CHUKWUMA – MACHUKWU UME v. NIGERIAN COPYRIGHT COMMISSION (2014)

CHUKWUMA – MACHUKWU UME v. NIGERIAN COPYRIGHT COMMISSION

(2014)LCN/7378(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/A/411/2011

RATIO

COURT: JURISDICTION; WHAT IS JURISDICTION AND THE CONSEQUENCE OF THE LACK OF JURISDICTION BY THE COURT

Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority is controlled or circumscribed by the statutes creating the court itself or it may be circumscribed by a condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. See NDAEYO V. OGUNNAYA (1977) 1 SC II AND ALADEJOBI v. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (1376) 66, 81. Where a court lacks jurisdiction, the proceedings no matter how well conducted amount to a nullity. See AMOBI V. NZEGWU (2014) 2 NWLR (1392) 510, 536 and KLM ROYAL DUTCH AIRLINES V. KUMZHI (2004) 8 NWLR (875) 231, 251 – 252. per. JOSEPH E. EKANEM, J.C.A.

COURT: JURISDICTION; WHAT THE COURT MUST LOOK AT BEFORE IT ASSUMES JURISDICTION AND THE JURISDICTION OF THE FEDERAL HIGH COURT

The court is to examine the enabling law vesting jurisdiction in the court in the light of the reliefs sought by the plaintiff. Where the reliefs sought fall within the jurisdiction of the court; the court must assume Jurisdiction. Where the reliefs fall outside its jurisdiction, the court must decline jurisdiction. See ADEYEMI V. OPEYORI (1976) 9 – 10 SC 31, KLM ROYAL DUTCH AIRLINES V. KUMZHI supra. 252 and EDJOREDE V. IKINE (2001) 18 NWLR (745) 441, BOB V. AKPAN (2008) 7 NWLR (1087) 449, 458 – 459.

The jurisdiction of the Federal High Court is set out in Sections 251 and 272 (3) of the Constitution of Nigeria 1999 (as amended), the Federal High Court Act and the Admiralty Jurisdiction Act. The relevant provisions of Section 251 of the Constitution are as follows;

“(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters –

(e) Arising from the operation of Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of Companies and Allied Matters Act”.

It is indeed trite that where a matter falls within the jurisdiction of the Federal High Court, a State High Court or the High Court of the Federal Capital Territory has no jurisdiction on the matter. This is because Section 251 serves to limit the otherwise general or unlimited jurisdiction of the High Courts. per. JOSEPH E. EKANEM, J.C.A.

COMPANY LAW: LIQUIDATOR APPOINTED FOR A COMPANY; WHETHER THE MERE FACT THAT A RECEIVER APPOINTED UNDER INSTRUMENT CAN APPLY TO THE FEDERAL HIGH COURT FOR DIRECTIONS DOES NOT MEAN THAT ALL HIS SUITS MUST LIE TO THE FEDERAL HIGH COURT

The mere fact that a liquidator is appointed for a company does not mean that all suits by or against him must be filed at the Federal High Court. In the case of TANAREWA NIGERIA LIMITED V. PLASTIFARM LIMITED (2003) 14 NWLR (840) 355, 372 – 380, this court held that the mere fact that a receiver appointed under instrument can apply to the Federal High Court for directions does not mean that all his suits must lie to the Federal High Court and that any matter that can be decided without recourse to the CAMA or any enactment regulating the operation of companies incorporated under the CAMA belongs to the State High Court. See also FAGBOLE V. KOGI CHAMBERS OF COMMERCE, INDUSTRIES MINES AND AGRICULTURE (2006) 6 NWLR (677) 433, 452. per. JOSEPH E. EKANEM, J.C.A.

