FIDELITY BANK PLC. V. PETROLEUM (SPECIAL) TRUST FUND & ORS.
(2012)LCN/5103(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of January, 2012
CA/L/442/2006
LAW OF EVIDENCE: THE POSITION OF THE LAW ON WHEN THE BASIS OF THE FACTS AND DOCUMENTS PLACED BEFORE THE LOWER COURT IS SAID TO BE TRIABLE ISSUES OR A DEFENCE AS TO MERIT TO WARRANT THE GRANT OF LEAVE TO DEFEND THE SUIT
On issue No.1 which is to the effect of whether or not on the basis of the facts and documents placed before the Lower Court, the Appellant disclosed triable issues or a defence as to merit to warrant the granted of leave to Defend the Suit, learned counsel Mrs. Badewole, submitted, inter alia that the claim of the 1st Respondent at the Lower Court was based on the Advance payment Guarantee (APG) dated 10th June 1998 and executed by the Appellant. The law is settled that the procedure for summary judgment under Order II High Court of Lagos State (civil procedure) Rules 1994 is such that once the writ of summons is specially endorsed or served with the statement of claim and is supported with an affidavit which has sworn positively as to the facts establishing the cause of action and in proof of the action, the claimant is entitled to judgment as claimed unless the Defendant can show that he has a good defence on the merits or the Defendant discloses such facts as may be deemed sufficient to entitle him to defend the suit i.e. that there are triable issues. See:- Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; Nishizawa v. Jethwani (1984) 12 SC 234; Thor Ltd v. First City Merchant Bank Ltd (200) 4 NWLR (Pt.652) 274, It is further submitted that parties are bound by their pleadings. Where a specific fact is asserted in the pleadings and the other party fail to counter the specific asserted fact wits own pleading, such pleaded fact is deemed admitted by the other party. See:- Limen v. Mohammed (1999) 9 NWLR (Pt.617) 116; Adesanoye v. Adewole (2000) 9 NWLR (Pt.571) 127 at 144 – 145 para H – A; Akintola v. Balogun (2000) 1 NWLR (Pt.642) at 532; N.A.B Ltd v. Abdullahi (2000) 6 NWLR (Pt.662) 549; Olujinle v. Adeagbo (1938) 2 NWLR (Pt.75) 238. It is further submitted that the wordings and terms of the APG are clear and unambiguous, therefore, the Lower Court had no choice other than to give effect to the terms of the APG. See:- MISR. V. Assad (1970) 2 SC. PER. SIDI DAUDA BAGE, J.C.A.
LAW OF EVIDENCE: ON WHOM LIES THE ONUS TO PROVE AN ASSERTION
The Appellant had to show the value of work executed/serviced and the mode of work carried out. The Appellant failed to do so. The law of Evidence place the burden of proof squarely upon the Appellant who asserted that job certificates were issued by the 1st Respondent to place before the trial Court the alleged job certificates. See:- Section 135 and 136 of the Evidence Act. Also Ukpo v. Adede (2002) 3 NWLR (Pt.755) 671; Mercantile Bank of Nigeria Plc v. Nwobodo (2000) 3 NWLR (Pt.648) 297 at 318; Olaiya v. Olaiya {2000) 1 NWLR (Pt. 7621 652 at 654 Paras. G – H. Lewis & Peat (N.R.I) Ltd v. Akhimien (1976) 10 NSCC 350 at 355; Adeniji v. Onagoruwa (2000) 1 NWLR (Pt.639) 1; W.A.C.C. Ltd v. Caroline Poultry Farm Ltd (2000) 2 NWLR (Pt.64. PER. SIDI DAUDA BAGE, J.C.A.
