COUNCIL OF LEGAL EDUCATION & ORS v. HAIRAT ADERINSOLA BALOGUN & ORS
(2011)LCN/4745(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of July, 2011
CA/L/375/2010
RATIO
NATURE OF AN ACTION: WHAT DETERMINES THE NATURE OF AN ACTION IN COURT
There is no doubt that the nature of an action in court is determined what is brought before it for adjudication, that is the statement of claim which spells out what the court really has to determine and also the parties to the suit. PER HUSSEIN MUKHTAR, J.C.A.
INTERPRETATION OF STATUTE: PURPOSE OF THE PROVISIONS OF SECTION 251 (1) (R) OF THE 1999 CONSTITUTION
The provision of section 251 (1) (r) leave no room for doubt as to its purport and purpose. The fact that agencies of the Federal Government are sued in relation to an administrative power is enough to confer an exclusive jurisdiction in the Federal High court, the fact that such powers or decision was exercised in relation to land notwithstanding. In the case of Federal Government of Nigeria v oshiomole (supra) salami, JCA (as he then was) aptly observed thus: “By virtue of section 251(1) of the 1999 Constitution, where the Federal Government of Nigeria or any of its agencies is a party to a suit, it is no longer necessary to examine the nature of the reliefs or the claim sought in the case in order to determine the jurisdiction of the court. lt is sufficient that once one of the parties be it the plaintiff or the defendant is the Federal Government or any of its agencies, only the Federal High court has jurisdiction to determine the matter.” This was the stance of the Supreme Court in the case of NEPA v Edegbero (supra) where ogundare, JSC (of blessed memory) stressed the exclusiveness of the Federal High Court’s jurisdiction in matters in which the Federal Government or any of its agencies is a party, at page 97 paragraphs E-F thus: “…the aim of paragraphs (q), (r) and (s) of subsection (1) of section 230 was to vest exclusive jurisdiction in the Federal High court in matters in which the Federal Government or any of its agencies was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.” These views were equally sustained and restressed by Uwais, CJN in his lordship’s concurring judgment at page 97 paragraphs E-G as follows: “The aim of paragraphs (q), (r) and (s) of subsection (1) of section 230 of the 1993 Constitution as amended by decree No 107 of 1993 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party. A state High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action. The High Court and the Court of appeal were in error in holding that the state High court had jurisdiction in this matter. There is nothing in the proviso to have whittled down the objective of the statute. PER HUSSEIN MUKHTAR, J.C.A.
LEGISLATIVE LISTS: WHETHER THE ADMINISTRATIVE OR MANAGERIAL CONTROL OF THE FEDERAL GOVERNMENT OR ANY OF ITS AGENCIES IS RESTRICTED TO A LEGISLATIVE LIST
It is an elementary principle of the law that the exclusive and concurrent legislative lists are meant to distinguish items in respect of which only the National Assembly may legislate and those in respect of which both the National and States Assemblies are concurrently empowered to legislate respectively. An administrative or managerial action or decision has nothing to do with legislation and cannot be tied or restricted to any list of legislation. If it were so intended, it would have been explicitly provided in the Constitution. The provision of section 251 of the Constitution does not, by any stretch of interpretation, conceive or restrict an administrative or managerial control of the Federal Government or any of its agencies to legislative list which is meant only to guide the legislative arm of the Government as to the scope of its powers to make laws. PER HUSSEIN MUKHTAR, J.C.A.
JURISDICTION: EFFECT OF A PROCEEDING CONDUCTED IN THE ABSENCE OF JURISDICTION OF A COURT’S JURISDICTION
Once a court lacks jurisdiction in a matter, the entire proceedings conducted before it are reduced to a none starter. The resolution of the first issue in favour of the appellants clearly scores a pass mark for this appeal. The entire proceedings and the ruling delivered in the court below, no matter how admirable and well conducted are null and void as the court lacks jurisdiction to determine the suit, which falls within the exclusive jurisdiction of the Federal High court. PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MUHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. COUNCIL OF LEGAL EDUCATION
2. THE DIRECTOR GENERAL OF THE NIGERIAN LAW SCHOOL
3. CROWN REALTIES PLC – Appellant(s)
AND
1. HAIRAT ADERINOLA BALOGUN
2. THE ATTORNEY-GENERAL OF THE FEDERATION
3. THE ATTORNEY-GENERAL OF LAGOS STATE
4. COMMISSIONER FOR PHYSICAL PLANNING AND URBAN DEVELOPMENT LAGOS STATE – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The two appeals herein number CA/L/375/2010 and number CA/L/375A/2010 (hereinafter referred to as “appeal 1” and “appeal 2” respectively) emanate from the same proceedings between the same parties following and against each of the two respective rulings delivered by the High Court of Lagos State on the 14th December 2009 and 15th March 2010.
