AJIE & ORS v. SPDC
(2022)LCN/16138(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, February 03, 2022
CA/PH/35/2020
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. MR. EMERENINI AJIE 2. MR. AJIERO NATHAN 3. MR. GIDEON AJIERO APPELANT(S)
And
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL FORMS THE FOUNDATION OF AN APPEAL
The case of F. B. N. Plc v. T. S. A. Ind. Ltd. [2010] 15 NWLR (Pt. 1216) 247 at 287 instructs us that a notice of appeal is a very important document because it forms the foundation of an appeal. If a notice of appeal is defective, the appellate Court must strike it out on the ground that it is incompetent. Thus, the question whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on the jurisdiction of the appellate Court, because if a proper notice was not filed, there is no appeal for the appellate Court to entertain. See also Anadi v. Okoji (1977) 7 SC 57; C.B.N. v. Okojie (2004) 10 NWLR (Pt. 882) 488 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622. PER ELECHI, J.C.A.
THE IMPLICATION OF AN ORDER OF TRANSFER MADE UNDER SECTION 22 OF THE FEDERAL HIGH COURT ACT
This Court, in similar circumstances, had cause to take the same position, when confronted with similar facts. Abba Aji, JCA. (as he then was) in the case of Loveday v. Comptroller, Federal Prisons, Aba [2013]18 NWLR (Pt. 1386) 379 at page 408, asked thus:
“What then is the implication of the order of transfer made under Section 22 of the Federal High Court Act vis-a-vis this case on appeal? Indeed a cumulative reading of Section 22(1), (2), (3) and (4) of the Act shows that the Federal High Court Judge, may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without any application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court. By Subsection (2) of Section 22, no cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory Abuja, in which it ought to have been brought and by Subsection(3), notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, where he may also cause such transfer to the appropriate Judicial Division of the Court in accordance with the rules of Court. By Subsection (4) thereof, every order of transfer made pursuant to Subsection (2) or (3) of this to Section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted(3) and shall not be subject to appeal.”
At 410 of the Law Report, his Lordship stated, thus:
“It is also settled that if any order, decision, or judgment of a Court finally and completely determines the rights of the parties in the case, it is a final decision. See Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163. In the instant case, the order of the Court made on the 1st March, 2012 transferring the matter to Port Harcourt Division of the Federal High Court is a final decision since the issue of transfer could no longer be raised before the same Court again. An order of Court is final when the rights of the parties concerning the dispute before the Court are finally determined. The dispute which gave rise to this appeal is the issue of transfer which was finally determined when the transfer was made. I am fortified in this view with the decision of my learned brother, Galinje, J.C.A., in Global Scene Ltd. v. The Registrar of Trade Mark & Anr (supra) at page 895. See Alor v. Ngene (2007) All FWLR (Pt. 362) 1836, (2007) 17 NWLR(Pt. 1062) 163; Ogolo v. Ogolo (2006) All FWLR (Pt. 313) 1 at 16,(2006) 5 NWLR (Pt. 972) 163 where it was held that a decision by a Court refusing an application to transfer a case is a final decision since it has finally determined the rights of the parties as to whether or not to transfer the case and that it did not matter that the decision arose from interlocutory application.” PER ELECHI, J.C.A.
THE POSITION OF LAW ON WHEN A DECISION OF THE COURT IS SAID TO BE FINAL
The Court is, by virtue of that order, functus officio, and the only option to the parties is by way of appeal against that order. A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means “having performed his or her office”. See Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163, Kekere-Ekun, JSC. stated at pages 52-53 of the Law Report in the case of Warri Refining (supra), on the distinction between a final and an interlocutory decision, that:
“… this Court in Alor v. Ngene (2007) 17 NWLR (Pt. 1062)163 at 175-176 F-A, held, inter alia:
“…if the order, decision or judgment of a Court finally and completely determines the right of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order.”
In Igunbor v. Afolabi (2001) FWLR (Pt. 59) 1284 165 D-E,(2001) 11 NWLR (Pt. 723) 148 this Court held, inter alia:
“A final order or judgment is one which brings to an end, the rights of the parties in the action. It disposes of the subject matter of the controversy. Or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action.
However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order, even if arising from an interlocutory application.”
In Alor v. Ngene (supra) at 177 D – E, it was also held:
“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of that order, functus officio, and the only option to the parties is by way of appeal against that order.” PER ELECHI, J.C.A.
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME
The law is settled that jurisdiction can be raised at any time and even at the Supreme Court for the first time. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. See Emerald Energy Resources Ltd. v. Signet Advisors Ltd. [2021] 8 NWLR (Pt. 1779)579 at 617; INEC, Anambra State & Anor. v. Ifeanyichukwu Okonkwo [2008] LPELR-4315(CA) and Agwu & Ors. v. Julius Berger Nig. Plc. [2019] 11 NWLR (Pt. 1682) 165. PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): HEARING OF THE APPEAL
The appeal was argued on 08/11/2021. At the hearing on the named date, D. I. Okpe Esq. appeared for the respondent. He drew the attention of the Court to the notice of preliminary objection filed by the respondent on 13/03/2020, which the respondent argued at pages 2-5 of the respondent’s brief of argument, filed on 18/09/2020. He asked the Court to strike out the appeal for incompetence.
B. U. Anugwara Esq., for the appellants, indicated that the appellants’ response to the preliminary objection is in the appellants’ reply brief of argument, filed on 16/06/2020. He requested that the preliminary objection should be dismissed. Thereafter, he adopted the appellants’ brief of argument, filed on 06/03/202, as argument of the appeal. He urged the Court to allow the appeal.
Okpe Esq., proceeded to adopt the respondent’s brief of argument as opposition to the appeal, which he urged us to dismiss. Furthermore, he indicated that the respondent filed a respondent’s notice to contend varying of order of the lower Court, on 13/03/2020, which was argued.
Anugwara Esq., identified and adopted the reply filed in response to the respondent’s notice, which the appellant filed on 16/06/2020.
FACTS OF THE CASE
In the writ of summons filed, on 18/04/2019, in the registry of the Port Harcourt Division of the Federal High Court, the appellants claimed the monetary sum of N2,000,000,000,000.00 (Two Billion Naira) for respondent’s acquisition of appellants’ farmland for the purposes of its oil and gas exploration and a restraining order.
On 24/05/2019, the defendant (now respondent) filed a notice of preliminary objection before the lower Court asking, that, the Court should dismiss the appellant’s suit, being an abuse of the process of Court. In the alternative, the respondent asked that the lower Court should strike out the suit, for not being properly constituted, as there was no competent plaintiff and for want of jurisdiction. The lower Court (coram: Justice J. K. Omotosho) delivered a ruling on the preliminary objection, on 02/10/2019. See pages 71-85 of the record of appeal. His Lordship, serially, concluded his forensic examination of issues presented before him, thus:
a. “Consequently, this Court hereby declines jurisdiction in this matter and transfers same to the High Court of Imo State.”
