal Capital Territory High Court had the jurisdiction to entertain and determine the claim, that a close examination of Section 251(1) of the Constitution shows that the Federal High Court is not conferred exclusive jurisdiction over claims founded in contract, notwithstanding that the appellant is a Federal Government Agency, that only the states and Federal Capital Territory High Court have jurisdiction to entertain suits founded on breach of simple contract and that the Court of Appeal ignored the decisions of this Court in Onuorah V Kaduna Refining & Petrochemical Co. Ltd (2005) 5 NWLR (Pt.921) 393 that only the states and Federal Capital Territory High Court have jurisdiction over simple contracts.

Learned Counsel for the 1st respondent argued that the appellant’s claim is beyond the purview of simple contract, that it is a claim in respect of the discharge of its functions in administration, management and control under Decree No. 25 of 1994 as an agency of the Federal Government, that the claim is for therevenue of the Federal Government disbursed to the 3rd respondent pursuant to the exercise of its administrative functions, that it is a claim for the recovery of money derived from the purse of an agency of the Federal Government and it is not a claim for damages for breach of contract and so falls within the exclusive jurisdiction of the Federal High Court.

The arguments of learned counsel for the 3rd and 4th respondent are essentially similar to those of learned Counsel to 1st respondent.

Let me now determine the merits of the above arguments.

The question that arises for consideration here is whether a contractual dispute relating to the revenue of the Government of the Federation is within the subject matter prescribed in Section 251(1)(a) of the 1999 Constitution and Section 7(1)(a) of the Federal High Court Act as being within the exclusive jurisdiction of the Federal High Court. It is the wordings of Section 251(1)(a) of the 1999 Constitution and Section 7(1)(a) and (3) of the Federal High Court Act and nothing else that must be considered in determining this question. There are no words in these provisions limiting the civil cases andmatters relating to the revenue of the Government of the Federation within the exclusive jurisdiction of the Federal High Court. It used the general phrase “civil cases and matters” without limiting words. Even the subject matter of the civil cases and matters is stated generally as follows – ‘revenue of the Government of the Federation.’ There is nothing in these words limiting the civil cases involving this subject matter that are subject to the exclusive jurisdiction of the Federal High Court only to specific types. Therefore, by the clear and unambiguous words of these provisions, the Constitution intends that all civil cases and matters relating to the revenue of the Government of the Federation are within the exclusive jurisdiction of the Federal High Court. Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary. If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the wordor phrase generally, and will have no power to restrict its application to specific situations.
Section 7(3) of the Federal High Court Act clarifies the scope of the subject matters listed in Subsection (1) therein to include all issues relating to, or arising from or ancillary to the named subject matter.
There is nothing in the provisions of Section 251(1)( a) of the 1999 Constitution that excludes from the jurisdiction of the Federal High Court civil cases and matters whose subject matter is a contractual dispute over the obligation of the 3rd respondent to refund to the appellant the money it received from the appellant to execute the appellant’s project that it is alleged it abandoned and failed to execute. The paramount consideration is that the dispute relates to the refund of the funds of the appellant. In my opinion, once the subject matter of the dispute is within the subject matter jurisdiction of the Court, the nature of the disputed agreement or contract is irrelevant. There is nothing in Section 251(1)(a) and (s) of the 1999 Constitution and Section 7(1)(a) and (3) of the Federal High Court Act as amended that justify the exclusion ofa contractual dispute relating to revenue of the Government of the Federation from the exclusive jurisdiction of the Federal High Court on the ground that it is a simple contract. It is settled law that jurisdiction that is expressly vested by the Constitution or statute can only be expressly ousted by the Constitution or statute as the case may be.
The decisions of this Court in Adelekan v Ecu-Line NV(supra), Onuorah V Kaduna State Refinery & Petrochemical Co (Supra) and Ports & Cargo Handling Services Co., Ltd &Ors V Migfo Nig Ltd & Anor (supra) often cited as stating that the exclusive jurisdiction vested in the Federal High Court does not extend to simple contracts, did not lay down a principle of general application in all cases irrespective of the peculiar facts of each case. The decision of this Court in those cases were rendered in the context of their peculiar facts having regard to the relationship between their respective subject matters to the subject matter jurisdiction vested on the Federal High Court by Section 251(1) of the 1999 Constitution and Section 7(1) of the Federal High Court Act. In Adelekan V Ecu-Line, this Courtagreed with the argument of learned counsel for the respondent that the claim was simply a contract not an admiralty matter and held that the Federal High Court had no jurisdiction over the said contract and negligence claims. In Onuorah V Kaduna Refinery & Petrochemical Company, this Court found that the respondent is not a Federal Government Agency because as a limited liability company incorporated under the Companies Act, it is a body corporate distinct from its share holders, that it is not a subsidiary of NNPC, that therefore an action against it for breach of its contract with the appellant for supply to appellant of a specified number of empty tins is not an action against an agency of Federal Government and is not within the jurisdiction given to the Federal High Court by Section 230(1), (q), r) and (s) of the 1979 Constitution (equivalent of Section 251(1) of the 1999 Constitution), and the claim not being related to any item in of the 1979 Constitution, is simply a claim in contract that is within the jurisdiction of the State High Court. In Ports & Cargo Handling Services Co Ltd &Ors V Migfo Nig Ltd & Anor (supra), this Court foundthat the subject matter of the suit, a contractual dispute over a joint venture bid to manage and operate Terminal C, Tin Can Island Port, Apapa has no relationship with the subject matter in Section 251(1)(g) of the 1999 Constitution and is therefore not within the subject matter jurisdiction of the Federal High Court in Section 251(1)(g). In Mobil Production (Nig) Unlimited V Suffolk Petroleum Services (2020) 9 NWLR (PT. 1728), even though this Court distinguished the contract in that case from a simple contract by finding that the transaction involved “an armada of technical contracts”, what influenced its decision in that the case in holding that it is within the subject matter jurisdiction in Section 251(1)(n) of the 1999 Constitution, is the fact that the contracts pertain to oil fields and oil mining.
Where the subject of a contractual dispute has no relationship with any of the subject matters listed in Section 251(1) of the 1999 Constitution and Section 7(1) of the Federal High Court Act within the exclusive jurisdiction of the Federal High Court or does not arise from any transaction in any such subject matters, it remains simply a contractualdispute that is not within the jurisdiction of the Federal High, not because it is a simple contract, but because it is not related to or arising from any of the items in Section 251(1) of the Constitution and Section 7(1) of the Federal High Court Act. If it is a contractual dispute relating to or arising from the said items, then it is within the exclusive jurisdiction of the Federal High Court. There is nothing in Section 251(1) of the 1999 Constitution stating or suggesting the contrary.
Let me state here for avoidance of doubt that by virtue of the clear words of Section 251(1) of the 1999 Constitution, a case is within the exclusive jurisdiction of the Federal High Court not for the sole reason that one or more of the parties in a case is an agency of the Federal Government, but because its subject matter is one of the subject matters listed therein as being within the exclusive jurisdiction of the Federal High Court.

In the light of the foregoing, I hold that the Federal Capital Territory High Court had no jurisdiction to entertain and determine this case. I uphold the decision of the Court of Appeal concurring with the decision of the trialCourt that it is the Federal High Court that has the jurisdiction to entertain the case and not the trial Court.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.

Appearances:

Kyonne I. Mando, Esq., with him, R. AdeyemoFor Appellant(s)

N. Kayode, Esq. – for 1st Respondent
I. Y. Umaru, Esq. – for 2nd Respondent
Samson A. Egege – for 3rd RespondentFor Respondent(s)

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