MRS. OLUBUNMI OGUNDE V. GATEWAY TRANSIT LTD. & ANOR.
(2010)LCN/3615(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/I/229/2003
RATIO
JURISDICTION: DEFINITION OF JURISDICTION
Jurisdiction in decided authorities has been defined as the power of the court to hear and determine the subject matter in controversy between the parties. See BABALOLA V. OBAOKU – OTE (2005) 8 NWLR (PT.927) 386 and USMAN V. K.S.H.A. (2007) 11 NWLR (PT.1044) P.148. It is determined by the plaintiff’s claim or relief. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: HOW IS THE JURISDICTION OF A COURT ASCERTAINED
In other words, it is the claim of the plaintiff that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the court. See WESTERN STEEL WORKS LTD. V. IRON STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (PT.49) 284, TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517 and ADEYEMI V. OPEYORI (1976) 9-10 SC 31. PER CHIDI NWAOMA UWA, J.C.A.
ACTION: MEANING OF A CAUSE OF ACTION
A cause of action has been defined as a combination of facts or circumstances giving the plaintiff a right to sue. It comprises of two elements namely:
(a) The defendant’s wrongful act; and
(b) The consequential damage suffered by the plaintiff.
See ADESOKAN V. ADEGOROLU (1997) 3 NWLR (PT.493) 261; AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT.504) 237, EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AGBANEBO V. UNION BANK OF NIGERIA LTD. (2000) 7 NWLR (PT.666) 534 and N.V. SCHEEP V. THE N.I.V. “SARAZ” (2000) 15 NWLR (PT.691) 622. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: EFFECT OF A PROCEEDING DONE WITHOUT JURISDICTION
Jurisdiction as we have seen, is a radical and crucial question of competence for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided. See MADUKOLU V. NKEMDILIM (SUPRA) also OGUNMOKUN V. MIL. AD., OSUN STATE (1999) 3 NWLR (PART 594) 261. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: WHAT IS THE PROPER ORDER TO MAKE BY A COURT WITHOUT JURISDICTION TO HEAR A MATTER
If the court has no jurisdiction to hear a matter, it cannot dismiss the action. See ABU V. KUYABANA (2003) 4 NWLR (PART 758) 599. Where a Court holds that it has no jurisdiction to entertain a matter, it must strike out the matter and not dismiss it. It has no such jurisdiction or competence to dismiss the action. See DIN V. ATIORNEY-GENERAL OF THE FEDERATION (1986) 1 NWLR (PART 17) 471, MAKERI V. FAFINTA (1990) 7 NWLR (PART 163) 611, EZEOMI VS. AGHERE (1991) 4 NWLR (PART 187) 631 ONAGORUWA V. I.G.P. (1991) 5 NWLR (PART 193) 593 – NIKI TOBI, J.C.A. (as he then was). A dismissal would be appropriate where the court has the capacity to hear the case and a decision taken on the merits. In the present case, the proper order would be to decline jurisdiction as later done by the learned trial judge and then a striking out of the entire case. This would give the plaintiff another chance or opportunity to institute the action in the appropriate court if she so desires and if the law permits it. A dismissal order shuts out the plaintiff as if the order was properly given following a trial on the merits. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. MRS. OLUBUNMI OGUNDE Appellant(s)
AND
1. GATEWAY TRANSIT LTD
2. SURAJU MUIBI LAWAL Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ayobode Lokulo-Sodipe, J (as he then was) of the Ogun State High Court, Abeokuta, delivered on the 4th day of February, 2003, in which the Appellant was the plaintiff. The initial Notice of Appeal filed on 23/4/2003 comprised of five (5) grounds of Appeal. Pursuant to an order of this court of 4th July, 2005, the appellant filed four (4) additional grounds of appeal, both were incorporated in the Amended Notice of Appeal dated 1st July, 2004 and filed on the 8th July, 2004, containing nine (9) grounds of Appeal.
The background facts are that on the 9th day of April, 1993 at Gbagada, along Oworonsoki – Apapa Express way in, Lagos, an accident occurred involving the first Respondent’s Coaster Commercial bus with Registration No. OG 841 ES driven by the second Respondent and a Bedford Lorry with Registration Number OD 2912 M which was allegedly driven wrongly, recklessly and unlawfully against the one way direction of the Ibadan bound section of the Apapa – Oworonsoki Expressway and collided with the first Respondent’s bus driven on the right side direction of the road.
The Appellant, a passenger in the bus belonging to the first Respondent, sustained injuries as a result of the accident. She was taken to the National Orthopaedic Hospital Igbobi, Lagos where she was admitted for about 15 months. After her discharge from Hospital, her legs were noticeably deformed.
Thereafter, the Appellant commenced a civil action against the 1st Respondent the owner of the bus and the 2nd Respondent, the driver of the bus. Her amended claim for special and general damages was for the sum of N290.1 Million (Two Hundred and Ninety Million, One Hundred Thousand Naira). In her claim, as reflected in the writ of summons taken out on 18/5/98 she alleged that the accident occurred along Lagos/Ijebu-Ode, Route Road. Her suit was instituted at the Ogun State High Court, Abeokuta.
At the trial, in proof of her case, the Appellant (as plaintiff) testified and called four other witnesses. In defence, an officer of the 1st Respondent’s and the 2nd Respondent testified. In his judgment, the learned trial judge dismissed the case of the plaintiff on its merit but made an order striking out the case having declined jurisdiction.
