ABDULLAHI YUSUF ZARIA & ORS v. NATIONAL BOARD FOR ARABIC AND ISLAMIC STUDIES & ANOR
(2019)LCN/12588(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/K/42/2018
RATIO
INTERPRETATION: WHAT IS A FINAL DECISION
“A final decision has been defined by the Supreme Court in plethora of cases and particularly by His Lordship, Galinje, JSC in the case of COMPAGNIE GENERALE DE NIG. LTD. GEOPHYSIQUE VS. ODURUSAM & ANOR. (2017) LPELR 42575, that where a Court has determined the rights of the parties in the substantive case or application, the decision is a final and not interlocutory decision. See also the cases of ONYEABUCHI VS. INEC, ABUJA & ORS. (2002) 8 NWLR (PT. 769) 417; AGBOGUNLERI VS. DEPO & ORS. (2008) LPELR 243 (SC); ATTORNEY-GENERAL OF KWARA STATE & ANOR. VS. LAWAL & ORS. (2017) LPELR 42347 (SC) and a host of others.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JURISDICTION: THE ISSUE OF JURISDICTION
“On the main issue raised for resolution in the determination of this appeal, it is now elementary law and settled beyond controversy, that jurisdiction is the life wire of a case. That is, the very blood that keeps it alive in Court. Thus, where a Court is found for whatever reason to have lacked the requisite jurisdiction to entertain or continue entertaining a case, yet it went ahead to entertain and determine the same, every steps and/or orders taken or given in the said case would be considered a nullity and void. See the cases of LABIYI VS. ANRETIOLA & ORS. (1992) LPELR 1730 (SC); JAMES VS. I.N.E.C. & ORS. (2015) LPELR 24494 (SC) and OKOYA VS. SANTILLI & ORS. (1990) LPELR 2504 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
APPEAL: WHERE AN APPEAL IS MADE AGAINST A FINAL DECISION
“The law is trite and well settled that an appeal against final decision of a High Court to this Court is as of right whether the grounds of appeal are of mixed law and facts, or law alone; or facts alone, the appellant would not be required to seek the leave of Court. See the provision of Section 241 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), and the cases of AULT & WIBORG NIG. LTD. VS. NIBEL INDUSTRIES LTD. (2010) LPELR 639 (SC) and NATIONAL JUDICIAL COUNCIL & ORS. VS. ALADEJANA & ORS. (2011) LPELR 4581 (CA). The grounds of appeal in the instant appeal matter are therefore found by me to be competent, and the contention of the respondents counsel with regard to this issue is accordingly discountenanced.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
1. ABDULLAHI YUSUF ZARIA
2. EMMANUEL ALAO
3. LAZARUS BALA
4. DR. KANE TONY
5. ABDULLAHI TUKUR
6. HASSAN USMAN
7. MRS. P. B. YUSUF
8. MRS. AMINA OBADAKIN
9. TANKO MAKAMA
10. MRS. FALILAT IDRIS
11. STEPHEN JOHN – Appellant(s)
AND
1. NATIONAL BOARD FOR ARABIC AND ISLAMIC STUDIES (NBAIS)
2. PROF. SHAFIU ABDULLAHI
(Acting Registrar NBAIS) – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Kaduna State, sitting at Kaduna (hereinafter referred to as the lower Court). The aforesaid judgment was delivered on the 16th day of November, 2017 by Hon. Justice Isah Aliyu, J.
The ruling of the lower Court was predicated on the preliminary objection filed on the 22nd day of May, 2017 by the defendants/respondents (hereinafter referred to as the respondents), wherein they challenged the jurisdiction of the lower Court to entertain and determine the plaintiffs suit, on the ground that the parties are agencies of the Federal Government and the subject matter falls within the category or class of cases exclusively reserved for the Federal High Court by virtue of Section 251 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and Order 23 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules, 2007.
The substantive case was taken out by the plaintiffs/appellants (hereinafter referred to as the appellants) at the lower Court wherein by their statement of claim sought the grant of the following reliefs:
1. A declaration that the first defendant is not a creation of the law and it not having title over the residential quarters occupied by the plaintiffs lacks the power to act as Landlord or owners of the said same quarters.
