DR. AKPO MUDIAGA-ODJE V. YOUNES POWER SYSTEM NIGERIA LTD.
(2013)LCN/6016(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/B/394/2009
RATIO
CONTRACT: THE ESSENTIAL INGREDIENTS OF A BINDING CONTRACT
This court in the case of Union Bank of Nigeria Plc & Ors V. Alhaji Ganiu Ajibola Ogunsiji (2013) 1 NWLR (pt.1334) 1 at 3 especially at pp 12- 13 Paras G – D on essentials of a binding contract, per Bage, JCA (Lagos Division) stated as follows:
“Generally, there are three (3) basic essentials to the creation of a binding contract. These are:
(a) Offer;
(b) Acceptance; and
(c) Consideration”
In the instant case, all the essentials of a valid contract were fulfilled.
See:- Awaye Motors Co. Ltd V. Adewunmi (1993) 5 NWLR (pt. 292) 236; Amodu V. Amode (1990) 5 NWLR (pt. 150) 35; Olanlege V. Agro Cont. (Nig) Ltd. (1996) 7 NWLR (Pt. 458) 29; L.C.R.I. v. Ndejoh (1997) 3 NWLR (pt. 491) 72.”
Also, at page 13 Parag E.F of the same decision, on formation of contract this court stated:-
“A Contract maybe demonstrated by the conduct of parties as well as by their words and deeds or by the documents that have passed between them. See: – Obayuwana V. Ede (1998) 1 NWLR (pt. 535) 670. In addition, also see: – Chief Festus Makene Ikomi V. Bank of West Africa Ltd (1965) ANLR 40; Shogun Finance Ltd V. Hudson (2003) UKHL 62; Larcarge Redlands Aggregates Ltd V. Shepherd Hill Civil Engr. Ltd (2000) 1 WLR 1621; Green Fingers Agro Industries Enterprises Ltd V. Musa Yusuf (2003) 25 WRN 67; Baird ile Holdings Ltd V. Marks and Spencer Plc (2001) EWCA CIV. 274; Schulder A.G. V. Wickman Machine Tool Sales Ltd. (1973) 2 All E – R 39; First Bank of Nig. Plc V. Hon. Justice Abubakar Alkali Abba (Court of Appeal, Jos Division) (Formation of Contract essential ingredients of.)”PER SIDI DAUDA BAGE, J.C.A
CONTRACT: WHEN CAN A CONTRACT BE SAID TO HAVE BEEN EXECUTED OR PERFORMED
A contract is decidedly performed when executed i.e. when consideration has been given. The provisions in Order 10 Rule 3 are disjunctive because of the word “OR” whichever way, I am of the view that the right Judicial Division where this matter would have been instituted is the Lagos Judicial Division and not Warri Judicial Division and the totality is that this preliminary objection has merit and the result is that it succeeds and accordingly this suit is one that ought to be transferred to the Lagos Judicial Division for hearing and determination and same is hereby transferred.PER SIDI DAUDA BAGE, J.C.A
INTERPRETATION OF STATUTES: WHEN CONSTRUING A STATUTE OR INSTRUMENT, EVERY WORD OR CLAUSE MUST BE READ AND CONSTRUED TOGETHER AND NOT IN ISOLATION
It 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; Odutola Holdings Ltd V. Ladejobi (2006) 12 NWLR (Pt. 994) 321 at 358; Unipetrol V. E.S.B.I.R. (2006) 8 NWLR (pt. 983) 624 at 647; Rivers State Government V. Specialist Konsolt (2005) 7 NWLR (pt. 923) 145 at 179.PER SIDI DAUDA BAGE, J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
DR. AKPO MUDIAGA-ODJE Appellant(s)
AND
YOUNES POWER SYSTEM NIGERIA LTD. Respondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This appeal instituted by the Appellant is against the Ruling of Honourable Justice R.N. Pemu (Mrs.) of the High Court of Delta State, Warri Judicial Division delivered on 3rd April 2009.
By the said Ruling the learned trial Judge upheld the Respondent’s notice of preliminary objection dated 18th February 2009 thereby declining the jurisdiction of Delta State High Court in hearing and determining the Suit No. W/333/08 instituted by the Appellant against the Respondent at the High Court of Delta State, Warri Judicial Division.
The summary of the facts are as follows:-
The Appellant as Plaintiff in the trial court commenced this action vide Writ of Summons and Statement of Claim filed at the High Court of Justice, Warri, on 24/11/2008, wherein he claimed thus:
1. A declaration that considering the circumstances and the facts averred to in several paragraphs above, especially paragraphs 9, 10, 11, 14, 15, 17, 21 and 22 leading to the breakdown of the said generating set on 20/10/2008, same was not fit for its purpose, having had a manufacturer’s defect in its water pump and radiator.