THE ISSUE OF THE JURISDICTION OF THE COURT
On issue No.3 to wit whether in the light of the Supreme Court’s judicial interpretation of Section 237(1) (p) (q) (r) of the constitution of the Federal Republic of Nigeria 1999 in the cases of Onuara V. K.R.PC Ltd and Adelekan v. Eculine N.V the lower court wrongly exercised jurisdiction in this matter, it is submitted by the learned counsel to the 1st Respondent that the jurisdiction of a court is determined and circumscribed by the statute establishing the court. The court therefore, will not readily deny itself jurisdiction unless such jurisdiction is expressly ousted by statute. The relevant Statute/Law in the instant case is the constitution of the Federal Republic of Nigeria, 1999. It is further submitted that the law is trite that in order to determine whether or not a court has jurisdiction over a matter it is the claim of the Plaintiff as shown in the Statement of Claim that would be considered to ascertain whether such claims as disclosed falls within the jurisdiction of the court as considered by the Statute/Law establishing the court See:- Orthopedic Hospital Management Board v. Garba (2002) 14 NWLR (Pt.788) 538; Mustapha v. Gov. of Lagos State (1987) 2 NWLR (Pt.58) 532; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 592; Onuora v. V. K.R.P.C. Ltd (2005) 18 NWLR (Pt.921) 392 at 407. The claim of the 1st Respondent falls squarely within the unlimited jurisdiction of the State High Court and outside the exclusive jurisdiction of the Federal High Court. It is further submitted that the proceeding on the Legal premise that a statutory provision ousting the jurisdiction of court or which seeks to curtail the unlimited jurisdiction conferred on the State High Court must be strictly construed, the subject matter of the 1st Respondent claim i.e. enforcement of an Advance Payment Guarantee does not fall within the purview of Section 251(1)(a), 251(1)(p) or 251(1) (q) as contended by the Appellant. The Supreme Court had severally in decided cases held that of purposes of determining the exclusive jurisdiction of the Federal High Court as conferred in Section 230(1) of Decree No. 107 of 1993 or what is now Section 251(1) of 1999 Constitution the Court must carefully examine the facts of the case to see whether they justify the application of the sub-section. See Trade Bank Plc v. Banilux (Nig) Ltd 9 NWLR (Pt.825) 416; Akeem v. Unibadan (2003) 10 NWLR (Pt.829) 584 Akinade v. N.A.S.U (1999) NWLR (Pt.592) 570; Odutola v. Nitel (2006) All FWLR (Pt.335) 73; NEPA v. Edegbero (2002) 18 NWLR (Pt.798) Lead Merchant Bank Ltd v. Petroleum (Special) Trust Fund (2005) 5 NWLR (Pt.974) Akinade v. N.A.S.U (1999) 2 NWLR (Pt.592) 570. Where there are conflicting decisions of the Supreme Court, the Lower Courts are entitled and bound to follow the latter decision of the Supreme Court in that the Supreme Court would depart from its earlier decisions whenever necessary in the interest of justice. PER. SIDI DAUDA BAGE, J.C.A.
THE POWER OF THE FEDERAL HIGH COURT TO ENTER INTO ADJUDICATION OF ANY ACTION OR PROCEEDING SEEKING DECLARATION AND INJUNCTIVE RELIEFS
Supreme Court in the case of Dr. Taiwo Oloruntoba-Oju and Ors v. Professor P.A. Dopemu & Ors (2008) 7 NWLR (Pt.1085) 1 at pp 25 – 26 paras F – F; 36 paras A – B stated:- “By virtue of Section 251(1)(p), (q) and (r) of the constitution of the Federal Republic Nigeria 1999, notwithstanding anything to the contrary contained in the 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 relating to:- (p) the administration or the Management and control of the Federal Government or any of its agencies. (q) Subject to the provision of the constitution the operation and interpretation of the constitution in so far as it affects the Federal 6overnment or any of its agencies, (r) any action or proceeding for a declaration 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. Section 251(1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria 1999 are in substance the same with section 230(1) (q), (r) and (s) of the constitution of the Federal Republic of Nigeria, 1979 as amended by the constitution (suspension and modification) Decree No. 107 of 1993. The provision are clear and unambiguous and do not admit of what counsel or court thinks otherwise they are. The combined effect of the provisions is that the Federal High court is vested with power to enter into adjudication of any action or proceeding seeking declaration and injunctive reliefs See;- University of Abuja v. Ologe (1996) 4 NWLR (Pt.445)”. Further more in the same decision at pages 31 – 32 paragraphs H – C, the Supreme Court stated:- ”The aim of section 251(1) (p), (q) and (r) of the constitution of the Federal Republic of Nigeria, 1999 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents is a party. In the instant case the University of Ilorin is an agency of the Federal Government and the claims or reliefs were purely within the con of section 251 of the constitution. It is the Federal High Court that has jurisdiction, See:- NEPA v. Edegbero (2002) 18 NWLR (Pt.798) 96″. PER. SIDI DAUDA BAGE, J.C.A.