2. A declaration that by virtue of the circular No. HCSF/109/20 of 29th September, 1999 by the Head of Service of the Federation plaintiffs are entitled to occupation of their official quarters, the subject matter of this suit, same having been allocated to them in their official capacities as serving Federal Civil Servants the Ministry of their posting notwithstanding.
3. A declaration that plaintiffs being Federal Civil Servants, the defendants lack the right to determine and/or quit them from their official quarters.
4. AN ORDER declaring the seven (7) days quit notices served on the plaintiffs by the defendants in respect of the subject matter of this suit as null and void.
5. A perpetual injunction restraining the defendants, their agents, privies, cronies by whatever name called from interfering with the plaintiffs peaceful enjoyment of the subject matters of this suit until they cease to be Federal Civil Servants or occupy another official quarters elsewhere.?
The subject matter of dispute in this case is a Federal Government residential quarters known and referred to by the parties as National Open University Ceded Staff Quarters (hereinafter referred to as the official quarters). The appellants were the original occupants of the official quarters in dispute as Federal Civil Servants. However, the respondents claimed that the said official quarters have been ceded to them by the Federal Ministry of Education. Thus, they sought to take possession of the official quarters to enable them carry out direly needed renovations and for staff of the 1st respondent to occupy the same. The appellants in turn resisted the efforts made by the respondents to effect amicable resolution or eject them from the official quarters and proceeded to institute this action.
The parties filed and exchanged their respective pleadings at the lower Court. Furthermore, the respondents filed a notice of preliminary objection and challenged the power and jurisdiction of the lower Court to entertain and determine the appellants suit. The learned trial judge after due consideration of the written addresses filed and adopted by the parties; held that the parties are Federal Government agency and the subject matter of dispute is thus within the exclusive jurisdiction of the Federal High Court. Thus, he struck out the appellants suit for lack of jurisdiction.
The appellants were completely dissatisfied with the decision of the lower Court and have thereby appealed against the said decision to this Court by filing two notices of appeal on the 17th day of November, 2017 and 11th day of January, 2018. For the purpose of this appeal, the appellants relied on and based their appeal on the latter notice of appeal. The appellants complaints against the decision of the lower Court were predicated on four grounds. The said complaints expressed as grounds of appeal are reproduced without their particulars as follows:
GROUND ONE
The Honourable learned trial judge erred in law by holding that the High Court of Justice of Kaduna State lacks jurisdiction to entertain this suit by virtue of the provisions of Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 in the light of the claims endorsed on the Writ of Summons and Statement of Claim and the status of the 1st respondent.
GROUND TWO
The Honourable learned trial judge erred in law by determining the legal status of the 1st respondent at this stage of the proceedings in the light of the 1st relief endorsed on the Writ of Summons and Statement of Claim before the Honourable Court.
GROUND THREE
The Honourable learned trial judge erred in law and came to a wrong conclusion when he held that the issue that brought this suit was the decision of the National Open University of Nigeria to cede the residential quarters the plaintiffs (appellants) are occupying to the 1st defendant.
GROUND FOUR
The Honourable learned trial judge erred in law by considering and basing his decision on the averment in the supporting affidavit of the respondents to their motion on notice dated 22/05/2017 as opposed to on the averments contained in the writ of summons and statement of claim.
The appellants in their bid to prosecute this appeal, compiled, caused to be served on the parties and transmitted the record of appeal to this Court. Thereafter, the parties duly filed and exchanged their respective briefs of argument. The appellants brief of argument and reply brief were filed on the 21st day of February, 2018 and 11th day of April, 2018, respectively. The briefs were settled by G. U. Akobueze Esq. On the other side of the coin, the respondents brief of argument was prepared by Yusuf Bado Mok Esq. and the same was filed on the 27th day of March, 2018.
For the determination of this appeal, the counsel for the appellants crafted two issues from the four grounds of appeal for resolution. The issues are reproduced below as follows:
1. Whether the honourable trial Court was right when it held that it lacked the jurisdiction to entertain this suit by virtue of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in the light of the claims endorsed on the Writs of Summons, Statement of Claim and parties to the case (Grounds 1 and 4).