2. A declaration that the defendant flagrantly breached its warranty, assurances and undertaking as to the fitness of the generating set, thereby misleading the Plaintiff to purchase same to the tune of N1, 950,000.00 (one Million, Nine Hundred and Fifty Thousand Naira), plus VAT.
3. An order directing the Defendant to forthwith refund the sum of N1,950,000.00 (One Million, Nine Hundred and Fifty Thousand Naira), same being the purchase price plus VAT received from the Plaintiff by the Defendant for the purchase of its manufacturer’s defective generating set bought by the Plaintiff on 26/3/2008.
4. An order directing the Defendant to pay over to the Plaintiff the sum of N500,000.00 (Five Hundred Thousand Naira) only being special damages relating to the money expended on the generating set and/or incidental matters relating thereto as particularized below:
PARTICULARS OF SPECIAL DAMAGES
(1) Cost of Transporting the manufacturer’s defective Generating set from Lagos to Warri – N100,000.00
(2) First Water Pump – N50,000.00
Labour Charges paid to Mr. Emeka from Lagos – N15, 000.00
(3) Second Water Pump – N40,000.00
Labour Charles (sic) paid to Mr. Emeka from Lagos – N20,000.00
(4) Top Cylinder Gasket – N22,500.00
(5) 2(two) pieces of connecting rods – N24,000.00
(6) 2(two) pieces of pistons and rigs – N76, 000.00
(7) 1 set of rigs – N13, 500.00
(8) 3 sets of metal bearing – N12, 000.00
Labour Charges paid to Mr. Emeka from Lagos – N15, 000.00
Labour charges paid to Mr. Ekije (a mechanic
from Warri hired to assist Mr. Emeka from Lagos – N20,000.00
(9) 1 set of rock and arm – N37, 000.00
(10) Oil Pump – N55, 000.00
Grand Total of Special Damages: – N500, 000.00
5. A public apology from the defendant to the Plaintiff on the inconveniences suffered by the Plaintiff which include mental, physical and financial as a result of the Defendant supplying a manufacturer’s defective generating set as aforesaid to the plaintiff, and which said apology should be published in four national circulating newspapers, to wit: the Guardian Newspaper; Vanguard Newspaper; Thisday Newspaper and Daily Independent Newspaper.
6. The sum of N250, 000,000.00 (Two Hundred and Fifty Million Naira) only as general damages.
7. And thereafter, an order directing the Defendant to forthwith remove the severely defective if not fake generating set from the Plaintiffs family Residence at No. 12 Swamp Road Layout, G.R.A., Warri, as same is constituting acts of irritation and/or nuisance to the Plaintiff.
The Respondent filed a preliminary objection to the suit on grounds challenging venue of instituting this action. Arguments were taken by the trial Judge who adjourned for Ruling. On 3/4/2009, the trial Judge in his Ruling upheld the preliminary objection and thereafter ordered a transfer of this suit from the Delta State Judicial Division, Warri, to the Lagos Judicial Division, Lagos State.
Being totally dissatisfied with and absolutely aggrieved by the said Ruling of the lower court, the Appellant on 22/4/2009 filed a Notice of Appeal containing five grounds. From the ground of appeal filed, four issues arise for determination in this appeal, to wit:-
ISSUE 1
Whether the learned trial Judge was right in holding that the contract between the Appellant and the Respondent was executed and performed in Lagos whereas there were copious documentary facts to the contrary. (Grounds 1 & 2 of Appeal).
ISSUE II
Whether the learned trial Judge was right in declining to assume territorial jurisdiction over this present action wherein the subject matter i.e. A Generating Set is lying and situate in Warri Delta State within its jurisdiction. (Ground 3 of Appeal).
ISSUE III
Whether the learned trial Judge had the Quo Warranto and or jurisdiction to order a transfer of this matter from High Court of Justice, Warri Delta State to the High Court of Justice, Lagos State, after declining jurisdiction over same. (Ground 4 of Appeal).
ISSUE IV
Whether the learned trial Judge was right in refusing to follow, uphold and/or apply the principle of judicial precedent in this case.
On the other hand, the Respondent formulated the following two (2) issues for determination as follows:
ISSUE I
Whether the lower court (High Court of Delta State, Warri Judicial Division) was right in declining jurisdiction in this matter.
ISSUE II
Whether it was within the discretion of Hon. Justice R.N. Pemu (Mrs.) of High Court of Delta State, Warri Judicial Division to make consequential order in Suit No. W333/08 after declining jurisdiction in the said Suit.
After a careful perusal at the two (2) sets of issues as formulated by the parties, I tend to be guided by the two (2) issues as formulated by the Respondent for the determination of the appeal. Respondent’s issues are all encompassing and have captured all the four (4) issues formulated by the Appellant.
