ALL PROGRESSIVE CONGRESS & ANOR v. JOHN UPAN ODEY & ANOR (2019)

ALL PROGRESSIVE CONGRESS & ANOR v. JOHN UPAN ODEY & ANOR

(2019)LCN/13052(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of April, 2019

CA/A/123/2019

 

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

1. ALL PROGRESSIVE CONGRESS
2. SENATOR JOHN OWAN ENOH Appellant(s)

AND

1. JOHN UPAN ODEY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

RATIO

THE ESSENCE OF JURISDICTION

Jurisdiction defines the authority and capacity of a Court to decide a cause or matter presented to it. This includes the hearing of evidence, evaluation of facts, application of the relevant laws, delivery of a judgment and making Orders. See ABACHA V FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (pt 1402) 43. Jurisdiction as an extrinsic factor to entertain a Suit and make orders in respect of it, is donated by the Constitution, Acts and Laws. This jurisdiction is not the same with inherent jurisdiction or inherent power of a Court, especially a Court of record, as it is not specially donated by the Constitution or a law. See AKILU V FAWAHINMI (NO 2) 1989 LPELR -339 (SC) and NWORA & ORS V NWABU EZE & ORS (2011) LPELR-8128 (SC). The inherent jurisdiction enables the Court to carry out its functions smoothly and effectively. It is an intrinsic power of the Court and is sometimes exercised in a limited sphere, to do some things, even if the Court has no jurisdiction to entertain the Suit as such. PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory Abuja, delivered on the 6th of February 2019. Therein, the trial judge found that he has no jurisdiction to entertain Suit No FCT/HC/CV/211/2018. He therefore transferred the Suit to the High Court Cross-River State.

Mr. John Upan, the 1st respondent in this appeal, held himself to be an aspirant at the All Progressive Congress Governorship Primary Election in Cross-River State. He was aggrieved by what he termed as a purported primary election into the office of the Governor, Cross-River State held on the 1st of October, 2018. He therefore took out an Originating Summons at the High Court of the Federal Capital Territory Abuja on the 12th of February 2019, for the determination of the following questions-
1. A declaration that the All Progressive Congress (APC) is obligated to apply and obey its constitution and guidelines and to apply same to all the Aspirants and INEC is obligated to monitor and ensure compliance with the Electoral Act and the 1999 Constitution of the Federal

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Republic of Nigeria (as amended )
2. A declaration that the 3rd Defendant was not validly elected or nominated at the Governorship Primary Election of the    1st Defendant,    which purportedly took place on the 1st of October, 2018.
3. An Order of this Honourable Court nullifying the Governorship Primary election of the All Progressive Congress (APC), purported to have been conducted on the 1st of October, 2018, same being unconstitutional, null and avoid and directing the 1st Defendant to conduct a fresh primary election for the purpose of selecting a Gubernatorial Candidate for the 2019 Governorship Election in Cross River State.
4. An order Directing the 2nd Defendant not to accept any name submitted by the 1st Defendant for the 2019 Governorship Election in Cross-River State, the process of nomination having not followed the due process of law. If it has, to set aside the nomination as it was null and void until the 1st Defendant compiles with the due process of law, upon compliance with its Constitution and Guidelines for direct primaries in Cross-River State.
5. An order of injunction restraining the 1st

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and 2nd Defendant whether by themselves, agents, privies, assigns, authorized representatives or howsoever described from forwarding and accepting any name or candidate for the 2019 Governorship Election Cross River State, without complying with the order of this Honourable Court by conducting a fresh primary election in    accordance with the 1st Defendant’s Constitution and Guidelines.
He then sought for the following reliefs-
1. A declaration that the All Progressive Congress (APC) is obligated to apply and obey its constitution and guidelines and to apply same to all the Aspirants and INEC is obligated to monitor and ensure compliance with the Electoral Act and the 1999 Constitution of the Federal Republic of Nigeria (as amended )
2. A declaration that the 3rd Defendant was not validly elected or nominated at the Governorship Primary Election of the 1st Defendant, which purportedly took place on the 1st of October, 2018.
3. An Order of this Honourable Court nullifying the Governorship Primary election of the All Progressive Congress (APC), purported to have been conducted on the 1st of October, 2018, same being