2. Whether the honourable trial Court was right when it held that the issue that brought about this case was the decision of the National Open University of Nigeria to cede the residential quarters the appellants are occupying to the 1st respondent.
The learned counsel for the respondents on his own part donated a sole issue for resolution and subsequent determination of this appeal. The issue is reproduced below as follows Whether or not the Kaduna State High Court of Justice has the jurisdiction to entertain and determine this suit.
I have carefully considered the two sets of issues raised by the learned counsel for the parties vis-a-vis the ruling of the lower Court appealed against and grounds of appeal and I am of the firm viewpoint that the issue donated by learned counsel for the respondents is adequate, apt and duly captured the appellants basis of complaints in this appeal. Thus, the issue is adopted by me for resolution in the determination of this appeal.
ARGUMENT ON ISSUES.
The learned counsel for the appellants submitted, that the learned trial judge erred in law by determining at the preliminary stage, issues that are in contention in the substantive case. The learned counsel for the appellants argued, that the appellants by their statement of claim alleged that the 1st respondent is not a juristic person and definitely not an agent of the Federal Government. He contended, that parties by their pleadings properly joined issue on the legal capacity of the 1st respondent as well as its status as an agent of the Federal Government. The learned appellants counsel submitted, that the parties having joined issue on this fact, the conflict of views can only be resolved through evidence to be adduced during hearing of the substantive case. The learned counsel alleged, that contrary to the settled position of the law, the learned trial judge went ahead to hold that 1st respondent is an agent of Federal Government at the preliminary stage and thereby occasioned miscarriage of justice to the appellants.
Also, the learned counsel for the appellants, argued that assuming but without conceding that, the 1st respondent is an agency of the Federal Government, the State High Court does not lack jurisdiction just because an agency of the Federal Government is a party; as what determines the jurisdiction of the honourable trial Court are the claims of the appellants as plaintiffs and not the defence of the defendant or the grounds of objection in the preliminary objection. The learned appellants counsel further contended, that the lower Court instead of having recourse to the claims of the appellants in deciding whether or not it possesses the jurisdiction to entertain the case, the honourable trial Court devoted its time in considering the grounds for the preliminary objection and by extension, the Statement of Defence. Reference was made to pages 73 and 74 of the record of the appeal.
The learned counsel for the appellants maintained, that the learned trial judge, without justification classified all the parties as agents of Federal Government and that the official quarters which is the subject matter of the case belonged to the Federal Government, thus, the subject matter was also held to be within exclusive jurisdiction of the Federal High Court. The learned counsel argued, that the issue in contention is with regard to the official quarters occupied by the appellants and does not relate to the administrative acts of the 1st respondent as held by the learned trial judge. Thus, he submitted, that the law is long before now settled that in the determination of which Court, between the Federal and States High Courts, has jurisdiction, where an agency of the Federal Government is a party, the claim(s) rather than the agency is/are the determinant factor(s). He supported his submission with the case of OLADELE FUNSHO OLADIPO VS. NIGERIA CUSTOMS SERVICE BOARD (2009) ALL FWLR (PT. 498) 319.
Furthermore, the learned counsel for the appellants submitted, that even if the parties are agencies of the Federal Government, the subject matter of the case, that is, the appellants claims does not fall within the category of the subject matter specified in Section 251 of the Constitution and in respect of which the Federal High Court exercises exclusive jurisdiction. Thus, he urged us to resolve this issue in favour of the appellants.
The learned counsel for the respondents in his response set out with the submission, that the Kaduna State High Court of Justice does not have the requisite jurisdiction to entertain and determine this suit on the grounds that, the 1st respondent is an agency of the Federal Government by virtue of the fact that it was created by the laws of Northern Region of Nigeria 1963 and domicile in Ahmadu Bello University, Zaria, an institution of the Federal Government of Nigeria. The learned counsel then stated, that the case for determination before the Court below was the administrative action or decision of the 1st respondent to give quit notice to the 1st appellant in respect of the residential quarter ceded by National Open University of Nigeria to the 1st respondent. The administrative action or decision to issue quit notice to the appellants was the cause for which the matter came before the Kaduna State High Court of Justice for determination.