COURT: THE CONCEPT OF REPEAL OF A STATUTE; WHETHER THE COURTS LEAN AGAINST IMPLYING A REPEAL BY IMPLICATION AND WHETHER THE FEDERAL HIGH COURT THAT HAS JURISDICTION TO THE EXCLUSION OF OTHER COURTS IN THE MATTERS CONNECTED WITH OR PERTAINING TO INSURANCE

The law is that courts do not favour the concept of repeal of a statute by implication. See ABACHA V. FAWEHINMI (2000) 6 NWLR (660) 228, 303 – 304. In LEADWAY ASSURANCE COMPANY LIMITED V. JOMBO UNITED LIMITED (2005) 5 NWLR (919) 539, 556 and 559 – 560, it was held that courts lean against implying a repeal by implication except where the provisions of the two laws are so plainly repugnant, one to the other and demand inconsistent conclusions that effect cannot be given to both at the same time, in which case a repeal of the earlier provision of the law by implication of the operation of the new provision is inevitable. This is not so in this instance. See also KLM ROYAL DUTCH AIRLINES supra. There is nothing in the Federal High Court Act Cap F.12 of the Laws of the Federation which says that Act No. 61 of 1999 has been repealed, nor can such repeal be implied. Thus I agree with appellant’s counsel that it is the Federal High Court that has jurisdiction to the exclusion of other courts in the matters connected with or pertaining to insurance. per. JOSEPH E. EKANEM, J.C.A.

COURT: JURISDICTION; WHETHER THE PROPER ORDER OF THE COURT THAT LACKS JURISDICTION IS NOT TO STRIKE OUT THE SUIT BUT ORDER TRANSFER OF THE SUIT TO THE APPROPRIATE HIGH COURT

Upon holding that it lacks jurisdiction to adjudicate on the matter, the lower court struck out the suit. Counsel on both sides are agree and rightly so that the proper order that should have been made was an order transferring the suit to the appropriate High Court. Generally where a court rules that it lacks jurisdiction to adjudicate on a matter the order for it to make is to strike out the suit. However where rules of court provide for a transfer of such a matter, the court should not strike out the suit but should transfer it to the appropriate court. Section 22 (2) of the Federal High Court Act provides for the transfer (and not striking out) by the Federal High Court to the appropriate High Court of a matter that it has no jurisdiction over. This provision has been given judicial teeth in several cases including MOKELU V. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) ANLR 224, 229 and PETROJESSICA ENTERPRISES LIMITED V. LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (244) 675, 694. It is therefore clear that the lower court had no discretion to strike out the matter. per. JOSEPH E. EKANEM, J.C.A.

JUSTICES

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MUHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

CHUKWUMA – MACHUKWU UME

(SUING AS RECEIVER/LIQUIDATOR TO FORTRESS INSURANCE COMPANY LIMITED) – Appellant(s)

AND

NIGERIAN COPYRIGHT COMMISSION – Respondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant, Chukwuma – Machukwu Ume, was appointed a receiver/liquidator of an insurance company, Fortress Insurance Company Limited (In Liquidation). The winding up of the company was sanctioned by the court.

With leave of court and pursuant to his mandate, the appellant filed a suit on the “Undefended List” on behalf of the company claiming against the respondent as follows;

“(a) The unpaid premium of N801,535.28 by the defendant.

(b) The cost of this suit which is assessed at N300,000.00

(d) 20% of the judgment sum until same is paid”.

The suit was initiated at the Federal High Court, Abuja Judicial Division (“the lower court”).

On 5th July, 2007 when the case was scheduled for ruling, the court suo motu raised an issue as to its jurisdiction over the matter and directed the parties to file addresses in that regard. After taking the addresses of counsel on both sides, the lower court in its short ruling concluded as follows;

“The subject matter of suit …… relates to payment of premium, which in itself is contractual.

It has been held that the Federal High Court lacks the jurisdiction to determine issues pertaining to contract… Accordingly this suit is struck out for lack of jurisdiction.”

Aggrieved by the ruling, the appellant has appealed to this Court by way of a notice of appeal bearing four grounds of appeal. The parties filed and exchanged their briefs of arguments which were adopted by counsel on both sides when the appeal came up for hearing on 10th June, 2014.

In the appellant’s brief of argument settled by Innocent M. Njoku, Esq., of counsel, four issues are distilled from the four grounds of appeal for the court’s determination of the appeal. The issues are:

1. Whether the Hon. Trial Court was right to have declined jurisdiction irrespective of the fact that the action is a liquidator’s action and the insurance matter is within the exclusive jurisdiction of the Federal High Court.