See page 85 of the record of appeal.
b. “Having declined jurisdiction, the other issues formulated go to no issue.”
See page 85 of the record of appeal.
An aggrieved trio of claimants/appellants approached the registry of the lower Court and filed a notice of appeal, on 27/11/2019, containing three grounds of appeal.
The respondent filed a notice of preliminary objection on 13/05/2020 against the appeal, edified with three grounds. It is to the effect that the appeal is incompetent and should be struck out. The grounds for the objection are that the notice of appeal was filed: (a) without the requisite leave of Court; (b) outside the time allowed by law; and, (c) constitutes an abuse of Court process.
The same respondent, in this appeal, also filed a “NOTICE BY RESPONDENT OF INTENTION TO CONTEND THAT DECISION OF COURT BELOW BE VARIED”, on 13/03/2021, which was deemed properly filed on 23/09/2021. In the process, the respondent warned that it would seek the variation of the ruling of the lower Court of 02/10/2019, in the portion of the ruling transferring the suit to the High Court of Imo State and that the order should be replaced with an order dismissing or striking out the suit. There were three grounds stated, for the intent of the respondent.
The appellants’ brief of argument was filed on 06/03/2020. It was settled by R. U. Anugwara Esq. Learned counsel found three issues for the determination of the appeal, stated thus, at page 3 of the brief of argument:
“Issue 1
In view of the cause of action disclosed in paragraph (a) of the Endorsement on the Writ of Summons and paragraphs 17(a), 12 and 14 of the Statement of Claims, whether the case of the Appellants does not come within the ambit of Section 251(1)(n) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to clothe the Federal High Court with jurisdiction? (GROUND 1).
Issue 2
Whether the Court below was right to order a transfer of the case to the High Court of Imo State on the ground that the land is located in that State? (GROUND 2).
Issue 3
In view of the provisions of the Federal High Court Rules 2009, whether the Originating Process of this suit (the Writ of Summons) was properly issued? (GROUND 3).”
With respect to the first issue, learned counsel for the appellants submitted that it is the Federal High Court, which is imbued with jurisdiction over the case before the lower Court. He recalled that in paragraphs 17(a), 12 and 14 of the statement of claim, appellants stated that their claim is a monetary claim for acquisition of their land. Section 251(1) of the 1999 Constitution was cited regarding its provisions on subjects of mines and minerals (including oil fields, oil mining, geological surveys and natural gas). He insisted that oil fields and natural gas are subjects the Federal High Court has exclusive jurisdiction over. Reference was made to the holding of the lower Court at pages 83 and 84 of the record of appeal and it was submitted that the lower Court was wrong to have invoked the provisions of Section 40 and 41 of the Land Use Act because the claim relates to monetary compensation for acquisition of land. He explained that what matters is the activity being carried out on the land, not that the claim is for monetary compensation. Contrary to the decision of the lower Court, it is immaterial, in the view of learned counsel, whether there were damages on the land, as a result of the activity of the respondent, before the Federal High Court can assume jurisdiction. He relied on the cases of Chevron Nigeria Limited v. Theophilus Nwuche & Ors. [2014] LPELR-24291 and SPDC v. Abel Isaiah [2001] 11 NWLR (Pt. 723) 168at 179-180 for his contention.
On the second issue, learned counsel submitted that the lower Court was wrong to have declined jurisdiction and transferring the suit to Imo State High Court. He explained that the power of transfer under Section 22 of the Federal High Court Act is dependent on the fact, that, that Court lacks jurisdiction to entertain a case. As it had been submitted that the lower Court had jurisdiction to determine the case before it, he urged the Court to set aside the decision of the Court below transferring the suit to “a State High Court.”
On the third issue, appellants’ counsel submitted that the ruling of the lower Court dated 02/10/2019, particularly, at page 71 of the record of appeal, concluded that the writ of summons was not dated, which implied that it was not properly issued. Citing Order 3 Rules 10 and 12 of the Federal High Court (Civil Procedure) Rules, 2009, learned counsel submitted that it is the sole responsibility of the Registrar of that Court to date and seal a writ of summons (which is to issue the writ of summons). He directed the attention of the Court to page 1 of the record of appeal to prove that these conditions were observed by the Registrar of the lower Court. Thus, the writ of summons is not defective.
He urged this Court to resolve all three issues in favour of the appellant.
Respondent’s brief of argument was filed on 18/09/2020, but deemed properly filed on 23/09/2021. It was settled by E. N. Opara Esq.
The respondent’s preliminary objection was argued on pages 2-5 of the respondent’s brief of argument, with the sole issue identified being whether appellants’ appeal is not incompetent.
Argument of the sole issue was to the effect that the appeal is incompetent because it was filed outside the prescribed time and leave of Court was not first sought and obtained before the notice of appeal was filed. Learned counsel relied on decisions in Anachebe v. Ijeoma & Ors. [2014] LPELR–23181(SC); Amudipe v. Arijodi [1978] 2 LRN 128; Atanda v. Olanrewaju [1988] 4 NWLR (Pt. 89) 394 and Lamal v. Orbih [1980] 5-7 SC 28; and Owoniboys Technical Services Ltd. v. John Holt Ltd. [1991] 6 NWLR (Pt. 198) 550 at 557-558.
Learned counsel described the ruling in this appeal as interlocutory, which requires leave of Court before any appeal can be filed on it, as it did not determine the rights of parties. Reference was made to Section 242 of the 1999 Constitution of the Federal Republic of Nigeria.
Learned counsel explained that by Sections 14 and 24 of the Court of Appeal Act, 2004 (as amended in 2010), 14 days is allowed to file an appeal against interlocutory decisions. In the appeal before this Court, the notice of appeal was filed on 27/11/2019, against a ruling dated 02/10/2019, which is 56 days apart, making the appeal incompetent, having been filed without requisite leave being first sought and obtained, along with an order extending time to do so.
On the point that the appeal is an abuse of the process of Court, learned counsel cited the case of Abubakar v. Bebeji Oil and Allied Product [2007] LPELR-55(SC) on what the phrase means. He narrated the story of motion filed on 04/10/2019, seeking leave to appeal (later struck out by the lower Court on 28/10/2019); notice of appeal filed on 13/10/2019, without seeking leave of Court, despite which the appellant filed another notice of appeal on 27/11/2019, without leave of Court or notice of withdrawal of the existing one. In all of these, learned counsel found abuse of the process of Court, and he advised that the Court has inherent power to preserve its process and dismiss the appeal.