The learned counsel for the respondents contended, that appellants by their pleadings admitted that the 1st respondent is an agency of the Federal Government and their claims were tailored in a manner which challenged the administrative decision of the 1st respondent to issue quit notices to them and that of the National Open University of Nigeria who ceded the official quarters to the 1st respondent in the first instance. He therefore submitted, that the learned trial judge was correct when he held at pages 73 74 of the record of proceedings that the decision of the defendants to eject the plaintiffs from the quarters further triggered this action which the plaintiffs are seeking for declaration and injunction against the administrative decision of the agencies of the Federal Government. We urged this honourable Court to also hold same.
Also the learned counsel for the respondents submitted, that the failure of the appellants to join the Federal Ministry of Education and National Open University of Nigeria who are necessary parties has further robbed the lower Court of its jurisdiction. He referred us to the case of ADEGBENRO VS. ATTORNEY-GENERAL OF THE FEDERATION (1962) ALL NLR 431. Additionally, the learned counsel for the respondents submitted, that the appellants have in their statement of claim, alleged that the 1st respondent is not an agency of the Federal Government, hence, the more reason why the only Court that has the power to answer that question is the Federal High Court and not the Kaduna State High Court. He further submitted, that the learned trial judge equally acted within his power when in the bid to determine whether or not the 1st respondent is an agency of the Federal Government duly examined the appellants statement of claim and the respondents statement of defence.
Finally, the learned counsel for the respondents argued, that the issue of whether the subject matter is within the exclusive jurisdiction of the Federal High Court same being residential buildings situated in Kaduna State within the jurisdiction of High Court of Justice, was not canvassed nor raised at the lower Court, and the learned appellants counsel did not seek the leave of this Court before raising the issue at this Court. He thus submitted, that the issue was incompetently raised and urged us to discountenance the same. He supported his submission with the provision of Order 6 Rules 3 and 4 of the Court of Appeal Rules, 2014. In addition, the learned counsel submitted that the appellants grounds of appeal are all grounds of mixed law and facts, and the appellants failed to seek the requisite leave required by law in order to competently raise and argue the said grounds of appeal.
He therefore submitted that this appeal is incompetent and should be struck out. He referred us to the cases of CHIEF OLISA METUH VS. FEDERAL REPUBLIC OF NIGERIA (2018) SC. 457/2016 and OBECHIE VS. GABRIEL ONOCHIE & ORS. (1986) 1 SC 45, (1986).
The learned counsel for the appellants in the appellants reply brief submitted that non-joinder or misjoinder of parties does not defeat a matter. He referred us to the case of WAHAB ALAMU SAPO & ORS. VS. ALHAJA BINTU SUNMONU (2010) 5 7 (PT. 1) MJSC, 35037. The learned counsel stated that the appellants have no claim against both the National Open University of Nigeria and Federal Ministry of Education, thus, there was no need to sue or join them in this action.
Finally, on the issue that the grounds of appeal are of mixed law and facts which require the leave of this Court, the learned appellants counsel submitted, that none of the appellants grounds of appeal dwelt on the evaluation of facts so as to make them a ground of mixed law and facts. Thus, he urged us to discountenance the contention raised in that regard by the learned counsel for the respondents. He referred us to the case of CHIEF OF AIR STAFF & ORS. VS. WING COMMANDER P. E. IYEN (2005) ALL FWLR (PT. 252) 404.
Before I delve into the main issue(s) in this appeal, let me quickly put to rest some pockets of preliminary issues raised by the respondents counsel in their brief of argument. In paragraph 5.15 of the respondents brief of argument, the learned counsel for the respondents contended that the parties at the lower Court did not proffer argument or raise the point on whether the subject matter is within the exclusive jurisdiction of the Federal High Court same being residential buildings situated in Kaduna State within the jurisdiction of High Court of Justice.The learned counsel argued that the appellants were required by law to raise and argue this issue before this Court only with leave.