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unconstitutional, null and avoid and directing the 1St Defendant to conduct a fresh primary election for the purpose of selecting a Gubernatorial Candidate for the 2019 Governorship Election in Cross River State.
4. An order Directing the 2nd Defendant not to accept any name submitted by the 1st Defendant for the 2019 Governorship Election in Cross-River State, the process of nomination having not followed the due process of law. If it has, to set aside the nomination as it was null and void until the 1st Defendant compiles with the due process of law, upon compliance with its Constitution and Guidelines for direct primaries in Cross-River State.
5. An order of injunction restraining the 1st and 2nd Defendant whether by themselves, agents, privies, assigns, authorized representatives or howsoever described from forwarding and accepting any name or candidate for the 2019 Governorship Election Cross River State, without complying with the order of this Honourable Court by conducting a fresh primary election in accordance with the 1st Defendant’s Constitution and Guidelines.
6. An order of injunction restraining the 3rd Defendant from

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parading himself as the gubernatorial candidate of the 1st Defendant, the purported Gubernatorial Primary Election of the 1st Defendant nominating the 3rd Defendant having not been conducted in compliance with due process of law.

On being served with the processes, the 1st and 3rd defendant, who are the appellants in this appeal, filed a Notice of Preliminary Objection, challenging among other grounds, challenging the jurisdiction of the trial Court to hear and determine the Suit as by the Fourth Alternation Act, No 21 of 2017, to the provision of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999, it has been extinguished by effluxion of time, and that the claimant had no locus stand/ to institute it.

The trial Court on its own volition directed the parties to address it on the territorial jurisdiction of the Court to try the Suit. The appellants herein, filed their written address. The 1st respondent also filed his written address. In its Ruling on the 6th of February 2019, the trial Court held that in view of the decision in DALHATU V TURAKI (2003) 15 NWLR (PT 843) 310 and MAILANTARKI V. TONGO LPELR-42467 (SC),

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it has no jurisdiction to entertain the suit. It then employed Order 41 Rule 6 of the Rules of the trial Court 2018, and transferred the Suit to the High Court of Cross?River State. Hence this appeals, contending that the transfer of the Suit to Cross-River State is wrong in law.

On the 20th of March 2019, the time for the respondents to file their briefs was abridged to 7 days. The appeal came up for hearing after two other adjournments, on the 8th of April 2019. On that date, both respondents were not only absent despite service, but had not filed any brief and the time had lapsed. There was no application for extension of time. The appeal was heard on that 8th April 2019 on the appellants’ brief alone.

?The appellants filed their brief on the 27th of February 2019. In it, Mr Ikoro N. Ikoro who settled it, identified the following three issues for determination-
1. Whether a Judge of the High Court of the Federal Capital Territory, Abuja has the power to transfer cases from the High Court of the Federal Capital Territory, Abuja to Cross-River State without statutory backing.
2. Whether the learned trial Judge

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was right to transfer the instant case to the High Court of Cross-River State instead of striking out the Suit in limine and simplicita
3. Whether the Suit of the trial Court is not already time-barred by virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999,(4th Alteration Act),

ISSUE 1
Whether a Judge of the High Court of the Federal Capital Territory, Abuja has the power to transfer case from the High Court of the Federal Capital Territory, Abuja to Cross-River State without statutory backing.

Here, learned counsel for the appellants Mr Ikoro, referred to the cases of EGHAREUBA V ERIBO (2010)9 NWLR (pt 1199)411 at 434-435 on jurisdiction as a term depicting the power of a Court to decide a matter and declare judgments. He also referred to GOV. EKITI STATE V CHAIRMAN ILEJEMEJE L. G (2006) ALL FWLR (pt 341) 1280 at 1294 and NDAEYO V. OGUNAYA (1977) NSCC 5 at 10 on the submission that Courts are donated with jurisdiction by the Constitution, Acts, Decrees Laws and Edicts.

