DR. TAIYE DEJO AKANJI v. FEDERAL MINISTRY OF LANDS, HOUSING & URBAN DEVELOPMENT & ORS (2016)

DR. TAIYE DEJO AKANJI v. FEDERAL MINISTRY OF LANDS, HOUSING & URBAN DEVELOPMENT & ORS

(2016)LCN/8354(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/K/159/2015

RATIO

CONSTITUTIONAL LAW: THE IMPLICATION OF ANY PROVISION OF THE LAW OR STATUTE THAT IS INCONSISTENT WITH THE CONSTITUTION AND WHEN IS A LAW SAID TO BE IN CONFLICT WITH THE CONSTITUTION
It is settled law that a provision of a law or statute which conflicts with a provision of the Constitution is said to be inconsistent with the Constitution and it is thereby unconstitutional and void – Abacha Vs Fawehinmi (2000) 6 NWLR (Pt 660) 228 and Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116. However, speaking on when a law is said to be in conflict with the Constitution, this Court stated in All Nigeria Peoples Party Vs Benue State Independent Electoral Commission (2006) 11 NWLR (Pt 992) 585 at 622-623 thus: The Constitution and a law must be mutually repugnant or contradictory of each other so that both cannot stand. The acceptance or establishment of one implies the abrogation of the other. Where there is obvious inconsistency, the subordinate legislation is void.
This statement is in consonance with the definition given to the word “inconsistent’ by Tobi, JSC, in the terms of the 1999 Constitution of the Federal Republic of Nigeria, in Nigeria Development Company Ltd Vs Adamawa State Water Board (2008) 9 NWLR (Pt 1093) 498 that: The word inconsistent, the verb variant of the noun inconsistency is the opposite of consistent. It means ideas or opinions which are not in agreement with each other or with something else. It means mutually repugnant or contradictory, contrary to each other, so that both cannot stand, and the acceptance or establishment of one implies the abrogation or abandonment of the other as, in speaking the repeal of a statute which is inconsistent with the Constitution.In the con of Section 1(3) of the Constitution, it simply means the statute speaking quite a different language from the Constitution.
The necessary question therefore is whether the provision of Section 22 (4) of the Federal High Court Act is mutually repugnant to or contradictory of or contrary to the provision of Section 241 of the Constitution? Now, Section 241, along with Section 242, of the Constitution stipulates that a party has a right to appeal from the decisions of the Federal High Court to the Court of Appeal. The word “decision” is defined in Section 318 (1) of the Constitution, in relation to a Court, as any determination of that Court and it includes judgment, decree, order, conviction, sentence or recommendation. The Supreme Court has gone ahead to define “decision” as a judicial determination after consideration of the facts and the law, especially a ruling, order or judgment pronounced by a Court when considering or disposing of a case – Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303 and Opan Vs Amadi (2013) 12 NWLR (Pt 1369) 512. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: JURISDICTION; WHAT THE JURISDICTION OF COURTS ENTAILS AND HOW IT CAN BE DETERMINED
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute -Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwan (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: THE JURISDICTION OF THE FEDERAL HIGH COURT: THE STATUTORY PROCISION FOR THE SCOPE OF THE FEDERAL HIGH COURT
The jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads: 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 have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters. The provision then proceeded to list eighteen specific areas in Paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in Paragraph (s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction – Anao Vs Sun Publishing Ltd (2013) 3 NWLR (Pt 1341) 399, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. This point was succinctly made by Nweze, JCA (as he then was) in Oladipo Vs Nigerian Customs Service Board (2009) 12 NWLR (Pt 1156) 563 at page 585 thus: Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (Supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court in eighteen major items.. The implication of this technique is that the said Court (Federal High Court) is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein.
It would, therefore amount to wrecking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated?.
The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of the action. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: WHAT THE COURT MUST CONSIDER IN DETERMINING THE CASE MADE BY A PARTY

It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONTRACT: OPTIONS OPENED TO THE AGGRIEVED PARTY IN THE BREACH OF A CONTRACT
It is elementary that where one of the parties to a valid contract defaults in the performance of the contract, the other party has one of two options opened to him and these are (i) to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or (ii) to regard the contract at an end and sue for damages for the breach of it – Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Liman Vs Mohammed (1999) 9 NWLR (Pt 617) 116, Mmegwa Vs Texaco (Nig) Ltd (2005) 18 NWLR (Pt.957) 279, Chabasaya Vs Anwasi (2010) 10 NWLR (Pt 1201) 163. The claims of the Appellant for specific performance and injunction or for damages for breach of contract show very clearly that the case of the Appellant was predicated on contract. It is also evident that the subject matter of the claims is a landed property, a house/flat at the Federal Staff Quarters No. 23a, FSHE Barnawa, Kaduna, Kaduna State, and in respect of which the Appellant is claiming for issuance of a valid certificate of occupancy. All the claims for declaratory orders were merely complimentary and diversionary. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: JURISDICTION OF THE FEDERAL HIGH COURT; WHETHER THE FEDERAL HIGH COURT CAN ENTERTAIN MATTERS PREDICATED ON SIMPLE CONTRACT AND MATTERS RELATING TO LAND AND LANDED PROPERTIES

