THE GOVERNMENT OF CROSS RIVER STATE & ANOR V. THE NIGERIAN TELEVISION AUTHORITY (NTA) & ORS (2013)

THE GOVERNMENT OF CROSS RIVER STATE & ANOR V. THE NIGERIAN TELEVISION AUTHORITY (NTA) & ORS

(2013)LCN/5865(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of January, 2013

CA/C/112/2010

RATIO

JURISDICTION: THE IMPORTANCE OF JURISDICTION

The entire submissions or contentions of the parties hinge on the issue of jurisdiction. As has been rightly submitted, it is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the court is controlled or circumscribed by the statute creating the court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the court can entertain the suit. These touch on the legal authority of the court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it: See; OLOBA V. AKEREJA (1988) 3 NWLR (Pt. 84) 508; AREMO II. V ADEKANYE (2004) 11 MJSC 11: DREXEL ENERGY AND NATURAL RESOURCES LTD & 2 ORS V. TRANS INTERNATIONAL BANK LTD. (2009) 12 S. C. (PT. II) 240.PER ONYEKACHI A. OTISI, J.C.A.

JURISDICTION: THE PLAINTIFFS CLAIMS CAN BE LOOKED AT TO DETERMINE WHETHER OR NOT A COURT HAS JURISDICTION

It is also correct to submit; and, the position of the law to submit that in considering whether the Court has the jurisdiction to entertain an action, it is the Plaintiff’s claim as endorsed on the writ of summons and the statement of claim that the Court has to consider and not the defence: see ADEYEMI V. OPEYORI (1976) 9-10 SC 31 at 49; MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) N.W.L.R. (PT. 58) 539. OPITI V. OGBEIWI (1992) 4 NWLR (Pt. 234) 184 at 195: C.G.G. (NIGERIA) LIMITED V. CHIEF LAWRENCE OGU (2005)2 S.C. (PT. II) 50; ADETONA V. IGELE CENERAL ENT. LTD. (2011) 1 MJSC (PT 1) 102.PER ONYEKACHI A. OTISI, J.C.A.

JURISDICTION: FACTORS TO BE CONSIDERED BY THE JUDGE TO DETERMINE WHETHER A COURT HAS JURISDICTION

In the task of determining if the court has jurisdiction to hear and determine a case the following principles must be considered diligently by the Judge.
(a) Whether the subject matter of the case is within the court’s jurisdiction;
(b) Whether there is any feature in the case which prevents the court from exercising its jurisdiction, and
(c) Whether the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction;
NATURAL RESOURCES LTD & 2 ORS V. TRANS ALL these requirements must co-exist conjunctively before jurisdiction can be exercised by the court. See: MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 342: DREXEL ENERGY AND INTERNATIONAL BANK LTD (supra); ISAAC OBIUWEUBI v. CBN (2011) 7 NWLR (PT 1247) 465: KASUNMU V. SHITTABEY (2007) ALL FWLR (PT 356) 741.PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. THE GOVERNMENT OF CROSS RIVER STATE
2. MINISTRY OF LANDS & HOUSING, C.R.S. Appellant(s)