?Learned counsel then submitted that only two legislations in this country, provide for transfers of cases where the relevant Courts

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have no jurisdiction to entertain them-Section 22 (3) of the Federal High Court Act Cap F 12 (2004) which allows a High Court to transfer a Case to Federal High Court if it has no jurisdiction to try it, and Section 24 (3) of the National Industrial Court Act 2006, for transfer from High Court, to the National Industrial Court. He argued that there is no law which allows for the transfer of a case by the High Court of the Federal Capital Territory to another High Court. Counsel argued that the Rules of the High Court of the Federal Capital Territory cannot give power of transfer to another High Court, more than what FCT High Court Act provided in Sections 65 to 73 of the Act, Cap 510. He contended that even Order 3 rule 1 of the Rules of the FCT High Court 2018, provides that transfers of cases are subject to the High Court Act and therefore Order 41 rule 6 must also be subject to High Court Act in Section 65 to 73.

Learned counsel then referred to the case of CLEMENT & ANOR V. IWUANYANWU & ANOR (1989) NWLR (pt 107) 39 in which the Supreme Court held that jurisdiction “cannot be conferred by Rules of Court,” in order to “confer jurisdiction to

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entertain an application for leave to appeal.” Also, in DAIRO V U.B N. PLC (2007) 16 NWLR (pt 1059) 99, the Supreme Court also opined that a Lagos State High Court and Ogun State High Court are not within the same judicial divisions, “it is not possible to make transfer of cases between the two States.”

Having made these submissions, the learned counsel for the appellants then prayed this Court to declare Order 41 rule 6 of the High Court of the Federal capital Territory Abuja (Civil Procedure) Rule 2018 null and void to the extent of its inconsistency with Sections 65 to 73 of the High Court Act Cap 510. He urged us to resolve this Issue in favour of the appellants.

ISSUE 2
Whether the learned trial Judge was right to transfer the instant case to the High Court of Cross-River State instead of striking out the Suit in limine and simplicita
Learned counsel for the appellant argued on the authority of UWAZURIKE V. A. G FEDERATION (2007) 29 NSCQR489 at 507 that once a Court has no jurisdiction to entertain a matter, it should only strike it out, and that this is what the trial Court should have done. He then submitted that the Order of

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transfer made, was a nullity and ultra vires the powers of the Court, as he had also expanded the jurisdiction of the Court which was not granted by the Act. He urged us to resolve this issue in favour of the appellants.

ISSUES 1 AND 2 TOGETHER
Whether a Judge of the High Court of the Federal Capital Territory, Abuja has the power to transfer case from the High Court of the Federal Capital Territory, Abuja to Cross-River State without statutory backing.
Whether the learned trial Judge was right to transfer the instant case to the High Court of Cross-River State instead of striking out the Suit in limine and simplicita
The crux of argument of the appellants, is that the High Court of the FCT Abuja Cap 501 has not donated any power of transfer of cases from the High Court of the FCT Abuja to any other High Court, except to the Federal High Court and the Industrial Court of Nigeria, where the High Court of the FCT has no jurisdiction to entertain the case. Further, that Rules of the High Court of the FCT cannot legally give such jurisdiction.

Jurisdiction defines the authority and capacity of a Court to decide a cause or matter

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presented to it. This includes the hearing of evidence, evaluation of facts, application of the relevant laws, delivery of a judgment and making Orders. See ABACHA V FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (pt 1402) 43. Jurisdiction as an extrinsic factor to entertain a Suit and make orders in respect of it, is donated by the Constitution, Acts and Laws. This jurisdiction is not the same with inherent jurisdiction or inherent power of a Court, especially a Court of record, as it is not specially donated by the Constitution or a law. See AKILU V FAWAHINMI (NO 2) 1989 LPELR -339 (SC) and NWORA & ORS V NWABU EZE & ORS (2011) LPELR-8128 (SC). The inherent jurisdiction enables the Court to carry out its functions smoothly and effectively. It is an intrinsic power of the Court and is sometimes exercised in a limited sphere, to do some things, even if the Court has no jurisdiction to entertain the Suit as such. For instance, where an Election Petition is filed before a High Court, instead of an Election Petition Tribunal, the High Court would not have the jurisdiction to entertain the Petition. But it will have the inherent jurisdiction or power to hold

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that it has no jurisdiction to entertain it. It will also have the power to Strike out the Petition. The fact that it struck out the petition, is not a question of jurisdiction qua jurisdiction. It is an intrinsic inherent power.