On the main appeal, learned counsel identified two issues for determination, which are:
a. Whether the lower Court was right to have held that it does not have jurisdiction to hear the suit.
b. Whether the lower Court was right to transfer the suit to the High Court of Imo State having declined jurisdiction.
Learned counsel pointed out that the lower Court did not make any determination on the issue of non-dating of the writ of summons which commenced the suit before it and he declined responding on the point argued by the appellant’s counsel.
On the first issue, learned counsel submitted that the lower Court was right to have held that it lacked jurisdiction to determine the suit before it. In the view of learned counsel, the subject matter of the suit is not as a result of any mining activity or oil exploration operation, but acquisition of land simpliciter, which does not come under Section 251(1) of the 1999 Constitution. Section 11(5) of the Oil Pipelines Act, Cap. 07, Laws of the Federation, 2004 was identified as providing that if only the claimant suffered damages or injury as a result of mining activity their suit would have been properly before the lower Court. He further submitted that Sections 39, 40 and 41 of the Land Use Act donate jurisdiction on compensation for use of land to the High Court of a State. He insisted that the lower Court was right in its decision.
Learned counsel submitted that the current position of the law is as stated in the case of Emejuru v. Abraham [2019] 4 NWLR (Pt. 1663) 541 at 560, where the Supreme Court stated that part of Section 7 of the Federal High Court Act which appellants rely on is inconsistent with Section 251(1) of the 1999 Constitution, in contradistinction to the earlier decision in Chevron Nigeria Ltd. v. Nwuche [2014] LPELR – 24291(CA), which appellants relied upon.
On the second issue, learned counsel pointed out that the issue is the same as that raised in the respondent’s notice, already narrated in this judgment. He went further to complain that instead of striking out or dismissing the suit, as demanded in the preliminary objection determined by the lower Court, that Court relied on Section 22(2) of the Federal High Court Act to transfer the suit, especially, because the objection was also based on lack of territorial jurisdiction and non-juristic personality of the plaintiff family.
Learned counsel recalled that the lower Court only determined the third ground in the preliminary objection, without determining the other grounds therein. If it had done so, the lower Court would have dismissed the suit, as a suit abusive of the process of Court is liable to be. He submitted that the lower Court ought to have determined all the issues placed before it. He pointed at suit no. FHC/PH/CS/633/2016 (pages 50-56 of the record of appeal), which is pending before the same Court, as the basis of abuse. He complained about lack of juristic personality of the plaintiff family. Reliance was placed on the cases of Fawehinmi v. N. B. A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 and Nduka v. Ezenwaku [2001] 6 NWLR (Pt. 709) 494 at 512. He requested this Court, vide Section 15 of the Court of Appeal Act, to determine the issues left undetermined by the lower Court.
On the respondent’s notice, learned counsel adopted his submission in respect of the second issue. He insisted that the lower Court was wrong to have transferred the suit, after it declined jurisdiction. He urged this Court to vary the decision of the lower Court, by replacing it with an order of dismissal of the suit.
Appellants’ reply to the respondents’ notice was filed on 16/06/2020. It was settled by R. U. Anugwara Esq.
Learned counsel stated that the respondent’s notice was expected to comply with Order 9 Rule 1, Rule 4(a) and (b) of the Court of Appeal Rules, with respect to service of the notice within 15 days for interlocutory appeal or 30 days for other appeals, which is mandatory. As the decision of the lower Court was delivered on 02/10/2019 and the respondent’s notice was filed on 13/03/2020, the provisions were not complied with. The appellant was actually not served with the respondent’s notice but personally took delivery from the registry of this Court on 02/06/2020. The respondent’s notice ought to have been served on or before 28/03/2020 or 12/04/2020 as the case may be. Serving same sixty-six days or forty-one days (as the case may be) after the expiration of the mandatory period of service as required by Order 9 Rule 4 of the Court of Appeal Rules, the Court was urged to dismiss the respondent’s notice for failure to comply with the Rules.
Going further, learned counsel pointed out that with respect to ground 1 of the respondent’s notice, it was incumbent on the respondent to make the certified true copy of the “suit” which is abusive of Court process to this Court, which the respondent failed to do. He is of the view that the cause of action in the two suits are not the same and cannot therefore amount to abuse of Court process. Since the lower Court did not determine the issue, he is of the view that it is wrong for the respondent to invite this Court to do so, with the effect of assumption of original jurisdiction.
As the appellants sued for themselves and on behalf of the Umuodukwu family, learned counsel found it difficult to understand the legal disability suffered by the respondent, which the respondent has also failed to show. He submitted that a person who sues for himself is competent in the action. Also, since the lower Court did not determine the issue, the question cannot be made subject of an appeal. He cited Section 240 of the 1999 Constitution, which would be violated and cautioned that this Court should not assume original jurisdiction.
Learned counsel referred us to Section 22(2) of the Federal High Court Act on the power of the lower Court to transfer a suit over which it lacked jurisdiction.
He urged the Court to dismiss the respondent’s notice.
DETERMINING THE APPEAL
In this appeal, enumeration of processes in the order of their importance will yield a list as follows:
a. The notice of preliminary objection, filed by the respondent.
b. The respondent’s notice to contend
c. The main appeal.
It is in the order shown above that this appeal will be determined.
Resolution of the preliminary objection
The case of F. B. N. Plc v. T. S. A. Ind. Ltd. [2010] 15 NWLR (Pt. 1216) 247 at 287 instructs us that a notice of appeal is a very important document because it forms the foundation of an appeal. If a notice of appeal is defective, the appellate Court must strike it out on the ground that it is incompetent. Thus, the question whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on the jurisdiction of the appellate Court, because if a proper notice was not filed, there is no appeal for the appellate Court to entertain. See also Anadi v. Okoji (1977) 7 SC 57; C.B.N. v. Okojie (2004) 10 NWLR (Pt. 882) 488 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622.
As already narrated above, the respondent seeks the decapitation of the appeal without a need for it being heard. The complaint of the respondent is that the notice of appeal, by which the appeal was commenced, is incompetent and should be struck out. The basis of that assertion or proposition is that the ruling of the lower Court, dated 02/10/2019, now on appeal before us, is an interlocutory ruling. Cascading from that point are consequences, like the notice of appeal being incompetent, because it was not filed with leave and that it was filed outside the period of time permitted by the law. In addition to the above, the notice of appeal, which was filed on 27/11/2019, against a ruling delivered by the lower Court, amounts to abuse of the process of Court, due to a motion filed before the lower Court, but later struck out on 28/10/2019 and an earlier notice of appeal filed on 13/03/2019.