AND

1. THE NIGERIAN TELEVISION AUTHORITY (NTA)
2. THE NIGERIAN TELEVISION AUTHORITY, CHANNEL 9, CALABAR
3. ANIMETRIX NIGERIA LTD
4. BRIG. GENERAL ANTHONY UKPO (RTD)
5. NINI PIZZUTO
6. GITTO CONSTRUCZZIONI GENERALI NIG. LTD. Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court, Calabar. The 1st and 2nd respondents herein as the 1st and 2nd plaintiffs had commenced Suit No FHC/CA/CS/21/2007 at the Federal High Court, Calabar by Writ of Summons filed on 21st March, 2007, in which they claimed as follows:
1. A Declaration that the Survey Plan Area of 7.139 hectares of land occupied by the Plaintiffs along Murtala Mohammed Highway, Block N – Part of Northern Industrial Estate, Ikot Ansa, Calabar, and since 1st April, 1976, is the bona fide property of the Federal Government of Nigeria, nay the Plaintiffs.
2. An Order that the purported revocation of part of the Plaintiffs’ land by the first and second Defendants, for the use and benefit of the third, fourth and fifth Defendants, which Revocation Notice was published in the Nigerian Chronicle of Monday, May 29, 2006 at page 17, is contrary to the Nigerian Television Authority Act, Cap N. 136, Laws of the Federation of Nigeria, 2004, and therefore null and void, and of no effect whatsoever.
3. An Order that the purported sale of the plaintiffs’ land by the 1st and 2nd Defendants to the 3rd, 4th, 5th and 6th Defendants (private companies) under the guise and camouflage of “public interest” and without recourse to the first plaintiff, or the Minister of information, or the Council of State or the Presidency, is ipso facto null and void, and of no effect whatsoever.
4. A Declaration that the grievous and flagrant acts of trespass upon the plaintiffs’ land, and the massive destruction and, or interference with her properties, including the large block fence, transmitter building, transmission equipment, step-down transformer, two antenna stay-wire anchors, mast, by the defendants, is a gross abuse of state powers, and out rightly unlawful in all respect.
Special Damages of N9.1 (Nine Million, One Hundred Naira Only) being the contract sum spend in fencing round the extensive premises of some sections of the Plaintiffs 7.139 hectares of land.
General Damages of N90m (Ninety Million Naira) only for the inconvenience, embarrassment and reproach occasioned by the mischievous acts of trespass and destruction of plaintiff’s premises and properties.
Upon service, the 6th defendant in the lower court, 4th respondent herein, filed a preliminary objection challenging the jurisdiction of the Federal High Court to adjudicate over the subject matter of the suit, which is land. The other defendants therein aligned themselves with the submissions of the 6th defendant. The 1st and 2nd appellants were the 1st and 2nd defendants in the lower court. Upon a considered Ruling delivered on 10th May, 2010, the lower court dismissed the objection. This present appeal filed by the 1st and 2nd appellants, is against the said Ruling of the Federal High Court, Calabar.
The Amended Notice of Appeal, filed on 19/7/2010 but deemed filed on 20/9/2010, states 2 Grounds of Appeal as follows:

GROUND ONE:
ERROR IN LAW
The learned trial Judge erred in law when he held that since agencies of the Federal Government of Nigeria are parties to the case before him, it is the Federal High Court, not the State High Court that has jurisdiction to adjudicate upon the matter.
PARTICULARS OF ERROR
1. The learned trial Judge acceded to the fact that it is the claim of the Plaintiff that determine jurisdiction, rather than declined jurisdiction, he assumed jurisdiction to adjudicate upon this matter though the subject matter is land.
2. There is no provision in section 251 of the Constitution of the Federal Republic of Nigeria 1999 that vests the Federal High Court with jurisdiction to adjudicate upon matters relating to land dispute.
3. It is the State High Court that has jurisdiction in respect of matter relating to land irrespective of the Parties involved.

GROUND TWO:
ERROR IN LAW
The learned trial judge erred in law when he held that the State High Court would not have jurisdiction to entertain this suit by virtue of section 1, 39(1) (a) and 49 of the Land Use Act, 1978.
PARTICULARS OF ERROR
1. Section 39 of the Land Use Act, 1978 vest the State High Court with jurisdiction to entertain matters bordering on land;
2. Prior to the promulgation of the Land Use Act, 1978, the 1979 Constitution and 1999 Constitution, the Federal High Court, which was the Revenue Court, had no jurisdiction to entertain matters bordering on land, irrespective of the parties.
3. Section 49 of the Land Use Act, 1978 does not divest the State High Court of the jurisdiction in land matters and vest same in the Federal High Court.