ISSUE I
Whether the lower court (High Court of Delta State, Warri Judicial Division) was right in declining jurisdiction in this matter.
Learned counsel a to Appellant submitted that in determining this issue, the court is obliged to take a critical look at the Writ of Summons, Statement of Claim, and all affidavits filed in this case. See – University Press Ltd V. I.K. Martins Nig. Ltd (2000) 4 NWLR (pt. 654) 584. We refer to our averments in the Statement of Claim dated 24/11/2008 especially paragraphs 3 & 4 thereof. We also rely on paragraphs 8, 9, 10-16, 27 and 30 (g) of the Statement of Claim. Also Appellant relies on paragraphs 4, 6, & 8 of our counter affidavit filed on 3/3/2009, to determine where the contract was performed. From all the above, Warri is the place where the contract was performed, thus conferring jurisdiction on High Court of Justice Warri Delta State. See. All States Trust Bank Plc V. King Dawson (2000) 12 NWLR (Pt. 681) 298 at Pp 314 – 315 Paras H – A; Capital Bancorp Ltd V. SSI Ltd.
Learned counsel further submitted that the Appellant’s cause of action accrued when the Generating Set malfunctioned within the jurisdiction of the Warri High Court. It was therefore in Warri that the breach of contract arose, where the contract was performed by installing and operating the Generating Set which broke down and packed up because of its inferior components.
Learned counsel further submitted that the payment of the said Generating Set was made in Warri in Zenith Bank Nigeria Plc through Account Number 6016561747 supplied by Mr. Kaycee, the sales representative of the Respondent. It is reflected in the Respondent’s unilateral receipts issued and attached as Exhibit “I.E.3” to its affidavit. The Appellant attached same as Exhibit ‘A’ to his counter affidavit filed on 3/3/2009 in paragraph 5 thereof.
See: – Annon Lodge Hotels V. Merchantile Bank (1993) 3 NWLR (pt. 284) 721. The question here is, can a party who did not append his signature or even write his name on a purchase receipt be held to be bound by the contract of the purchase agreement as duly executing same? The answer is capital NO. See. ACB Plc. V. Haston (Nig) Ltd (1997) 8 NWLR (pt. 515) 110; Ezike V. Ezenyim (1992) 4 NWLR (pt. 236) 462.
Learned counsel further submitted that, the principles setting out where an action of breach of contract can be instituted have been met by the Appellant as listed out in Order 10 (3) of the High Court (Civil Procedure) Rules 1988 of defunct Bendel State as applicable to Delta State. The interpretation of the courts to that provision is that, the Plaintiff is only duty bound to meet any one of the above conditions in the Rule independently, and the court will assume jurisdiction. See – ASTC V. Quorum Consortium Ltd (2004) 1 NWLR (Pt. 855) 601 at Pp 623 – 624 Paras G-D; All States Trust Bank Plc V. King Dawson (Supra).
Learned counsel further submitted that there is uncontradicted evidence from paragraphs 26 and 27 of the Appellant’s counter affidavit filed on 3/3/2009 and paragraph 30 (g) of the Statement of Claim that as at now, the broken down and fake Generating Set is presently lying and situate at No. 12 Swamp Road Layout, G.R.A. Warri just 300 metres from the Warri High Court, thus vesting exclusive territorial jurisdiction in the trial court. See: – Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Capitol Bancorp Ltd V. SSI Ltd (Supra).
Learned counsel submitted further that all Appellant’s averments not denied are all deemed to have been admitted in law, and also deemed to have been deposed to in good faith. See: – Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 721 Paras A – B.
In its response to the arguments of the Appellant, the Respondent submitted that the lower court, High Court of Delta State, Warri Judicial Division, was right in declining jurisdiction in this suit, as the cause of action is premised on the Respondent’s sale of a 40KVA Perkins Generator Set to the Appellant in Lagos. The Appellant purchased the 40KVA Perkins Generator from the Respondent who resides and carries on its business in Lagos.
Learned counsel submitted further that, the Appellant visited the Respondent’s showroom at Plot 1301 Akin Adesola Street Victoria Island, Lagos to inspect the 40KVA Perkins generator set and upon satisfactory inspection of same, the Appellant purchased the generator set for the sum of N1, 950,000.00. The purchase price was paid and received into the Respondent’s Zenith Bank Plc, Plot 10B Akin Adesola Street Victoria Island Lagos Account No.6016501747 representing payment for purchase of the 40KVA Perkins generator.