The appeal 1 as stated above is against the ruling of the High Court of Lagos State (the court below) delivered by Oke, J on the 14th December 2009. The 1st appellant is a beneficiary of a large expanse of land in Victoria Island Lagos on part of which the Nigerian Law School and the Secretariat of the Nigerian Bar Association were built, while the remaining portion of the land is virgin. In 2008 the 1st and 2nd appellants sublet part of the undeveloped portion of the land to the 3rd appellant by an agreement dated 21st April 2008 for a period of 50 years to develop a 24 storey office building with uninterrupted power supply, bore hole, water treatment plant and car park.
The first respondent herein who was the claimant at the court below challenged the validity and legality of the said sublease asserting, inter alia, that the land was granted to the Council of Legal Education for Institutional purpose only and not for commercial purposes, and that the certificate of occupancy was granted under special terms and conditions as stated therein, which do not allow a commercial sublease and the construction of a 24 storey building on any portion of the land and is against the Town Planning Law of Lagos State.
The first respondent’s action at the court below against the appellants as the defendants was for the following reliefs
“(i) A declaration that all that land owned and belonging to the Council of Legal Education (Nigerian Law School) and situate at Adeola Hopewell, Ozumba Mbadiwe and Ademola Alakija Street, Victoria Island, Lagos were granted to the Council of Legal Education for educational purposes only and in particular for the development of infrastructure for the Nigerian Law School.
(ii) A declaration that the 3rd defendant has no statutory power to cede, assign, sub-lease and or alienate any or all assets, landed properties of the Council of Legal Education and/or of the Nigerian Law School.
(iii) A declaration that the council of Legal Education, may cede, assign, sub let and/or alienate any or all assets of the Council of Legal Education and/or Nigerian Law School and such alienation howsoever described must conform with the purposes for which the said property was acquired and for the general statutory powers which is the promotion of Legal Education in Nigeria.
(iv) An order of this Honourable Court, declaring null and void and of no effect whatsoever or any contract, agreement, joint venture or any form Of alienation of the landed property/properties of the Council of Legal Education and/or the Nigerian Law School, purportedly alienating any landed property/properties of the Council of Legal Education and/or the Nigerian Law School which alienation is contrary to the use stated on the grant from the President of the Federal Republic of Nigeria through the Minister of Environment, Housing and Urban Development.
(v) An order of this Honourable court declaring as null and void, the contract of agreement and in particular the deed of sub-lease dated 21st April 2008 purporting to alienate in some form the landed property of the Council of Legal Education and/or the Nigerian Law School, lying and situate at Ozumba Mbadiwe, Adeola Hopewell and Adeyemo Alakija Street, Victoria Island, Lagos, the said alientation being contrary to the stated use for which the property was originally granted to the Council of Legal Education and/or the Nigerian Law School.
(vi) An order directing the Lagos State Government to refuse to grant building approval and/or any other form of development approval to the defendants herein to build the proposed 24 storey Crown Towers on any land belonging to the Council of Legal Education and/or the Nigerian Law School, save if the said 24 story crown towers is designed for use and meant for educational purposes of the Nigerian Law School.
(vii) An order of perpetual injunction restraining the defendants, jointly and severally from developing on all or any land belonging to the Council of Legal Education and/or Nigerian Law School in Lagos State if such development is not for educational purposes and for the furtherance of Legal Education in Nigeria.”
The claimant/1st respondent followed up her writ of summons and statement of claim applications for ex-parte and interlocutory injunctions seeking to restrain the appellants as defendants from granting any sublease or giving effect to any sublease agreement.
Upon being served with the originating processes, the appellants responded by challenging the competence of the 1st respondent’s suit before the trial court. In its ruling delivered on the 14th December 2009, against which the appeal 1 herein is lodged, the court below dismissed the preliminary objection and held that the subject matter being land in Lagos is within its jurisdiction. The appellants were aggrieved by that pronouncement and appealed against it by their notice of appeal in appeal 1 dated 22nd March 2010 and filed on the 24th March 2010 with leave of this court granted on the same day, premised on four grounds as reproduced, less their particulars, thus:
“(1) The learned trial judge erred in law when he held that he had jurisdiction to hear this suit and also when he held:
“From the foregoing and the claimant’s claim as stated above, I hold that the issue of land/property is not an incidental part of the reliefs sought but the crux of the whole suit. It is the basis or the foundation of this suit and thereby come to a wrong decision in assuming jurisdiction on the subject matter of this suit.”