It is trite law that the Federal High Court has no jurisdiction to entertain matters predicated on simple contract – Petrojessica Enterprises Ltd Vs Leventis Trading Co. Ltd (1992) 5 NWLR (Pt 244) 675, Onuorah Vs Kaduna Refining & Petrochemical Co. Ltd supra, Nigeria Unity Line Plc Vs Usman (20l4) 6 NWLR (Pt 1404) 546. It cannot hear and determine a claim for specific performance of contract or for damages for breach of contract – Aluminum Manufacturing Co Ltd Vs Nigerian Ports Authority (1987) 1 NWLR pt 51) 475, Adelekan Vs Ecu-Line (2006) 12 NWLR (Pt 993) 33, KLM Royal Dutch Airlines Vs Taher (2014) 2 NWLR (Pt 1393) 137.

Similarly, the Federal High Court cannot hear and determine a claim the subject matter of which is land or landed property and in respect of which a party is claiming for issuance of a certificate of occupancy – Federal Mortgage Bank of Nigeria Ltd Vs Lagos State Government (2010) 5 NWLR (Pt 1188) 570, Nigerian Institute of Medical Research Vs National Union of Road Transport Workers (2010) 12 NWLR (Pt 1208) 328, Adetayo Vs Ademola supra. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

DR. TAIYE DEJO AKANJI Appellant(s)

AND

1. FEDERAL MINISTRY OF LANDS, HOUSING & URBAN DEVELOPMENT
2. THE HON MINISTER, MINISTRY OF LANDS, HOUSING & URBAN DEV.
3. THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the Federal High Court sitting in Kaduna delivered in Suit No FHC/KD/CS/12/2014 by Honorable Justice Evelyn N. Anyadike on the 20th of April, 2015. The Appellant commenced the action in the lower Court, as plaintiff, against the Respondents, as first to third defendants, and his claims by a statement of claim dated the 17th of February, 2014 were for:
i. A declaration that the allocation to the Plaintiff of a house/flat at the Federal Staff Quarters No. 23a, FSHE, Barnawa, Kaduna, Kaduna State by the agents of the Defendants is valid, effective, operative and subsisting.
?ii. A declaration that the letter dated the 29th of December 2003 and titled “Allocation of Federal Government Quarters” written by the agents of the Defendants to the Plaintiff and communicating to the Plaintiff the said allocation of a house/flat at the Federal Staff Quarters No. 23a, FSHE Barnawa, Kaduna, Kaduna State by the agents of the Defendants is valid, effective, operative and subsisting.

iii. A declaration that the offer to the

Plaintiff of a leasehold interest in and over a two-bedroom semi-detached bungalow in the Federal Government landed property which is contained in the letter dated 27th of October, 2011 and titled “Offer of a Leasehold Interest in Federal Government Landed Property in the States FSHE JQ23A, Barnawa, Kaduna, Kaduna State 2-Bedroom Semi Detached Bungalow for N1,360,000.00” is valid, effective, operative and subsisting.
Iv A declaration that the letter dated 27th of October, 2011, and titled “Offer of a Leasehold Interest in Federal Government Landed Property in the States FSHE JQ23A, Barnawa, Kaduna, Kaduna State 2-Bedroom Semi Detached Bungalow for N1,360,000.00” by which the offer was made of a leasehold interest in and over a 2-bedroom semi-detached bungalow in the Federal Government Land Property in Kaduna State is valid, effective, operative and subsisting.
v. A declaration that the purported revocation of the offer of a leasehold interest to the Plaintiff in and over a 2-bedroom semi-detached bungalow in the Federal Government Land Property in Kaduna State JQ23A, Barnawa, Kaduna, Kaduna State is unreasonable, illegal, unconstitutional, null and void.

vi. A declaration that the letter dated 9th of January, 2014 and titled “Revocation of Offer of Leasehold Interest Notice of Government Intention to Recover Federal Government Landed Property” communicating to the Plaintiff the purported revocation of the offer of a leasehold interest to the Plaintiff in and over a 2-bedroom semi-detached bungalow in the Federal Government Land Property in Kaduna State JQ23A, Barnawa, Kaduna, Kaduna State is invalid, illegal, unconstitutional, null and void.
vii. An order setting aside the letter dated 9th of January, 2014 and titled “Revocation of Offer of Leasehold Interest Notice of Government Intention to Recover Federal Government Landed Property” containing the purported revocation of the offer of a leasehold interest to the Plaintiff in and over a 2-bedroom semi-detached bungalow in the Federal Government Land Property in Kaduna State JQ23A, Barnawa, Kaduna, Kaduna State.
viii. An order/decree of specific performance directing all the Defendants to perfect and complete the lease agreement validly entered into by the parties and to convey a valid right of occupancy to the Plaintiff having furnished

sufficient consideration in the circumstances.
ix. An order of perpetual injunction retraining all the Defendants, their agents and privies howsoever from annoying, inconveniencing, over-awing, restricting, insulting, harassing, intimidating or in any way transferring the rights and interest in the property (the house/flat at the Federal Staff Quarters No 23a, FSHE, Barnawa, Kaduna, Kaduna State) or any part thereof in any manner prejudicial to the Plaintiffs rights and interest.
x. The costs of filing and prosecuting this suit as well as legal costs.
In the alternative
xi. N5 Million only being special and general damages for the loss and detriment suffered by the Plaintiff as a result of the acts of the Defendants and their agents of purportedly repudiating and rescinding the leasehold interest agreement validly entered into by the parties.