Learned counsel for the appellants has referred to DAIRO V. U.B.N. (SUPRA). In that case, the plaintiff filed a case at the High Court Ikeja in Lagos, for a cause of action that arose in Ogun State. The defendants filed a Motion objecting to the jurisdiction of the trial Court. The trial Judge held that he had no jurisdiction to entertain the case and he stuck it out. Muhammed JSC at page 39-40 of the report- LPELR -913 (SC), agreed with the Court of Appeal that Rules of Court provide for the venue, ie the judicial division in the State where the case will be tried, depending upon where the cause of action arose. But territorial jurisdiction, i.e in which State a case to be tried, is to be provided for, by statute.
?The issue of the transfer of a case from one State to another, was addressed by Ogbuagu JSC at pages 61-62 of the report, where he agreed that the cause of action having arisen in Ogun State, the case, which was

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filed in Lagos State, could not be transferred to Ogun State, the State with the rightful jurisdiction, and that it was incompetent “for any Judge, including a Chief Judge to transfer any proceeding from one State to another,” relying on NDAEYO V OGUNAYA (SUPRA). The case of DAIRO V. U.B. N. (SUPRA) was decided in the Supreme Court without an issue being raised as to whether there was any provision, enabling the transfer of the case to Ogun State High Court, after the High Court in Lagos Struck it out for lack of jurisdiction to entertain it. So that case, is not an appropriate authority in respect of this appeal.
However, in FASAKIN FOODS (NIG) LTD V SHOSANYA (2006) 10 NWLR (pt 987) 126; (2006) LPELR-1244 (SC) the issue of the transfer of a case from one High Court to another, was specifically raised and decided by the Supreme Court as a full Court. Therein the appellant filed a claim against the respondent for various sums of money, alleging, that the respondent had mismanaged the appellant’s Company whist he was its receiver/manager. The respondent filed a Preliminary Objection challenging the jurisdiction of the High Court of Lagos State where the

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action was instituted. The trial judge held that he had no jurisdiction to try it. He stayed action and transferred the Suit to the Federal High Court Lagos where he opined that it had jurisdiction to try it. The respondent was aggrieved and he appealed to the Court of Appeal which allowed the appeal and set aside the Orders of the High Court. The appellant then appealed to the Supreme Court.
On the question as to whether a State High Court can transfer a matter before it in which it has no jurisdiction to the Federal High Court, the full court of the Supreme Court Per Ogbuagu JSC at page 14 held that under the High Court of Lagos State (Civil Procedure) Rules 1972,
“there is no rule of procedure ,which enables that Court, to transfer a cause or matter to the Federal High Court ”
The learned Justice held further that
“while the Federal High Court can transfer a cause or matter to a State High Court, by virtue of Section 22 (2) of the Act, See ALUMINIUM MANUFACTURING COMPANY (NIG) LTD V. N. P. A (1987)1 NSCC VOL 18 PAGE 224 at 234; (1987) 1 NWLR.(pt 51)475; (1987) 1 NSNJ 94, but there is no such provision applicable at least in the Lagos State High Court Rules.”
(Emphasis mine)

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This full Court decision of the Supreme Court clearly and specifically dealt with the Issues of the transfer of a case from one High Court to another. It shows clearly also, that the Rules of procedure of a High Court may competently make provision for the transfer of a case from one High Court to another. In other words, it is not only a High Court Act or Law that can make a provision for transfer of a case. The Rules of Procedure may make the enabling provision.
In the instant appeal, the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, made such a provision in Order 41 rule 6 It states-
“Where a Court has no jurisdiction in a cause or matter the Judge may by order transfer the cause or matter to a court with competent jurisdiction,”
This has nothing to do with extrinsic jurisdiction to entertain a Suit. It is an enabling power of a Court to transfer a Case, where it has no jurisdiction to adjudicate upon it, to another Court of competent jurisdiction.
?Learned counsel for the appellants has attacked the Rule-Order 41 rule 6 of the FCT High Court Procedure Rules 2018,

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for being contrary to the High Court of the Federal Capital Territory Act Cap 510, because this said Act only made provisions for transfer from the High Court to District Court and Magistrate Court (Section 65); from one High Court of the FCT to another (Section 66); transfer to an Area Court (Section 70); transfer to the Sharia Court of Appeal (Section 72); and transfer to the High Court from Sharia Court of Appeal (Section 73).
In my view, this submission cannot stand because the High Court Act Cap 510 did not exclude the transfer to a Court with competent jurisdiction. The Act made provision for inherent transfers of cases, within the Federal Capital Territory. It is the Rules that made provision for ‘external’ transfers to a Court of competent jurisdiction. That the rules can do so, is seen from the Supreme Court decision in FASAKIN FOODS (NIG) LTD V SHOSANYA (SUPRA). The plain literal and grammatical meaning of the words used in the FCT Act Cap 510 on transfer of cases, shows that the Act only made provision of internal transfers and did not shut the door on other transfers, as contended by, learned counsel for the appellant. It is not