THE RESPONSIBILITY OF THE COURT TO INTERPRETE THE PROVISIONS OF THE CONSTITUTION
This Court is bound and any other court below saddled with the responsibility of interpreting the provisions of section 251(1)(p), (q) and (r) of the constitution of the Federal Republic of Nigeria to follow the decision of the Supreme court. The decision in Oloruntoba (supra) is a 2008 decision of the Supreme Court and its previous decision in NEPA v. Edegbero & 15 Ors. (2002) 18 NWLR (Pt. 798) 79 at 82 was cited to buttress the point. In Oloruntoba’s case (supra) the Supreme Court brought out clearly the legislative intention to the provisions of section 251 (supra) that the Federal High enjoys exclusive jurisdiction on all matters where the Federal Government or any of its agents is a party i.e. the instant appeal. It was therefore wrong for the trial court, High Court of Lagos State, to have assumed jurisdiction in the first place, to decide on the matter which clearly and unambiguously is within the exclusive jurisdiction of the Federal High Court. It is to be stated further that, for the trial court, the High Court of Lagos State to assume jurisdiction on a matter concerning the Funds of the Federal Government, where an agency of the Federal Government is a party by the effect of Section 251 (supra) of the constitution, and the pronouncement of the Supreme Court in Olorrntoba’s case (supra) such an action of the court is void for lack of jurisdiction. It is well settled that when an act is void and a nullity in law it is stricto sensu unnecessary for the person concerned by the act;, because no legal effect results from such act, to apply to have them set aside where the issue raised before a court is one of nullity, such court can ex debito justitiare in its inherent jurisdiction so declare. See:- Animashaun v. Osuma (1972) 4 SC 200 at 212; Akpene v. Barclays Bank (1977) 1 SC 47; N.H.D.S. v. Mumuni (1977) 2 SC. 52. Also the dictum of Lord Denning MR, in Macfoy v. U.A.C. Ltd (1961) 3 All ER at P.1172. “It an act is void, then it is in Law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes continent to have the court declare it to be so. And every proceedings which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there’ It will collapse”. PER. SIDI DAUDA BAGE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
FIDELITY BANK PLC. – Appellant(s)
AND
1. PETROLEUM (SPECIAL) TRUST FUND
2. AMICHELETTI PLC.
3. UNITED BANK FOR AFRICA PLC. – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State, delivered by Hon. Justice K.O. Alogba, of the Commercial Division, in Suit No. LD/2124/2001, of the 7th of November 2003. The ruling was in favour of the 1st Respondent, (as Plaintiff in that court). By a summons for judgment dated the 22nd day of January 2002, the Plaintiff (1st Respondent) prayed for leave to enter judgment for Plaintiff against the 1st Defendant/Respondent for the sum of N35,053,542.19k with interest at 21% per annum from 2nd July 2001 until judgment and payment. In support is a verifying affidavit dated 22nd January, 2002 to which documents marked Exhibits 11 to 17 were annexed, as well as a further verifying affidavit dated 23rd April 2002 to which document marked Exhibit JP was annexed.
The Appellant on the 11th of January 2002, then as the sole Defendant, applied by motion on notice dated and filed on 11th January, 2002 made an application to the court seeking to join the following persons as defendant, in the action:
(a) A Micheletti Limited
(b) Francis Bruce Limited
(c) Mr. Francis M. Bruce
By the order of the court, made on the 15th January, 2002. A Micheletti Nig. Ltd, and Francis Bruce Ltd were joined as 2nd and 3rd Defendants respectively and the Plaintiff/1st Respondent amended its writ of summons and statement of claim accordingly to reflect the new parties.
Also the Appellant (1st Defendant) by another motion on notice dated 11th of January 2002 and filed on the same day, applied for a third party notice to be issued on United Bank for Africa Plc, the said application was also granted by the court on the 15th January 2002 and the writ of summons amended accordingly.
The background facts are that, about the 4th of May 1998 Francis Bruce Ltd (hereinafter referred to as “the Contractor”) was awarded a Water Project Contract under the National Rural Water Supply Programmed by the 1st Respondent/Plaintiff. A term of the contract was for the contractor to submit the Advance Payment Guarantee from a bank approved by the 1st Respondent/Plaintiff before funds could be given to it to mobilize to site and commence the contract. The contractor approached the Appellant and obtained the Advance Payment Guarantee dated 10th day of June 1998 as requested by the 1st Respondent. The said contract between the 1st Respondent and the contractor also provided that the contractor shall sub-contract the job to the 1st Respondent appointed sub-contractor pursuant to which terms the 1st Respondent appointed Messrs A Micheletti Nig. Ltd the 2nd Respondent to undertake the rural water contract.
Upon the appointment of the 2nd Respondent, the 1st Respondent directed the Appellant to pay N28,842,833.75 to the 2nd Respondent’s banker, United Bank for Africa Plc (the 3’d Respondent/third party). The 3rd Respondent thereafter executed a back to back Advance Payment Guarantee dated 6th of August 1998 in the said sum in favour of the Appellant for the benefit of the 1st Respondent.
A term of the Advance Payment Guarantee executed by the Appellant was that “the amount covered by the guarantee shall however be progressively decreased by the sums re-imbursed by the contractor to the PTF in terms of value of works/goods satisfactorily executed/supplied under the contract upon presentation by the contractor to the bank of certifying documents approved and authenticated by the P.T.F. or any of the Authorized representatives of PTF.”