2. Whether the Hon. Trial Court was right to have held irrespective of other laws conferring jurisdiction on the Federal High Court over insurance matters, that non-inclusion of insurance, under Section 251(1) (a) – (s) of 1999 Constitution deprived the Federal High Court the jurisdiction to entertain insurance matters?

3. Whether the Hon. Trial Court was right to have held that Section 7 (1) (o) – (s) of the Federal High Court Act as amended by Decree No. 60 of 1999 is inconsistent with the Constitution of the Federal Republic of Nigeria 1999 with regards to the jurisdiction of the Federal High Court and therefore void.

4. Whether the striking of the matter for lack of jurisdiction was the right decision considering the provision of Section 22(2) of the Federal High Court Act?

In his brief of argument, Abdul Terkohol Esq; of counsel for the respondent, formulated two issues for the court’s determination of the appeal. The issues are;

1. Whether the lower court was right when it held that it did not have the jurisdiction to entertain the matter?

2. Given the circumstance of the case, what was the proper order to have been made by the court? And whether the lower court’s order fettered the appellant’s/plaintiff’s right to re-institute the suit at the appropriate court.

Arguing issue one, appellant’s counsel submitted that by virtue of Section 251 (1) (c) of the Constitution of the Federal Republic of Nigeria, 1999, a liquidator in the exercise of duties and powers conferred on him under the provisions of the Companies and Allied Matters Act (“CAMA” for short) can only institute his actions at the Federal High Court. He further submitted that an action by a liquidator is clearly a civil cause or matter arising from the operation of the CAMA. Counsel referred to Sections 423 and 424 of CAMA to strengthen his submission.

Counsel contended that liquidation of a company is a jurisdiction conferred on the Federal High Court and, he extrapolated, it is immaterial what the dispute or claim is all about. He cited and relied on SECTION 7 (1) (C) (I) OF THE FEDERAL HIGH COURT ACT AND NIGERIA DEPOSIT INSURANCE CORPORATION V. ATTORNEY – GENERAL, NASARAWA STATE – APPEAL No. CA/A/167/04 delivered on 6th February, 2007. He was of the view that an insurance contract is a statutory contract and is therefore not an ordinary contract.

As regards issue two, counsel referred to Section 251(1) (s) of the Constitution of Nigeria 1999 and submitted that the use of the phrase “in addition to such other jurisdiction as may be conferred upon it by the National Assembly” is recognition of the fact that the jurisdiction of the Federal High Court can be found in other law(s) apart from the Constitution. He contended that the lower Court was therefore wrong to have held that no other law can confer jurisdiction on the Federal High Court outside the jurisdiction already conferred on it under the Constitution; Rather, by virtue of Section 7 (1) (o) and (s) of the Federal High Court Act as amended by Section 2 of the Federal High Court (Amendment) Decree (sic; Act) No. 60 of 1999, the Federal High Court has the exclusive jurisdiction to entertain insurance matters, headed. THE CASE OF ROYAL EXCHANGE ASSURANCE (NIG) PLC V. ANUMNU (2003) 6 NWLR (815) 52, 59 was cited and relied upon by him in support of his contention.

On issue three, counsel submitted that Section 7 (1) (o) and (s) of the Federal High Court Act as amended by Decree No. 60 of 1991 still subsists and is not inconsistent with the jurisdiction conferred on the Federal High Court by the 1999 Constitution but only complements it, being an existing law.

As regards issue four, counsel submitted that assuming but without conceding that the lower court was right in declining jurisdiction, it was in error in striking out the matter instead of transferring it to the appropriate High Court. In support of his submission, counsel cited and relied on SECTION 22 (2) of the FEDERAL HIGH COURT ACT, PETROJESSICCA ENTERPRISES LTD V. LEVENTIS TECHNICAL COMPANY LTD (1992) 5 NWLR (244) 675, 694 and MOKELU V. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) ANLR 224, 229.

He finally urged the court to allow the appeal, set aside the decision of the trial court and enter judgment in the undefended list in favour of the appellant.

In his brief, respondent’s counsel offered the following submissions in respect of the two issues formulated by him.

