DR. ATHANASIUS E. BOCO v. MICHEAL O. ALUKO & ORS
(2010)LCN/3584(CA)
The Court of Appeal of Nigeria
On Wednesday, the 24th day of February, 2010
CA/C/112/2008
RATIO
JURISDICTION: WHETHER THE FEDERAL HIGH COURT HAS THE JURISDICTION TO HEAR MATTERS FROM THE STATE HIGH COURT AS OF APPEAL
The Federal High Court is a Court of Co-ordinate jurisdiction with the State High Court. It is therefore wrong for the respondents to commence an action before the Federal High Court challenging a decision of the State High Court which has not been set aside by a Court of competent jurisdiction. The Federal High Court is a Court of co-ordinate jurisdiction with the State High Court and therefore the Federal High Court should have struck out the suit for want of jurisdiction. PER JAFAARU MIKA’ILU, J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
DR. ATHANASIUS E. BOCO Appellant(s)
AND
MICHEAL O. ALUKO & ORS Respondent(s)
JAFAARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Calabar, in suit No.FHC/C/CS/20/2007 delivered on the 3rd of July, 2008. The appellant as the 1st defendant in the suit filed a motion challenging the jurisdiction of the Court to handle the matter and also to set aside the order made by the Court for the opening up of the shops occupied by the Respondents and sealed up pursuant to the execution of the judgment of Calabar High Court in suit No.C/68/74. The appellant being dissatisfied with the ruling of the Court on 3rd July, 2008, appealed against the said decision.
Before this Court briefs have been filed and exchanged. In the appellant brief of argument the following four issues have been formulated for determination:-
(1) Whether the Federal High Court has jurisdiction to entertain the Respondent’s suit as constituted against the parties sued which complaint borders on the execution of a judgment of a State High Court involving land.
(2) Whether the suit does not constitute an abuse of Court’s process for the Respondents to commence and challenge at the Federal High Court, Calabar the enforcement of the judgment of a State High Court involving land.
(3) Whether the suit does not constitute an abuse of Court’s process for the Respondents to commence and challenge at the Federal High Court, Calabar, the enforcement of the judgment of the Cross River State High Court in suit No.C/68/74 which has not been set aside by any Court of competent jurisdiction.
(4) Whether the commissioner of Police is agent of Federal Government while performing his duties for the state Government so as to make him to be sued at Federal High Court instead of State High Court.
(5) Was it proper for the Court to enforce in its ruling the order made on 13th June, 2007 by the Federal High Court for the opening up of the shops for the Respondents to occupy when the sealing up of the said shops was the enforcement of the judgment of the Cross River State High Court in Suit No.C/68/74.
On the other hand in 1st to 29th Respondent’s Amended Brief of argument the following issues have been formulated for determination.
(1) Whether, judging from the claim of the Respondents and the parties in this case, the Federal High Court has jurisdiction to adjudicate over the matter.
(2) Whether the order of the Court upon the dismissal of the appellant’s application, directing compliance with the interlocutory order of 13th June, 2007 was not within the competence of the Court to make.
It is clear from the issues for determination formulated by both parties the question of jurisdiction of the trial Court has been raised.
It is therefore of importance to consider the issue of jurisdiction of the trial Court.
The appellant in the appellant’s brief of argument has correctly submitted that it is the claim of the plaintiff, now respondent, which determines whether the Court has jurisdiction to entertain the suit or not. Refer to GAFAR VS. GOVERNMENT OF KWARA STATE (2007) ALL FWLR (pt 360) 1414, NONYE VS. ANYICHE (2005) 2 NWLR (pt 910) 623, SC, (2005) ALL FWLR (pt 253) 604 and ARJAY LTD VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (pt 156) 945.
He has added that apart from the claim of the plaintiffs which determines the jurisdiction of the Court to entertain the suit, the statute setting up the Court rests jurisdiction on the Court on matter it should entertain. That section 251(1) of the constitution of the Federal Republic of Nigeria 1999 establishes the jurisdiction of the Federal High Court. The appellant is of the averment that the said constitutional provision which has spelt out the items which the Federal High Court has jurisdiction to entertain does not include the type of Respondents claim which borders on land and which is also challenging the execution of a judgment of a Court of competent jurisdiction in suit No.C/68/74.