(2) The learned trial judge rightly appreciated and acknowledged the point that locus standi is the fore runner or precursor to jurisdiction and that a claimant or plaintiff must establish sufficient interest in a matter to justify his being heard by the court, but erred in law when he held that the claimant in this case has locus standi because she is:
a) A Nigerian Citizen
b) A member of the Body of Benchers; and
c) A life Bencher and that having regard to tribute paid to her in a compendium titled
“AN ICAN AND SALUTATION, COMPENDIUM OF TRIBUTES TO HARIAT ADERINSOLA BALOGUN ON 40 YEARS OF CALL TO BAR AT LINCOLN INN LONDON”, these factors qualify as foundation of her interest and justiciable right to come to court, and thereby came to a wrong decision that the claimant has locus standi to bring their suit.
(3) The learned trial judge erred in-law when he accorded locus to the plaintiff/claimant on the authorities of:
i. SPDC V. Nwakwa (2001) 10 NWLR (pt.64);
ii. Fawehinmi v President, FRN & 4 Ors (2007) 14 NWLR (Pt. 1054) which are all Court of Appeal decisions, inferior to the Supreme Court decisions in the case of Adesanya v president of Nigeria (1981) 2 NCLR 358; and Olawoyin v A.G. Northern Nigeria (1961) ALL NLR 269.
(4) The learned trial judge erred in law and on facts when he held that the plaintiff/claimant has locus standi on the ground that the claimant is tax payer.”
From these four grounds, the appellant and the 1st respondent raised two similar issues for determination, in this appeal. The 1st respondent’s issues which are more concise are reproduced hereunder and adopted for the determination of the appeal 1:
(1) Whether the High Court of Lagos State has the jurisdiction to entertain the 1st respondent’s claims.
(2) Whether the 1st respondent has the locus standi to sustain the claims before the lower court.
The learned senior counsel to the appellants L. O. Fagbemi, SAN submitted, on the first issue, that the court’s jurisdiction is determined by the claim of the plaintiff/claimant. He relied on the Supreme Court pronouncement in the case of Elagbanjo v Dawodu (2006) 15 NWLR (pt. 1001) 76 at 151 paras A-B. See also Ifeta v S.P.D.C. Nig Ltd (2006) 8 NWLR (pt.983) 585 at 622-623.
A reference was made to the reliefs sought for by the 1st respondent in the statement of claim as reproduced at pages 3 to 6 above. A further reference was also made to the reason given by the court below in its ruling, the subject of this appeal, for assuming jurisdiction thus:
“From the foregoing, I hold that the State High Court having been vested with jurisdiction over land matters has the jurisdiction to hear and determine this suit. This Honourable Court is competent to preside over this suit and has jurisdiction to hear and determine same because the subject matter of this suit is land.”
The Learned Senior Advocate for the appellants referred to the reliefs sought for by the 1st respondent in his statement of claim at the court below and submitted that relief (1) is in respect of declaration which does not raise any question regarding title to land. Refiefs (i) and (ii) seek for determination of the administrative or managerial power of the Director General of the Nigerian Law School to assign, sublet or alienate any landed property of the Council of Legal Education/Nigerian Law School, which is also unrelated with title to land. Reliefs (iv) and (v) seek to nullify the administrative decisions of the 1st and 3rd defendants (the 1st and 2nd appellants) to create a sublease agreement, which is also unrelated to land title while relief (iii) is an injunctive relief seeking to restrain the 1st and 3rd defendants (1st and 2nd appellants) who are Federal Government agents/agencies from giving effect to any administrative decision to create a sublease. It was submitted for the appellants that the 1st respondent’s claim does not raise any question relating to title to land. The claim rather seeks to question or challenge the powers or administrative decisions of the 1st and 3rd defendants (1st and 2nd appellants). The court below was therefore not called upon to determine a land matter. It was further submitted that the mere fact that the administrative decisions of the 1st and 2nd appellants being challenged is predicated upon a lease hold agreement in relation to land does not turn the case into a land matter. The claim is principally on the propriety of the administrative decision of the 1st and 2nd appellants to create a sublease.
The Learned Senior Advocate relied on the provision of section 251(1) (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:
“Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”
This constitutional provision from which the Federal High Court primarily drives its jurisdiction has been interpreted in a plethora of cases by the Supreme Court and the Court of Appeal like NEPA v Edegbero (2002) 18 NWLR (pt. 798) 79 at 95-96; F.G.N. v Oshiomole (2004) 3 NWLR (pt.860) 305 at 322-324; Trade Bank v Bemilux Nig Ltd (2003) 9 NWLR (pt. 825 ) 416;Onuorah v Kaduna Refinery and Petro-Chemical Company Ltd (2005) 6 NWLR (pt. 921) 393; Nkwuma v Odili (2006) 6 NWLR (pt.977) 587. It was further argued that the fast three cases above do not detract from the reasoning of the Supreme Court in NEPA v Edegbero. The Learned senior Advocate for the appellant submitted that the court below was seriously misconceived when it held that, this case is a land matter which does not fall under the exclusive jurisdiction of the Federal High Court. The challenge to administrative decision of a Federal Government agency is only justiable before the Federal High Court, which has an exclusive original jurisdiction in that regard. He urged the court to resolve this issue in favour of the appellants and strike out the case before the High Court of Lagos State.