Sequel to the service of the originating processes on the Respondents, the third Respondent filed a motion on notice dated the 31st of October, 2014 on the 3rd of November 2014, praying, inter alia, for an order striking out the suit for want of jurisdiction on the part of the lower Court to

entertain the claims of the Appellant. The lower Court took arguments on the application and it delivered a considered Ruling wherein it held that it had no jurisdiction to entertain the claims of the Appellant and it transferred the matter to the State High Court pursuant to the provision of Section 22 (2) of the Federal High Court Act. This Ruling is the subject matter of this appeal.

?The Appellant filed a notice of appeal dated the 21st of April, 2015 against the Ruling and it contained three grounds of appeal. The records of appeal were transmitted to this Court on the 5th of June, 2015. Counsel to the Appellant presented a brief of arguments in ventilating the grievances of the Appellant with the Ruling of the lower Court and it was dated the 4th of June, 2015 and filed on the 9th of June 2015. ln response thereto, the third Respondent filed a notice of preliminary objection dated the 10th of July, 2015 challenging the competence of the appeal. Counsel to the third Respondent also filed a brief of arguments dated the 10th of July, 2015 wherein he canvassed arguments on the notice of preliminary objection as well as on the substantive appeal. Counsel

to the Appellant filed a reply brief of arguments to meet the arguments of Counsel to the third Respondent on the notice of preliminary objection. The first and second Respondents did not file any process in the appeal and neither were they represented by Counsel. At the hearing of the appeal, Counsel to the third Respondent was granted leave to first argue the notice of preliminary objection, and which was responded to by Counsel to the Appellant and the parties thereafter canvassed arguments on the substantive appeal.

This Court will commence its consideration of this appeal from the notice of preliminary objection of the third Respondent. The tenor of the notice of preliminary objection was that the appeal was incompetent by reason of the fact that it is against an order of transfer of the matter made by the lower Court pursuant to the provision of Section 22 (2) of Federal High Court Act, Cap F12, Laws of the Federation of Nigeria 2004 and that by the provisions of Section 22 (4) of the Federal High Court Act, an order of transfer of a matter made pursuant to Section 22 (2) of the Federal High Court Act was not subject to appeal. In arguing the

preliminary objection, Counsel to the Respondent referred to the provisions of Sections 22 (2) (4) of the Federal High Act and stated that the provisions were given judicial interpretation by the Court of Appeal in the case of Loveday Vs Comptroller, Federal Prisons Aba (2013) 18 NWLR (Pt 1386) 379 wherein, he said, that it was held that a transfer effected by the Federal High Court under the provisions of Section 22 (2) of the Federal High Court Act was not subject to appeal to this Court by virtue of the provisions of Section 22 (4) of the Act. Counsel sated that the lower Court predicated its decision to transfer the case of the Appellant to the Sate High Court on the provisions of Section 22 (2) of the Federal High Court Act and that the Appellant had no right of appeal against the decision and that this appeal was thus incompetent and should be struck out.
In his response arguments on the preliminary objection, Counsel to the Appellant stated that it was settled that the Court of Appeal is a superior Court of record established under the provisions of Section 237 (1) of the Constitution of the Federal Republic of Nigeria and it is empowered by the

Constitution to hear and determine, to the exclusion of my other Court, appeals from the Federal High Court and that in civil proceedings, appeals lie as of right from the Federal High Court to the Court of Appeal under the circumstances enumerated in Section 241 (1) of the Constitution. Counsel stated that in the light of the above principles, the Appellant properly exercised his constitutional right of appeal when he filed this appeal against the decision of the trial Federal High Court declining jurisdiction and transferring the suit to the State High Court. Counsel stated that there was no bar, absolute or conditional, preventing the Appellant from exercising his constitutional right of appeal against the decision of the lower Court transferring the suit to the State High Court and that the submission of Counsel to the third Respondent predicated on the provisions of Section 22 (4) of the Federal High Court Act was a misconception as the Constitution of the Federal Republic of Nigeria is the supreme law of the land and the provision of any Act of the National Assembly or of a State Law inconsistent with it is to that extent null and void. Counsel referred

to the cases of Adeleke Vs Oyo State House of Assembly (In Re: Ladoja) (2006) 10 NWLR (Pt 987) 50 and Oloruntoba-Oju Vs Dopamu (2008) 2 SCNJ 87, amongst others in support of his arguments.
In the Ruling appealed against, the lower Court stated, it part, thus:
?Having said that this Court lacks jurisdiction to entertain this suit, it is a waste of time and a mere academic exercise for the Court to deal with the remaining 2 issues as any pronouncement are them by the Court would have been made without jurisdiction, without vires and of no effect.
Acting under Section 22(2) of the Federal High Court Act. I hereby rescind jurisdiction and transfer this suit to the Court with appropriate jurisdiction, being the High Court of Kaduna State for the attention of the Honourable Chief Judge of Kaduna State Judiciary.?
?What is obvious from the above excerpt of the Ruling is that there were two determinations made by the lower Court. The lower Court first found that it had no jurisdiction to entertain the claims of the Appellant and then it made an order of transfer of the matter to the State High Court. The Appellant appealed against both