From these 2 Grounds of Appeal, O. E. Asuquo, Esq., State Counsel 1, in the appellant’s Brief of Argument has formulated a sole Issue for determination as follows:
Whether the learned trial judge was correct when he held that since Agencies of the Federal Government of Nigeria are parties to this case and also by virtue of Sections 1, 39(1)(A) and 49 of the Land Use Act, 1978, it is the Federal High Court, not the State High Court that has jurisdiction to adjudicate upon this Suit.
On this Issue, Mr. Asuquo submitted that courts derive their jurisdiction from the Constitution or Statute which establishes or creates them and gives them their respective jurisdiction. That no court can assume jurisdiction without the enabling Constitutional or Statutory provision, otherwise its actions will be rendered ultra vires and a nullity, no matter how well conducted. He relied on GARFAR V. KWARA STATE (2007) 29 NSQR 34, TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517: KASUNMU V. SHITTA-BEY (2007) ALL FWLR (PT 356) 741.
On whether the suit of the 1st and 2nd respondents/plaintiffs comes within the eighteen major items or matters exclusively reserved for the Federal High Court in Section 251(1) (a)-(s) of the Constitution of the Federal Republic of Nigeria, 1999 such that the Federal High Court can exercise jurisdiction in this case of trespass to land, revocation of right of occupancy and declaration of title to land, it was submitted that the answer is in the negative. That there is no provision in Section 251 of the Constitution that vests the Federal High Court with jurisdiction to entertain or make pronouncement on matters relating to land dispute, trespass to land, revocation of right of occupancy or a declaration of title to land/damages for trespass.
He submitted that in determining the jurisdiction of the Federal High Court, two matters to be considered are the parties and the subject matter. He referred to OLADIPO V. NIGERIA CUSTOMS SERVICE BOARD (2009) ALL FWLR (PT 498) 319 at 339-340; N.U.E.E. V. B.P.E. (2010) ALL FWLR (PT 525) 201 at 241 – 242. That although the 1st and 2nd respondents/plaintiffs are Federal Government Agencies, the subject matter of the suit does not bring it within the provisions of Section 251(1) (a)-(s) of the Constitution. That the 1st and 2nd respondents/plaintiffs are not helped by Section 251(1) (p) (q) and (r) of the Constitution and the proviso thereto because the declaratory relief and damages claimed are not sought against the Federal Government or any of its agencies but are sought against the Cross River State Government and that its executive/administrative action is what is being questioned. He further submitted that it is the subject matter of a suit that determines the proper forum.
That the claims of the plaintiff took the matter out of the jurisdiction of the Federal High Court. He relied on OLADIPO V. NIGERIA CUSTOMS SERVICE BOARD (supra); ADETAYO V. ADEMOLA (2010) 42 (PT 2) NSCQR 1133 at 1152-1153. The learned trial Judge had expressed the view that by virtue of Sections 1, 39(1)(a) and 49 of the Land Use Act 1978, it is the Federal High Court and not the State High Court that has jurisdiction to adjudicate upon this suit because the land in question was acquired by the Federal Government on 1st April, 1976, before the coming into effect of the Land Use Act in 1978, and that the land in dispute is hence not the subject of a Statutory right of occupancy granted by the Governor or deemed to be granted by him under the Land Use Act, 1978 by which the State High Court is vested with jurisdiction by virtue of section 39(1)(a) of the Act. Mr. Asuquo submitted that the relevant sections of the Land Use Act to consider are Sections 1, 2(1)(a) and (b), 5(1)(a), 34(1) and (2), 39(1)(a), 40 and 49. That a reading of these provisions will not show that jurisdiction was donated to the Federal High Court to entertain land disputes. But that Section 49 has made the vesting rights of the Governor in Section 1 of the Act subject to the title to the land of the Federal Government and its agencies held prior to 29th March, 1978 when the Act become operational.
In the Respondents’ Brief of the 1st and 2nd respondents, Etim Effiom Esq. of Counsel formulated as a second issue for determination as follows:
Whether the Court erred in law when it held that the land in dispute is not a land the subject of a Statutory Right of Occupancy granted by the Governor or deemed to have been granted by him under the Land Use Act, therefore, that the State High Court does not have jurisdiction over this suit.
On issue No 1 as formulated by the appellants, Mr. Effiom submitted that by Section 251(a), jurisdiction maybe conferred upon the Federal High Court by an Act of the National Assembly over any matter. Citing the case of ADISA v. OYINWOLA (2000) 10 NWLR (PT 674) 1 – 228, he submitted that from the preamble to the Land Use Act, 1978, the State High Court does not have jurisdiction to hear and determine any matter affecting land vested in the Federal Government or its agencies before the commencement of the Land Use Act. That it is the Federal High Court that has exclusive jurisdiction. That the 1st and 2nd respondents had acquired the land in dispute in 1976 before the commencement of the Land Use Act: and, that the 1st and 2nd respondents, being agents of the Federal Government, the Federal High Court has exclusive jurisdiction. That the submissions for the appellants to the contrary, are inconsistent with Section 251(1) (q) (r) and (s) of the Constitution, the preamble and section 49 (1) of the Land Use Act 1978. That by the combined provisions of the preamble to the Land Use Act and Section 49(1), the subject matter of this suit is completely excluded from the jurisdiction of the State High Court.
On issue No 2, it is submitted that the Trial Court did not err. That the preamble to the Land Use Act excluded land vested in the Federal Government or its agencies from the power and control of the State Governor; that Section 39(1) of the Act conferred jurisdiction on the State High Court on all land the subject of Statutory right of occupancy, while Section 49(1) of the Act vests title to land held by the Federal Government or its agencies of the commencement of the Land Use Act on the Federal High Court.
The entire submissions or contentions of the parties hinge on the issue of jurisdiction. As has been rightly submitted, it is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the court is controlled or circumscribed by the statute creating the court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the court can entertain the suit. These touch on the legal authority of the court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it: See; OLOBA V. AKEREJA (1988) 3 NWLR (Pt. 84) 508; AREMO II. V ADEKANYE (2004) 11 MJSC 11: DREXEL ENERGY AND NATURAL RESOURCES LTD & 2 ORS V. TRANS INTERNATIONAL BANK LTD. (2009) 12 S. C. (PT. II) 240.