At the hearing of the appeal, the learned counsel for the 2nd respondent Mr. N. A. Obinna adopted the entire arguments and submissions of the learned Senior Advocate for the appellants in both appeals 1 and 2 numbers 375/2010 and 375A/2010 respectively.
The 3rd and 4th respondents were duly served with hearing notices on the 12th April 2011 but did not file any brief and were not represented at the hearing of the appeal.
In the 1st respondent’s brief of argument, it was argued that the subject matter of the sublease in question was land, which is well grasped in relief (v) which is reproduced thus:
“(v) An order of this Honourable Court declaring as null and void, the contract of agreement and in particular the deed of sub-lease dated 21st April 2008 purporting to alienate in some form the landed property of the Council of Legal Education and/or the Nigerian Law school, lying and situate at Ozumba Mbadiwe, Adeola Hopewell and Adeyemo Alakija Street, Victoria Island, Lagos, the said alientation being contrary to the stated use for which the property was originally granted to the council of Legal Education and/or the Nigerian Law School.”
The learned counsel for the 1st respondent conceded to the fact that title to land is not directly in issue in this case but submitted that the 1st respondent’s suit is a land matter since it is premised on the use/lawfulness of a structure to be built on land. It was further submitted that any claim relating to arising from or connected with land is invariably a land matter, such as easement and usufruct. He referred to the Black’s Law Dictionary and submitted that any question raising the lawfulness of any fixed structure on a land, such as the instant suit that was filed because of the restricted usage of the land as stipulated in the certificate of occupancy granted to the Nigerian Law School, could be nothing else other than a land matter. Moreover, he further argued, if the matter gets to trial it cannot be determined without recourse to the certificate of occupancy and the Land use Act.
The learned counsel for the 1st respondent further considered the provision of section 251 (1) of the Constitution and the cases cited by the Learned Senior Advocate for the appellants to contend further that the action or decision of the Federal Government or any of its agencies must relate to those necessary for running the machinery of government and must be within the executive/administrative powers of the Federal Government or any of its agencies in order to render it within the exclusive jurisdiction of the Federal High Court as envisaged by section 251 (1) (r) of the Constitution. It was further submitted for the 1st respondent that the executive or administrative powers of the Federal Government or its agencies are limited to items on the exclusive or concurrent legislative lists. It was further argued that land matters which fall under residual list may only be legislated upon, and executive or administrative powers or decisions exercised by states but not Federal Government or any of its agencies.
The mere fact that the Federal Government or any of its agencies is a party does not vest the Federal High Court jurisdiction over land matters. See Onuorah v Kaduna Refinery & Petro Chemical Co. Ltd (2005) 6 NWLR (pt. 825); (2005) 2 Supreme Court (pt. 11) 1; Nkuma v Odili (2005) 2-3 Supreme Court 57.
The learned counsel for the 1st respondent further argued that the principle in NEPA V Edegbero (supra) is not applicable to the instant case because there the cause of action falls squarely under section 251 of the Constitution, having arisen from termination of appointment which was held by the Supreme Court to be an administrative decision. The cause of action in Federal Government of Nigeria v Oshionole (supra) also relates to taxation/revenue which comes under the purview of section 251 of the Constitution. It was also submitted that contract and land matters are not within the jurisdiction of the Federal High Court because they do not fall under executive or administrative action or decision. The case of University of Agric Makurdi v Jack (2000) 11 NWLR (pt. 629) 658 at 671 paragraphs 9-11 was relied upon where it was held that section 230 (1) of the1979 Constitution (equivalent to section 251 (1) of the 1999 Constitution) will be operative for any action or proceeding thus:
i. Brought against the Federal Government or any of its agencies;
ii. For a declaration or injunction;
iii. Affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.
The learned counsel for the 1st respondent finally submitted that it is wrong to say, as the Senior Advocate contended, that the reliefs before the lower court challenged the validity of an administrative decision since it is not connected with the discharge of executive or administrative functions. It was also contended that the 1st and 2nd appellants executive or administrative decisions will include admission and discipline of students, employment and discipline of staff etc, but excludes contract, tort and land matters in respect of which jurisdiction is vested in States High Courts. He urged the court to resolve the first issue against the appellants.
There is no doubt that the nature of an action in court is determined what is brought before it for adjudication, that is the statement of claim which spells out what the court really has to determine and also the parties to the suit.