Dissatisfied with the decision of the trial court, the appellant filed this appeal. The appellant formulated three (3) issues for determination, they are:-
(i) Whether this suit was wrongly commenced at the Ogun State High Court, Abeokuta as a result of which the trial court lacked necessary jurisdiction to entertain it. (Ground 1 of the grounds of Appeal).
(ii) Whether or not in view of the evidence before the court, oral and documentary, the appellant has not established negligence against the 2nd defendant. (Grounds 2, 3, 6 and 9).
(iii) Whether or not in view of the evidence and the general circumstances of the case, the learned trial judge properly assessed damages awardable to the Appellant if he had found in her favour. (Grounds 4 and 8).
The Respondents agreed with the three (3) issues as formulated by the Appellant, adopted same and responded to the arguments proffered in their support accordingly.
When the appeal was argued, the learned counsel to the Appellant Adewale Adegoke Esq, adopted and relied on his brief of argument dated 20th, June, 2007, filed on 27th June, 2007, regularized on 19th November, 2007.
In arguing the appeal, the learned counsel in respect of his first issue submitted that the Appellant in paragraph 2 of her Further Amended. Statement of Claim averred that the 1st Respondent Company is a limited liability company incorporated by the government of Ogun State, we were urged to take judicial Notice of the fact that the capital of Ogun State is Abeokuta. This paragraph, it was argued was admitted by the Respondents in paragraph 1 of their joint Further Amended Statement of Defence. The learned counsel to the Appellant was of a contrary opinion to that of the learned trial judge at page 124 of the printed records where the trial court found as a fact that the accident occurred at Gbagada in Lagos State and the holding that only the High Court of Lagos State has the jurisdiction to adjudicate over the case based on which the learned trial court struck out the appellant’s case.
The learned counsel argued that a court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the federation, the primary rule being that causes of action arising from within a state are justiceable by the State High Court in the same state. However, that where there is a dispute as to which High Court has jurisdiction in the matter a reference has to be made to the constitution to resolve the issue, he cited and relied upon the cases of WEMA BANK PLC. V. CHRISROCK LAB IND. LTD. (2002) 8 NWLR (PT.770) P.614 and NWANA V. U.B.N. PLC. (2003) 16 NWLR (PT.846) P.218.
Reference was made to S.272 (1) and (2) of the constitution of the Federal Republic of Nigeria, 1999. It was argued that the above section did I not intend to limit the jurisdiction of the High Court of a State to only proceedings which originate in the state. It was submitted that in appropriate cases, such as this, the High Court can exercise jurisdiction over a matter even if such matter did not originate in the state where the High Court is situate.
It was argued that where the word “includes” appears in the definition section of a statute or in a provision of any of its sections, it widens the scope of the concept covered by the term that it precedes. Reliance was placed on the cases of ODIDO VS. STATE (1994) 3 NWLR (PT.333) 504 and UTIH V. ENOYIRWE (1991) 1 NWLR (PT.166) P.166.
It was further submitted that, apart from the constitution of the Federal Republic of Nigeria, The High Court Law, Cap 44 Laws of Ogun State 1978 also confers jurisdiction on the High Court of Ogun State, reference was made to S.10 (1) of the said law. It was argued that S.272(2) of the 1999 Constitution and the above provision of the High Court Law of Ogun State did not limit the jurisdiction of the court to only situations where the cause of action arose outside the jurisdiction of the court, provided that some other conditions/requirements are met, such as the residence of the defendants. He referred to FAN MILK LTD. V. EDEMEROH (2000) 9 NWLR (PT.672) 402 and FIDELIS NWADIALO’S CIVIL PROCEDURE IN NIGERIA (2ND EDITION) P.82 in which the Supreme Court decision was referred to, BENSON & ABEJIDE V. ASHIRU (1967) NMLR 363.
We were urged to hold that there is nothing in the provision of S.272 of the Constitution and S.10 (1) of the High Court of Ogun State that prevents the trial court from exercising jurisdiction in this matter and to resolve the first issue in favour of the Appellant.
In arguing his second issue, the learned appellant’s counsel submitted that the evidence of PW1, (Appellant), PW3, PW4 and DW2 (2nd Respondent), is material for a resolution of this issue. The evidence of these witnesses were reviewed, basically the manner in which the vehicle was driven by the 2nd Respondent (DW2) up to the point of the collision on the highway from Oshodi, Lagos heading for Ijebu-Ode.
It was contended by the learned Appellant’s counsel that the defence of the 2nd Respondent is that the driver of the Bedford lorry drove against the flow of traffic, and that it was the wrong of the Bedford lorry driver that caused the accident. Reference was made to the contrary view of the learned trial judge at Page 102 of the printed records, to the effect that before a careless driver could be held liable in negligence; every passenger in the vehicle ought to have warned such driver first.
It was argued that the learned trial judge held that there were contradictions in the evidence of PW1 and PW4 as to PW1’s warning to the 1st Respondent (DW2) about his speed, it was argued that there were no contradictions and if there were (without conceding)the contradictions did not affect the credibility of the witnesses because of the time lag between the occurrence of the incident and their testimonies, he said they were minor, he relied on the case of OKPOKPO V. UKO (1997) 11 NWLR (PT.527) 94.