Where an objection is raised to the jurisdiction of the Trial Court, to try an action, the Court of the earliest has to enquire whether in fact its Jurisdiction has indeed been ousted. And if ousted, the court ought not to proceed any further with the proceedings. This is because any proceedings conducted without jurisdiction amounts to a nullity, no matter how well it is conducted; and, without the necessary jurisdiction a Court cannot make any valid order. See: A.G. of LAGOS STATE V. DOSUNMU (1989) 3 NWLR (pt 111) 552: NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (pt.135) 715. AREMO II. V ADEKANYE (2004) 11 MJSC 11: NNONYE V. ANYICHE [2005] 2 NWLR (Pt 910) 623, (2005) 1 SCM 133; ALABI V. AMOO (2003) 7 SC 154, (2003) 11 SCM 25.

The first issue raised in this appeal is whether the Federal High Court, and, not the State High Court, has jurisdiction in the matter because agencies of the Federal Government are parties to the suit and also by virtue of the provisions of Section 1, 39(1)(a) and 49 of the Land Use Act 1978.
The jurisdiction of the Federal High Court, as relevant to this matter, is set out in Section 251(1) of the 1999 Constitution; and, Section 251 (1)(p)(q)(r)(s) are reproduced below:
251- (a) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as maybe conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(p) the administration or the management and control of the Federal Government or any of its agencies:
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies:
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by on Act of the National Assembly:
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an act for damages, injunction or specific performance where the action is based on any enactment, law on equity.
In ADATAYO & 2 ORS V. ADEMOLA & 2 ORS (2010) 3-5 SC (PT 1) 87 of 103 – 104, considering the provisions of Section 251(1), the Supreme Court said per Mohammed JSC:
“On the face of these provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive original Jurisdiction to the exclusion of all other Courts in Nigeria in any civil cause or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provisions would show that this is not necessarily the true position. This is because, in my view, it is the facts and circumstances of each case that will determine whether or not it is a case within or outside the exclusive Jurisdiction of the Federal High Court.”
Again, in ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011) 7 NWLR (PT 1247) 465, also reported in LER (2011) SC 266/2006 the Supreme Court per Bode Rhodes-Vivour JSC at page 5 said:
“Section 230 of the 1979 Constitution was amended by the Constitution (Suspension and Modification) Decree No.107 of 1993…Section 251 (i) (p) (q) (r) of the 1999 Constitution is impari materia with the above. The provisions vest exclusive jurisdiction in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government and its agencies, the operation and interpretation of the Constitution as it affects the Federal Government and its agencies as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government and its agencies.