Learned counsel to the Respondent further submitted that upon the Respondent’s bankers (Zenith Bank Plc 108 Akin Adesola Street Victoria Island Lagos) confirmation of the Appellants payment of the sum of N1, 950,000.00 (One Million, nine hundred and fifty thousand naira only) into the Respondent’s Zenith Bank account at Plot 108 Akin Adesola Street Victoria Island Lagos, with account No.6016501747, the Respondent issued a receipt in respect of the Appellant’s purchase of the 40KVA Perkins generator in Lagos thus concluding the contract for sale of the 40KVA Perkins generator set between the Appellant and the Respondent in Lagos. See page 23 and 25 of the Records.
Learned counsel further submitted that the Appellant entered into a separate/distinct contract with the Respondent for the transportation/supply and installation of the already purchased 40KVA Perkins generator set wherein a separate and distinct payment in the sum of N50,000.00 was made by the Appellant to the Respondent for the transportation/supply and installation of the 40KVA Perkins generator set as against the assertion in the Writ of Summons and Statement of Claim that he paid the sum of N100,000.00 for the transportation/supply and installation of the generator set. The Appellant did not exhibit any material evidence and/or furnish any particulars in proof of his claim that he paid the Respondent the allege sum of N 100,000.00. The Respondent issued a separate/distinct invoice no. 001023 dated 15th May 2008 in the sum of N50, 000.00 vide payment for the transportation/supply and installation of the said generator set. See page 27 of the records. This is optional and could as well be contracted to another company.
Learned counsel further submitted that it is trite law that in determining territorial jurisdiction of a matter, the Writ of Summons and Statement of Claim ought to be carefully considered. See: – University Press Ltd V. I.K. Martins Nig. Ltd. (2000) 4 NWLR (pt. 654) 584. In the instant case the contract between the parties satisfies all the requirements/conditions for conferring jurisdiction on the Lagos judicial division.
Learned counsel further submitted that jurisdiction is fundamental to the determination of any matter before the courts. A court must possess jurisdiction to adjudicate on matters before it. See. Zangina V. Commissioner of Works Bornu State (2001) 9 NWLR (pt. 718) 480.
Learned counsel further submitted that the 40KVA Perkins generator set was duly delivered in good working condition and installed in Warri, Delta State and no issue was raised in respect of the transportation delivery and/or the installation of the said generator set neither is the subject matter of the Suit No. W/333/08 based/premised on transportation delivery and/or installation of the said generator set. The cause of action in this dispute therefore arose in Lagos. See:- Rinco Construction Co. Ltd V. Veepee Industries Ltd (2005) 9 NWLR (pt. 929) 85; Onadeko V. U.B.A. Plc (2005) 4 NWLR (Pt. 916) 440; Ogunde V. Gateway Transit Ltd (2010) 8 NWLR (pt. 1196) 207 at 213; Dairo V. UBA Plc (2007) 16 NWLR (pt. 1059) 99.
Learned counsel further submitted that a contract is decidedly performed when executed i.e. when the consideration has been given. All the authorities of (a) Dalhatu V. Turaki (Supra) (b) All States Trust Bank Ltd. V. King Dowson Enterprises (Nig) Ltd (Supra) and (c) Capital Bancorp Ltd V. Shelter Savings and Loans Ltd (Supra) relied upon by the Appellant are clearly distinguishable from the instant appeal.
Learned counsel further submitted that the Appellant did not exhibit any credible evidence and/or furnish any documentation/particulars before this court in proof of his alleged claim that the Respondent designated a bank in Warri for payment of the contract sum. The Respondent only submitted their Zenith Bank Plc, Plot 108 Akin Adesola Street Victoria Island Lagos Account particulars domiciled in Lagos State to the Appellant for payment of the contract sum into the Respondent’s Lagos account. The unilateral decision of the Appellant to pay the contract sum for the generator set into the Respondent’s account in Lagos through Warri was only to present a fait accompli to be able to claim jurisdiction in Warri Delta State.
Learned counsel further submitted that having considered the foregoing paragraphs, it is proper and within the tenets of the principles of law with respect to jurisdiction that the High Court of Delta State Warri Judicial Division lacks jurisdiction to entertain and/or determine the Suit No. W/333/08 instituted by the Appellant at the said lower court and that the High Court of Delta State, Warri Judicial Division was right in declining jurisdiction in Suit No. W/333/08 instituted by the Appellant at the lower court, and we urge this court to hold and to uphold the decision of the lower court.
The submissions of parties are carefully examined. This court in the case of Union Bank of Nigeria Plc & Ors V. Alhaji Ganiu Ajibola Ogunsiji (2013) 1 NWLR (pt.1334) 1 at 3 especially at pp 12- 13 Paras G – D on essentials of a binding contract, per Bage, JCA (Lagos Division) stated as follows:
“Generally, there are three (3) basic essentials to the creation of a binding contract. These are:
(a) Offer;
(b) Acceptance; and
(c) Consideration”
In the instant case, all the essentials of a valid contract were fulfilled.