With regard to issue one, which is as to whether the lower court was right in declining jurisdiction, he submitted that the suit was not a liquidator’s action as the issue of liquidation was not what the lower court was called upon to adjudicate. Rather he added the claim was for an alleged unpaid premium and does not come under Section 251 (e) of the Constitution. It was his further view that the exclusion of insurance from the list of items in Section 251 (1)(a)-(s) of the Constitution of 1999 unlike the 1979 Constitution shows clearly that the Constitution does not intend the Federal High Court to have jurisdiction in the matter.

Continuing, counsel submitted that though the Insurance Act by its interpretation section confers jurisdiction on insurance matters on the Federal High Court, yet insurance matter as contemplated therein pertains to functions of an insurance company or the prosecution of an offender under the Act and not a matter of payment of premium. It was his view that Section 7 (1) (o) – (s) of the Federal High Court (Amendment) Decree No. 60 of 1991 is no longer an existing law in the light of Section 7(1) (a) – (s) of the Federal High Court Act Cap. F12. Laws of the Federation 2004.

In respect of his issue two, respondent’s counsel conceded that the proper order the lower court should have made was to transfer the case to the appropriate High Court. It was however his view that the order striking out the case did not fetter the right of the appellant to re-institute the case at the proper court. He finally urged the court to uphold the decision of the lower court and strike out the appeal.

In his reply brief, counsel for the appellant submitted that the non-inclusion of the Decree No. 60 of 1991 in the compiled Laws of the Federation 2004 does not repeal or make it a non-existing law.

Out of the four grounds of appeal contained in the notice of appeal, appellant formulated four issues. This is undesirable. Ordinarily an issue should arise from a combination of grounds of appeal. See SALIM V. CONGRESS FOR PROGRESSIVE CHANGE (2013) 6 NWLR (1351) 501, 516 and NWOKEARU V. STATE (2013) 6 NWLR (1380) 207, 233. Issues one, two and three in the appellant’s brief all centre on the jurisdiction of the lower court and shall be condensced into one issue. It is worthy of note that in its brief, the respondent’s second issue, is a compound of two issues viz; the proper order that the lower court ought to have made and whether the lower court’s order fettered the appellant’s right to re-institute the suit in an appropriate court. It is the law that an issue for determination should not be a compound of two or more issues. See UNITY BANK PLC V. OLATUNJI (2013) 15 NWLR (1378) 503, 539. Furthermore, the second leg of the compound issue does not arise from any of the grounds of appeal. I accordingly strike it out.

It is my view that the remainder of the issues formulated by the respondent represent the issue that arise for determination in this appeal.

I shall treat them serially.

ISSUE ONE – Whether the lower court was right when it held that it did not have jurisdiction to entertain the matter.

Where a court lacks jurisdiction, the proceedings no matter how well conducted amount to a nullity. See AMOBI V. NZEGWU (2014) 2 NWLR (1392) 510, 536 and KLM ROYAL DUTCH AIRLINES V. KUMZHI (2004) 8 NWLR (875) 231, 251 – 252.

It is the plaintiff’s claim that determines the jurisdiction of the court.

(e) Arising from the operation of Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of Companies and Allied Matters Act”.

Appellants’ counsel submitted that an action by a liquidator of a company, as the appellant, pursuant to his powers can only be instituted at the Federal High Court. It is my view that a close look at the appellant’s claim before the lower court reveals a suit by the appellant qua liquidator to recover an alleged contractual debt. The court was not called upon to determine any matter arising from the operation of the CAMA or any Act regulating the operations of a company incorporated under the CAMA nor was it called upon to determine any issue as to liquidation or the status of the liquidator. See GODWIN V. OKWEY (2010) 16 NWLR (1219) 309, 322.

It was also argued that the matter at the lower court was an insurance matter which only the Federal High Court has jurisdiction over. Counsel for the appellant cited and relied on Section 7 (1) (o) and (s) of the Federal High Court Act as amended by Section 2 of the Federal High Court (Amendment) Act No. 60 of 1991. Respondent’s counsel reacted by stating that Section 251(1) of the Constitution does not include insurance as one of the items in the exclusive jurisdiction of the Federal High Court. He also submitted that Section 7 (1) (o) and (s) of the Federal High Court (Amendment) Act No. 60 of 1991 is no longer an existing law in the light of Section 7 (1) (a) – (s) of the Federal High Court Act Cap F. 12 Laws of the Federation, 2014.