In all of the above, the logical point from which to examine the questions here is the status of the ruling delivered by the lower Court on 02/10/2019. That ruling resulted in an order transferring the suit FHC/PH/CS/89/2019, filed before the Federal High Court, in its Port Harcourt Division, to the Imo State High Court for determination. Thus, at the point at which the lower Court transferred the suit, there was nothing more for the lower Court to do with the suit and parties were not going to be able or entitled to return to that Court. It meant the interests of parties in the suit, before the lower Court, had been finally determined, in regard to the suit before the lower Court. It is in that context that the law holds that the ruling is a final decision of that Court. The conclusion recorded here is actually not a new wisdom expressed. This Court, in similar circumstances, had cause to take the same position, when confronted with similar facts. Abba Aji, JCA. (as he then was) in the case of Loveday v. Comptroller, Federal Prisons, Aba [2013]18 NWLR (Pt. 1386) 379 at page 408, asked thus:
“What then is the implication of the order of transfer made under Section 22 of the Federal High Court Act vis-a-vis this case on appeal? Indeed a cumulative reading of Section 22(1), (2), (3) and (4) of the Act shows that the Federal High Court Judge, may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without any application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court. By Subsection (2) of Section 22, no cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory Abuja, in which it ought to have been brought and by Subsection(3), notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, where he may also cause such transfer to the appropriate Judicial Division of the Court in accordance with the rules of Court. By Subsection (4) thereof, every order of transfer made pursuant to Subsection (2) or (3) of this to Section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted(3) and shall not be subject to appeal.”
At 410 of the Law Report, his Lordship stated, thus:
“It is also settled that if any order, decision, or judgment of a Court finally and completely determines the rights of the parties in the case, it is a final decision. See Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163. In the instant case, the order of the Court made on the 1st March, 2012 transferring the matter to Port Harcourt Division of the Federal High Court is a final decision since the issue of transfer could no longer be raised before the same Court again. An order of Court is final when the rights of the parties concerning the dispute before the Court are finally determined. The dispute which gave rise to this appeal is the issue of transfer which was finally determined when the transfer was made. I am fortified in this view with the decision of my learned brother, Galinje, J.C.A., in Global Scene Ltd. v. The Registrar of Trade Mark & Anr (supra) at page 895. See Alor v. Ngene (2007) All FWLR (Pt. 362) 1836, (2007) 17 NWLR(Pt. 1062) 163; Ogolo v. Ogolo (2006) All FWLR (Pt. 313) 1 at 16,(2006) 5 NWLR (Pt. 972) 163 where it was held that a decision by a Court refusing an application to transfer a case is a final decision since it has finally determined the rights of the parties as to whether or not to transfer the case and that it did not matter that the decision arose from interlocutory application.”
In the case of Warri Refining and Petrochemical Company Limited v. GECMEP (Nig.) Ltd. [2020] 10 NWLR (Pt. 1731) 36 at 53, the Supreme Court stated that a final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of that order, functus officio, and the only option to the parties is by way of appeal against that order. A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means “having performed his or her office”. See Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163, Kekere-Ekun, JSC. stated at pages 52-53 of the Law Report in the case of Warri Refining (supra), on the distinction between a final and an interlocutory decision, that:
“… this Court in Alor v. Ngene (2007) 17 NWLR (Pt. 1062)163 at 175-176 F-A, held, inter alia:
“…if the order, decision or judgment of a Court finally and completely determines the right of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order.”
In Igunbor v. Afolabi (2001) FWLR (Pt. 59) 1284 165 D-E,(2001) 11 NWLR (Pt. 723) 148 this Court held, inter alia:
“A final order or judgment is one which brings to an end, the rights of the parties in the action. It disposes of the subject matter of the controversy. Or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action.
However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order, even if arising from an interlocutory application.”
In Alor v. Ngene (supra) at 177 D – E, it was also held:
“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of that order, functus officio, and the only option to the parties is by way of appeal against that order.”
Per Niki Tobi, JSC at 179 – 180 H-A (supra):
“A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means “having performed his or her office.”
It is my determination that the ruling of the lower Court transferring the suit before it to the Imo State High Court was a final decision and not an interlocutory decision. If that is taken, then all the posturing by the respondent on the need for leave to appeal and time within which to file the notice of appeal will pale into insignificance. This is because Section 241(1)(a) of the 1999 Constitution provides that appeals from final decisions in any civil and criminal proceedings before the Federal High Court or a High Court sitting at first instance shall be as of right. There will be no need to obtain leave to appeal.
Section 24(2) of the Court of Appeal Act, 1976 provides that appeals against final decisions shall be filed three (3) months after the decision appealed against. The ruling appealed against was delivered on 02/10/2019 and the notice of appeal by which this appeal was filed, was filed on 27/11/2019, which is less than three months. The appeal, on that count, is apparently competent and filed regularly.
The respondent also complained that the notice of appeal filed on 27/11/2019 constitutes abuse of the process of the Court. The reason advanced is that the appellants filed a motion of notice on 03/10/2019, for leave to appeal, which the lower Court struck out on 28/10/2019. The respondent also complains that the appellants filed a notice of appeal, on 13/10/2019, without leave of Court, while the same appellants filed the last notice of appeal on 27/11/2019. In my view, there is no merit in the suggestion that there has been abuse of the process of Court, in the circumstances narrated by the respondent.
There is only one notice of appeal, lying peacefully at pages 60-63 of the record of appeal. The Court is bound by the record before it. See Bashir v. Audu [1999] 5 NWLR (Pt. 603) 433. The respondent did not challenge the record of appeal. The respondent did not seek and obtain leave to compile and transmit additional or supplementary record of appeal. There is no way to confirm from the record of appeal, the allegation of fact or content of the notice of appeal, allegedly filed, on 13/10/2019, which implies that there is no factual foundation for the respondent’s complaint, which is hereby discountenanced. The only notice of appeal in the record of appeal before us is that filed on 27/11/2019, which I have determined, is valid, above. There was no existing notice of appeal at the time the extant notice of appeal was filed, which also implies that there could not have been an incident of abuse of the process of the Court. The appeal before us is to be determined on the basis of the record of appeal transmitted to this Court.
It is helpful to note that a party is allowed or enabled by practice and law to file more than one notice of appeal, within the time allowed by law, in expressing dissatisfaction with a judgment or decision of a trial Court or any other Court, except the apex Court. Where two notices of appeal are filed within time by an appellant, he does not need any leave of Court before he can file the second notice of appeal. However, he must choose which of them he intends to rely upon. See Unilorin v. Adesina [2014] 10 NWLR (Pt. 1414) 159 at 169 and Bilante International Ltd. v. N.D.I.C. (Pt. 1270) 407 at 422.