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permitted to read into a Statute, words that are not therein employed-AWOLOWO V SHAGARI (1979) LPELR-653 (SC). Since the words used in the FCT Act Cap 510 are clear and unambiguous, without any absurdity or inconsistency, I am bound to give them their natural and ordinary meaning-SARAKI V F. R. N. (2016) LPELR-40013 (SC).
It behoves the Courts to keep in mind, in addition to giving words their natural and ordinary meaning when interpreting Statute. The purposive approach ie. For what purpose was the provision enacted? It helps to convey the intention of the law-maker. See PEOPLES PROGRESSIVE ALLIANCE V SARAKI (2007)17 NWLR (pt 1064)453. The FCT ACT Cap 510 did not prevent external transfers and so Order 41 rule 6 of the FCT High Court Civil procedure Rules 2018, cannot be said to be inconsistent with the Act.
The Federal Capital Territory High Court through the Chief Judge who made the Civil Procedure Rules 2018, has been progressive in its thinking and responsive to the cries of delays in Courts and the expensive nature of Litigation in Courts. Its decision to make Order 41 rules 6 in its Civil Procedure Rules 2018, can only be commended, not

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condemned. For Niki Tobi JSC in FASAKIN FOODS V. SHOSANYA (SUPRA) at page 30, referred to the cases of DR ONAGORUWA V. I. G P (1991) 5 NWLR (pt 193) 593; IWUABA V NWAOSIGWELEM (1989)5 NWLR (PT123)623; and DIN V. A.G. FEDERATION (1986) 1 NWLR (Pt 17) 471 among others, to hold that where a Court lacks, jurisdiction to entertain a Suit, the order to make, is to strike it out, to allow the party commence an action de novo in a competent Court. Of course this involves the further expenditure of funds and time delays. So at page 27 of the report, the responsive Judge referred to Section 22 (3) of the Federal high Court Act and stated that
“it is a saving provision, so to say. It saves a matter duly and properly filed in a Court of law from being struck out. Instead of striking out for lack of jurisdiction, Section 22(3) vests in the High Court of a State the power to transfer the matter to the appropriate Judicial Division of the Federal High Court.”
In the same vein, a Judge of the FCT High Court may transfer a case to Court of competent jurisdiction where he is of the opinion that, he has no jurisdiction to entertain it. So instead of striking it out, he

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transfers it. This saves time and money for litigants so that a fresh action needs not be filed, which would have necessitated financial expenses and delays in the adjudicating process. I certainly endorse the said provision of Order 41 Rule 6 of the FCT High Court Civil Procedure Rules, 2018 as it will ease difficulties encountered when a Counsel files a client’s case in the wrong forum. It is a competent Order. Issue I and 2 are therefore resolved against the appellants.

ISSUE NO 3
Whether the Suit of the trial Court is not already time-barred by virtue of Section 285 (9)of the Constitution of the Federal Republic of Nigeria 1999,(4th Alteration Act).
Here, learned counsel for the appellants, complained that the lower Court, only, ruled on the territorial jurisdiction of the Court, without ruling on the Suit being Statute- barred. He enjoined us to assume powers under Section 15 of the Court of Appeal Act and decide on Section 285 (9) of the Constitution (4th Alteration Act) which was raised at the trial Court.

Without any further ado, I need to state that the power of this Court under Section 15 of the Court of Appeal Act 2004, is to have

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“Full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance…”
Therefore, this Court can only assume jurisdiction on appeal under Section 15 of the Act, if the trial Court had jurisdiction to entertain the Suit. Whether it had jurisdiction to adjudicate on it, this Court cannot do so.