the finding of the lower Court on jurisdiction and the order of transfer to the State High Court. This is apparent from the two grounds of appeal contained in the notice of appeal. The grounds of the present preliminary objection and arguments of Counsel to the third Respondent thereon are directed at the appeal against the order of transfer of the matter which is constituted in Ground Two of the notice of appeal, and not at the appeal against the finding on jurisdiction which is Ground One of the notice of appeal. It is not a preliminary objection against the entire appeal, although Counsel to the third Respondent suggested otherwise. It is from this perspective that the preliminary objection will be considered by this Court.
Now, Section 22 of the Federal High Court Act provides the Federal High Court with power to transfer matters. Its Sub-Sections (2) and (4) read thus:
?2. No cause or matter shall be struck out by the Court merely on ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory. Abuja in which it ought to have been brought, and the judge of the Court before

whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.
4. Every order of transfer made pursuant to Sub-section (2)?. Of this section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal.”
These provisions came up for interpretation before the Owerri Division of the Court of Appeal in the cases of Loveday Vs Comptroller, Federal Prisons Aba (2013) 18 NWLR (Pt 1386) 379 and Adumu Vs Comptroller, Federal Prisons Aba (2013)LPELR – CA/OW/292A/2011. This Court held in both cases that by the provisions of Section 22 (4) of the Federal High Court Act an order of transfer made pursuant to Order 22 (2) of the Act was not subject to appeal and that the provisions of Section 22 (4) of the Federal High Court Act were not inconsistent with the provisions of Section 241, of the Constitution of the Federal Republic of Nigeria which gives parties to a dispute before a Court or Tribunal unfettered right of appeal in final decisions.

This country operates a common law legal system and the foundation upon which the common law system is erected in the doctrine of judicial precedent. In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a Court or other Tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black’s Law Dictionary 5th Edition at Page 1059 defines “precedent” as a “rule of law established for the first time by a Court for a particular type of case and thereafter referred to in deciding similar cases.”
The doctrine of judicial precedent is commonly referred to as the principle of stare decisis, and it is a legal principle by which Judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere “to stand by

decisions and not disturb the undisturbed.” In a legal con, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court or Tribunal or by those which are bound to follow its adjudications. In other words, they should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion – Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1. The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case – Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674.
?The reasons which underlie this rule were stated by Chancellor Kent, in a much quoted passage from his

Commentaries, as follows:
?A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness; and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted

and declared, it ought not to be disturbed, unless by a Court of Appeal or review, and never by the same Court, except for very cogent reasons, and upon a clear manifestation of error, and if the practice were otherwise. It would be leaving us in a state of perplexing uncertainty as to the law.” (11 Kent?s Commentaries at Page 475).
Similarly, Judge Cooley observed:
?Even if the same or any other Court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable.? (Cooley Constitutional Limitations, Page 50)
?The concept of stare decisis is the foundation upon which the consistency of the Nigerian judicial system

is based – Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules and it does not involve an exercise of judicial discretion; it is mandatory – Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227 and Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347. The use of precedents is the basis upon which to decide what the law is and its application thereof at any given time. In the use of precedents, the former decisions should be treated as normally binding. However, the Court can depart from a previous decision when it appears right to do so – First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. Thus, it has been held that the Court of Appeal is bound by its previous decisions and can only depart from same in the following circumstances:
i. Where two decisions of the Court of Appeal are in conflict and the Court must choose between them:
ii. Where the Court of Appeal comes to a conclusion that a previous decision, although not expressly

overruled, cannot stand with a subsequent decision of the Supreme Court;
iii.Where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and
iv. Where the previous decision was reached without jurisdiction.
See Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482. The onus is on the party seeking a Court to depart from its previous decision to place materials before the Court which bring his case within one of the grounds established for doing so – Odi Vs Osafile (1985) 1 NWLR (Pt 1) 17, Rossek Vs African Continental Bank Ltd (1993) 8 NWLR (Pt.312) 382 and First Bank of Nigeria Plc Vs Maiwada supra.
Counsel to the Appellant in the instant case, did not directly request this Court to depart from its earlier decision in Loveday Vs Comptroller, Federal Prisons Aba supra in deciding the notice of preliminary objection of the third Respondent The case was cited by the Counsel to the third Respondent in his arguments on the preliminary objection, but