It is hereby determined that there is no merit in the preliminary objection erected by the respondent and it is hereby dismissed.
Resolution of the respondent’s notice to contend
As recited above, the respondent filed a respondent’s notice to contend. In the case of Ajadi v. Ajibola [2004] 16 NWLR (Pt. 898) 91 at 178, the Court admonished that a respondent’s notice applies only where the respondent intends to retain the judgment appealed against but at the same time wants it varied. The respondent’s notice will apply only where a particular point in the appeal of the appellants is stretched by the respondent who contends for its maintenance but proposes a variation of it, if it is the only way by which he could be enabled to retain it or if on the fact and the law the decision of the Court appealed against will, in any event, be affirmed. Also, in the case of Ikedama v. Oritseje [1998] 8 NWLR (Pt. 469) 720 at 735 the Court stated that a respondent who seeks a reversal of an adverse finding can only do so by way of a notice of appeal or cross-appeal and not by a respondent’s notice. The case of Galadima v. Tambai [1994] 8 NWLR (Pt. 365) 747 at 755-756 instructs that a respondent’s notice is applicable only where a respondent intends to retain the judgment of the Court below but at the same time wants it varied. So, where a respondent intends, for instance, to dispute the jurisdiction of the Court of trial or to contest competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, he cannot come under a respondent’s notice. In that case, he has to file a substantive cross-appeal. The basis for this is that a man cannot at the same time obtain an advantage by maintaining a particular stand point and then seek to discard that same standpoint whilst keeping the advantage. However, in the case last cited, since the notice of preliminary objection filed by the respondent was tied to the Kaduna State Area Courts (Jurisdiction) Notice 1977, which the Court of Appeal was entitled to take judicial notice of, by virtue of Section 73 of the Evidence Act (at the time), without inviting counsel to address the Court upon it, then the respondent was held not to have the need to file a cross-appeal.
In this appeal, the respondent’s notice presented to this Court by the respondent portrays a disagreement with the decision of the lower Court, which, ordinarily, suggests that a cross-appeal should have been filed to advance the cause embarked upon by the respondent. The opinion expressed here is founded on the fact that the respondent completely disagrees with the lower Court in its refusal to determine the motion before it completely, in terms of all the grounds presented in the preliminary objection leading to the ruling appealed against. However, in view of the fact that the grounds stated in the respondent’s notice border on jurisdiction of the Court, it is my considered view that this Court is obliged to consider the grounds, even where, as in this case, a cross-appeal was not filed. The decision stated at this point also takes care of the respondent’s challenge to the validity of the respondent’s notice to contend, in the area of its service and time of filing. In the face of the grounds stated in the respondent’s notice, this Court is obliged to entertain the respondent’s notice. The issue of jurisdiction is an arresting phenomenon. Where the jurisdiction of the Court or Judge is in issue in respect of a matter, that issue must first be considered and disposed of. See Magaji v Matari [2000] 8 NWLR (Pt. 670) 722 at 734. All will have to bow to it, when raised, even inappropriately.
The law is settled that jurisdiction can be raised at any time and even at the Supreme Court for the first time. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. See Emerald Energy Resources Ltd. v. Signet Advisors Ltd. [2021] 8 NWLR (Pt. 1779)579 at 617; INEC, Anambra State & Anor. v. Ifeanyichukwu Okonkwo [2008] LPELR-4315(CA) and Agwu & Ors. v. Julius Berger Nig. Plc. [2019] 11 NWLR (Pt. 1682) 165.
From the enumeration of the grounds stated in the preliminary objection filed before the lower Court, which led to the ruling appealed against, it is instructive that the grounds in the respondent’s notice were presented before the lower Court, but the lower Court did not determine them. At page 85 of the record of appeal, the lower Court stated:
“Having declined jurisdiction, the other issues formulated go to no issue.”
While I will not attempt to understand what the lower Court meant by the other issues formulated ‘going to no issue’, what is identifiable in the ruling is that the lower Court did not determine the question of abuse of the process of the lower Court etc., which appeared as grounds for the preliminary objection it had a duty to determine. With due respect, as a Court of trial, it was imperative for the lower Court, to determine all issues or grounds in the preliminary objection before it. The case of Nduka v. Ezenwaku [2001] 6 NWLR (Pt. 709) 494 at 512 directs that a trial Court has an abiding duty and responsibility to properly trash out all issues raised and canvassed before it. This responsibility is one imposed by the Constitution. This is with a view to avoiding miscarriage of injustice. Such duty should therefore not be side-tracked or glossed over, as the lower Court unfortunately did. However, in the case of Adesina v. Ojo [2012] 10 NWLR (Pt. 1309) 552, we are also directed that while the Court has a duty to pronounce on all material issues raised before it, but, failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. Also, a Court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined. See Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131.
While, admittedly, the work of a Court of trial may be testy and stressful, some or most of the time, the trial Court must endeavour, at the risk of pain to the body or lack of appreciation of efforts infused into delivery of judicial services, to respect and obey the serious admonition of the Supreme Court to the effect that trial Courts and even the Court of Appeal, must, as a constitutional and statutory duty, determine ALL issues before them, even when they have held that they lack jurisdiction to do so. See Angadi v. PDP [2018] 15 NWLR (Pt. 1641) 1. This obviates the need to send cases back to originating Courts, where decisions are upturned, on appeal. The Federal High Court ought to have rewarded the admonition, with joyful obedience, in the case on appeal before us. Having failed to do so, this Court is enabled by law to resolve the issues at this stage. See Section 15 of the Court of Appeal Act, 1976.
Where one or both parties before the Court are not juristic persons in the eyes of the law, what the Court can do is to strike out the name of the party. See the case of C. C. B. (Nig.) Ltd v. Rose [1998] 4 NWLR (Pt. 544) 37 at 44. The simple reason is that the trial Court will not have jurisdiction over any party without legal personality before it. It is only legal persons who can sue and be sued in a Court of law. See the cases of Bank of Baroda v. Iyalabani [1998] 2 NWLR (Pt. 539) 600 at 613 and Carlen v. Unijos [1994] 1 NWLR (Pt. 323) 631. In this appeal, the respondent complained, rightly, that the lower Court failed to determine its complaint that the plaintiff in the lower Court, who the respondent identified as the Umuodukwu family, is not a juristic personality, which is a correct statement, both in law and fact. However, if attention is paid to the description of plaintiffs in the writ of summons and pleadings in the statement of claim, it will be found that the three named plaintiffs, who are now appellants, also described themselves and actually sued in their personal capacities. In particular, the appellants pleaded in paragraph 3 of their statement of claim (page 7 of the record of appeal, as follows:
“3. The Plaintiffs aver that Aturukpaihe Nwodo Farmland lying and situate at Assah community in Ohaji/Egbema Local Government Area of Imo State was customarily inherited by the 1st Plaintiff from his late father Ajie Odunze as Head of Umuduokwu family.”