Learned counsel for the appellants is clearly of the view, at the trial Court, that the trial Court had no jurisdiction. The trial Court in its Ruling has held that it has no territorial jurisdiction to entertain the Suit, following the decision in DALHATU V. TURAKI (SUPRA) ANDMAILANTARKI V TONGO(SUPRA).
There is no appeal against the decision of the trial Court that it had no territorial jurisdiction to entertain the action. That decision therefore remains.
It is where the trial Court had jurisdiction to entertain the action, that it can go on to decide whether the action was infact time- barred, or not, especially as the case was not struck out, but transferred to a Court of competent jurisdiction.
?As the trial Court rightly put it at page 411 of the record,<br< p=””

</br<

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….the Court holds that it lacks the territorial jurisdiction to entertain the case. The court having so found, it will amount to waste of scarce judicial energy and resource to embark upon consideration of issues raised in the 1st and 3rd Defendants’ Notice of Preliminary Objection?..
I agree with this position. Since the case has been transferred to a Court of competent jurisdiction, it is much neater and more appropriate, to raise the issue of the time- bar in that Court. Issue No 3 is resolved against the appellants.

In the circumstances, this appeal lacks merit and it is dismissed. I affirm the Ruling of the High Court of the Federal Capital Territory Abuja, delivered on the 6th day of February 2019 in Suit No FCT/HC/CR/211/2018.
No Order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; ABUBAKAR DATTI YAHAYA JCA. I agree with the reasoning and adopt the conclusion and orders reached therein. I only wish to add the following.

A Court that is devoid of

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jurisdiction over a matter is bound to make an order in respect thereof. There appears to be a brake on adherence to the law that where a Court discovers that it is denied of jurisdiction to determine a matter, the only option left to it is to make an order striking it out. That is rooted in the province of inter-transfer of cases between the Federal High Court and the High Court when the jurisdiction of either is tripped to hear a matter. Section 22(2) and (3) of the Federal High Court Act provides for a transfer of a case from the Federal High Court to High Court and vice versa, when either is denuded of the requisite jurisdiction to hear a matter. It is also rooted in the province of inter-transfer of cases between the National Industrial Court and the High Court when the jurisdiction of either court is stripped to hear a matter, by Section 24 (2) & (3) of the National Industrial Court Act, 2006.
?In AWOLEYE VS. BOARD OF CUSTOMS AND EXCISE (1990) 2 NWLR (PT. 133) 490. The Supreme Court held that a State High Court had no jurisdiction, under Section 22 (2) of the Federal High Court Act, to transfer a case to the Federal High Court for adjudication.

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Subsequently, the court did not depart from Awoleye’s case in the case of FASAKIN FOODS (NIG) LTD VS. SHOSANYA (2006) 10 NWLR (PT.987) 126. Therein, the respondent was, at a time in 1991, appointed the receiver/manager of the appellant by an order of the Federal High Court. Sequel to that, the appellant sued the respondent claiming from it various sums of money for its (appellant’s) mismanagement. That was in the High Court of Lagos State and the appellant filed a statement of claim therein.
Upon receipt of the statement of claim, the respondent filed a notice of preliminary objection on the reason that the High Court had no jurisdiction to hear the matter. After arguments, the High Court ruled that most of the complaints involved the operation of the company for which the Federal High Court had jurisdiction and directed pursuant to Section 22 (3) of the Federal High Court Act, 1990, that the suit be transferred to the Federal High Court. The respondent’s appeal to the Court of Appeal was allowed. The order of the Court was set aside and in its stead an order striking out the suit was made as the High Court had no power to so transfer the suit to the Federal High Court.

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The appellant’s appeal to the Supreme Court was dismissed. It was held that since Section 22 (3) and (4) of the Federal High Court Act was legislating for the High Court against the provision of Section 239 of the 1979 Constitution (Section 274 of the 1999 Constitution), that Section of the Act was invalid and void and that the High Court of Lagos State lacked the jurisdiction to so transfer. It was further ruled that the Federal High Court, under Section 22 (2) of the Act, could transfer a case to the High Court if it had no jurisdiction. Ogbuagu, JSC put it in clear terms in these words:
“It thus means that under the said High Court of Lagos State (Civil Procedure) Rules, 1972, there is no rule of procedure which enables that court to transfer a cause or matter to the Federal High Court. That Court cannot even in the circumstances, resort to or fall back to the practice and procedure in England as there appears to be no such provision of transfer from a High Court to the Federal High Court. So, as it stood or stands, the Lagos State House of Assembly has not made any provision for the transfer of a cause or matter to the Federal High Court. The practice