The above contention of the learned respondents counsel is totally misleading and does not represent the true position of the issue raised and argued at the lower Court. From the record of appeal placed before us, the issue or subject matter of the litigation in this case was personally raised by the respondents in their preliminary objection. For ease of reference and clarification, the respondents ground of preliminary objection are reproduced below:
GROUNDS UPON WHICH THE OBJECTION IS BROUGHT.
1. The 1st defendant is an Agency of the Federal Government and the 2nd defendant is a Civil Servant in the employment of the 1st defendant.
2. The residential quarters which the plaintiffs are occupying, the subject matter of this suit, are the properties of the Federal Government.
3. The National Open University of Nigeria that gave out the residential accommodation to the plaintiffs is an agency of the Federal Government.
4. The Federal Ministry of Education that gave directive for the properties to be ceded to the defendants by the National Open University of Nigeria, is an arm of the Executive of the Federal Government of Nigeria.
5. The reliefs sought by the plaintiffs in their writ of summons and statement of claim are for declarations and injunction affecting the validity of an Executive of Administrative action or decision of the 1st defendant as an agency of the Federal Government.
(See pages 50 and 51 of the record of appeal.)
Also, the parties in their respective written addresses in support and opposition to the preliminary objection proffered arguments as to whether or not the subject matter of the suit was within the jurisdictional competence of the lower Court, and the issue was resolved by the lower Court in its ruling.
The contention by the learned respondents counsel, that the parties did not raise nor proffer any argument as to whether or not the subject matter of this suit is within the jurisdictional competence of the lower Court either by the location of the subject matter of dispute or nature of its occupation is most misleading and accordingly discountenanced by me.
Also, on the contention that the appellants grounds of appeal are of mixed law and facts, thus, they require leave before they could be competently raised and argued in this appeal. A careful examination of the ruling/judgment appealed against would reveal that this appeal emanated from interlocutory application but based on final decision of the lower Court. It is not in dispute that the application which brought about the ruling was interlocutory, but the lower Court in its ruling somewhat determined with finality the rights of the parties to continue pursuing their cases before it and struck out the appellants case. The learned trial judge having struck out the appellants case, there is nothing still pending before him to consider. Thus, the appellants appeal was brought as of right and it challenged the Ruling/Judgment of the lower Court. A final decision has been defined by the Supreme Court in plethora of cases and particularly by His Lordship, Galinje, JSC in the case of COMPAGNIE GENERALE DE NIG. LTD. GEOPHYSIQUE VS. ODURUSAM & ANOR. (2017) LPELR 42575, that where a Court has determined the rights of the parties in the substantive case or application, the decision is a final and not interlocutory decision. See also the cases of ONYEABUCHI VS. INEC, ABUJA & ORS. (2002) 8 NWLR (PT. 769) 417; AGBOGUNLERI VS. DEPO & ORS. (2008) LPELR 243 (SC); ATTORNEY-GENERAL OF KWARA STATE & ANOR. VS. LAWAL & ORS. (2017) LPELR 42347 (SC) and a host of others.
The law is trite and well settled that an appeal against final decision of a High Court to this Court is as of right whether the grounds of appeal are of mixed law and facts, or law alone; or facts alone, the appellant would not be required to seek the leave of Court. See the provision of Section 241 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), and the cases of AULT & WIBORG NIG. LTD. VS. NIBEL INDUSTRIES LTD. (2010) LPELR 639 (SC) and NATIONAL JUDICIAL COUNCIL & ORS. VS. ALADEJANA & ORS. (2011) LPELR 4581 (CA). The grounds of appeal in the instant appeal matter are therefore found by me to be competent, and the contention of the respondents counsel with regard to this issue is accordingly discountenanced.