The case before the lower Court had not gone to trial. So, the above pleading was still available for determination by the lower Court. In the case of Nduka v. Ezenwaku [2001] 6 NWLR (Pt. 709) 494 at 517(per Olagunju, J. C. A.), the Court stated that the decisive factor in any challenge of an action being instituted in a representative capacity is the element of flexibility that failure of a plaintiff to sustain an action in representative capacity does not render the action incompetent per se as the Court is not precluded from rendering judgment on individual or personal basis rather than a group basis if that course is dictated by the evidence that emerged at the conclusion of the trial. See also Nta v. Anigbo (1972) 5 SC 156; Onyemuze v. Okoli (No. 3), (1974) 4 ECSLR 98 and Amos v. Shell B. P. Petroleum Development Company of Nigeria Ltd. (1974) 4 ECSLR 486. It is also important to note that the appellants sued in their personal capacities, even while also claiming to represent a non-juristic family name. The appellants can stand on their own right as plaintiffs in the suit, even if the named family is held not to be a juristic personality. It is my view that there was sufficient interest in the named plaintiffs (now appellants) before the lower Court to justify the holding that proper parties were before the lower Court. The point raised and argued by the respondent is without merit and is hereby discountenanced.
The respondent also complained that the suit was an abuse of the process of the Court. Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time. See Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 479.
The Court must jealously guard the judicial process from being ridiculed and scandalized. Once a Court is satisfied that processes before it is an abuse of its processes and orders, which in effect is a direct challenge to its integrity, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. See Ezenwo v. Festus (No. 1) [2020] 16 NWLR (Pt. 1750) 324 at 341.
The reason for the respondent’s complaint is that the same cause of action occasioned the filing of suit no: FHC/PH/CS/633/2016 between the same parties and suit no: FHC/PH/CS/89/2019. The 1st amended statement of claim, filed on 13/03/2017, in suit no. FHC/PH/CS/633/2016 appeared at pages 50-54 of the record of appeal. It seems to me that while the suit in FHC/PH/CS/633/2016 concerns compensation for laying of oil pipelines, the suit No: FHC/PH/CS/89/2019 (page 10 of the record) before the lower Court was for compensation for oil exploration. In my view, those are two different issues to be determined in the suits, even if the two suits are between the same parties. There is no case of abuse of process established in this suit. The point raised is hereby discountenanced.
It is my conclusive decision, on the respondent’s notice, that there is no merit in it and it is dismissed.
Resolution of the two issues in the main appeal
As recounted above, the appellants submitted three issues for determination of this appeal and I have elected to be guided by those issues, except to point out, in agreement with the respondent’s counsel, that appellants’ ground 3 and the third issue for determination, have no pedigree in the ruling of the lower Court, dated 02/10/2019. It is unclear how the appellants and their counsel generated or simulated both the ground and issue purportedly derived from it. Both ground 3 in the appellants’ notice of appeal and the appellants’ third issue, allegedly derived therefrom, are hereby struck out for being incompetent.
This Court is therefore left with the first and second issues.
The first and second issues demand that this Court should answer the questions:
In view of the cause of action disclosed in paragraph (a) of the Endorsement on the Writ of Summons and paragraphs 17(a), 12 and 14 of the Statement of Claims, whether the case of the Appellants does not come within the ambit of Section 251(1)(n) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to clothe the Federal High Court with jurisdiction? (GROUND 1).
Whether the Court below was right to order a transfer of the case to High Court of Imo State on the ground that the land is located in that State? (GROUND 2).
It is settled law that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the Court or Tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding. Without jurisdiction, the whole trial or proceeding of the Court is a nullity, however well conducted. That is why jurisdiction is very vital and fundamental to administration of justice in any judicial system.
It is also settled law that the jurisdiction of the Court is determined by the plaintiff’s claim as disclosed in the writ of summons and/or endorsed in the statement of claim, rather than the defendant’s Statement of Defence. See Tukur v. Govt of Gongola State (No. 2) (1989) 4 NWLR (Pt. 117) 517.
A Court has and can only exercise jurisdiction when:
(a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) 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
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction.
See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
Both issues will be determined together, as they are closely related. The prayers appellants brought before the lower Court are:
“(a) The Plaintiff’s Claim is for the sum of N2,000,000,000.00 (Two Billion Naira only) representing the sum for acquiring the Plaintiffs Aturukpaihe Nwodo Farmland by the Defendant for the purposes of its oil and gas exploration and gas plant project in Assah Community of Ohaji/Egbema Local Government Area of Imo State;
(b) An Order of the Court restraining the Defendant, its servants, contractors, agents or any other person on its behalf from entering into and having anything to do with the above-mentioned Plaintiffs’ land until the above monetary demand for the acquisition of the land is paid to them.”
It is important to point out that the appellants, whose claim should guide the Court in determining its jurisdiction, pleaded in paragraph 5 of their statement of claim (page 8 of the record of appeal), as follows:
“5. The Plaintiffs aver that their land, Aturukpaihe Nwodo Farmland is not in dispute with anybody again, having been litigated upon and judgment given in their favour by the Awka Native Court of Eastern Region of Nigeria in 1960 in Suit No. 30/1960 of 20/8/1960 between Plaintiffs’ father/grandfather – Ajie Odunze and the grandfathers of the present day Umuogu Umuakala family of Umuogwuta in Assah community. Copy of the said judgment shall be relied upon during trial.”
The implication of the prayers and the pleading, quoted above, is that the appellants’ case did not involve contest on title to the land, in respect of which they claim compensation from the respondent acquiring the appellants’ land for the purpose of its oil exploration business. To signpost the new clarity given by the Supreme Court over the hitherto assumed exclusive jurisdiction of the State High Court over land disputes, in the case of Controller-General of Prisons v. Elema [2021] 12 NWLR (Pt. 1790) 234-254-255, the Supreme Court appears to have bent our necks, to have a rethink, on the erroneously presumed exclusive jurisdiction conferred on the High Court of States, on land matters. Agim, J. S. C., in an earth-shaking manner, stated, as follows:
“Let me now consider the other argument of learned counsel for the appellant that the subject matter of the claim in this case is not within the subject matter jurisdiction of the trial Court in view of the provisions of S. 51 of the Land Use Act, 1978, which defines the High Court that can exercise the jurisdiction in S.39 therein as the “the High Court of the State concerned.” S.39(1) of the Land Use Act provides that:
“1. The High Court shall have exclusive original jurisdiction in respect of the following proceedings:
(a) Proceedings in respect of any land the subject or a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act, and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of (a) occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable(b) for Improvement on land under this Act.”