There is no argument about the status of the 1st and 2nd appellants being agents of the Federal Government. The only controversy is in respect of the nature of the claim as to whether it is a land matter which comes within the jurisdiction of the court below exclusively or it is an issue relating to an executive or administrative decision of the 1st and 2nd appellants, which will automatically ignite the operation on section 251 (1) (r) of the Constitution to render the case as one only triable and determinable by the Federal High Court.
The core issue as clearly spelt out in the reliefs sought for by the 1st respondent in the statement of claim is whether the 1st and 2nd appellants have the right or power to sublet a portion of the land allocated to the Nigerian Law School for training of lawyers in Nigeria and other related matters. This leaves one with no iota of doubt that the subject matter of the instant litigation directly touches on the propriety of the 1st and 2nd appellants exercise of administrative power or decision to sublet a portion of the land allocated to the Nigerian Law School. No matter which way one looks at the 1st respondent’s reliefs sought for at the court below, it cannot be said to be anything other than an action for a declaration and injunction affecting the validity of an executive or administrative action or decision by agencies of the Federal Government to wit; the Council of Legal Education and the Director General of the Nigerian Law School. It is equally correct that the administrative action or decision in question is one affecting an interest in land. The material and critical question to be answered is whether the 1st respondent’s claim is, by its nature, one that questions the validity of an interest in land. Is this factor capable of conferring jurisdiction in the Lagos State High Court in the stead of the Federal High Court which would otherwise have been the Proper venue? The provision of section 251 (1) (r) leave no room for doubt as to its purport and purpose. The fact that agencies of the Federal Government are sued in relation to an administrative power is enough to confer an exclusive jurisdiction in the Federal High court, the fact that such powers or decision was exercised in relation to land notwithstanding. In the case of Federal Government of Nigeria v oshiomole (supra) salami, JCA (as he then was) aptly observed thus:
“By virtue of section 251(1) of the 1999 Constitution, where the Federal Government of Nigeria or any of its agencies is a party to a suit, it is no longer necessary to examine the nature of the reliefs or the claim sought in the case in order to determine the jurisdiction of the court. lt is sufficient that once one of the parties be it the plaintiff or the defendant is the Federal Government or any of its agencies, only the Federal High court has jurisdiction to determine the matter.”
This was the stance of the Supreme Court in the case of NEPA v Edegbero (supra) where ogundare, JSC (of blessed memory) stressed the exclusiveness of the Federal High Court’s jurisdiction in matters in which the Federal Government or any of its agencies is a party, at page 97 paragraphs E-F thus:
“…the aim of paragraphs (q), (r) and (s) of subsection (1) of section 230 was to vest exclusive jurisdiction in the Federal High court in matters in which the Federal Government or any of its agencies was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.”
These views were equally sustained and restressed by Uwais, CJN in his lordship’s concurring judgment at page 97 paragraphs E-G as follows:
“The aim of paragraphs (q), (r) and (s) of subsection (1) of section 230 of the 1993 Constitution as amended by decree No 107 of 1993 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party. A state High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action. The High Court and the Court of appeal were in error in holding that the state High court had jurisdiction in this matter. There is nothing in the proviso to have whittled down the objective of the statute.”
The case of Trade Bank v Benilux Nig Ltd (supra) is quite distinguishable from the facts and circumstances of the instant case. In Trade Bank’s case the dispute was founded on a tort of conversion which has nothing to do with banking matter, foreign exchange or letter of credit, which would bring the matter under the exclusive jurisdiction of the Federal High Court. The tort of conversion on the other hand is determinable by High Court of a state. The Supreme Court has in the Trade Bank’s case, brought out this clear distinction that rendered the provision of section 230 (1) (d) of the Constitution (Suspension and Modification) Decree No. I07 of 1993 inapplicable as observed in the lead judgment per Uthman Mohammed, JSC thus:
“The High court of a state has no jurisdiction in matters provided under section 230 (1) (d) of the Constitution (suspension and Modification) Decree No. 107 of 1993 except in disputes between an individual customer and his bank in respect of a transaction between the individual customer and the bank. In other words, section 230 (1) (d) of the said Decree provides a limitation to the general and all embracing jurisdiction of a state High court because the items listed under section 230 (1) (d) can be determined exclusively only by the Federal High court. In this case, although there is no relationship of customer and banker between the respondent and the appellant which fact would ordinarily have conferred jurisdiction on the High court, the respondent’s case is simply a tort of conversion and therefore actionable in the High court of a state.”