It was further argued that the 2nd Respondent’s defence of inevitable accident cannot avail him, the court has to be satisfied of the existence of some other conditions before the defence can avail a defendant, see A.N.T.S. V. ATOLOYE (1993) 6 NWLR (PT.298) 233. Also that the 2nd Respondent failed in his evidence before the trial court to establish the reason why if he was not over-speeding or negligent he could not avoid the Bedford Lorry as others did.
It was submitted that in determining the cause of the accident of 9th April 1993, the court is entitled to ascertain what appears to be the most responsible cause. We were urged to hold that it is the negligence of the 2nd Respondent that substantially caused the accident that inflicted the injury and pain on the appellant.
In further submission on this issue, it was argued that if the court finds the 2nd Respondent was negligent in the manner he drove the accidented bus belonging to the 1st Respondent and that the bus was driven in the normal course of his duties to the 1st Respondent on that fateful day, then this court should not hesitate to hold the 1st Respondent vicariously liable for the tortious liability of its agent the 2nd Respondent. Further, that where an agent or servant such as the 2nd Respondent in this case, commits an act in the course of the business of his master (the 1st Respondent) the master should be liable for the wrongful act of such agent or servant, see SALAWU V. UNION BANK (1986) 4 NWLR (PT.38) 701.
We were urged to resolve the second issue in favour of the appellant and hold that negligence has been established in this case against the 2nd Respondent.
In arguing his issue three, the learned appellant’s counsel unhappy with the refusal by the learned trial judge of the claim under general damages, item (i) that is: loss of entire life’s earning at the rate of N2Million per annum from 9/4/93 up to date totaling N16 Million for eight years between 9/3/93 and 2001, highlighted the evidence of the Appellant in respect of her income prior to the accident. Further, that even if the appellant established less than what she was earning before the accident, under special damages, then the court would be perfectly in order to award the sum established.
On the relief in paragraph 18 (b) of the Plaintiff/Appellant’s Further Amended Statement of Claim (Page 80) on medical bills, drugs, extra food for nourishing and expenses at the hospital, it was argued that the learned trial judge allowed the amount in Exhibit C without doubting the authenticity of Exhibits A and B or the receipts therein marked Exhibits A1 – A76 and B1 – B76 respectively or Exhibit E but ignored these Exhibits because the total value of each of the Exhibits was not disclosed to the court. It was argued that the trial court could have added up or asked the parties to do so, to get the total amount contained in the Exhibits. We were urged to exercise our power under S.16 of the Court of Appeal Act to do what the learned trial judge ought to have done and direct the summing up of the total value of Exhibits A, A1 – A76, B, B1 – B18 and E and award same to the Appellant.
On the refusal by the learned trial court to grant the claims of the Appellant as contained in paragraphs 18 (c), (d) and (e) reproduced in paragraph 6.02 (iii), (iv) and (v) of the appellant’s brief of argument, the learned appellant’s counsel submitted that the appellant need not testify personally that her mother and sister looked after her and in fact need not personally testify to prove her own case and that the PW5 was in a position to testify as to the expenses incurred and who was paid what, in respect of those who cared for the Appellant while on admission in hospital. It was argued that the evidence was not controverted, we were urged to award in full the claims of the appellant on the special damages as contained in paragraph 18 (c) – (e) of the Further Amended Statement of Claim.
On general damages Claimed by the appellant, the learned trial judge acknowledged the fact that the appellant sustained very serious injuries in the accident of 9/4/93, page 111 of the records. The learned trial judge admitted the pains and suffering the appellant went through in course of her treatment as well as her deformity, seen by the court when she testified, page 117 of the printed record. Also the evidence of the PW2 who testified as to the extent of the injury sustained by the appellant and the evidence of the Appellant herself as PW1 confirming the testimony of the PW2 who gave evidence of her experience in course of her treatment, during her long stay in hospital. The learned counsel wondered why inspite of all these the trial court disallowed the reliefs under general damages as contained in paragraph 18 of her statement of claim, totaling N287,600.00 for the reason that she did not adduce evidence to prove her claim.
It was submitted that the claim for damages for pain and suffering and loss of amenities of life in personal injury cases as in the present case are two, distinct and separate, arising from the same damages and injury and that the learned trial judge ought not to have lumped the award of damages together, to award a lesser sum, than claimed in paragraphs 18 (i), 18 (iii), and 18 (vii) in the appellant’s further amended claim under general damages. The following cases were cited and relied upon:- U.B.A. LTD. V. ACHORU (1990) 6 NWLR (PT.156) 254 AT 280; STRABARG CONST. (NIG) LTD. VS. OGAREKPE (1991) 1 NWLR (PT.170) 733.
It was further argued that where there is evidence of physical disability, the court will not and should not hesitate to award damages for loss of amenities of life, see U.B.A. LTD. V. ACHORU (Supra), also EZEIGBE V. AGHOLOR (1990) 7 NWLR (PT.161) 234.
While conceding that award of general damages is at the discretion of the court, which the appellate court should not interfere with, but where an appellate court finds that the trial judge proceeded on a wrong principle of law or that the award was a clearly erroneous estimate, as alleged by the appellant in this case, such appellate court will justify interference in the interest of justice. See U.B.A. V. ACHORU (Supra), we were urged to interfere in this case in favour of the appellant by increasing substantially the award of damages due to her under general damages or grant totally the claim of the appellant under the same heading.