See:- Awaye Motors Co. Ltd V. Adewunmi (1993) 5 NWLR (pt. 292) 236; Amodu V. Amode (1990) 5 NWLR (pt. 150) 35; Olanlege V. Agro Cont. (Nig) Ltd. (1996) 7 NWLR (Pt. 458) 29; L.C.R.I. v. Ndejoh (1997) 3 NWLR (pt. 491) 72.”
Also, at page 13 Parag E.F of the same decision, on formation of contract this court stated:-
“A Contract maybe demonstrated by the conduct of parties as well as by their words and deeds or by the documents that have passed between them. See: – Obayuwana V. Ede (1998) 1 NWLR (pt. 535) 670. In addition, also see: – Chief Festus Makene Ikomi V. Bank of West Africa Ltd (1965) ANLR 40; Shogun Finance Ltd V. Hudson (2003) UKHL 62; Larcarge Redlands Aggregates Ltd V. Shepherd Hill Civil Engr. Ltd (2000) 1 WLR 1621; Green Fingers Agro Industries Enterprises Ltd V. Musa Yusuf (2003) 25 WRN 67; Baird ile Holdings Ltd V. Marks and Spencer Plc (2001) EWCA CIV. 274; Schulder A.G. V. Wickman Machine Tool Sales Ltd. (1973) 2 All E – R 39; First Bank of Nig. Plc V. Hon. Justice Abubakar Alkali Abba (Court of Appeal, Jos Division) (Formation of Contract essential ingredients of.)”
In the instant appeal, the issue is not a challenge to the validity of the contract entered between the Appellant and the Respondent. It is not a challenge to the formation of the contract, and the essential ingredients thereto. The main issue is to the venue of the enforcement of the contract after it was conceived and executed then frustration set in. Frustration of the contract and what it amounts to in law, is again not the issue before this court. The issue remains only the venue of enforcement of the contract.
The facts of the dispute between the parties relates to the sale of a 40KVA generator set by the Respondent to the Appellant. The machine was fully paid for by the Appellant. The Respondent duly delivered and installed the machine in Warri Delta State. Although it cannot be found in the records for how long, but after the installation of the machine by the Respondent in the premises of the Appellant, it was said that the machine could not work. As a result of the malfunctioning of the machine, the Appellant instituted a suit in the Warri High Court of Delta State, vide his Writ of Summons and Statement of Claim filed on the 24/11/2008, which he had sought for declarations and others as stated earlier on.
The Respondent in response to the action of the Appellant filed a preliminary objection to the suit on grounds challenging venue of instituting this action. Arguments were taken by the trial Judge who adjourned for Ruling. From the records, on the 3/4/2009, the trial Judge on pages 47 -53, upheld the preliminary objection and thereafter ordered a transfer of this suit from the Delta State Judicial Division, Warri, to Lagos Judicial Division, Lagos State. The main grouse of the Appellant in this appeal is the refusal of the trial court in Warri to assume jurisdiction in this suit, when it had. The transaction according to him took place in Warri by payment into the Respondent’s designated bank at Warri, a place within the jurisdiction of that court. In addition, the Appellant paid the sum of N100,000.00 (One hundred thousand naira) for transportation from Lagos to Warri of the said generating set supplied by the Respondent.
The Respondent on the contrary contended that the Appellant visited the Respondents showroom at Plot 1301 Akin Adesola Street, Victoria Island Lagos to inspect the 40KVA Perkins generator set and upon satisfactory inspection of same, the Appellant purchased the generator set for the sum of N1, 950,000.00. The purchase price of the 40KVA Perkins generator set was paid and received into the Respondent’s Zenith Bank Plc Plot 10B Akin Adesola Street Victoria Island Lagos Account number 6016501747. The contract was executed and performed in Lagos by that payment. Furthermore, the Appellant entered into a separate/distinct contract with Respondent for the transportation/supply and installation of the already purchased generating set, and for that the Respondent issued Invoice No. 001023 dated 15th May 2008 in the sum of N50, 000.00.
The trial court in its ruling of the 3rd of April, 2009, after stating the grounds of the preliminary objection and arguments of the parties, for and against. Considered a plethora of authorities on the subject and the law came to its conclusion on page 53 of the records as follows:
“Order 10 Rule 3 of the defund Bendel State (Civil Procedure) Rules 1988 (applicable in Delta State) has this to say regarding suits upon contract:
“All Suits for specific performance or upon the breach of a contract shall be commenced and determined in the judicial Division in which such contract ought to have been performed or which the Defendant resides or carries on business.”