The appellant has maintained that the claim of the Respondents borders on land and that the Federal High Court has no jurisdiction over land matters as was held in the case of ACHEBE VS. NWOSU (2002) FWLR (pt 106) 1000 in which sections 38 and 41 of the Land Use Act were considered as denoting the Courts which are vested with the jurisdiction in land matters. He has also relied on ADISA VS. OYINOLA (2002) FWLR (PT.8); 10 NWLR (Pt.634) 116.
The appellant has further maintained that in his statement of defence he has shown that the claim of the plaintiffs was as a result of the execution of the judgment in suit No C/68/74 which was enforced when the possession of the shops was recovered and thereafter the shops where sealed up. He has also relied on that in his statement of Defence which read as follows:-
“Paragraph 222 is false as the complain of the plaintiffs therein is against the enforcement of the judgment in Suit No.C/68/74 and the plaintiff’s can not complain unless through an appeal as the judgment is still valid and subsisting”
The appellant has reiterated that the Respondents cannot maintain this suit as the appellant at paragraph 8 of the statement of defence has shown that the complain of the Respondent involves No 14 Nsisuk Street, Calabar which he had judgment and was empowered to recover possession from those occupying the property as Respondents who are privies to the suit No.C/68/74 as pleaded by the appellant at paragraph 8 of the Statement of Defence. He has argued that the judgment in Suit No.C/68/74 having not been set aside is still subsisting and there could not be a challenge of the judgment in whatever form, or acts done in the execution of the said judgment or affecting the subjection matter in the suit or judgment. He has referred to the statement of the apex court in the case of BABATUNDE VS. OLATUNGI (2000) 2 NWLR (pt 646) 447; 568 which reads as follows:-
“The judgment of a Court of competent jurisdiction remains valid and binding even when a person affected by it believes that it is void, until it is set aside by a court of competent jurisdiction. The position therefore is that a person who knows of a judgment, whether null and void, given against him by a court of competent jurisdiction can not be permitted to disobey it…unless and until that judgment has been set aside in ROSSEK VS. ACB LTD (1993) 8 NWLR (pt 312) 382 Referred”.
The learned appellant counsel has maintained that it was therefore wrong for the Respondent to commence the suit at the Federal High Court, Calabar which suit is in essence challenging the execution of the judgment in suit No.C/68/74 which was not set aside. That the Federal High Court Calabar was wrong to assume jurisdiction which is equivalent to sitting as an Appeal Court over the judgment in suit No. 6/68/74 which is of a Court of co-ordinate jurisdiction with State High Court, Calabar.
The learned appellant counsel has further submitted that the Court below should have struck-out the suit for want of jurisdiction and he prays this Court to strike the suit out. The above argument of the appellant is weighty and can no, be ignored
The Federal High Court is a Court of Co-ordinate jurisdiction with the State High Court. It is therefore wrong for the respondents to commence an action before the Federal High Court challenging a decision of the State High Court which has not been set aside by a Court of competent jurisdiction. The Federal High Court is a Court of co-ordinate jurisdiction with the State High Court and therefore the Federal High Court should have struck out the suit for want of jurisdiction.
Consequently, I find that this appeal has merit and it is allowed. The decision of the Court below is hereby set aside and the suit is struck out for want of jurisdiction of the trial Court.
It is clear that issue 2 had been subsumed by the above. The issue of jurisdiction is the crux of the matter in this appeal and as it has been determined in favour of the appellant consideration of the other issues would be a mere academic exercise. The appeal has merit and it is allowed. The decision of the trial Court is set aside. The suit before the trial Court is struck out.
KUMAI B. AKAAHS, J.C.A: I have read the draft of the judgment of my learned brother Mikailu, JCA and I agree with him that the Federal High Court was wrong to assume jurisdiction over the enforcement of a valid judgment delivered by the Cross River State High Court in Suit No.C/68/74. The appeal is meritorious and I also allow it and strike out Suit No. FHC/C/CS/20/2007 for want of jurisdiction with no order made on costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read in draft the lead judgment just delivered by my Learned Brother Mika’ilu JCA and I agree that the appeal has merit and ought to be allowed.
The Federal High Court has no jurisdiction over the matter brought before it. All the Court could do in the circumstance is to make an order striking out the matter for want of jurisdiction.
I also allow the appeal and adopt the orders in the lead judgment.
Appearances
Chief G. A. Udousoro Esq.For Appellant
AND
J. A. Dada Esq.For Respondent