It was argued that the appellant was about twenty five (25) years old at the time of the accident and would suffer her predicament for the rest of her life and that it is trite that where deprivation will last a long time, damages awardable would be substantial. The case of STRABARG CONST. (NIG.) LTD. VS. OPAREKPE (supra) was referred to.
We were urged to review positively in favour of the appellant the award of damages on her claims for general damages in paragraphs 18 (i) and (iii) of her Further Amended Claim, also to set aside the decision of the trial court and enter judgment in her favour.
In response to the issues as formulated and argued by the learned counsel to the Appellant, the learned counsel to the Respondents Adetunji Onabawo Esq. adopted and relied on his brief of argument dated and filed on 17/12/07. He referred to the Plaintiff/Appellant’s claims as endorsed on the writ of summons (page 2 of the records) and those repeated in the Further Amended Statement of Claim (page 84 of the records) to the effect that the accident or negligence complained of happened along Lagos/Ijebu-Ode route/road. In paragraph 5 of the Further Amended Statement of Claim the Appellant pleaded it was along Oworonsoki – Bariga Expressway, but did not state where Oworonsoki – Bariga Expressway is located. On the other hand, that the Respondents in their pleadings stated that the accident on which the complaint of negligence was premised happened at Gbagada in Lagos State, (page 59 of the records). It was submitted that there was no dispute in the trial court that the accident occurred in Lagos State. Further that S.272 (2) of the constitution relied upon by the learned Appellant’s counsel does not confer jurisdiction on the Ogun State High Court in this case and that such argument should be rejected.
On territorial jurisdiction of the High Court learned counsel referred to the case of TUKUR V. GOVT. Of GONGOLA STATE (1989) 4 NWLR (PART 1117) PAGE 517 AT PP.560 – 561. It was argued that while the High Court Ogun State has the legal capacity to adjudicate on tort, it lacked the geographical jurisdiction because the cause of action arose in Lagos State. With reference to paragraph 4.06, page 5 of the Appellant’s brief, it was argued that there was no dispute as to where the cause of action originated. It was not an issue before the trial court. It was submitted that the Appellant and her witnesses agreed in their evidence that the alleged negligence of the 2nd Respondent, the basis of the action arose and took place in Gbagada, Lagos State. It was submitted that the trial court was therefore right to have held that it lacked territorial jurisdiction to hear this case, the following cases were cited and relied upon, NGIGE V. CAPITAL BANKCORP LTD & ANOR (1999) 7 NWLR PART.609, P.71, and CAPITAL BANKCORP LTD V. SHELTER SAVINGS AND LOANS LTD & ANOR. (200&) 3 NWLR PT.l020, P.148, we were, based on the above authorities, urged to affirm the decision of the lower court to the effect that it lacked jurisdiction.
In resolution of the second issue, the learned counsel to the Respondents submitted that the evidence of PW1, PW4 and DW2 as recorded in the printed records of appeal is relevant and material, because these witnesses were at the scene when the incident that gave rise to the action occurred on 9th April, 1993.
The case of the Appellant against the Respondents at the lower court was premised and based on the tort of negligence. The particulars were pleaded in paragraph 5 of the Further Amended Statement of Claim. The tort of negligence was defined in the case relied upon by the learned counsel, in UTB V. OZOEMENA (2007) 3 NWLR (PART 1022) P.448. It was argued that the onus of proving negligence is on the plaintiff who alleges it, reliance was placed on the case of KUYA V. U.B.A. (1991) NWLR (PT.481) P.251, NIGERIA BOTTLING CO. LTD V. NGONADI 1985 1 NWLR PT.4 P.739 and UTB V. OZOEMENA (Supra) AT 465. It was submitted that such proof is by credible evidence with the particulars thereof as pleaded. The learned counsel reviewed the evidence of the PW1 and PW4 and contended that the evidence adduced by these witnesses did not prove the important ingredients and particulars of negligence as pleaded in paragraph 5 of the Plaintiff/Appellant’s Further Amended Statement of claim.
It was further argued that the trial court was right to have found that over speeding as one of the particulars of negligence of the 2nd Respondent as alleged by the Appellant and as pleaded was not proved, the said court having preferred the evidence of the DW2 that he was not over speeding.
Finally on this issue it was submitted that since the Appellant as Plaintiff failed at the lower court to establish a case of negligence against the 2nd Defendant/Respondent, this court was urged to resolve the second issue against the Appellant and affirm the judgment of the lower court in this regard.
On the third and last issue, on the assessment of damages made by the trial court; it was submitted that while special damages are to be specifically pleaded and strictly proved, general damages are presumed by law to be the direct natural consequences of the acts complained of and generally incapable of exact calculation, reference was made to the case of BADMUS V. ABEGUNDE (1999) 7 SCNJ 96 AT 103-104.
It was argued that the learned trial judge was right when he found that only the sum of N46,320.00 (Forty six thousand, three hundred and twenty naira) was strictly proved under special damages in that the appellant as plaintiff did not plead that she was earning N2 Million a year from her business but only did so under cross examination concerning her business with nothing to support the assertion. It was argued that, there was no credible evidence to support the claim under special damages.
On general damages, it was argued that the trial court was also right in its finding that there was no proof that the plaintiff (Appellant) lost the use of her legs, contrary to the contents of paragraph 6.25 on P.18 of the Appellant’s brief of argument. It was also argued that there was no evidence on record to back up the claim for drugs, extra food, and nourishment to justify the award of N200,000.00 claimed in this regard under general damages. Also, to justify the consideration of future medical expenses, there ought to be concrete evidence of intended future treatment.