For the Federal High Court to have jurisdiction under Section 230 of the 1979 Constitution or Section 251 of the 1999 Constitution the following must co-exist.
(a) The parties, or a party must be the Federal Government or its agencies;
(b) Subject matter of the Litigation.
That is to say jurisdiction is the combination of parties and subject matter. The words used in this piece of legislation are plain as plain can be and have been interpreted by this Court on several occasions.
See: N.E.P.A. V. Edegbero 2002 18 NWLR pt 798 p.79 Oloruntoba – Oju v. Abdul-Raheem & 3 ors 2009 5-6 SC (Pt. 11) p. 57.”
It is not in dispute that the 1st and 2nd respondents/plaintiffs are Federal Government Agencies. It is now to see if the subject matter in dispute brings it under the jurisdiction of the Federal High Court. The parties and the subject matter must combine to bring a matter within the jurisdiction of the Federal High Court.
Section 251(1)(r) gives the Federal High Court jurisdiction over:
“any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The statement of claim does not reveal as being in issue any executive or administrative action or decision of the Federal Government or any of its agencies. Rather, the complaint by the 1st and 2nd respondents/plaintiffs (Federal Government Agencies) is against the executive or administrative action or decision of the Cross River State Government for which they seek declarations, injunction and damages. From the claims in the Writ of Summons and Statement of Claim, the 1st and 2nd respondents/plaintiffs seek a declaration that a certain piece of land situate within Calabar is the bona fide property of the Federal Government (its agencies being the 1st and 2nd respondents/plaintiffs) since 1st April, 1976: that the revocation of a portion of the land by the appellants/1st and 2nd defendants is null and void; that sale of the said land to the 3rd – 6th defendants is null and void; trespass; special and general damages.
Stating categorically, the Supreme Court in ADATAYO V. ADEMOLA at page 106 said:
“Close examination of the entire provisions of Section 251(1) of the 1999 Constitution prescribing the Jurisdiction of the Federal High Court to the exclusion of all other Courts, there is nothing therein specifically conferring jurisdiction in that court in causes or matters concerning land disputes. Although the section also indicated that the National Assembly may confer additional jurisdiction to the court, there is no indication that such Act of the National Assembly had been promulgated conferring additional Jurisdiction to the Court to entertain causes and matters on land disputes.”
The Supreme Court then looked to the Land Use Act 1978 for help in tracing any jurisdiction conferred on the Federal High Court in land disputes. Specifically, Sections 39, 41 and 42 were considered. These provisions indicated Courts conferred with jurisdiction in respect of land in urban or no urban areas. The Federal High Court is not one of the Courts so indicated.
The appellants herein had relied on Sections 1, 39(1) (a) and 49 of the Land Use Act, 1978 which provide as follows:
1. Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.
39. (1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
(a) proceedings in respect of any land the subject of a Statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree: and for the purposes of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy.
From these clear provisions, the State High Court is the Court empowered with exclusive jurisdiction to entertain disputes pertaining to land the subject of a statutory right of occupancy. The State High Court also, by virtue of Section 41 of the Land Use Act, shares jurisdiction with Customary Courts and Area Courts or Courts of equivalent jurisdiction with respect to land disputes in non-urban areas. See: ADISA V. OYINWOLA (supra), also reported in (2000) 6 SCNJ 290 at 316-318; Sections 39 and 41 of the Land Use Act thus specify unequivocally the courts vested with jurisdiction in matters concerning land be it in urban or non-urban areas.
The Federal High Court is not one of the Courts so vested with jurisdiction by Section 39 of the Land Use Act to entertain action over fond matters. ADATAYO V. ADEMOLA (supra); ACHEBE V. NWOSU (2003)7 NWLR (PT 818) 103 at 128-129.
In ADATAYO V. ADEMOLA at page 109 the Supreme Court on this issue concluded:
“As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any Jurisdiction on the Federal High Court to entertain land causes or matters, I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on Declaration of title to land.”
I must respectfully agree with this conclusion.

The case of N.E.P.A. v. EDEGBERO (2002) 18 NWLR (PT 798) 79, also reported in (2003) FWLR (PT 139) 1556 cannot be applied on all fours with the present appeal, without reference to the cause of action therein. In that case, the Supreme Court per Ogundare JSC at p 1569 said:
“If is not in dispute that the Defendant – NEPA – is a Federal Government Agency… It is also not disputed that the cause of action in this mater arose out of the administrative action or decision of the Defendant. The action is for a Declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of the plaintiffs and others.
In the light of all these, therefore, the action came squarely within the provision of section 230(1)(s) of the 1979 Constitution…A careful reading of paragraphs (q)(r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively Federal High Court actions in which the Federal Government or any of its agencies is a Party.”
The 1st and 2nd respondents/plaintiffs are Federal Government Agencies. But that sole fact, without the subject matter also being within the purview of matters under the jurisdiction of the Federal High Court, as was the case in N.E.P.A. v. EDEGBERO (supra) the Federal High Court cannot exercise jurisdiction. Accordingly, I hereby resolve the sole issue raised by the appellants in their favour, and against the 1st and 2nd respondents.