A contract is decidedly performed when executed i.e. when consideration has been given. The provisions in Order 10 Rule 3 are disjunctive because of the word “OR” whichever way, I am of the view that the right Judicial Division where this matter would have been instituted is the Lagos Judicial Division and not Warri Judicial Division and the totality is that this preliminary objection has merit and the result is that it succeeds and accordingly this suit is one that ought to be transferred to the Lagos Judicial Division for hearing and determination and same is hereby transferred.
This court is satisfied beyond doubt as to the construction of Order 10 Rule 3 of the Defunct Bendel State (Civil Procedure) Rules 1988, (applicable in Delta State) given by the trial court. It 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; Odutola Holdings Ltd V. Ladejobi (2006) 12 NWLR (Pt. 994) 321 at 358; Unipetrol V. E.S.B.I.R. (2006) 8 NWLR (pt. 983) 624 at 647; Rivers State Government V. Specialist Konsolt (2005) 7 NWLR (pt. 923) 145 at 179.
This court agrees with the ruling of the trial court that, both in terms of the performance of the contract or the place where the Defendant resides or carries on business is the Lagos Judicial Division, Lagos State, and not Warri Judicial Division in Delta State.
Let me add that, the Appellant’s main weapon in holding that the transaction took place in Warri, was the payment of the agreed contract sum into the Respondent’s designated bank at Warri does not hold water. The Appellant gave the account number which he made payment as No. 6016501747. He provided no further particulars. The Respondent agreed the account No. is correct 6016501747 but that the account is not in the Warri Branch of Zenith Bank Plc but in No. 108 Akin Adesola Street Victoria Island Lagos, Zenith Bank. The court must take judicial notice of the current globalization of the Banking System, where payment can be made into an account number of the same Bank and automatically received or withdrawn in another jurisdiction. This is done with the technological advancement between one country and another. This issue of payment from one jurisdiction to another had since enjoyed the judicial attention. The case of I.K. Martins (Nig) Ltd V. U.P.C. (1992) 1 NWLR (pt. 217) 322. (Cited by Appellant, Respondent and trial court) at Parag C-G, Uwaifo J.C.A. (as he then was) stated:
“…It is the law that where no (place of) payment is expressly or impliedly specified by the contract, the general rule is that it is the debtors duty (his place of residence) notwithstanding, to seek the creditor in order to pay him at his place of business or residence if it is within the country or realm.”
When this case eventually got to the Supreme Court on appeal as
University Press Ltd V. I.K. Martins Nig. Ltd (2000) 4 NWLR (pt. 654) at 584 the Supreme Court held that:
“…In determining the venue for the trial of any matter, it is generally accepted that there must be close examination of the Writ of Summons, the Statement of Claim and motion papers if any including affidavit evidence and annextures thereto.”
In the present appeal, the Appellant never disputed that all the essential ingredients of the contract took place in Lagos, except the decision to pay the contract sum in Warri Delta State for the benefit of the Respondent in its Lagos Branch Account of Zenith Bank, which is the current acceptable banking practice, which the courts must take judicial notice of.
Let me mention here that, the reference of the Appellant to the decisions of Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; All States Trust Bank Ltd. V. King Dowson Enterprises (Nig.) Ltd (2000) 12 NWLR (pt. 681) 299; Capitol Bancorp Ltd V. Shelter Savings and Loans Ltd. (2007) 3 NWLR (pt. 1020) 94, which were all premised on where the cause of action arose are inapplicable to the present appeal, as the circumstances of the present appeal clearly established the fact that Lagos and not Warri was the Venue of the cause of action. The court which enjoys the jurisdiction to hear and determine the dispute between the parties to the present appeal is the Lagos Judicial Division Lagos State, and not Warri Judicial Division of Delta State. Issue one is resolved against the Appellant, and in favour of the Respondent.
Having resolved the Issue No. 1, the next is the determination of Issue No.2.
ISSUE 2
Whether it was within the discretion of Hon. Justice R.N. Pemu (Mrs.) of the High Court of Delta State, Warri Judicial Division to make consequential order in Suit No. W/333/08 after declining jurisdiction in the said suit.
Learned counsel to the Appellant in their argument to this issue submitted that, the learned trial Judge in Limine fell into grave error when after declining jurisdiction in this matter nevertheless ordered a transfer of the action to the Lagos High Court instead of striking out the matter. The learned trial Judge’s order, therefore, has no legal foundation or supports either from the 1999 Constitution, Federal High Court Act Cap. 12 Laws of the Federation of Nigeria, 2004 or even the High Court (Civil Procedure) Rules 1988 of defunct Bendel State as applicable to Delta State.
Learned counsel further submitted that the Ruling of the trial court runs contrary to the axiomatic principle of law which empowers only the Federal High Court to transfer cases to the High Court where it has no jurisdiction and not for the trial court to transfer cases to another trial court, where it has no jurisdiction as in this instance. See: – Fasakin Foods (Nig.) Ltd. V. Shosanya (2006) 10 NWLR (Pt. 987) 126; AMC V. NPA (1987) 1 NWLR (pt. 51) 475. See also section 22 (2) of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria 2004.