Finally, that the learned trial judge did a good job in the assessment of damages otherwise due to the Appellant as Plaintiff in this case. For a reversal of the decision of the trial court in this regard, the appellant must convince this court that the trial court acted upon some wrong principles of law or the amount assessed too small. See SABBIRU MOTORS LTD V. RAJAH ENTERPRISES (2002) 7 NWLR PT.766 P.243. We were urged to allow the assessment of damages made by the trial court to remain and resolve the third issue against the Appellant as she has not met the requirement.
I will resolve the issues as formulated by the appellant, adopted by the Respondents and argued by both parties. The first issue which borders on jurisdiction, is coincidentally the most important, as this appeal would fail or succeed on it. If the trial court had no jurisdiction to have entertained the suit, then that should be the end of the matter. But, if the court had jurisdiction, then naturally I shall proceed to consider the two other issues raised and argued by the parties. This is so because the question of jurisdiction is vital to any meaningful adjudication, it would be considered first. See MADUKOLU V. NKEMDILIM (1962) 2 SCNJ 341, UDOFIA V. C.A.C. (1992) 5 NWLR (PT.242) 437 and OGUNSHINA V. OGUNLEYE (1994) 5 NWLR (PT.346) 625.
Jurisdiction in decided authorities has been defined as the power of the court to hear and determine the subject matter in controversy between the parties. See BABALOLA V. OBAOKU – OTE (2005) 8 NWLR (PT.927) 386 and USMAN V. K.S.H.A. (2007) 11 NWLR (PT.1044) P.148. It is determined by the plaintiff’s claim or relief.
In other words, it is the claim of the plaintiff that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the court. See WESTERN STEEL WORKS LTD. V. IRON STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (PT.49) 284, TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517 and ADEYEMI V. OPEYORI (1976) 9-10 SC 31.
The question raised in the Appellant’s first issue is whether the suit was wrongly commenced at Ogun State High Court, Abeokuta as a result of which the trial court lacked necessary jurisdiction to entertain it. This issue was couched from the first ground of appeal.
It is apt to start with the pleadings of the parties to be able to determine whether the suit was wrongly commenced at Ogun State High Court, Abeokuta (hereafter referred to as the trial court). In other words, whether the trial court had the power to hear and determine the subject matter in controversy between the parties. In this case, whether negligence has been established against the 2nd Respondent and if so the damages awardable had the court found in the Appellant’s favour. In Paragraphs 4 and 5 of the Plaintiff’s Further Amended Statement of Claim, before the trial court, P.80 of the records, it was averred thus:-
“4. On or about the 9th day of April, 1993 the plaintiff boarded the 1st defendant’s Toyota Coaster bus with Registration No. OG 841 ES from Lagos to Ijebu-Ode and the vehicle was driven by the 2nd defendant.
5. In the course of this journey and along Oworonsoki – Bariga Expressway, the 2nd defendant drove the said bus negligently and dangerously which caused the bus to collide with a Bedford Lorry with Registration No. OD 2912 M coming from opposite direction.” (underlining by me for emphasis)
In line with the above pleadings, the testimony of the Appellant as PW1 at page 40 of the printed records is as follows:-
“I remember some part of the incident that happened to me on 19/4/93. I remember that on the said date I boarded the vehicle at Oshodi, the driver of the vehicle started speeding. The Registration No. of the vehicle is OG 841 ES.” Further at page 42:
“I recollect that the accident in ‘question occurred while we were still in Lagos; to be precise it occurred at Gbagada. The accident occurred on the expressway.” (underlining mine for emphasis)
The PW4 testified to the place of the incident, at page 67 of the printed records thus:-
“The accident occurred as a result of a collision with an on-coming vehicle. The accident occurred at Gbagada. The accident occurred on an expressway.”
On the part of the Respondents, part of paragraph 3 in their joint Further Amended Statement of Defence, page 59 of the records reads:-
“3. The defendants admit that on 9/4/93, the Toyota Coaster Bus Registration Number OG. 841 ES belonging to the first defendant and being driven by the second defendant on a routine trip from Oshodi in Lagos to Ijebu-Ode was involved in an accident at Gbagada along the Oworonsoki Apapa Expressway in Lago…………………………………… ”
DW1 testified at P.73 of the records as to the location of the accident being Lagos, thus:-
“After the accident which occurred on 9/4/93 at Gbagada area, Lagos involving one of the 1st defendant’s vehicle, a message was sent to the Abeokuta office through the Ijebu-Ode office.”
(Underlined portions mine for emphasis)
No doubt, the pleadings of the parties and the evidence adduced by their witnesses show that the accident on which the plaintiff’s complaint of negligence was premised took place at Gbagada in Lagos State. Similarly, Exhibits F and K also confirm this. Therefore there is no dispute that the act of negligence complained about occurred in Lagos State. The question now is: does the Ogun State High Court,. Abeokuta have the jurisdiction to adjudicate on this matter? I have above; in this judgment defined jurisdiction and what determines it.