The land in issue was acquired by the Federal Government in 1976, before the commencement of the Land Use Act, 1978. It is contended for the 1st and 2nd respondents that by virtue of Section 1, and 49(1) of the Act, as well as Section 251(1)(q)(r)(s) of the 1999 Constitution, the said land is vested in the Federal Government or its agency concerned and that the Federal High Court has exclusive jurisdiction to hear and determine the matter concerning the land. This argument is premised on the fact that the 1st and 2nd respondents are Federal Government Agencies.
The point has of ready been made above that aside from parties being Federal Government agencies, the subject matter in dispute must also be within the jurisdiction of the Federal High Court before a matter can be conclusively said to be within the jurisdiction of the Federal High Court. Section 251 is not a blanket provision conferring jurisdiction on the Federal High Court once any of the parties is the Federal Government or a Federal Government Agency, regardless of the subject matter of the suit. See also: OMOSUNWAN V. CHIEDOZIE (1998) 5 NWLR (PT 566) 477.
Section 49 of the Land Use Act, 1979, provides:
(1) Nothing in this Act shall affect any title to land, whether developed or undeveloped, held by the Federal Government or any agency of the Federal Government of the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.
It is not in controversy that the land in issue was vested in the Federal Government before the commencement of the Land Use Act. That is not in issue here at all. What is in controversy in this case is not any executive or administrative action or decision of the Federal Government or any of its agencies, which would fall within the purview of Section 251(1)(q)(r)(s) of the 1999 Constitution (NEPA V. EDEGBERO (supra). Rather, the complaint by the 1st and 2nd respondents/plaintiffs (Federal Government Agencies) is against the executive or administrative action or decision of the Cross River State Government for which they seek declarations, injunction and damages. I do not agree with the submissions of learned Counsel for the 1st and 2nd respondents to the effect that Section 49(1) of the Land Use Act have expressly conferred jurisdiction on the Federal High Court to adjudicate on any matter affecting land vested in the Federal Government or its agencies prior to the birth of the Land Use Act, 1978, in the absence of anything contrary. The jurisdiction of the Federal High Court and, of the State High Court is grounded in the Constitution. The Land Use Act, 1978 did not curtail or enlarge the jurisdiction conferred on courts by the Constitution which created the courts. Rather, the Land Use Act, 1978 has sought to distinguish courts with jurisdiction over land situate in designated areas. In my considered opinion, the provisions of Section 49(1) have nothing to do with which court has jurisdiction to entertain a dispute arising from land vested in the Federal Government or its agencies.
In N.U.E.E. V. B.P.E. (2010) ALL FWLR (PT 525) 201 at 239, the Supreme Court per Chukwuma-Eneh JSC said:
“Again, it is trite law that the jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or abridged or even eroded by the Constitution itself and not by an Act or Law respectively of the National Assembly or State House of Assembly, meaning that where there is conflict in that regard between the provisions of the Constitution and the provisions of any other Act or Law respectively of the National Assembly or State House of Assembly respectively, the Constitution shall prevail.”
But, in my respectful opinion, no conflict is evident here.
The jurisdiction of the State High Court is derived from Section 272 of the Constitution. The Land Use Act 1978, which is an existing law by virtue of Section 315(1) (a) of the Constitution, takes its bearing from the said Constitution. See also Section 1(3) of the Constitution. The Land Use Act, 1978 cannot be construed in any manner to curtail the clear provisions of the Constitution, and thereby, cannot curtail the jurisdiction of the State High Court.
The Federal High Court shall have jurisdiction in any of the circumstances specified in Section 251 of the Constitution. The circumstance of this case is not covered by Section 251 of the Constitution.
The Issue No 2 raised by the 1st and 2nd respondents is thus resolved against them.

This appeal therefore succeeds. It is hereby ordered as follows:
1. The Ruling of the Federal High Court No 2, Calabar Division delivered on 10th May, 2010 in FHC/CA/CS/21/2007 is hereby set aside.
2. Suit No FHC/CA/CS/21/2007 is hereby struck out for want of jurisdiction.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother O. A. Otisi, JCA, has comprehensively considered the two (2) issues which call for decision in the draft of the lead judgment which I read before now. As demonstrated therein, the law is now beyond argument that both the parties and the subject matter in a case determine whether the Federal High Court has exclusive jurisdiction or not under the provisions of Section 251 of the Constitution.
I completely agree that the Federal High Court lacks jurisdiction to entertain a matter in which the claims relate to declaration of title to land, trespass, damages and injunction, such as the case of the 1st and 2nd Respondents. See N.I.M.R. v. N.U.R.T.W (2010) 12 NWLR (1208) 328; Sanni v. Ademiluyi (2002) 3 NWLR (807) 381; Achebe v. NWOSU (2003) 7 NWLR (818) 103; Adige v. Oyinwola (2000) 10 NWLR (674) 116.
For the above and the more detailed reasons set out in the lead judgment which I adopt, the appeal is allowed by me and the 1st and 2nd Respondents’ suit before the Federal High Court is struck out for want of the requisite jurisdiction on the part of that court to entertain it.