This provision cannot apply to the claim in this case because the claim is not one for declaration of title to statutory right of occupancy and does not involve any dispute as to who is entitled to the compensation payable for improvements on the land acquired. The claim is simply for compensation by way of special and general damages for the compulsory acquisition of land and the destruction of properties thereon. The proceedings listed in S. 39 as within the exclusive jurisdiction of the High Court of the State concerned does not include the proceedings in which there is no dispute as to the title to the land or dispute as to the person entitled to be paid the compensation.
S. 39 did not list proceedings concerning any issue touching on land as within the exclusive jurisdiction of the High Court of a State. It was specific in listing the kind of proceedings that falls within that exclusive jurisdiction. It cannot be applied to give a blanket exclusive jurisdiction to the High Court of a State on every issue touching on land. It is a settled rule of interpretation that the express mention of certain thing excludes those not mentioned. A blanket application of S. 39 of the Land Use Act to include all proceedings on any issue touching on lands within the exclusive jurisdiction of the High Court of a State, would bring it into conflict with S. 230(1)of the 1979 Constitution where the proceeding is questioning the validity of an executive or administrative action or decision by the Federal Government or its agency on an issue connected to land and with the proviso to S. 230(1) where the proceeding is for damages against the Federal Government or its agency for actions or decisions concerning land. A statutory provision cannot be interpreted or applied in a manner or given a meaning that brings it into conflict with a provision of the Constitution. Such an application or interpretation would be unconstitutional and void.
In the light of the foregoing, issue No. 1 is resolved in favour of the respondents.”
(Bold font for emphasis).
At page 261-262, Agim, J. S. C.
The only exception is the argument that by virtue of S. 47(2) of the Land Use Act the trial Court lacks the jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act since it raises a point of jurisdiction. The law is settled that a point of jurisdiction can be raised in any manner and at any stage of the proceedings, even for the first time on appeal to the lower Court or further appeal to this Court.
The argument that by virtue of S.47(2) of the Land Use Act, the trial Court lacked the jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under the Act lacks validity here for two reasons.
The first is that the claim in this suit is not about the determination of the amount payable as compensation or the adequacy of the amount paid or to be paid as compensation. The respondents’ case is simply that their land was compulsorily acquired, their tree, crop, sand, cultural properties destroyed and no compensation was paid to them therefor. It did not raise the questions that S.47(2) of the Land, Use Act 1978 precluded the Court from inquiring into.
The second reason is that S.47(2) which provides that:
“No Court shall have jurisdiction to inquire into any question concerning or pertaining to the amount, or adequacy of any compensation paid or to be paid under this Act” is in conflict with S.40(1) of the 1979 Constitution (exactly the same with S.44(1) of 1999 Constitution) that provides that
“No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things-
(a) requires the prompt payment of compensation therefore; and
(b) gives, to any person claiming such compensation right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria”.
“No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things-
(a) requires the prompt payment of compensation therefore; and
(b) gives, to any person claiming such compensation right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of(b) Nigeria”.
S. 40(1)(b) of the 1979 Constitution gave to a person whose property is compulsorily acquired and who has not paid compensation or adequate compensation for the said property, the right of access to a Court for the determination of the amount of compensation due to him or her. S. 47(2) of the Land Use Act by ousting the jurisdiction of Court to inquire into questions concerning the amount or adequacy of compensation paid or to be paid, deprives the person whose property is compulsorily acquired the right of access to a Court for the determination of the amount of compensation due to him or her, which right is given to him or her by S. 40(1) of the 1979 Constitution. By taking away the right of access to Court to determine the amount of compensation payable for a compulsorily acquired property, S. 47(2) is in conflict, unconstitutional and void by virtue of S. 1(3) of the 1979 Constitution (S. 1(3) of the 1999 S. (1(3) of the 1979 Constitution) which provides that:
“if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”
A compelling and educative dimension was introduced to the discourse, at pages 264-265 of the Law Report, by the written wisdom of Ogunwumiju, J. S. C., when his Lordship stated:
“The Land Use Act is an Act of the National Assembly embedded in the 1999 Constitution. The argument of the appellants that by S.47(2) of the Land Use Act the trial Court lacked jurisdiction to inquire into any question concerning the amount of compensation payable under the Act. The said S. 47 of the Land Use Act is in violent conflict with S. 44(1) of the 1999 Constitution which proscribes expropriation of property without compensation. Infact the Constitution provides that prompt compensation be paid for acquired property. S.44(1) of the Constitution gives the owner of acquired land the right to enter the land in order to assess the quantum of compensation he may demand. That argument by the appellant that the Court cannot inquire into the amount of compensation payable cannot therefore hold up. This is simply because the Constitution is supreme. See Saraki v. Federal Republic of Nigeria (2016) LPELR – 40013 (SC), (2016) 3 NWLR (Pt. 1500)531; Kayili v. Yilbuk & Ors(2015) LPELR-24323(SC), (2015) 7NWLR (Pt.1457) 26.
S.47 of the Land Use Act is thus in conflict with S. 44 of the 1999 Constitution and is void to the extent of its inconsistency with the Constitution.”
Section 44 of the 1999 Constitution, mentioned in the quotations above, provides as follows:
“44.(1) No immovable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefor;
and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria….”
Added to the above is the obvious fact that Section 44 of the Constitution exists in the midst of a cluster of provisions under Chapter IV of the 1999 Constitution. Tucked somewhere in Chapter IV of the 1999 Constitution is a certain Section 46, which loudly proclaims thus:
“(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress….”
The implication is that once a party brings his case or claim within the provisions of Section 44 of the 1999 Constitution, in claiming compensation for compulsory acquisition of his immoveable property, and land is one, a High Court within the State where such land is located will have jurisdiction. In construing the meaning of the phrase “a High Court” in Section 46 of the 1999 Constitution, Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, interprets a High Court to mean the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja. See Ihim v. Maduagwu (2021) 5 NWLR (Pt. 1770) 584 at 621 and F. U. T. Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176.
The appellant cited Section 11(5) of the Oil Pipelines Act in the course of argument of the appeal. Section 11(1) and (5) of the Act provides thus:
11. Rights and obligations of the holder of a licence
(1) A licence shall entitle the holder, his officers, agents, workmen or other servants with any necessary equipment or vehicles, subject to the provisions of sections 14, 15 and16 of this Act, to enter upon, take possession of or use a strip of land of a width not exceeding 200 feet or of such other width or widths as may be specified in the licence upon the route specified in the licence, and thereon thereover or thereunder to construct, maintain and operate an oil pipeline and ancillary installations….