Counsel to the Appellant made no reference to the case in his response arguments, and he acted as if the case did not exist. This is not right. Where a Counsel is aware of a previous decision of a Court which is contrary to the point he is canvassing, it is only fair and expected of him, and in tune with the concept stare decisis, to bring that previous decision to the attention of the Court and justify why the Court should not follow that decision in his own matter. Similarly, it behoves a Court whose previous decision on a point has been brought to its attention, to either abide by the case law authority or expressly distinguish it from the present case and state clearly the reasons why that decision is not applicable, and it should not just to ignore the decision as if it never existed. It is the failure to adhere to these basic principles that introduces confusion into the body of case law authorities. This Court made this point in its unreported decision in Appeal No CA/K/28/C/2014 ?Tafida Vs The State delivered on the 5th of May, 2015 thus:
?The records of appeal show that these decisions were cited before the lower Court and that the

lower Court discountenanced the decisions on the simple ground that they were delivered by Courts of coordinate jurisdiction and were thus only of persuasive authority. While the question of whether or not decisions of Courts of coordinate jurisdiction are binding on each other is debatable, this Court believes that it is a show of disrespect and arrogance or intellectual laziness for a Court to discountenance a decision of a coordinate Court on a matter with similar facts before it without making any effort to distinguished that decision or state any reason for not following the decision. Such an attitude does not help the development of the law and it introduces uncertainty into the concept of judicial precedent.?
The fulcrum of the case of the Counsel to the Appellant in his response to the preliminary objection was that the provision of Section 22 (4) of the Federal High Court Act was inconsistent with the provision of Section 247 of the Constitution of the Federal Republic of Nigeria. This Court sated in Loveday Vs Comptroller, Federal Prisons Aba supra and in Adumu Vs Comptroller, Federal Prisons Aba supra that the provisions of the two

sections were not inconsistent.
It is settled law that a provision of a law or statute which conflicts with a provision of the Constitution is said to be inconsistent with the Constitution and it is thereby unconstitutional and void – Abacha Vs Fawehinmi (2000) 6 NWLR (Pt 660) 228 and Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116. However, speaking on when a law is said to be in conflict with the Constitution, this Court stated in All Nigeria Peoples Party Vs Benue State Independent Electoral Commission (2006) 11 NWLR (Pt 992) 585 at 622-623 thus:
?The Constitution and a law must be mutually repugnant or contradictory of each other so that both cannot stand. The acceptance or establishment of one implies the abrogation of the other. Where there is obvious inconsistency, the subordinate legislation is void.?
This statement is in consonance with the definition given to the word “inconsistent’ by Tobi, JSC, in the terms of the 1999 Constitution of the Federal Republic of Nigeria, in Nigeria Development Company Ltd Vs Adamawa State Water Board (2008) 9 NWLR (Pt 1093) 498 that:
?The word ?inconsistent?, the verb

variant of the noun inconsistency is the opposite of consistent. It means ideas or opinions which are not in agreement with each other or with something else. It means mutually repugnant or contradictory, contrary to each other, so that both cannot stand, and the acceptance or establishment of one implies the abrogation or abandonment of the other as, in speaking the repeal of a statute which is inconsistent with the Constitution?.In the con of Section 1(3) of the Constitution, it simply means the statute speaking quite a different language from the Constitution.?
The necessary question therefore is whether the provision of Section 22 (4) of the Federal High Court Act is mutually repugnant to or contradictory of or contrary to the provision of Section 241 of the Constitution? Now, Section 241, along with Section 242, of the Constitution stipulates that a party has a right to appeal from the decisions of the Federal High Court to the Court of Appeal. The word “decision” is defined in Section 318 (1) of the Constitution, in relation to a Court, as any determination of that Court and it includes judgment, decree, order, conviction, sentence

or recommendation. The Supreme Court has gone ahead to define “decision” as a judicial determination after consideration of the facts and the law, especially a ruling, order or judgment pronounced by a Court when considering or disposing of a case – Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303 and Opan Vs Amadi (2013) 12 NWLR (Pt 1369) 512. By this definition, the order of transfer of the suit made by the lower Court to the Sate High Court under Section 22 (2) of the Federal High Court Act qualifies as a decision of the lower Court.
It must, however, be noted that Sections 241 and 242 of the Constitution did not give a party a right of appeal against all decisions of the Federal High Court. In fact, Section 241 (2) expressly excludes a right of appeal in respect of certain decisions of the Federal High Court. This Court is not aware of any provision in the Constitution, and none was referred to by Counsel to the Appellant, foreclosing or forbidding other laws made pursuant to the Constitution from adding to the categories of the decisions of the Federal High Court in respect of which a right of appeal might not be allowed. Now, Federal High Court Act

formed part of the body of laws categorized as “existing law” under the provisions of Section 315 of the Constitution and the section says that such laws shall have effect with such modifications as may be necessary to bring them into conformity with the provisions of the Constitution and shall be deemed to have been made pursuant to the Constitution. The provision of Section 22 (4) of the Federal High Court Act merely adds to the categories of decisions of the Federal High Court that are not subject to appeal. It cannot be said to be mutually repugnant to or contradictory of or contrary to the provision of Section 241 or of Section 242 of the Constitution.
The rationale for the provision of Section 22 (4) of the Federal High Court Act is simple to locate and comprehend. While it is the right of a litigant to access the Court to present his dispute for adjudication, it is not the within the right of such litigant to determine which Court will resolve the dispute and/or the way and manner the dispute will be resolved – whether it will be the High Court, the Federal High Court or the National Industrial Court and whether it will be by mediation,