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and procedure of a State High Court is regulated by Section 239 of the 1979 Constitution?
I am aware that while the Federal High Court can transfer a cause or matter to a State High Court by virtue of S. 22 (2) of the Act… but there is no such provision applicable at least, in the Lagos High Court Rules.”
?In the instant case, the trial Court is the High Court of the Federal Capital Territory, Abuja which was created by Section 255 of the 1999 Constitution (as amended). By Section 259 of the same Constitution, the Chief Judge is empowered to make Rules for regulating the practice and procedure of the High Court of the Federal Capital Territory Abuja. Pursuant to Section 259 of the Constitution, the Chief Judge made the High Court of the Federal Capital Territory, Abuja (Civil procedure) Rules 2018 which came into effect on the 15th day of February 2018.
Order 41 Rule 6 of the High Court of the Federal capital Territory, Abuja Civil Procedure) Rules 2018 provides thus:
“Where a Court has no jurisdiction in a cause or matter, the judge may by order transfer the cause or matter to a Court with competent jurisdiction.”

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?It thus means that under the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, there is a rule of procedure which enables that Court to transfer a cause or matter to the Federal High Court. The tenor and intendment of this rule is that the High Court of the Federal Capital Territory, Abuja can validly make an order of transfer of a case from itself to a Court of different jurisdiction. The learned trial judge properly exercised his power under Order 41 Rule 6 and had the matter transferred to the Court with requisite territorial jurisdiction.
I will want to end with the opinion expressed by Pats ? Acholonu JSC (as he then was) in the case of A.D.H. Ltd Vs. A.T. Ltd (2006)10 NWLR (Pt. 989) 635 at pages 648 ? 649 as follows:
“Let us examine the issue as to whether the High Court here can make an order of transfer of a case before it when it has no Jurisdiction to entertain the main case. In the case of Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 this Court held thus at 520:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or Tribunal is not competent to entertain

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a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit matter or claim.”
In other words, it will be fortuitous for such a Court to make an order of transfer. In this case the respondent used the issue of jurisdiction or competence of the Court to literally run riot, and seeks to obfuscate the real issue in controversy by resorting to inanities. It is the duty of this Court of justice to remove the chaff from the wheat. The resort to the use of the procedures of the Court to bamboozle the Court or truncate the claim of the appellant is not noble. I can only say that the method being adopted by the respondent appears in my view to be a red herring to obscure the facts in issue.
?The lower Court had said that there is no law empowering the State High Court to transfer a case to the Federal High Court. With greatest respect l beg to disagree. Section 22 (3) of the Federal High Court Act states as follows:
“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

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ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include power to make rules of Court for the purpose of this subsection.”
?The tenor and intendment of this subsection is that the State High Court can validly make an order of a transfer of a case from itself to a Court of different jurisdiction. The wordings of this subsection is suffused with alliterations, use of cryptic words which concealed and veiled the meaning intended thereby making it seemingly difficult to decipher. I would here refer to what Thomas Jefferson said of boundless tautology in the wording of statutes generally. “Statutes which from their verbosity their endless tautologies, their involutions of case within parenthesis, and their multiplied efforts at certainty by

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said, afore-said, by or and, and to make them more plain, do really render them incomprehensible not only to common readers but to the lawyers themselves”. (courtesy of Thomas Jefferson Autobiography (1982) by Paul L. Ford). The dictates of the principle or the doctrine of Golden Rule in statutory interpretation imposes on the Court the duty to give a construction that seeks to liberate and expound the horizon of the law to make it a living law that would cater for the future. I believe that where a provision in a statute is liable to be construed either in the positive or in the negative form or connotation, then it is definitely more beneficial to adopt the interpretation that is more in tune with the public weal and benefit. In appropriate cases it is my view that the High Court can make an order of transfer of a case but that is not relevant in the case here.”

The appeal clearly lacks merit and it is dismissed.

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Appearances:

Ikoro N. A Ikoro, Esq. with him, A.O Ugwunanyi, Esq.For Appellant(s)

For Respondent(s)

 

Appearances

Ikoro N. A Ikoro, Esq. with him, A.O Ugwunanyi, Esq.For Appellant

 

AND

For Respondent