In the case of onuorah v Kaduna Refinery and Petro-Chemical Company Ltd (2005) 6 NWLR (pt.921) 393 the supreme court per Edozie, JSC observed thus:
“The appeal raises once more a jurisdictional issues as to whether the Federal High court, Kaduna or the Kaduna state High court was vested with the jurisdiction to entertain the plaintiff/applicant’s case, this in turn depended on the nature of the plaintiff/appellant’s claim as disclosed in the relevant writ of summons and the statement of claim, for it is settled law that in order to determine the claim before the court and consequently whether or not the court has jurisdiction to entertain the action, it is necessary to have recourse to the writ of summons and the statement of claim; see Mustapha v Governor of Lagos state (1987) 2 NWLR 9 (pt. 58) 539.
Though it is sometimes necessary for the court to hear some evidence first for the purpose of determining the issue of jurisdiction, where however the determination is based on the pleadings, the law is that it is determined on the plaintiff’s pleading, that is, his statement of claim and not on the defendant’s statement of defence; Izenkwe v Nnadozie (1953)) 14 W.A.C.A. 361 at 353; Adeyemi & 4 Ors v Opeyori (1976) 9-10 SC 31, Attorney-General of Kwara state and 2 ors v Raimi olawale (1993) 1 NWLR (pt. 272) 645 at 663. In the instant case, the plaintiff/appellant’s claim filed on 25th October, 1996 in the Federal High Court, Kaduna as endorsed both in the writ of summons and the statement of claim was for the following reliefs:
a) An order of court declaring the purported price increase/review of the 18 litre empty tins by the defendant from N25 to N40 with effect from 10th May 1993 as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase/review.
b) An order of specific performance directing the defendant to issue/supply the plaintiff the remaining 17,012 pieces of the 18 litres empty tins not later than 30 days from the date of judgment.
c) N1,000,00 general damages from the defendant to the plaintiff for the breach of the arrangement/agreement between him and the defendant.
As can be seen from the above, the claim is for a declaration, specific performance and damages, all based on a breach of contract between the parties. A careful perusal of sub-section 230 (1) of the 1979 constitution as amended by decree No 107 of 1993 which set out matters under the exclusive jurisdiction of the Federal High court show clearly that action for the breach of contract, simpliciter, such as the plaintiff /applicant’s claim is not included in the subsection rather it falls within the residual jurisdiction of the State High court pursuant to section 230 (1) of the 1979 constitution which was the Law in force when the cause of action arose: see 7-UP Bottling co. v Aviola & Sons (2001) 13 NWLR (pt. 730) 469 at 509,Trade Bank plc v Benilux (Nig) Ltd (2003) 9 NWLR (pt. 825) 416 at 430. By subsection 230 (1) (q) of the 1979 constitution as amended, now section 251 (1) (p) of the 1999 Constitution, the Federal High court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. The plaintiff/appellant’s claim does not fall within the ambit of this sub-section and therefore all the submissions of counsel with respect to whether the defendant/respondent is a subsidiary or an agent of N.N.P.C. are irrelevant. It is, therefore, my view that the court below was right in holding that the Federal High Court lacked the jurisdiction to entertain the plaintiff/appellant’s claim.”
Thus, even where an agency of the Federal Government is a party as in the instant case, the further determining issue regarding the exclusiveness of the Federal High court’s jurisdiction is whether the subject matter of the proceedings also falls within the scope of section 251. (1) of the constitution. There is no dispute about the status of the 1st and 2nd appellants being agencies of the Federal Government. The dispute clearly arose from and questions the propriety of their administrative or managerial control of the land allocated to the Nigerian Law school in Victoria Island Lagos, by subletting a portion thereof to the 3rd appellant. This scenario does not involve a dispute or any issue to be resolved regarding the land itself but rather the 1st and 2nd appellants decision to sublet a portion of the land. The mere fact that the exercise of the 1st and 2nd appellant’s administrative or managerial control or decision being challenged is in relation to land does not make it a land dispute or land matter. After all the 1st respondent is a complete stranger to the sublease and her action challenging the administration or management and control and seeking for declaratory and injunctive reliefs affecting the validity of the 1st and 2nd appellant administrative action or decision comes within the ambit of section 251 (1) (p) and (r)of the Constitution.
The critical issue is whether the 1st and 2nd appellants who are agencies of the Federal Government are, by their administrative and managerial control or decisions, competent to lease out any portion of the land allocated to the Nigeria Law School for a purpose other than that for which the land was at located.
The submission of the learned counsel for the 1st respondent that the 1st and 2nd appellants could only exercise administrative and managerial control in respect of items under the exclusive or concurrent legislative lists is misconceived.