negotiation, arbitration or litigation. These decisions are, and must be, within the exclusive preserve of the Courts. The decision of the lower Court transferring the dispute of the Appellant with the Respondents to the State High Court for resolution was only a decision on the venue for resolution of the dispute and it did not in any way determine the rights and/or obligations of the parties therein. It did not affect the Appellant in any way and he has lost nothing nor does he stand to lose anything by the decision. Where the lower Courts dispute over the Proper venue of adjudication, Sections 22 (5) and (6) of the Federal High Court Act provide the solution. They state that:
“5. Where the Court to which a cause or matter has been transferred pursuant to Sub-section (2) ? of this section is of the opinion that the cause or matter ought in law to be dealt with by the Court which transferred the cause or matter, the Judge presiding in the first mentioned Court shall, after hearing counsel on behalf of the parties, state a case on a point of law for the opinion of the Court of Appeal.
6. Where any case on a point is stated for the opinion of

the Court of Appeal, the Court of Appeal shall, in accordance with the rules applicable in that Court, give its decision upon the case and the Court which stated the case shall dispose of the cause or matter accordingly.?
Thus, it is only when the lower Courts dispute over which of the Court that should hear the matter presented by a litigant for adjudication, that the Court of Appeal is called in, and not otherwise. This Court agrees that a decision on transfer of a matter under the provisions of Section 22 (2) of the Federal High Court Act is not subject to appeal by reason of the provision of Section 22 (4) of the Federal High Court Act. This Court abides its earlier decisions in Loveday Vs Comptroller, Federal Prisons Aba supra and Adumu Vs Comptroller, Federal Prisons Aba supra. The notice of preliminary objection of the third Respondent succeeds and it is hereby upheld. The appeal against the order of transfer is incompetent and Ground Two on the notice of appeal is liable to be struck out.

?These said, this Court will proceed to the substantive appeal and in doing so, it will consider the complaint of the Appellant in Ground Two on the

notice of appeal along with the other complaints of the Appellant. This is because, not being the final Court in the judicial hierarchy, it is wise it considers the entire appeal, just in case it is held on further challenge that its resolution of the notice of preliminary objection is faulty. This is in accord with the advice given by the Supreme Court in National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170.

Counsel to the Appellant formulated two issues for determination in this appeal and these were:
i. Having regard to Section 251(1)(p), (q) and (r) of the Constitution, the parties, the pleadings and reliefs sought, whether the learned trial Judge was right when she declined jurisdiction to entertain the suit.
ii. Whether the learned trial Judge wrongly exercised her powers under Section 22 (2) of the Federal High Court Act in the circumstances.

?In arguing the first issue for determination, Counsel to the Appellant reiterated the settled principle of law that it is the claim of a plaintiff that determines the jurisdiction of the Court and he referred to the case of

Oloruntoba-Oju Vs Dopamu (2008) 2 SCNJ 87 and he stated that the finding of the lower Court that the claims of the Appellant bordered on title to the property was wrongful and that this precipitated the error of the lower Court in declining jurisdiction and it led to a miscarriage of justice. Counsel stated that reading through the contents of the writ of summons and of the statement of claim, it is evident that the Appellant did not claim for declaration of title, as erroneously held by the lower Court, and neither did he plead any of the five recognized ways and means of proving title to land as laid down in Idundun Vs Okumagba (1976) 1 NMLR 200 and as such that cannot be a basis for the lower Court to decline jurisdiction. Counsel stated that from the facts pleaded and the reliefs sought by the Appellant, it was obvious that his case was rooted in the provisions of Section 251 of the Constitution (1999) which gives the Federal High Court exclusive jurisdiction in respect of matters touching on the administration or management and control of the Federal Government or any of its agencies, matters touching on the interpretation and operation of the

Constitution as it concerns the Federal Government or any of its agencies, and matters for declaration of injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies, provided in Sections 251(1)(p), (q) and (r) of the Constitution. Counsel thus urged this Court to find that the lower Court had jurisdiction to entertain the matter.

Counsel stated further that it was a well settled principle that it is the parties that confer jurisdiction on the Court and he placed reliance on the case of NEPA Vs Edegbero (2002) 18 NWLR (Pt 798) 79 and stated that the Supreme Court relied on similar provisions to those in Sections 251(1)(p), (q) and (r) of the Constitution in arriving at its decision in that case. Counsel stated that all the Respondents were either the Federal Government itself or its agencies and he urged this Court to find thereby that the lower Court possessed jurisdiction to entertain the matter.

?On the second issue for determination, Counsel stated that it was not in dispute that the Federal High Court has powers to transfer a suit to the State High Court when it finds that

it lacks jurisdiction to entertain the suit under the provisions of Section 22 (2) of the Federal High Court Act and he referred to the case of Aluminum Manufacturing Co Ltd Vs NPA (1987) 1 NWLR (Pt 51) 475, but he continued that it was not a power to be exercised capriciously, arbitrarily and without due regards to the principles of natural justice particularly the doctrine of audi alterem partem. Counsel stated that in the instant case, the lower Court wrongly invoked and exercised the power of transfer as it did so suo motu without giving the parties an opportunity to be heard on the point. Counsel stated that the exercise of the power of transfer by the lower Court in the circumstances was a nullity and it occasioned a miscarriage of justice and should be set aside.