The above term was also replicated in the Advance payment Guarantee executed by the 3rd Respondent on behalf of the 2nd Respondent for the funds advanced to it as the appointed subcontractor for the benefit of the 1st Respondent.
At the time of instituting this action at the lower court, the 1st Respondent was aware that the parties in this action were embroiled in Suit No. PHC/323/2001 pending at the High Court of Rivers State Port Harcourt Division, where the 2nd Respondent as Plaintiff in that case sued the Appellant, the contractor and the 3rd Respondent amongst other Defendants.
The subject matter of the suit at Port Harcourt inter alia concerned Advance Payment Guarantee executed for the National Rural Water Supply Programmed Contracts LOT RV 2/A, the continued subsistence of the contract and the Advance Payment Guarantee where the 2nd Respondent was the 1st Respondent sub-contractor. The certified copy of Writ of Summons and the endorsed particulars of claim in Suit No. PHC/323/2001 dated 15th February 2001, are set out on pages 107 to 109 of the Record of Appeal.
Inspite of the above surrounding facts, the 1st Respondent went ahead and filed this suit at the High Court of Lagos State on the 6th of September 2001 in utter disregard to the terms of the Advance Payment Guarantee and the subsisting suit at the High Court of Rivers State, and also subsequently filed a summons for judgment which the lower court heard and ruled upon. The said Ruling of the court is the subject of this appeal.
Upon the receipt of the record of appeal, the Appellant filed an Amended brief of argument, pursuant to an order of this court made on the 4th of November, 2010. The Respondent filed its brief of argument dated and filed the 9th of February 2011.
From the Appellant’s brief of argument the following three (3) issues were formulated for the determination of the appeal.
ISSUES FOR DETERMINATION
(1) Whether the statement of defence and the affidavit to show cause filed by the Appellant disclosed a triable issue to enable the trial court allow the Appellant to defend the action.
(2) Whether the trial court was right in entering judgment against the Appellant in the full sum of the guarantee with interest as claimed by the Plaintiff inspite of evidence before the court showing that some work had been done by the contractor.
(3) Whether by virtue of Section 251(1)(a)(p)(q)(t)(r) of the Constitution of the Federal Republic of Nigeria, 1999, the High Court of Lagos State had the requisite jurisdiction to hear and determine the claims before it as it were in this matter.
In arguing the 1st issue it was stated that the 1st Respondent brought an application for summary judgment at the lower court pursuant to Order 11 of the High Court of Lagos State (Civil Procedure) Rules 1994 and the Appellant filed in answer thereto its statement of defence dated 22nd October 2001. Various processes were exchanged for the trial court to see if Defendants have raised a “triable issue” to enable the trial court allow them to defend the action.
It is further argued that the court in considering a summons for judgment is enjoined to look at the affidavit showing cause or the statement of defence filed by the Defendant to see if a defence is raised on the merits, or the defence has raised circumstances which require to be investigated. See:- Adebisi Mcgregor vs. Nigeria Merchant Bank Ltd (1996) 2 NWLR (Pt 431) 378; Federal Military Govt. vs. Sanni (1990) 4 NWLR (Pt.147) 688; FSB International Bank Ltd vs. Imano Nig. Ltd (2000) NWLR (Pt 679) 620 at 635.
On issue No.2, where documents form part of a long drawn transaction, they should be read and interpreted together, not in isolation but in the con of the totality of the transaction in order to fully appreciate their legal purport, that is the only way to find out and determine the real intention of the parties”. See:- Federal Government of Nigeria & Ors v. Zebra Energy Limited (2002) 3 NWLR (Pt. 754) 471 at 492 paras F – G.
It is argued that the Court first of all must look at the terms of the contract LOT RV 2/A – awarded to the contractor which principally put the act of performance on the 1st Respondent’s appointed subcontractor the 2nd Respondent. Thus will then be juxtaposed with the terms of the Advance Payment Guarantee which must be construed strictly, the resulting effect leaves a circumstance that cannot be determined under a summary application.
It is further argued that it was not for the Court to determine the suit at all cost with the preponderance of evidence it. The suit ought to have been placed in the general cause fist and the Defendants allowed to defend the suit and prove the extent of work done which in turn would reduce the amount on the Advance Payment Guarantee. See:- Calvenply Ltd v. Pekab International Ltd (2001) 9 NWLR (Pt.717) 164 at 174 para. F., African Continental Bank Ltd v. Gwagwada (1994) 5 NWLR (Pt.342) 25 at 35 paras. C – D.