The position stated above and conclusion notwithstanding, even if the issue/contention raised by the learned respondents counsel above were found to be valid, this Court will still be bound to discountenance it, because the contentions and/or allegations were incompetently raised. The contention/allegation of the learned respondents counsel in this respect was mainly against the appellants grounds of appeal and issues raised therefrom. The proper procedure for the purpose of challenging a ground of appeal is by filing a motion on notice seeking in the main to strike out the contaminated ground or grounds of appeal and not by raising the objection in the brief alone. Thus, the respondents having not challenged or raised their objection against the grounds of appeal and issues formulated therefrom through the proper channel, the contention of the learned counsel for the respondents in this respect are also accordingly discountenanced by me. See the cases of EJEZIE & ANOR. VS. ANUWU & ORS. (2008) LPELR 1063 (SC).
On the main issue raised for resolution in the determination of this appeal, it is now elementary law and settled beyond controversy, that jurisdiction is the life wire of a case. That is, the very blood that keeps it alive in Court. Thus, where a Court is found for whatever reason to have lacked the requisite jurisdiction to entertain or continue entertaining a case, yet it went ahead to entertain and determine the same, every steps and/or orders taken or given in the said case would be considered a nullity and void. See the cases of LABIYI VS. ANRETIOLA & ORS. (1992) LPELR 1730 (SC); JAMES VS. I.N.E.C. & ORS. (2015) LPELR 24494 (SC) and OKOYA VS. SANTILLI & ORS. (1990) LPELR 2504 (SC).
The Supreme Court has in a number of cases set out the criteria for determining whether or not the Court has jurisdiction. The criteria are as follows:
1. Whether the Court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by the due process of law.
See the cases of MADUKOLU VS. NKEMDILIM (1962) LPELR 24023 (SC); ATTORNEY-GENERAL OF ANAMBRA STATE VS. ATTORNEY-GENERAL OF THE FEDERATION (2007) LPELR 24343 (SC) and MAGAJI VS. MATARI (2000) LPELR 1813 (SC).
Also, Courts of law are creations of statutes be it constitutional or otherwise and their jurisdictions are specified by the enabling laws. Objection to jurisdiction of a Court can be taken at any time in the course of the proceedings, depending on what materials or processes are available. Such an objection among others, could be taken by way of a motion on notice supported by an affidavit which gives the core basis upon which reliance is being placed. See AJAYI V. ADEBIYI (2012) 11 NWLR (PT. 1310) 137; KASIKWU FARMS LTD. V. ATTORNEY-GENERAL BENDEL STATE (1986) 1 NWLR (PT. 19) 695.
When the core, crucial and most fundamental issue of jurisdiction of a trial Court is to be determined, it is only the plaintiffs statement of claim, coupled with the reliefs sought that is/are given adequate and due considerations. See OBIUWEUBI V. C.B.N. (2011) 7 NWLR (PT. 1247) 465; P. & C. H. S. CO. LTD. VS. MIGFO (NIG.) LTD. (2012) 18 NWLR (PT. 1333) 555; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517; ADEYEMI V. OPEYORI (1976) 9 10 SC 31; IKINE V. EDJERODE (2001) 18 NWLR (PT. 745) 446 and GOLDMARK (NIG.) LTD. V. IBAFON CO. LTD. (2012) 10 NWLR (PT. 1308) 291 among a host of others.
In ONUORAH v. K. R. P. C. LTD. (2005) LPELR 2707 (SC) at page 15 the Supreme Court per Tobi, JSC (of blessed memory) restated the position of the law and I quote the eminent jurist:
The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only claims or reliefs donate jurisdiction to the Court.
By virtue of Section 251 of the Constitution, the Court saddled with the requisite jurisdiction to entertain and determine a case concerning agencies of the Federal Government and where the subject matter falls into the category of classes of action specified in Section 251 of the Constitution is the Federal High Court. Where either or both parties in a case are agencies of the Federal Government and the subject matter of the case does not fall within the specified category of subject matters exclusively reserved in Section 251 of the Constitution, a State High Court would in this circumstance have concurrent power and jurisdiction to adjudicate on that case. See the cases of SAVANNAH BANK OF NIG. LTD. VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. & ANOR. (1987) LPELR 3021 (SC) and SOCIETY BIC S.A. & ORS. VS. CHARZIN INDUSTRIES LTD. (2014) LPELR 22256 (SC).