In response, Counsel to the third Respondent stated that it was good law that it is the claim of a plaintiff that determines jurisdiction of a Court and that the lower Court had the principle in mind in coming to its decision as it made no reference to the statements of defence of the Respondents. Counsel stated that the submission of Counsel to the Appellant that the claims of the

Appellant were rooted in Section 251 of the Constitution was incorrect as the claims were founded on title to land and it was about a lease over land and thus a land dispute and that in the case of Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169 the Supreme Court held that it is the State High Court that possesses exclusive jurisdiction over land dispute in respect of lands in urban areas. Counsel stated that the reference made to the case of NEPA Vs Edegbero supra by Counsel to the Appellant was inapposite in the instant case as the facts of the two cases were completely different. Counsel stated that the exercise of the power of transfer by the lower Court was not capricious or arbitrary and that the exercise of the power was flawless and without blemish and that it was according to the law. Counsel urged this Court to resolve the issues for determination in favour of the third Respondent and to dismiss the appeal.

In dealing with the issue of jurisdiction, the lower Court, after reproducing the claims of the Appellant stated thus:
?From the statement of claim and particularly Paragraphs 7-9 of the reliefs sought, it is clear that the

plaintiff is asking this Court to set aside the letter of revocation, direct the Defendants to complete the lease agreement entered into by the parties, direct the Defendants to convey a valid right of occupancy to the Plaintiff and perpetually restraining the Defendants, their agents and privies from transferring the interest in the property or any past thereof in a manner prejudicial to the plaintiff?s rights.
?.I hold that the claims from whatever angle one looks at it and irrespective of the language in which the claim is couched, borders on title to the property the subject matter of the suit. Section 251 of the 1999 Constitution does not confer jurisdiction on the Federal High Court in matters relating to revocation/issuance of certificate of occupancy, injunction and damages to land, from the provisions of Section 39, 41, 42 of the Land Use Act? and Section 272 of the 1999 Constitution, the Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters?..?

Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it

or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute -Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwan (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.

The jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads: ?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 have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.?
The provision then proceeded to list eighteen specific areas in Paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in Paragraph (s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction – Anao Vs Sun Publishing Ltd (2013) 3 NWLR (Pt 1341) 399, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. This point was succinctly made by Nweze, JCA (as he

then was) in Oladipo Vs Nigerian Customs Service Board (2009) 12 NWLR (Pt 1156) 563 at page 585 thus:
.Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (Supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court in eighteen major items.. The implication of this technique is that the said Court (Federal High Court) is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein.
It would, therefore amount to wrecking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated?.
The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of jurisdiction of the Court is canvassed,

attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of the action

The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd supra, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. And that the Court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction -Dagazau Vs Bokir International Company Ltd (2011) 14 NWLR (Pt 1267) 261. Thus, where the cause of action of a plaintiff does not fit into one of the enumerated areas of jurisdiction of the Federal High Court as stated in Section 251 (1) of the Constitution, the fact that one of the parties to the action is the Federal Government or

an agency of the Federal Government is irrelevant and it cannot give the Federal High Court jurisdiction over the subject matter ? Onuorah Vs Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt 921) 393, Adeogun Vs Fashogbon (2008) 17 NWLR (pt 1115) 149, Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169, Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347, Salim Vs Congress for Progressive Change (2013) 6 NWLR (Pt 1351) 501, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is only where both the High Court and the Federal High Court have concurrent jurisdiction over a subject matter that the fact that one of the parties is the Federal Government or an agency of the Federal Government is relevant and it is in such a situation that the decisions in cases such as NEPA Vs Edegbero (2002) 18 NWLR (Pt 798) 79 and Abia State Independent Electoral Commission Vs Kanu (2013) 13 NWLR (Pt 1370) 69 become useful – Ahmed Vs Ahmed supra.

It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few

paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. Reading through the claims of the Appellant as enumerated in the opening part of this judgment, along with the averments in the sixty seven paragraphs of facts in the statement of claim, the major signposts of the case of the Appellant against the Respondents, devoid of all the embellishments, were (i) an alleged existence of a valid contract of leasehold over a landed property in Kaduna between him and the agents of the Respondents, (ii) breach or attempted breach of the contract of leasehold by the agents of the Respondents, (iii) an order of specific performance compelling the agents of the Respondents to abide the terms of the contract of leasehold, coupled with an order of injunction restraining them from going through with the breach of contract, or (iv) in the alternative, damages for breach of contract.

?It is elementary that where one of the parties to a valid contract defaults in the performance of the contract, the

other party has one of two options opened to him and these are (i) to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or (ii) to regard the contract at an end and sue for damages for the breach of it – Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Liman Vs Mohammed (1999) 9 NWLR (Pt 617) 116, Mmegwa Vs Texaco (Nig) Ltd (2005) 18 NWLR (Pt.957) 279, Chabasaya Vs Anwasi (2010) 10 NWLR (Pt 1201) 163. The claims of the Appellant for specific performance and injunction or for damages for breach of contract show very clearly that the case of the Appellant was predicated on contract. It is also evident that the subject matter of the claims is a landed property, a house/flat at the Federal Staff Quarters No. 23a, FSHE Barnawa, Kaduna, Kaduna State, and in respect of which the Appellant is claiming for issuance of a valid certificate of occupancy. All the claims for declaratory orders were merely complimentary and diversionary.