Learned counsel further submitted that, the jurisdiction of a State High Court is territorial and does not extend beyond its territorial boundaries. See: – Ngige V. Achukwu (2005) 2 NWLR (Pt. 909) 123. Consequently, by ordering a transfer of this case beyond its territorial jurisdiction to the Lagos High Court the action of the trial court was unlawful, unconstitutional without any judicial support. Thus this court is urged to set aside that erroneous order made therein.
Learned counsel further submitted that the learned trial Judge was wrong again when he declined to apply and following the principles of judicial precedence in this case. This was inspite of citing binding Supreme Court and Court of Appeal cases before it.
Learned counsel submitted that, the Court of Appeal and Supreme Court cases were on all fours with the Appellant’s case and thus totally binding on the learned trial Judge under the principle of judicial precedence in the Nigerian jurisprudence and/or legal system. See:- Abacha V. Fawehinmi (2000) 6 NWLR (pt. 660) 228; R. Benkay (Nig.) Ltd V. Cadbury (Nig.) Ltd (2006) 6 NWLR (Pt. 976) 338; D.G. SSS V. Ojulewu (2006) 13 NWLR (pt. 998) 575; African Re. Corp. V. JDP Const (Nig.) Ltd (2003) 13 NWLR (Pt. 838) 609;
Learned counsel finally urged this court to allow the appeal. In response the learned counsel to the Respondent submitted that, it is within the inherent jurisdiction of the learned Justice R.N. Pemu of the Delta State High Court Warri Judicial Division to make consequential order transferring the suit W/333/08 to Lagos Division after declining jurisdiction in the suit.
Learned counsel further submitted that it is trite law that once an action is commenced in a wrong judicial division, it is only appropriate and expedient for the court to exercise its discretionary powers to order its transfer to the court vested with the necessary and requisite jurisdiction to entertain and determine the said action.
Learned counsel submitted further that, it is instructive to note at this juncture that inherent jurisdiction of court is not expressly spelt out by the constitution or in any statute or rule but can of necessity, be invoked by any Court of record to supplement its express jurisdiction or powers in administration of justice. The inherent jurisdiction of court is a residual power of court that can be invoked for proper and complete administration of justice. See: – Nnama V. Nwanebe (1991) 2 NWLR (Pt. 172) 181. See book titled “Jurisdiction of Courts in Nigeria cases and Materials” by Lawal Pedro particularly at pages 17 & 18. Also see Order 10 Rules 6 of the Bendel State High Court (Civil Procedure) Rules 1988.
Learned counsel further submitted that it is also trite that exercise of discretionary powers by the court is premised on the circumstances of each case. The learned Judge’s order transferring the suit to Lagos is only incidental and/or consequential to her Ruling declining jurisdiction in the said suit as the learned Judges discretionary power in transferring the suit was exercised judicially and judiciously. See:- Daniang V. Teachers Services Commission (1996) 5 NWLR (Pt. 446) 97.
Learned counsel further submitted that the consequential order made by the learned Judge is immaterial and does not relate and/or in any way whatsoever affect in totality the issue of decline of jurisdiction by Delta State High Court Warri Judicial Division in Suit No. W/333/08. The issue of whether the lower court has jurisdiction to entertain the suit is quite separate/distinct from whether the lower court has the discretionary powers to make consequential order having declined jurisdiction in the first instance in the aforesaid suit. Once the lower court is not vested with jurisdiction in respect of a matter whether or not the court has discretionary powers to make consequential order in the matter is immaterial and does not in any way affect the lack of jurisdiction of the court.
Learned counsel submitted finally that the consequential order made by his Lordship goes to no issue and does not in any way materially touch upon, alter, change, affect and/or impinges on the Judge’s decision declining jurisdiction in this matter. This court should hold so.
The submissions of counsel on this issue are carefully examined. The Respondent’s counsel in their brief of argument at page 21, by way of an admission accepted that the consequential order made by the learned trial Judge, transferring the case to the Lagos State Judiciary, from the Delta State Judiciary in particular, the High Court of Delta State sitting at Warri, goes to no issue. He maintained that the order made does not in any way materially touch upon, alter, change, affect or impinges on the Judge’s decision declining jurisdiction in this matter. This is an admission of fact which requires no further proof. The law is already trite that, anything admitted, need no further proof. See. Nigerian Bottling Co. Plc V. Stephen Oboh (2000) 9 WRN 144; Hauwa Ubudu V. Bulama Abdul Razak (2001) 7 NWLR (pt. 713) 669; N.I.D.B. V. Olalomi Industries Ltd. (2002) 28 WRN 66; Mohammed Sani Abacha V. State (2002) 9 MJSC 1; AGF V. A.G. Abia & Ors (2002) NSCQR 163.