On the ingredients that determine the jurisdiction of a court, the subject matter of a case has to come within the court’s jurisdiction. The court’s territorial jurisdiction (which is the crux of the first issue) and the composition of the court are other essential aspects of jurisdiction giving competence to the proceedings before the court. That is to say, it is the nature of the subject matter or parties or the territorial limits over which the court can exercise jurisdiction that restricts the exercise of jurisdiction of court. In the present case, the jurisdiction of the Ogun State High Court was restricted by the territorial limits imposed by the instrument establishing it and the 1999 Constitution which defined the areas covered by the state. See WUYEP V.WUYEP (1997) 10 NWLR (PT.523) 154, MADUKOLU V. NKEMDILIM (Supra) MOGAJI V. MATARI (2000) 8 NWLR (PT.670) 722; ALAO V. A.C.B. LTD (2000) 9 NWLR (PT.672) 264; ARAKA V. EJEAGWU (2000) 15 NWLR (PT.692) 684, and IBRAHIM V. I.N.E.C. (1999) 8 NWLR (PT.614) 334
It is noteworthy that the learned counsel to the Appellant in paragraph 4.05 at page 5 of his brief of argument rightly stated that a court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the Federation and also that the causes of action arising from within a state are justiceable by the state court, in the same state but, somehow misapplied Section 272(1) and (2) of the 1999 Constitution, in that the above provision applies to the jurisdiction of the High Court of a state in proceedings which originate in the state. The interpretation given to the word “includes” in the above “sub section” cannot be read in isolation but, in con of the entire “sub paragraph” contrary to the argument of the learned Appellant’s counsel. It applies to cases which “originate in the High Court of a State”. It was erroneously argued that the word “includes” widened or extended the jurisdiction of the State High Court.
Similarly, the learned counsel to the appellant had argued that Section 10(1) of the Laws of Ogun State 1978, apart from the Constitution also confers jurisdiction on the High Court of Ogun State without limit, where the cause of action arose out of jurisdiction as in the present case. It was argued that other conditions that confer jurisdiction were met, that is, the residence of the Defendants/Respondents.
At this stage, a distinction must be made between territorial jurisdiction and jurisdiction in relation to the judicial division in a state. Before that, I will look into the meaning of cause of action as defined in decided authorities. A cause of action has been defined as a combination of facts or circumstances giving the plaintiff a right to sue. It comprises of two elements namely:
(a) The defendant’s wrongful act; and
(b) The consequential damage suffered by the plaintiff.
See ADESOKAN V. ADEGOROLU (1997) 3 NWLR (PT.493) 261; AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT.504) 237, EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AGBANEBO V. UNION BANK OF NIGERIA LTD. (2000) 7 NWLR (PT.666) 534 and N.V. SCHEEP V. THE N.I.V. “SARAZ” (2000) 15 NWLR (PT.691) 622.
In the present case, the cause of action was the accident that involved the vehicle driven by the 2nd Respondent in which the Appellant sustained injuries for which this action was instituted for damages under various heads, for various claims. The accident took place at Gbagada, in Lagos, Lagos State.
With the above definition of a cause of action and as in the decided authorities above, the distinction will be clearer. The learned counsel in his argument in respect of S.272 (1) and (2) of the 1999 constitution and S.10(1) of the High Court Law of Ogun State seems to have mixed up the two aspects of the court’s jurisdictional powers to entertain a matter.
Where an action is instituted in a court outside the territorial jurisdiction of a state where the cause of action arose, is different from instituting an action outside the judicial division in the same state where the cause of action arose. There is a distinction between jurisdiction as it relates to the territorial, geographical jurisdiction of a court and jurisdiction to the judicial division within which to commence an action. The distinction between venues, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the Rules of court of various states of the Federation. It is to the latter that S.10 (1) of the Ogun State Law relied upon by the learned applicant’s counsel applies.
In my candid view, Section 10(1) of the High Court Law of Ogun State would be applicable to jurisdictional powers exercisable in Ogun State, in relation to judicial divisions within the state, for administrative convenience.
When it comes to territorial jurisdiction, which is whether a suit ought to have been brought in another state as in the present case the criteria is different. In a situation such as this, where the cause of action arose in Lagos State, and the case was instituted in Abeokuta, Ogun State, the court has no jurisdiction to entertain the matter. See. INTERNATIONAL NIGER BUILD CONSTRUCTION CO. LTD V. GIWA (2003) 13 NWLR (PT.836) 69 RELIED UPON IN FAIRO V. U.B.N. PLC (2007) 16 NWLR (PT.l059) P.99. s.272 (2) of the 1999 Constitution, as rightly argued by the learned counsel to the Respondents relates to the High Court and not a state, it does not apply to the state where a cause of action originates.
I agree with the submissions of the learned Respondents’ counsel that the interpretation given to S.272 (2) of the 1999 Constitution by learned counsel to the Appellant is wrong and it does not apply to the present case. Still on territorial jurisdiction of the High Court. See TUKUR VS. GOVERNMENT OF GONGOLA STATE (Supra). In the above case the apex court gave the two primary aspects of jurisdiction of a court, these are:
(i) The legal capacity and power and authority of a court to adjudicate on a matter; and
(ii) The geographical area over which the legal jurisdiction of the court can be exercised.
No doubt, the high court Ogun State has the legal capacity to adjudicate on torts such as negligence as alleged in the present case but it lacks the geographical jurisdiction to entertain this matter because the cause of action arose in Lagos State, there is no dispute as to where the cause of action originated, that is, the alleged negligence of the 2nd Respondent, which is the basis of the action, arose and took place in Gbagada, Lagos State, that is the accident in which the appellant was injured. I earlier on in this judgment highlighted the pleadings and evidence of the parties in that respect.