It is an elementary principle of the law that the exclusive and concurrent legislative lists are meant to distinguish items in respect of which only the National Assembly may legislate and those in respect of which both the National and States Assemblies are concurrently empowered to legislate respectively. An administrative or managerial action or decision has nothing to do with legislation and cannot be tied or restricted to any list of legislation. If it were so intended, it would have been explicitly provided in the Constitution. The provision of section 251 of the Constitution does not, by any stretch of interpretation, conceive or restrict an administrative or managerial control of the Federal Government or any of its agencies to legislative list which is meant only to guide the legislative arm of the Government as to the scope of its powers to make laws.
From the foregoing appraisal, one cannot escape the inevitable conclusion that the nature of the 1st respondent’s claim in the court below as per the statement of claim clearly relates to an administrative or managerial control of the 1st and 2nd appellants who are agents or agencies of the Federal Government, and the reliefs sought for therein are for a declaration and injunction affecting the validity of the administrative action or decision by the 1st and 2nd appellants to lease out a portion of the land allocated to the Nigerian Law School, which is exclusively within the jurisdiction of the Federal High Court as provided by section 251 (1) (p) and (r) of the Constitution. The court below was therefore in error by holding that it was a land matter within its jurisdiction. The first issue in appeal 1 is accordingly resolved in favour of the appellants. See also Olutola v University of Ilorin (2004) 11 – 12 S.C. 214 at 231-232.
Once a court lacks jurisdiction in a matter, the entire proceedings conducted before it are reduced to a none starter. The resolution of the first issue in favour of the appellants clearly scores a pass mark for this appeal. The entire proceedings and the ruling delivered in the court below, no matter how admirable and well conducted are null and void as the court lacks jurisdiction to determine the suit, which falls within the exclusive jurisdiction of the Federal High court. The second issues therefore become insignificant.
The appeal 1 number CA/L/375/2010 succeeds per force and same is hereby allowed. Consequently, the suit No. LD/1151/09 before the court below is hereby struck out for want of jurisdiction.
The same issue of jurisdiction was raised and argued, in respect of appeal 2 number 375A/2010, by the learned counsel, who adopted their respective arguments and submissions in appeal 1 number CA/L/375/2010. Without much ado, the lower court’s lack of jurisdiction to try the suit filed by the 1st respondent has injected the same virus into its competence to grant or refuse an order of injunction or take any decision in the case for that matter. The entire proceedings therefore were null and void. The appeal 2 number CA/L/375A/2010 which is premised on the same null proceedings also succeeds on this score and the lone issue raised for determination becomes irrelevant. The appeal 2 is similarly allowed. The proceedings in suit number LD/1151/09 being for declaration and injunction affecting the validity of executive or administrative decision of the 1st and 2nd appellants, both agents or agencies of the Federal Government of Nigeria, who entered into a sublease agreement in respect of a portion of the land allocated to the Nigerian Law School is within the exclusive jurisdiction of the Federal High Court under section 251 (1) (p) and (r) of the Constitution. The court below lacks jurisdiction to entertain the suit and same is struck out before it.
The appellants are entitled to costs against the 1st respondent assessed at N30,000.00.
JOHN INYANG OKORO, J.C.A.: I read in draft the Judgment of my learned brother, Mukhtar, JCA just delivered and I agree with him that this appeal has merit and ought to be allowed. The issues submitted for the determination of this appeal have been adequately addressed in the lead Judgment and I do not intend to repeat the exercise here except to add a few words to strengthen the position taken by my learned brother.
Now, Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria provides for exclusive Jurisdiction of the Federal High Court as follows:
“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 causes and matters –
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”.
There is no doubt that the first and second Appellants are agents of the Federal Government, at least, there is no dispute on the issue. There is also no doubt that the land over which the 1st and 2nd Appellants took a decision belongs to the 1st Appellant as the 1st Respondent acknowledges this in his 1st relief which states:-
“(i) A DECLARATION that all that land owned and belonging to the Council of Legal Education (Nigerian Law School) and situate at Adeola Hopewell, Ozumba Mbadiwe and Ademola Alakija street, Victoria Island, Lagos were granted to the Council of Legal Education for educational purposes only and in particular for the development of infrastructure for the Nigerian Law School.”
(Underline mine for emphasis).
By the 1st Respondent’s admission, this land is owned by and belongs to the Federal Government of Nigeria through the 1st Appellant. By the second relief, the 1st Respondent is challenging the decision of the 1st and 2nd Appellants to deal with their property the way they wish. The relief states:-
“(ii) A DECLARATION that the 3rd Defendant has no statutory power to cede, assign, sub-lease and/or alienate any or all assets, landed properties of the Council of Legal Education and/or of the Nigerian Law School.”