JOSEPH TINE TUR, J.C.A.: I read in advance a draft judgment delivered by my Lord, Onyekachi A. Otisi, JCA and I agree with the conclusion that the Federal High Court had no jurisdiction to entertain these claims. The Court should have struck out the suit. I shall add a few words of mine for purposes of emphasis.
Section 249(1) of the constitution of the Federal Republic of Nigeria, 1999 as altered established the Federal High Court. But before this there existed the Federal Revenue Court, established under the Federal Revenue Court Act, 1973 (now Federal High Court Act, (as Amended) 1973). The Court was established to deal principally with matters pertaining to the revenue of the Federal Government. The Government had felt that High Courts were not handling expeditiously revenue causes and matters. With the establishment of the Federal High Court, High Courts no longer handled civil causes and matters relating to the revenue of the Government of the Federation in which the Government or any organ thereof or a person suing or being sued on behalf of the said Government was a party. See also Section 230 of the Constitution of the Federal Republic of Nigeria, 1979 and Bronik Motors Ltd. & Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296 at page 313 paragraphs “A”-“D”. Then came the Constitution of the Federal Republic of Nigeria, 1999 as altered wherein the National Assembly further expanded the jurisdiction of the Federal High Court by providing under Section 251(1) of the Constitution supra as follows:
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-…”
The phrase “Notwithstanding anything to the contrary in this Constitution….” is a term of exclusion. It means that no provision in the Constitution of the Federal Republic of Nigeria, 1999 as altered or any statute made under it shall be allowed to prevail over the provisions of Section 251(1) of the Constitution supra. See Olatunbosun v. N.I.S.E.R. (1988) 19 NSCC (Pt.1) 1025 at 1038 per Oputa, JSC. A composite reading of the provisions of Section 251(1) of the Constitution (supra) will reveal that in civil causes and matters, jurisdiction to adjudicate is conferred on the Federal High Court in respect of subject matters provided either in the constitution or an Act of the National Assembly or both.
Reliefs one, four and six claimed by the Respondents in the lower Court reads as follows:
“1. A declaration that the survey Plan Area of 7.139 Hectares of land occupied by the plaintiffs along Murtala Mohammed High was Block N-Part of Northern Industrial Estate, Ikot Ansa, Calabar, and since 1st April, 1976, is the bona fide property of the Federal Government of Nigeria, nay the Plaintiffs.
2. xxxxxxxx
3. xxxxxxxx
4. A declaration that the grievous and flagrant acts of trespass upon the plaintiffs’ land, and the massive destruction and, or inference with her properties, including the large block fence, transmitter building, transmission equipment, step-down transformer, two antenna stay-wire anchors, masts by the Defendants, is a gross abuse of State powers, and out rightly unlawful in all respect.
5. xxxxxxx
6. General damages of N90m (Ninety Million Naira) only for the inconvenience, embarrassment and reproach occasional by the mischievous acts of trespass and destruction of plaintiffs’ premises and properties.”