On issue No.3 it is submitted that the Federal High Court is vested with exclusive jurisdiction by virtue of Section 251 of the constitution of the Federal Republic of Nigeria 1999 and is the only Court with competence to adjudicate over the subject of this appeal Section 251(1)(a)(p) and (q) the 1st Respondent, the Petroleum (special) Trust Fund (the Fund) is a statutory body established by Decree No.25 (Now an Act) of 1994 to perform various functions on behalf of the Federal Government of Nigeria under the exclusive direction, control or supervision of the President of the Federal Republic of Nigeria. By the various provisions of the Petroleum (special) Trust Fund Act, it is uncontestable that the fund is an organ and/or agency of the Federal Government within the contemplation of the 1999 constitution of which the Federal High Court is constitutionally vested with exclusive jurisdiction in all matters taking within the provisions of Section 251(1) Supra. The status of the 1st Respondent was laid to rest by this Court in Lead Merchant Bank Ltd v. Petroleum (special) Trust Fund (2006) 5 NWLR (Pt.974) 463 at 475 paras E – H. See also the decision of the Supreme Court in NEPA v. Edegbero (2002) 18 NWLR (Pt.798) 79 at 97 paras E – G. This court is urged to align with the judgment of this Court in the Lead Merchant Bank case and the Supreme Court in the NEPA case, by holding that the 1st Respondent is an agency of the Federal Government of Nigeria and that the money it paid to the contraction which the Appellant purportedly guaranteed and which the 1st Respondent is seeking to recover forms part of the revenue of the government of the Federal Republic of Nigeria, which the High Court of Lagos State clearly lacks the requisite jurisdiction to entertain in the matter.
In conclusion of the submission thereof learned counsel of the Appellant has urged on the Court to allow the appeal, set aside the ruling of the trial Court and accordingly grant all the reliefs sought in this appeal.
On the other hand the 1st Respondent has raised three issues (3) for determination of this appeal.
On issue No.1 which is to the effect of whether or not on the basis of the facts and documents placed before the Lower Court, the Appellant disclosed triable issues or a defence as to merit to warrant the granted of leave to Defend the Suit, learned counsel Mrs. Badewole, submitted, inter alia that the claim of the 1st Respondent at the Lower Court was based on the Advance payment Guarantee (APG) dated 10th June 1998 and executed by the Appellant. The law is settled that the procedure for summary judgment under Order II High Court of Lagos State (civil procedure) Rules 1994 is such that once the writ of summons is specially endorsed or served with the statement of claim and is supported with an affidavit which has sworn positively as to the facts establishing the cause of action and in proof of the action, the claimant is entitled to judgment as claimed unless the Defendant can show that he has a good defence on the merits or the Defendant discloses such facts as may be deemed sufficient to entitle him to defend the suit i.e. that there are triable issues. See:- Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; Nishizawa v. Jethwani (1984) 12 SC 234; Thor Ltd v. First City Merchant Bank Ltd (200) 4 NWLR (Pt.652) 274,
Learned counsel submitted further that the APG by itself constitute a contract whereby the terms regulating the contract were clearly detailed by the Appellant who prepared/authored the APG. There was evidence before the lower court that the 1st Respondent fulfilled its obligations under the APG.
It is further submitted that parties are bound by their pleadings. Where a specific fact is asserted in the pleadings and the other party fail to counter the specific asserted fact wits own pleading, such pleaded fact is deemed admitted by the other party. See:- Limen v. Mohammed (1999) 9 NWLR (Pt.617) 116; Adesanoye v. Adewole (2000) 9 NWLR (Pt.571) 127 at 144 – 145 para H – A; Akintola v. Balogun (2000) 1 NWLR (Pt.642) at 532; N.A.B Ltd v. Abdullahi (2000) 6 NWLR (Pt.662) 549; Olujinle v. Adeagbo (1938) 2 NWLR (Pt.75) 238.
It is further submitted that the wordings and terms of the APG are clear and unambiguous, therefore, the Lower Court had no choice other than to give effect to the terms of the APG. See:- MISR. V. Assad (1970) 2 SC.
On issue No.2 as to whether or not there was any document(s) as specified in paragraph 4 of the Advance Payment Guarantee dated 10th June 1998 placed before the Lower Court, to preclude the trial court from granting the 1st Respondent the full sum guaranteed by the Appellant, it is submitted that the Appellant admitted the interpretation to paragraph 4 of the APG, by restating same in paragraph 9 of its affidavit showing ca use. Throughout the proceedings at the lower court, the Appellant never alleged that a job of a specific monetary value was executed to reduce the Appellants liability under the APG. He did not present the 1st Respondents certified/authenticated document which could reduce the liability of the Appellant under the APG.