The Phrase “….In addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly ….” In Section 251 (1) of the Constitution contemplates that the National Assembly may by its Act add to the jurisdiction given to the Federal High Court by the Constitution. It also covers any jurisdiction that might have been conferred on the Federal High Court by an Act of the National Assembly or a Decree. See KLM ROYAL DUTCH AIRLINES V. KUMZHI supra, 265 and OMNIA NIGERIA LIMITED V. DYKE TRADE LIMITED (2007) 15 NWLR (1058) 375, 603. Thus Section 7 (1) (o) of the Federal High Court Act as amended by Section 2 of the Federal High Court (Amendment) Decree (now Act) NO. 61 of 1999 provides that;

“The Court (Federal High Court) shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to – insurance, including third party claim and the National Provident Fund”

The mere fact that Section 7 (1) (a) – (s) of the Federal High Court Act Cap. F 12. Laws of the Federation, 2004, does not contain insurance as an item within the jurisdiction of the Federal High Court does not mean that Act No. 61 of the 1991 has been repealed or is no longer an existing law as argued by respondent’s counsel. This is because Act no. 61 of 1991 was still in existence immediately before the Constitution of Nigeria 1999 came into force. See Section 315 (1) (a) and 4 (b) of the Constitution. Act No. 61 of 1991 is not inconsistent with the Constitution of Nigeria 1999.

However, as earlier held by me, the claims of the appellant at the court below border on a simple matter of alleged indebtedness. It is no wonder that the appellant commenced the suit at the lower court as an undefended list matter. The case of ROYAL EXCHANGE ASSURANCE V. ANUMNU supra cited by appellant’s counsel is distinguishable from the instance case as it involved a dispute as to the property covered by an insurance policy and the amount payable for the damage to the properties. I hold therefore that the lower court was right in declining jurisdiction. I therefore resolve issue one against the appellant.

ISSUE TWO – Given the circumstance of the case, what was the proper order to have been made by the court?

Section 22 (2) of the Federal High Court Act provides for the transfer (and not striking out) by the Federal High Court to the appropriate High Court of a matter that it has no jurisdiction over. This provision has been given judicial teeth in several cases including MOKELU V. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) ANLR 224, 229 and PETROJESSICA ENTERPRISES LIMITED V. LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (244) 675, 694. It is therefore clear that the lower court had no discretion to strike out the matter. The only option open to it was to order a transfer of the matter to the High Court of the Federal Capital Territory.

I therefore resolve issue two in appellant’s favour.

On the whole the appeal succeeds but in part. The judgment of the lower court declining jurisdiction is hereby affirmed but the order of the lower court striking out the suit is set aside. In its place, it is hereby ordered that suit No. FHC/ABJ/108/2006 shall be and is hereby transferred to the High Court of the Federal Capital Territory, Abuja for hearing and determination.

The parties shall bear their costs.

MOORE A. A. ADUMEIN, J.C.A.: I read, in draft form, the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA.

I completely agree with the reasoning and conclusion of my learned brother that the suit ought to have been transferred by the Federal High Court to the High Court of the Federal Capital Territory, Abuja instead of being struck out.

I agree that this appeal has partial merit and it succeeds in part and it is hereby allowed as set out in the leading judgment of my learned brother.

I make no order for costs.

MOHAMMED MUSTAPHA, J.C.A.: I had read in draft the judgment just delivered by my learned brother, J. EKANEM, JCA.

I am in total agreement with his reasoning and conclusions reached; I also affirmed the appeal and the transfer of the suit NO: FHC/ABJ/108/2006 to the High Court of the Federal Capital Territory, Abuja for hearing and determination.

Appearances

Innocent M. Njaka, Esq (with him, S. O. Olabode, Esq and Miss Hope N. Eke)For Appellant

AND

A. T. Kohol, Esq (with him, Mrs Gladys Ojo, Mrs Bisi Olabanji and Mrs Joy Ogbonna)For Respondent