Facts aside, the law on the subject of transfer of cases from High Courts to High Courts is as correctly stated by the Appellant in his brief of argument. Apart from Section 22(2) of the Federal High Court Act Cap F 12 Laws of the Federation of Nigeria 2004, which empowers that court to transfer any cause or matter before it, which it found not to enjoy jurisdiction upon, no such or similar provision is found in any Rules of Court governing all the other High Courts. This provision has enjoyed long standing interpretation by the apex court. The decision of Fasakin Foods (Nig) Ltd V. Shosanya (2006) 10 NWLR (Pt. 987) 726 (cited) is apt on the issue. Ogbuagu JSC observed that:-
“…I am aware that while the Federal High Court can transfer a cause or matter to a State High Court, by virtue of Section 22 (2) of the Act – see Aluminium Manufacturers Co. (Nig) Ltd V. N.P.A. (1987) 1 NSCC Vol. 18 Page 224 at 234, (1987) 1 NWLR (Pt. 51) 475; (1987) 1 NWLR (pt. 51) 475; (1987) 7 SCNJ 94, but there is no such provision applicable at least, in Lagos State High Court Rules.”
See also, AMC V. NPA (1987) 1 NWLR (pt. 51) 475.
Given the law cited above, and the interpretation thereto no doubt the trial Judge acted ultra vires in his decision or Order to transfer the case, the subject of this appeal, having found he had no jurisdiction from Warri Delta State to Lagos, Lagos State. That order must be set aside, and it is hereby set aside by this court.
The learned trial Judge did pronounced that the Respondents preliminary Objection had merit and succeeds and then made the transfer order just set aside by this court. I do agree with the submission of the learned counsel to the Appellant that the appropriate order to be made at that stage was that of striking out the matter by the trial court, which it did not in error. It therefore behoves on this court to correct that error of the trial court, so as not to live the law in a vacuum. This court finds the strength to do that, under its general powers provided by Section 15 of the Court of Appeal Act 2004. That section provides as follows:
“The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any degree or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall hove full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in file case of on appeal from the court below in that court’s below in that court’s appellate jurisdiction, order case to be re-heard by a court of competent jurisdiction.”
The provisions above had been examined by both the apex court and this court. See:- Usman V. Kaduna State House of Assembly & Ors (2007) 11 NWLR (pt 1044) 148 at 161; Balogun V. Agboola (1974) 1 All NLR (Pt. 11) 66; Omoregie V. Idugremwanve (1955) 3 NWLR (pt. 5) 41; Nzekwu V. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
This court in view of the powers conferred on it under Section 15 of the Court of Appeal Act has struck out the Suit No. W/333/2008 which was before the High Court of Justice, Delta State sitting at the Warri Division.
On the whole therefore, this appeal succeeds in Part, on the issue that the trial court, High Court of Delta State, sitting at Warri Division, had no power to transfer this Suit the subject matter of this appeal to the High Court of Lagos, Lagos State for trial.
On all the other issues, this court has affirmed the Ruling of the trial court delivered on the 3rd of April, 2009, that the appropriate venue for the trial of the contract, dispute between the Appellant and the Respondent is the Lagos State, and not High Court of Delta State, Warri Division. This court also discountenanced the issue that the trial court refused to follow the rules of precedence or stare decisis. And finally, this court has struck out the Suit No. W/333/08 from the High Court of Delta State sitting at Warri.
Parties to bear their own costs.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
Accordingly, I agree that the appeal succeeds in part on the issue that the lower court had no power to have transferred the case to the High Court of Lagos State for trial. The proper order which the lower court ought to have made as there was no substantive law empowering it to transfer cases wrongly initiated in the High Court of Delta State to the High Court of another State (in contradistinction to cases initiated in the wrong Judicial Division of the High Court of Delta State), is one striking out the case. Therefore, appropriate order in that regard must now be made in place of the order transferring the case to the High Court of Lagos State, as made by the lower court. Accordingly an order striking out Suit No: W/333/2008 is now made. I also abide by the order made in the lead judgment relating to costs.
TOM SHAIBU YAKUBU, J.C.A: I read before now, the draft of the judgment, just delivered by my learned brother – SIDI DAUDA BAGE, JCA, who dealt with the issues in the appeal to my satisfaction, such that I have nothing more useful to add to it.
The appeal succeeds in part only. I abide by the orders contained in the lead judgment, including the order as to costs.
Appearances
G.O.K. EBOWE with him O. OJANIKREFor Appellant
AND
IFEANYI EZEFor Respondent