The statement of claim is the indicia for determining the cause of action. See Ogbimi V. Ololo (1993) 7 SCNJ (Pt.2) 447; Nosiru Bello V. Attorney-General of Oyo State & ors. (1986) 5 NWLR (pt. 5) 828; Attorney-General of Kwara V. Olawale (1993) 1 SCNJ 208 and Asigwe V. PSPLS Management Consortium Ltd. & 13 ors. (2009) NMLR 58/68; Adeyemi V. Opeyori (1976) 1 FNLR 149/157; Ladoja V. INEC (2007) AII FWLR (Pt.377) 934 at 967; Tukur V. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517. The principal claims involves declaration of title to land, trespass, general and special damages and a nullification of the land sold by the appellants to the 3rd, 4th and 5th Respondents. The question is: Did Section 251(1)(a)-(s) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, expressly or by implication confer jurisdiction on the Federal High Court to adjudicate over such controversies? I do not think so.
Section 251(a)-(s) of the Constitution (supra) set out clearly the kinds of causes and matters upon which the Federal High Court may exercise jurisdiction to wit:
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connect with or pertaining the taxation of companies and other bodies established of carrying on business in Nigeria and all other persons subjective Federal Taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to, banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender bills of, exchange, letters of credit, promissory notes and other fiscal measures: Provided this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allies Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks, and passing off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods …. and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent arid Oil such other inland waterway as may be designated by any enactment to be an international waterway, all Federal Ports, (including the constitution and powers of the ports authorities for Federal Ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens deportation of persons who are not citizens of Nigeria; extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft;
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil field geographical, to surveys and natural gas perform those functions;
(o) weight and measures;
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this constitution, the operation and interpretation of this constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.”
In Maxwell on The Interpretation of statutes, 12th edition by P.St.J. Langan (Butterworth’s) page 293 the learned authors stated the law to be as follows:
“Expressio unius exclusio alterius.
By the rule usually known in the form of this Latin maxim, mention of one or more things of a particular class may be regarded as silently excluding all other members of the class: expressum fact cessare tacitum. Further, where a statute uses two words or expressions, one of which generally includes the other, the more general term is taken in a sense excluding the less general one: otherwise there would have been little point in using the latter as well as the former.”
See Attorney General, Abia State V. Attorney-General, Federation (2005) All FWLR (Pt.275) 414 SC and Okewu v. Federal Republic of Nigeria (2005) All FWLR (Pt.254) 858.
Furthermore the causes or matters under Section 251(a)-(s) of the Constitution supra are in the Exclusive Legislative List under the second schedule to the 1999 Federal Constitution (supra). Only the National Assembly has powers to legislate upon such matters, hence, exclusive jurisdiction is conferred on the Federal High Court to entertain disputes arising from such causes and matters. Land is expressly not listed as an item under the second schedule to the Constitution.
In Raymond Dongtoe v. Civil Service Commission, Plateau State & Ors. (2001) 4 SC (Pt.1) 45 the plaintiff founded his claim under the Fundamental Right (Enforcement Procedure) Rules, 1979. The action was predicated on breach of contract which had nothing to do with Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979. The Supreme Court per Karibi-Whyte, JSC held at page 56 that:
“…None of the reliefs claimed by the Appellant falls within any of the specific rights enumerated in Chapter IV Where a breach of the provisions of Chapter IV is the principal claim, the procedure can be invoked even though other claims are made Din V. A.O. of the Federation (1988) 4 NMLR (Pt.87) 147 SC – see Borno Radio Television Corporation v. Basil Egbuonu (1991) 2 NWLR (pt 171) 81 at 89 C.A. In the instant case none of the principal claims which Appellant seeks to enforce before the learned trial Judge can be brought within the provisions of Chapter IV. Accordingly, the procedure not being available, the learned trial Judge had no vires to exercise jurisdiction.”
In other words, it is the principal, not the ancillary reliefs claimed that confers jurisdiction on a Court to adjudicate in any given controversy. The principal claim must fall within the provisions of the Constitution or the statute under which the court is adjudicating.
Subsections (q), (r) and (s) of section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered are couched in general terms and cannot be a subterfuge to confer jurisdiction on the Federal High Court to entertain disputes involving declaration of title to land, trespass, damages and injunctive reliefs. In that case the Court has to look at any other Act of the National Assembly, to see which Court is competent to entertain these claims and grant remedy. This is because in Mostyn v. Fabrigas (1775-1802) All E.R. Rep.266 Lord Mansfield, C.J., of England held at page 269 that:
In every plea to the jurisdiction, you must state another jurisdiction.”
In other words, where a party challenges the jurisdiction of a particular Court to entertain any cause or matter, the onus is on that party to show which other Court jurisdiction resides to entertain the dispute.
That being the case we have to examine the provisions of the Land Use Act, 1978 to determine which Court has jurisdiction to entertain this proceeding. In doing so, I shall have recourse to section 39(1)(a) of the Act (supra) which reads thus:
“39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy…”
Again the Federal High Court is not expressly or by implication mentioned as a Court that may entertain proceedings in respect of any land the subject of a statutory right of occupancy or deemed grant by the Military Governor under the Land Use Act, 1978 Act. The reliefs claimed shows that the Respondents acquired the land in dispute since 1st April, 1976 prior to the coming into effect of the Land use Act, 1978 on 29th March, 1978. The Respondents are presumed to have a “deemed” grant of the land from the Military Governor of Cross River State. In case of any dispute, only the High Court of Cross River State can adjudicate over the controversy. The express mention of the High Court in Section 39(1)(a) of the Land Use Act, 1978 automatically excludes the Federal High Court or any other Court. See Udoh v. Orthopaedic Hospitals Management Board (1995) 7 SCNJ (pt.2) 436 at 444; Attorney-General of Bendel State v. Aideyar (1989) 4 NWLR (Pt.48) 646; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (pt.8) 280.
Where a Court lacks jurisdiction it cannot make binding orders. See Nyarko V. Akowuah 14 WACA 426. Jurisdiction must be vested in a Court before the rights of the parties can be determined. See Kalu V. Odili (1992) 6 SCNJ (Pt.1) 76. Where the court lacks jurisdiction, the remedy is to strike out the suit. For these and the fuller reasons given by my Lord, I also strike out this suit. I abide by any other order made by my Lord.