Taking a close look at the second relief above, it is nothing other than challenging the administrative decision of the 1st and 2nd Appellants in the usage and management of the properties of the Nigerian Law School. Should anybody wish to challenge the management or executive decision of the Law school as in the instant appeal, Section 251(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria clearly states that the Federal High Court, to the exclusion of any other court has Jurisdiction to hear such matters. The intention of Section 251(1)(r) of the Constitution 1999, is to confer exclusive Jurisdiction on the Federal High Court where the Federal Government or any of its agencies is challenged on the validity of any executive or administrative action or decision taken by it. Thus any action or proceeding for a declaration or injunction which the Federal Government or any of its agencies is involved, should be ventilated at the Federal High Court and not the State High Court as the 1st Respondent has canvassed in this appeal. See NEPA v. Edegbero (2001) 18 N.W.L.R. (pt.798) 79; Federal Government of Nigeria v. Oshiomole (2004) 3 NWLR (pt.860) 305.
The learned trial Judge had held that since this matter concerns land, then the Lagos State High Court has Jurisdiction.
With due respect, the 1st Respondent is not asking for declaration of title nor is he challenging the ownership or right of the Appellants to this land. Therefore, the issue has nothing to do with land dispute but purely on the administrative decision of the 1st and 2nd Appellants on the usage of the said land. Even if this matter has to do with title to land, it appears from the interpretation by the Supreme Court of Section 251(1) of the Constitution in NEPA v. Edegbero (Supra) it may no longer be necessary to look at the nature of the claim. It is enough that once either the Plaintiff or Defendant is the Federal Government or any of its agencies, the matter is within the exclusive Jurisdiction of the Federal High Court.
With the above and fuller reasons given in the lead Judgment of my learned brother, Mukhtar, JCA, I agree that the Lagos State High Court lacks Jurisdiction to hear this case. The appeal therefore, succeeds and is also allowed by me. I abide by all consequential orders made in the lead Judgment.
In respect of appeal No. CA/L/375A/10, having held that the court below lacks Jurisdiction in the sister case, this appeal also succeeds. It is also allowed by me. I also abide by all consequential orders made therein including order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother Mukhtar, JCA and agree that the appeal has merit and should succeed.
The issues for determination before the trial High Court of Lagos State related to whether the Council of Legal Education (Nigeria Law School) could alienate, cede, assign, sublease any assets or landed properties of the council of Legal Education and/or of the Nigerian Law School. The trial Lagos State High Court Judge had disallowed the objection to the challenge to the exercise of jurisdiction of the trial High Court on the ground that it had jurisdiction to try the matter as one bordering on land. However, I am in agreement with the well considered Judgment of my lord Mukhtar, J,C.A. that the clear provisions of section 251 (1) (r) of the constitution, 1999 makes the State High Court, a court without jurisdiction in this matter but rather the Federal High Court. It is only the later court that has exclusive jurisdiction as the 1st and 2nd Appellants are no doubt Agencies of the Federal Government.
Any decision by them relating to lease, sale, assignment, cession, e.t.c. are no doubt transactions in relation to the business cum administrative management of their property as the Federal Government Agencies and Agents. It is in the purported executive exercise of their powers that they act in this respect; and any challenge to the validity of such exercise of power can only be raised at the Federal High Court. It is only in that court, that a declaration or an injunction may be sought in this respect. See NEPA V. EDEGBERO (2001) 18 NWLR (pt. 798) 79. FEDERAL GOVERNMENT OF NIGERIA V. OSHIOMOLE (2004) 3 NWLR (pt.806) 305. It should be emphasized here that even on the face of the claim, its nature thereof is such that falls within the exclusive jurisdiction of the Federal High Court.
The 1st Respondent did not challenge title nor asked for declaration of ownership, rather he asked at the trial that the Appellants’ dealings with the land in the manner embarked upon or sought to, was ultra vires. That is the challenge to the administrative or executive exercise of a Federal Government Agency or Agents, as I see. It is caught by section 251 1(r) of the 1999 Constitution which provides thus:
“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 causes and matters – (r) Any action or proceeding for a declaration or injuction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
This constitutional provision is crystal clear and binding on all persons. See section (1) of the Constitution of the Federal Republic of Nigeria 1999. it is for the aforesaid view and re-enforced by the well articulated lead Judgment, that I too agree that the Lagos State High Court lacks jurisdiction to hear this case.
In allowing, the appeal and abiding by the consequential order relating to costs, I also agree that Appeal No. CA/L/375A/10 being a sister case of virtually the same issues at stake, be also taken out of the jurisdiction of the Lagos State High Court for want of jurisdiction as in the subject of CA/L/375/10.
Both appeals are allowed.
Appearances
Lateef Fagbemi, SAN
With (1) W. Ogunyinka
(2) Y.O. Afolabi
(3) A. Akanbi
(4) L. L. Akanbi
(5) R, Usamat For Appellant
AND
O. Idemudia with B. Afolabi – for the 1st respondent
N.A. Obinna – for the 2nd respondent For Respondent