?It is trite law that the Federal High Court has no jurisdiction to entertain matters predicated on simple contract – Petrojessica Enterprises

Ltd Vs Leventis Trading Co. Ltd (1992) 5 NWLR (Pt 244) 675, Onuorah Vs Kaduna Refining & Petrochemical Co. Ltd supra, Nigeria Unity Line Plc Vs Usman (20l4) 6 NWLR (Pt 1404) 546. It cannot hear and determine a claim for specific performance of contract or for damages for breach of contract – Aluminum Manufacturing Co Ltd Vs Nigerian Ports Authority (1987) 1 NWLR pt 51) 475, Adelekan Vs Ecu-Line (2006) 12 NWLR (Pt 993) 33, KLM Royal Dutch Airlines Vs Taher (2014) 2 NWLR (Pt 1393) 137.

?On the complaint of the Appellant that the lower Court ought not to have exercised the power of transfer without first

giving the parties an opportunity to be heard thereon, the law is settled that where a statute invests a trial Court with a power to be exercised, either at its discretion or mandatorily, to take a step it deems appropriate based on findings made in its judgment or Ruling, there is no obligation on the trial Court to give the parties a hearing after making the findings, and before exercising the statutory power to take the step. The exercise of the power in such circumstances is not tantamount to resolving an issue suo motu and has nothing to do with the right of a party to be heard. This point was made by the Courts in respect of the power vested in a trial Court to convict an accused person for a lesser offence other than that for which he is charged in Sections 179 of the Criminal Procedure Act and 218 (1) of the Criminal Procedure Code – Maja Vs The State (1980) 1 NCR 212, Nwachukwu Vs The State (1986) 2 NWLR (Pt 25) 765 and the unreported decision of this Court in Appeal No CA/K/163/C/2011 – Sansani & Anor Vs State delivered on the 26th of February, 2016. In Etim Vs The State (2013) LPELR-CA/OW/223/2010, Owoade, JCA made the point thus:<br< p=””

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?Clearly, the application of the provision of Section 179 of the CPA to convict an accused of a lesser offence as disclosed from the evidence on record has nothing to do with the opportunity given to the parties to present their cases freely before the Court. The application of the provision by a learned trial Judge after the close of hearing in his final judgment has nothing to do with the principles of fair hearing. As rightly pointed out by the learned counsel to the Respondent, the exercise of the procedural power of the trial judge to convict of a lesser offence under the provision of Section 179 CPA is an exercise of judicial powers in accordance with the law which cannot be interpreted to mean denial of fair hearing. It is not as suggested by the learned Counsel for the appellants raising an issue suo motu which would have required addresses or further addresses by counsel to both parties. No new issue or issue suo motu is raised by the exercise of the judicial discretion vested in a trial Judge to convict for a lesser offence by the provision of Section 179 of the CPA.?
The same principle applies to the exercise of the power of

transfer by the lower Court under Section 22(2) of the Federal High Court Act – Aliyu Vs Ibrahim (1992) 7 NWLR (Pt 253) 361 and Oron Local Government Council Vs Akwa Ibom State House of Assembly (2008) 3 NWLR (Pt 1075) 502. The lower Court did the proper thing by transferring the case to the State High Court after making the finding that it had no jurisdiction to entertain the claims – Mokelu Vs Federal Commissioner for Works and Housing (1976) 1 NWLR 329, Aluminum Manufacturing Co Ltd Vs Nigerian Ports Authority supra and Petrojessica Enterprises Ltd Vs Leventis Trading Co. Ltd supra. The complaint of the Appellant on the order of transfer was clearly misconceived.

This is a matter that should never have come on appeal. The appeal is devoid of any merit and it is hereby dismissed. The Ruling of the Federal High Court sitting in Kaduna delivered in Suit No FHC/KD/CS/12/2014 by Honorable Justice Evelyn N. Anyadike on the 20th of April, 2015 declining jurisdiction to entertain the matter and transferring same to the Sate High Court is hereby affirmed. There will no order as to costs. These shall be the orders of this Court.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA gave me the opportunity of reading the leading judgment in this appeal before it was delivered. I agree with the reasoning of my learned brother as well as the conclusion that the appeal is devoid of any merit whatsoever. I dismiss the appeal and abide by the consequential order.

AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading before now, the draft leading Judgment of my learned brother, HABEEB A. O. ABIRU, JCA.

I agree with the reasoning therein and the conclusion thereat that the Federal High Court has no jurisdiction to entertain a case the subject matter of which is land in respect of which a Certificate of Occupancy is being sought notwithstanding that one of the parties is an institution of the Federal Government. See Adetayo vs Ademola (2010) LPELR – 155, per Muhammad JSC.

?The learned trial Judge was thus well grounded in Law in declining jurisdiction and also in invoking its powers under Section 22(2) of the Federal High Court Act in transferring the case to the Court with jurisdiction, the State High Court, without first hearing from the parties. This appeal lacks any

merit and is hereby dismissed by me.

Appearances

B. E. Gwadah with him, J. B. AmosFor Appellant

AND

Suraj Saeda, SAN with him, Y. M. SaniFor Respondent