(5) The holder of a licence shall pay compensation-
(a) to any person whose land or interest in land (whether or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the right conferred by the licence, for any such injurious affection not otherwise made good; and
(b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence, for any such damage not otherwise made good; and
(c) to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good, and if the amount of such compensation is not agreed between any such person and the holder, it shall be fixed by a Court in accordance with Part IV of this Act.
(6) For the removal of doubt it is hereby declared that the powers granted to the holder of a licence under this Act shall be exercisable only subject to the provisions of this Act and of any other enactment or rule of law.”
Section 19 of the same act provides as follows:
“19. If there be any dispute as to whether any compensation is payable under any provision of this Act or if so as to the amount thereof, or as to the persons to whom such compensation should be paid, such dispute shall be determined by a station magistrate exercising civil jurisdiction in the area concerned if such magistrate has in respect of any other civil matter monetary jurisdiction of at least as much as the amount of compensation claimed and if there be no such magistrate by the High Court exercising jurisdiction in the area concerned and, notwithstanding the provisions of any other Act or law in respect of the decision of a magistrate in accordance with this Section there shall be an appeal to the High Court of the State and in respect of a decision of the High Court of the State under this Section, whether original or appellate, there shall be an appeal to the Court of Appeal:
Provided that nothing in this Act shall be deemed to confer power upon a magistrate to exercise jurisdiction in a matter raising any issue as to the title to land or as to the title to any interest in land.”
(Bold font for emphasis).
Since the provisions of the 1999 Constitution is superior to and will overwhelm the provisions of the Oil Pipelines Act, by the force and effect of Section 1(c) of the former, the natural corollary of the above quoted interchange of provisions, is that the Federal High Court has jurisdiction over the claim of the appellants, essentially, because of the location/geography of the cause of action.
The remaining question is whether the suit should have been heard by the Federal High Court in its Port Harcourt Division, where it was filed. Section 46 of the 1999 Constitution is emphatic that the suit should be heard, by a High Court in existence in the place where the immovable property is located. The appellants, by their own showing, demonstrated that the property in respect of which they claimed compensation is located in Imo State, where the acquisition took place. Thus, the order of the lower Court transferring the suit before it to the State High Court, is, with due respect, in supposed compliance, both with the requirement of the 1999 Constitution, highlighted above and the provision of Section 22 of the Federal High Court Act, by which the lower Court is bound.
In the case of Maigana v. I. T. F. [2021] 8 NWLR (Pt. 1777) 1 at 27-28, the Court stated that the purpose of the provisions in Section 22(2) of the Federal High Court Act and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009 is to save a suit filed at the Federal High Court but over which the Court has no jurisdiction. Section 22(2) of the Act gives the Federal High Court the power to transfer the suit to either the State High Court or the High Court of the Federal Capital Territory which has jurisdiction to hear the matter. And nothing in any of the provisions of the Act and the Rules of the Federal High Court says that a Judge must decline jurisdiction before the order of transfer is made. There is also nothing in the two provisions that says where a Judge wrongly assumes jurisdiction and determines a case to finality, an order of transfer under Section 22(2) of the Act cannot be made. Section 22(2) of the Federal High Court Act concerns situations where that Court lacked jurisdiction.
In this appeal, it has been determined, above, that the Federal High Court, as a High Court, within the provisions of the 1999 Constitution has jurisdiction over the claim of the appellants. Thus, that Court, in the suit now on appeal, wrongly determined that it lacked jurisdiction to hear and determine appellants’ claim. The only outstanding question is what the approach of the Court should be, where the immovable property in issue is in Imo State? The institution of a case in a Court outside the territorial jurisdiction of a State where the cause of action arose is different from instituting an action outside the judicial division in the same State where the cause of action arose. There is a distinction between jurisdiction as it relates to the territorial jurisdiction, geographical jurisdiction of a Court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the Rules of Court of various Courts. But, when it comes to territorial jurisdiction, which is whether a suit ought to have been commenced in another State, the criteria is different. In such a case, the Court has no jurisdiction and it cannot be conferred by agreement or consent of the parties. See Dairo v. U.B.N. Plc. [2007] 16 NWLR (Pt. 1059) 99 at 143-144.
In this appeal, the 1999 Constitution specifically provided that the appellant’s suit should be commenced in Imo State. Appellants commenced their suit in Rivers State, which is definitely outside the geographical limits of the place where the cause of action occurred. The lower Court, sitting in Port Harcourt, did not have jurisdiction or competence to hear the suit, as constituted before it. That is where Section 22(1) of the Federal High Court Act should kick in, instead of Section 22(2), relied upon by the lower Court. The subsection provides that a Judge of the Court, may, with or without an application for the purpose, from the parties, transfer a cause or matter before him to another Judge of the Court. While the lower Court wrongly held that it lacked jurisdiction over the claim of the appellants, the lower Court was equally wrong to have transferred the suit before it to the Imo State High Court. The transfer, which was due and constitutionally sanctioned, ought to have been ordered and directed to the Owerri Division of the Federal High Court, in Imo State. This Court is enabled to make that order, which will be made.
Where a statute lays down a certain procedure that ought to be followed before an action can be taken, or for setting a legal process in motion, it is incumbent and mandatory that such proceedings be complied with in order to authenticate the act or the legal process set in motion. See Gov. of Ebonyi State v. Isuama [2004] 6 NWLR (Pt. 870) 511; N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 45.
There is merit in the appeal and it is hereby allowed. It is hereby determined and held that the ruling of the lower Court, dated 02/10/2019, should be and it is hereby set aside. In its place, suit number FHC/PH/CS/89/2019 is hereby ordered to be transferred from the Port Harcourt Division of the Federal High Court in Rivers State to Owerri Division of the Federal High Court in Imo State, for adjudication or determination.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the advantage of preview of the judgment which has just been read by my learned brother, Paul Obi Elechi, JCA. I am in full agreement with his thorough treatment of both facts and the law involved in the appeal.
Flowing from the foregoing, I also hold that the appeal is meritorious and it is hereby allowed as done in the lead judgment.
I abide by the consequential orders made in the lead judgment.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, PAUL OBI ELECHI, JCA.
I agree with the reasoning and order stated in the judgment, which I hereby adopt as mine.
Appearances:
R. U. Anugwara, Esq. For Appellant(s)
D. I. Okpe Esq. For Respondent(s)