Therefore, what gave the appellant the cause of action against the respondents was the accident in which she got injured, that gave rise to her claims, enforceable in a court of law, which leads to the right to sue person/persons responsible for the existence of such circumstances. To that effect, his lordship Mukhtar JSC in CAPITAL BANCORP LTD VS. S.S.L. LTD (Supra) AT P.162 had this to say:-
“There must therefore be a wrongful act of a party (i.e. the party sued), which has injured or given the plaintiff a reason to complain in a court of law of consequent damage to him. See LABODE V. OTUBU (2001) 7 NWLR (PT.712) PAGE 256, and A.-G. FEDERATION V. A.-G. ABIA STATE (2001) 11 NWLR (PART 725) PAGE 689.”
The accident that caused the injury having occurred in Lagos State, it is the Lagos State High Court that should hear and determine the case. The learned trial judge was therefore correct when at page 123 – 124 of the records he held thus:
“In the case before the court it is crystal clear given the evidence of the 2nd DW and the answers elicited from the 1st P.W. as well as the 4th P.W. under cross examination that the accident involving the Bus OG 841 ES and Bedford Lorry OD 2912 M on 9/4/93 occurred at Gbagada, Lagos State……………………………………………………….
I not only find as a fact that the accident in question occurred in Lagos. Given these findings and relying on the Ngige’s case, I hold that only the High Court of Lagos State has the jurisdiction to adjudicate over the case. As the plaintiff has decided to institute the case before this court and as the court cannot extend its jurisdiction whether territorial or in respect of causes of action beyond the limit given it by law, I uphold the points of law raised in paragraph 10 (ii) & (iii) of the Further Amended Statement of Defence and accordingly hold that that (sic) is no jurisdiction in this court to adjudicate over this suit.”
(Underlining mine for emphasis)
The learned trial judge was right to have held at the tail end of the judgment that the court had no jurisdiction to entertain the matter having found from the averments in the pleadings of the parties and the testimonies of their witnesses that the accident in question that gave rise to the cause of action took place at Gbagada in Lagos State. This holding cannot be faulted.
The learned trial judge went further and held still at page 124 of the printed records:
“As the law is that a court cannot dismiss an action it has no jurisdiction to entertain the proper order to make in this case therefore is one striking out the case despite my earlier finding that the plaintiff’s case having failed in its entirety is liable to be dismissed.” (Underlining mine for emphasis)
The learned trial judge correctly stated the position of the law in respect of the proper order to make where a court has no jurisdiction, it should be an order striking out the suit and not an order of dismissal.
Before the learned trial judge declined jurisdiction and stated the proper order to be made where a court lacks jurisdiction, the learned trial judge in the earlier part of the judgment, from page 109 of the printed records, to page 111 erroneously went ahead and looked into the second issue as formulated by the Appellant and argued by the parties and resolved same, held that the plaintiff failed to establish the liability of the 2nd defendant.
At page 111 the learned trial judge held:-
“It is obvious that the plaintiff has failed to establish the liability of the 2nd defendant to her in respect of the tort complained of. Consequently, I hold that the 2nd defendant cannot be liable to the plaintiff in the various sums claimed by her or in any sum at all and that the 1st defendant who has been sued vicariously, equally cannot be liable to the plaintiff in the various sums claimed by her or in any sum at all. Accordingly, the case of the Plaintiff having failed in its entirety is liable to be dismissed.”
In paragraph 10 of the Further Amended Statement of Defence the Respondents as defendants raised three (3) issues of law which bordered on the jurisdiction of the trial court to entertain the matter, at page 118 – 119 of the records. Those issues ought to have been looked into and resolved first before embarking on or looking into the merit of the action if need be, i.e., the liability or otherwise of the Respondents and further going into assessing the damages the Appellant would have been entitled to had the decision not been against her.
Jurisdiction as we have seen, is a radical and crucial question of competence for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided. See MADUKOLU V. NKEMDILIM (SUPRA) also OGUNMOKUN V. MIL. AD., OSUN STATE (1999) 3 NWLR (PART 594) 261.
In the present case, with due respect, the trial court had no business resolving issue two and holding that the plaintiff’s case failed in its entirety and the case liable to be dismissed. The proper thing the trial court ought to have done was resolve first the issue of jurisdiction, and in holding that it had no jurisdiction to entertain the matter, should have stopped there. The entire proceedings of evaluating the evidence, the claim and argument of counsel in respect of issue two is a nullity as same was done without jurisdiction, whether the evaluation was well done or not is immaterial, and I so hold.
The trial court under this same second issue dismissed the case of the plaintiff. To this I would respectfully say is also improper. If the court has no jurisdiction to hear a matter, it cannot dismiss the action. See ABU V. KUYABANA (2003) 4 NWLR (PART 758) 599. Where a Court holds that it has no jurisdiction to entertain a matter, it must strike out the matter and not dismiss it. It has no such jurisdiction or competence to dismiss the action. See DIN V. ATIORNEY-GENERAL OF THE FEDERATION (1986) 1 NWLR (PART 17) 471, MAKERI V. FAFINTA (1990) 7 NWLR (PART 163) 611, EZEOMI VS. AGHERE (1991) 4 NWLR (PART 187) 631 ONAGORUWA V. I.G.P. (1991) 5 NWLR (PART 193) 593 – NIKI TOBI, J.C.A. (as he then was). A dismissal would be appropriate where the court has the capacity to hear the case and a decision taken on the merits. In the present case, the proper order would be to decline jurisdiction as later done by the learned trial judge and then a striking out of the entire case. This would give the plaintiff another chance or opportunity to institute the action in the appropriate court if she so desires and if the law permits it. A dismissal order shuts out the plaintiff as if the order was properly given following a trial on the merits. With due respect to the learned trial judge, the dismissal order made in resolving issue two was made irregularly without jurisdiction and it is hereby set aside.