In the instant appeal, a careful, diligent and dispassionate examination and analysis of the appellants statement claim and the reliefs they sought therein would reveal that the appellants case and claims are predicated or hinged on interpretation to be given to circular No. HCSE/109/20. The said circular as stated by the appellants emanated from the Head of Service of the Federal Government of Nigeria as a policy to regulate the way and manner federal government houses are managed and/or controlled by various inter or intra-ministerial Federal Government agencies. The circular is without doubt a Federal Government policy document. Thus, any issue or dispute predicated on the operation of the circular clearly falls within the scope of subject matters specified in Section 251 (1) (r) of the Constitution. That is, any dispute on the applicability of the circular can safely be classified as an action challenging the validity of any executive or administrative action or decision by the Federal Government
There is no gainsaying that the said circular No. HCSE/109/20 was the basis upon which the appellants were claiming their rights of possession and disputing the immediate right of the respondents to the possession of the official quarters and their ceded title. Thus, the appellants who were federal civil servants and brought an action predicated on Federal Government policy, the proper Court where their claim can be competently and validly ventilated should be the Federal High Court. Therefore, I completely agree with the decision of the learned trial judge, that the instant case was wrongly commenced/initiated at the lower Court.
In the light of all that have been said above, I agree with the decision of the learned trial judge that the appellants wrongly initiated their claim at the lower Court. The proper Court that has the constitutional competence and can exercise jurisdiction over the appellants action is the Federal High Court. Also, I agree with the submission of the learned counsel for the appellants, that the lower Court erred when it made a definite pronouncement with regard to the status of the 1st respondent. The comment and/or pronouncement of the learned trial judge on the legal status of the 1st respondent is premature in view of the fact that hearing in the case is yet to commence. The appellants in paragraph 2 of their statement of claim has challenged the legal status of the 1st respondent. This issue is required to be resolved after substantive hearing has been conducted or concluded, and not at the preliminary stage as it was done by the learned trial judge. See the cases of ATTORNEY-GENERAL OF THE FEDERATION VS. ATTORNEY-GENERAL OF ABIA STATE & ORS. (2001) LPELR 24862 (SC); ONAFOWOKAN & ORS VS. WEMA BANK PLC. & ORS. (2011) 12 NWLR (PT. 1260) 14 and UMONAM NIGERIA LTD. & ANOR. VS. EFFIONG (2012) LPELR 20036 (CA). I am therefore of the firm viewpoint that the learned trial judge erred in holding that the 1st respondent is a Federal Government Agency.
Having duly and carefully perused the pleadings filed by the appellants, I am of the considered viewpoint that the given facts and peculiar circumstances of the instant case, do not fall within competence range and or jurisdictional field of the lower Court.
In summary, what I have been trying to say all along, is that the learned trial judge erred in law when he held that the 1st respondent is a Federal Agency at the preliminary stage of the case without waiting for the parties to call evidence or referring to a specific law he could be held to have taken judicial notice of that which confirms the status of the 1st respondent. However, having held that the lower Court lacks the requisite jurisdiction to entertain the appellants action, its pronouncement on the status of 1st respondent has little or no impact on the outcome of this appeal. Therefore, the issue adopted for resolution in the determination of this appeal is resolved against the appellants and in favour of the respondents.
Having resolved the issue adopted for the determination in the manner stated above, the inescapable outcome of this appeal is that it is unmeritorious and it is accordingly dismissed by me. Thus, the ruling/judgment of the lower Court delivered on the 16th day of November, 2017 in Suit No. KDH/KAD/453/2017 and the consequential orders made therein are hereby confirmed by me. Therefore, the suit filed by the appellants at the lower Court is also struck out by me for lack of jurisdiction. No order is made as to costs.
PRONOUNCEMENT
ABBA AJI, JCA (as she then was) presided at the hearing of this appeal on the 30th day of October, 2018 and participated at the conference which was held thereafter and in respect thereof. However, she was subsequently elevated/appointed and sworn in as a honourable Justice of the Supreme Court on the 8th day of January, 2019.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
Appearances:
Learned Counsel were absent, though duly served and on Notice Fo r Appellant(s)
Learned Counsel were absent, though duly served and on Notice For Respondent(s)