The Appellant had to show the value of work executed/serviced and the mode of work carried out. The Appellant failed to do so. The law of Evidence place the burden of proof squarely upon the Appellant who asserted that job certificates were issued by the 1st Respondent to place before the trial Court the alleged job certificates. See:- Section 135 and 136 of the Evidence Act. Also Ukpo v. Adede (2002) 3 NWLR (Pt.755) 671; Mercantile Bank of Nigeria Plc v. Nwobodo (2000) 3 NWLR (Pt.648) 297 at 318; Olaiya v. Olaiya {2000) 1 NWLR (Pt. 7621 652 at 654 Paras. G – H. Lewis & Peat (N.R.I) Ltd v. Akhimien (1976) 10 NSCC 350 at 355; Adeniji v. Onagoruwa (2000) 1 NWLR (Pt.639) 1; W.A.C.C. Ltd v. Caroline Poultry Farm Ltd (2000) 2 NWLR (Pt.644) 197.
Learned counsel further submitted that it is conceded that the Appellant raised the issue of the 1st Respondents capacity and queried that the Trial Court ought to have taken judicial notice of this publicized fact in considering the application for summary judgment. However having not included this issue in its Amended Notice of Appeal, the Appellant is estopped by the rules of this court from arguing the issue in its Brief of Argument. Consequently this court is urged to ignore that argument. See:- Osinupebi v. Saibu (1982) 7 SC at 104; Omo v. JSC Delta state (2000) 12 NWLR (Pt.682) 444; Alli v. Adeshiloye (2000) 6 NWLR (Pt.660) 177. Also Order 6 Rule 2(4) Court of Appeal Rules, 2007; See again : Sapara v. UCH Board (1988) 4 NWLR (Pt. 86) 58.
It is further submitted that having kept the 1st Respondent out of its money which said money the Appellant had used for itself, the Appellant ought to compensate the 1st Respondent accordingly with interest, See:- Kano iles Printers Plc v. Tukur (1999) 3 NWLR (Pt.589) 73 at 84 para. C- E; Ekwunije v. Wayne (1989) NWLR (Pt.122) 422.
On issue No.3 to wit whether in the light of the Supreme Court’s judicial interpretation of Section 237(1) (p) (q) (r) of the constitution of the Federal Republic of Nigeria 1999 in the cases of Onuara V. K.R.PC
Ltd and Adelekan v. Eculine N.V the lower court wrongly exercised jurisdiction in this matter, it is submitted by the learned counsel to the 1st Respondent that the jurisdiction of a court is determined and circumscribed by the statute establishing the court.
The court therefore, will not readily deny itself jurisdiction unless such jurisdiction is expressly ousted by statute. The relevant Statute/Law in the instant case is the constitution of the Federal Republic of Nigeria, 1999.
It is further submitted that the law is trite that in order to determine whether or not a court has jurisdiction over a matter it is the claim of the Plaintiff as shown in the Statement of Claim that would be considered to ascertain whether such claims as disclosed falls within the jurisdiction of the court as considered by the Statute/Law establishing the court See:- Orthopedic Hospital Management Board v. Garba (2002) 14 NWLR (Pt.788) 538; Mustapha v. Gov. of Lagos State (1987) 2 NWLR (Pt.58) 532; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 592; Onuora v. V. K.R.P.C. Ltd (2005) 18 NWLR (Pt.921) 392 at 407. The claim of the 1st Respondent falls squarely within the unlimited jurisdiction of the State High Court and outside the exclusive jurisdiction of the Federal High Court.
It is further submitted that the proceeding on the Legal premise that a statutory provision ousting the jurisdiction of court or which seeks to curtail the unlimited jurisdiction conferred on the State High Court must be strictly construed, the subject matter of the 1st Respondent claim i.e. enforcement of an Advance Payment Guarantee does not fall within the purview of Section 251(1)(a), 251(1)(p) or 251(1) (q) as contended by the Appellant. The Supreme Court had severally in decided cases held that of purposes of determining the exclusive jurisdiction of the Federal High Court as conferred in Section 230(1) of Decree No. 107 of 1993 or what is now Section 251(1) of 1999 Constitution the Court must carefully examine the facts of the case to see whether they justify the application of the sub-section. See Trade Bank Plc v. Banilux (Nig) Ltd 9 NWLR (Pt.825) 416; Akeem v. Unibadan (2003) 10 NWLR (Pt.829) 584 Akinade v. N.A.S.U (1999) NWLR (Pt.592) 570; Odutola v. Nitel (2006) All FWLR (Pt.335) 73; NEPA v. Edegbero (2002) 18 NWLR (Pt.798) Lead Merchant Bank Ltd v. Petroleum (Special) Trust Fund (2005) 5 NWLR (Pt.974) Akinade v. N.A.S.U (1999) 2 NWLR (Pt.592) 570. Where there are conflicting decisions of the Supreme Court, the Lower Courts are entitled and bound to follow the latter decision of the Supreme Court in that the Supreme Court would depart from its earlier decisions whenever necessary in the interest of justice.