After resolving the second issue the learned trial judge went further and held thus:-
“Despite the conclusion above that the case of the plaintiff having failed in its entirety is liable to be dismissed; I will still proceed to assess the damages the plaintiff would have been entitled to if my decision had not been against her.”
The learned trial judge went ahead and evaluated oral and documentary evidence from both parties, arguments of counsel and at page 118 of the records, went ahead and assessed damages he would have awarded had he not dismissed the plaintiff’s case. The court held:-
“In conclusion had this court not found that the plaintiff’s case is liable to be dismissed, I would have awarded a total sum of N246,320.00 damages made up of:
(i) N46,320.00 special damages for medical expenses; and
(ii) N200,000.00 being general damages for pain, suffering and loss of amenities.
In favour of the plaintiff and against the defendants jointly and severally.”
(Underlinings mine for emphasis)
By the above holding, the learned trial court resolved the third issue, that is, assessment of damages that would have been awardable to the appellant if the court had found in her favour. With due respect, once more to the learned trial judge, the issue of the breakdown. And assessment of damages awardable had the plaintiff succeeded in her case does not arise. If the court lacked jurisdiction to hear, the matter, it had no capacity to assess awardable damages had the plaintiff succeeded and I so hold.
The learned trial Judge’s resolution of the third issue is hypothetical. This Court is not a place where a hypothetical issue or decision can be looked into and resolved and/or answered. This Court answers only live questions and issues. See AKEREDOLU V. ADEREMI (NO.2) 1986 2 NWLR (PART 25) 710; 725 S.C. and EKPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PART 34) 162. All that exercise was an exercise without jurisdiction, an exercise in futility and purely a waste of precious judicial time, therefore I cannot now look into it, to determine if the assessment was properly done or not and I so hold. The assessment and the resolution of the third issue by the trial court is hereby set aside.
After the resolution of the second and third issues, the learned trial judge thereafter held:
“Before deciding on the proper order to make in this case given the conclusion that the plaintiff’s case having failed in its entirety is liable to be dismissed, there is need for the court to dispose of the issues of law raised at the trial of this case.”
I had earlier mentioned the issues of law referred to by the learned trial judge, in paragraph 10 of the Further Amended Statement of Defence, which challenged the jurisdiction of the trial court, as a High Court in Ogun State to entertain the matter, when the cause of action took place in Gbagada in Lagos State. In view of the issues of law raised early enough challenging the court’s power to entertain the matter, same should have been resolved first. I am of the view that the learned trial judge was in error to have resolved issues two and three before looking into the first issue where the court eventually held it had no jurisdiction to hear, the matter and that only the High Court of Lagos State has the jurisdiction to adjudicate over the matter, I reproduced the relevant portions earlier in this judgment.
It is unfortunate that the learned trial judge left the issue that should have been resolved first till the end. The Court was right when it finally held in respect of the first issue:
“As the law is that a court cannot dismiss an action it has no jurisdiction to entertain, the proper order to make in this case therefore is one striking out the case. …….”
I totally agree with the above holding and it is the law that where the court has no jurisdiction, the proper order to make is one striking out the entire case, this is in line with the arguments of the learned counsel to the Respondents in response to the appellant’s first issue.
It is clear that this suit was wrongly commenced at the Ogun State High Court, Abeokuta as a result of which the trial court lacked necessary jurisdiction to entertain it. When a suit ought to have been brought in one state instead of another, the jurisdiction of the wrong state, in this case, Ogun State is non-existent. See I.K. MARTINS LTD. V. U.P.L. (1992) 1 NWLR PART 217 PAGE 322 cited by the learned counsel to the Respondents.
In the light of all of the above, having resolved the first issue in the affirmative as urged by the learned counsel to the Respondents and against the appellant, that is the end of the matter, there is no need to go into resolution of issues two and three.
In the final analysis, the trial court not having had the jurisdiction to hear the matter and held so in resolution of the first issue, was right to have struck out the case. I affirm the decision of the learned trial court that it lacked the jurisdiction to hear the matter and also affirm the order striking out the case.
Each party to bear its costs.
SIDI DAUDA BAGE, J.C.A: I have read in advance the lead judgment delivered by my learned brother, C. N. Uwa, J.C.A.
I entirely agree with the reasonings and conclusions reached in holding that the learned trial Court lacked jurisdiction to hear the matter.
I also abide with the consequential orders made in the lead judgment.
MODUPE FASANMI, J.C.A: I read before now the lead judgment just delivered by my learned brother C. N. UWA J.C.A.
I agree entirely with the lead judgment. I also affirm the decision of the learned trial court that it lacked jurisdiction to hear the matter. I abide with the consequential order made.
Appearances
Adewale Adegoke Esq.For Appellant
AND
Adetunji Onabawo Esq.For Respondent