It is submitted further that there exist a huge difference between the instant case and Edegbero’s case. Whereas the claim in the instant case is based on simple contract as between a promisor (Appellant) and the promise (1st Respondent) in respect of the promise, the claim Edegbero’s case was a challenge to an Executive and administrative act of a Federal Government agency. Also the facts of the instant case, and the Lead merchant’s Bank case are different as the plaintiff in Lead Merchant Banks case did not file a writ of summons and a Statement of Claim therefore there was no claim before the trial court when the trial proceeded to deliver judgment, as the said action was commenced without due process. The Plaintiff in Lead Merchant Bank’s case filed a motion Exparte and entered the suit under the undefended list, when the trial judge proceeded to enter judgment. The court in the Lead Bank’s case entered judgment for sum higher than what the plaintiff said was due to it. The case was decided solely in this based on the Appellant brief alone.
It was finally submitted that based on the above submissions this appeal be dismissed and the judgment of the Lower Court affirmed.
Looking at the issues formulated by the parties in this appeal, they are substantially identically, both the Appellant’s and Respondent considered three (3) issues each in their briefs of argument which becomes conterminous in all respect they raised the same questions, in that respect therefore I tend to be guided by the issues as formulated by the Appellant in the determination of this appeal.
In considering the issues for determination, the first and second issues in the Appellant’s brief of argument, from their couching, can be conveniently determined together. The first issue, is to the effect that, whether the Statement of Defence and the affidavit to show cause filed by the Appellant disclosed a triable issue to enable the trial court allow the Appellant to defend the action. While the second issue is to the effect that whether the trial court was right in entering judgment against the Appellant in the full sum of the guarantee will interest as claimed by Plaintiff inspite of evidence before the court showing that work had been done by the contractor. Supreme Court in the case of Dr. Taiwo Oloruntoba-Oju and Ors v. Professor P.A. Dopemu & Ors (2008) 7 NWLR (Pt.1085) 1 at pp 25 – 26 paras F – F; 36 paras A – B stated:-
“By virtue of Section 251(1)(p), (q) and (r) of the constitution of the Federal Republic Nigeria 1999, notwithstanding anything to the contrary contained in the 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 relating to:- (p) the administration or the Management and control of the Federal Government or any of its agencies. (q) Subject to the provision of the constitution the operation and interpretation of the constitution in so far as it affects the Federal 6overnment or any of its agencies, (r) any action or proceeding for a declaration 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. Section 251(1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria 1999 are in substance the same with section 230(1) (q), (r) and (s) of the constitution of the Federal Republic of Nigeria, 1979 as amended by the constitution (suspension and modification) Decree No. 107 of 1993. The provision are clear and unambiguous and do not admit of what counsel or court thinks otherwise they are. The combined effect of the provisions is that the Federal High court is vested with power to enter into adjudication of any action or proceeding seeking declaration and injunctive reliefs See;- University of Abuja v. Ologe (1996) 4 NWLR (Pt.445)”.
Further more in the same decision at pages 31 – 32 paragraphs H – C, the Supreme Court stated:-
”The aim of section 251(1) (p), (q) and (r) of the constitution of the Federal Republic of Nigeria, 1999 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents is a party. In the instant case the University of Ilorin is an agency of the Federal Government and the claims or reliefs were purely within the con of section 251 of the constitution. It is the Federal High Court that has jurisdiction, See:- NEPA v. Edegbero (2002) 18 NWLR (Pt.798) 96″. In the instant appeal before this court, it is no doubt that the Petroleum (special) Trust Fund the 1st Respondent, is an agency of the Federal Government. Infact the Appellant in its brief of argument at page 22, paragraph 43.03 stated:-
‘The 1st Respondent/Plaintiff, the Petroleum (special) Trust Fund (the fund), is a statutory body established by Decree No.25 (Now an Act) of 1994, to perform various function on behalf of the Federal Government of Nigeria under the exclusive direction control or supervision of the President of the Federal Republic of Nigeria”.
Therefore the issue of being an agent of the Federal Government is put to rest, the 1st Respondent is an agency of the Federal Government. The Supreme Court in its decision of Oloruntoba v. Dopemu (supra) cited earlier stated categorically that the aim of section 251(1)(p), (q) and (r) of the constitution of the Federal Republic of Nigeria, 1999 was to vest exclusive jurisdiction in the Federal High court in matters in which the Federal Government or any of its agents is a party. The present appeal concerns a transaction involving the 1st Respondent an agency of the Federal Government and the Appellant.
This Court is bound and any other court below saddled with the responsibility of interpreting the provisions of section 251(1)(p), (q) and (r) of the constitution of the Federal Republic of Nigeria to follow the decision of the Supreme court. The decision in Oloruntoba (supra) is a 2008 decision of the Supreme Court and its previous decision in NEPA v. Edegbero & 15 Ors. (2002) 18 NWLR (Pt. 798) 79 at 82 was cited to buttress the point. In Oloruntoba’s case (supra) the Supreme Court brought out clearly the legislative intention to the provisions of section 251 (supra) that the Federal High enjoys exclusive jurisdiction on all matters where the Federal Government or any of its agents is a party i.e. the instant appeal. It was therefore wrong for the trial court, High Court of Lagos State, to have assumed jurisdiction in the first place, to decide on the matter which clearly and unambiguously is within the exclusive jurisdiction of the Federal High Court.
I will only need to add that the law is trite that in constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute See:- Oyeyemi v. Commissioner for Local Government Kwara State. (1992) 2 SCNJ 266 at 280; Artra Ind. Nig. Ltd v. NBCI (1998) 3 SCNJ 97 at 115; Bakare v. NRC (2007) 17 NWLR (Pt.1064) 606 at 639 paragraphs C – D page 640 paragraph G, 641 paragraphs G – H; Odutola Holdings Ltd v. Ladejobi (2006) 12 NWLR (Pt.994) 321 at 358 paragraphs C-D; Unipetrol v. E.S.B.I.R. (2006) 8 NWLR (Pt.983) 624 at 641 paragraphs F – H; Rivers State Government v. Specialist Konsolt (2005) 7 NWLR (Pt.923) 145 at 179 paragraphs E – F.
It is to be stated further that, for the trial court, the High Court of Lagos State to assume jurisdiction on a matter concerning the Funds of the Federal Government, where an agency of the Federal Government is a party by the effect of Section 251 (supra) of the constitution, and the pronouncement of the Supreme Court in Olorrntoba’s case (supra) such an action of the court is void for lack of jurisdiction. It is well settled that when an act is void and a nullity in law it is stricto sensu unnecessary for the person concerned by the act;, because no legal effect results from such act, to apply to have them set aside where the issue raised before a court is one of nullity, such court can ex debito justitiare in its inherent jurisdiction so declare. See:- Animashaun v. Osuma (1972) 4 SC 200 at 212; Akpene v. Barclays Bank (1977) 1 SC 47; N.H.D.S. v. Mumuni (1977) 2 SC. 52. Also the dictum of Lord Denning MR, in Macfoy v. U.A.C. Ltd (1961) 3 All ER at P.1172.
“It an act is void, then it is in Law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes continent to have the court declare it to be so. And every proceedings which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there’ It will collapse”.
In sum therefore, the High Court of Lagos stated had no jurisdiction to adjudicated and ruled on this matter which is the subject of this appeal.
The first and second issues are resolved in favour of the Appellant and against the Respondent.
Jurisdiction, being a threshold issue, has a direct effect on the resolution of the third issue. To proceed and determine the issue, will amount only to an academic exercise, which the courts have been discouraged to embark upon. The third issue is also resolved in favour of the Appellant and against the Respondents. Having resolved all the issues in this appeal in favour of the Appellant and against the Respondents, the appeal is hereby allowed. This court makes the following orders:-
(1) The ruling of Alogba J, of the High Court of Lagos State in Suit No. LD/2124/2001 delivered on the 7th of November, 2003 is hereby set aside.
(2) This court has ordered that the suit be heard a fresh before a Judge of the Federal High Court.
(3) No order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read the judgment just delivered by my learned brother SIDI DAUDA BAGE JCA and I am in complete agreement with his reasoning and conclusion that the appeal be allowed on the basis that the trial court; the Lagos State High Court had no jurisdiction to adjudicate over the 1st Respondent who is an agent of the Federal Government. I abide by all the orders made in the lead judgment. I make to order as to costs.
JOHN INYANG OKORO, J.C.A: I read in advance the Judgment of my learned brother, Bage, JCA just delivered and I agree that this appeal is meritorious and ought to be allowed. My learned brother has ably dealt with all the salient issues submitted for the determination in this appeal. I adopt both his views expressed in the Judgment and the conclusion thereof. Accordingly, I also allow this appeal and abide by all the consequential orders made therein. I also make no order as to costs.
Appearances
Essien Udom,
Inyang Udoema.For Appellant
AND
Mrs. O. Badewore,
Oreoluwa Omotayo (Miss)For Respondent
