DR. TAMUNOSA A.T. ALLISON & ORS v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
(2011)LCN/4547(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of May, 2011
CA/PH/392/2010
RATIO
ISSUE OF JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE TAKEN AT ANY STAGE OF A PROCEEDING
It is trite that jurisdiction, being a threshold matter; the issue can be taken at any stage. It can be taken after the statement of claim had been filed: see IZENIKWE v. NNADOZIE (1952) 14 WACA 361 at 363; ADEYEMI v. OPEYORI (1976) 9 10 SC 31. It all depends on the materials available. The opinion of Uwaifo, JSC in NDIC v. CBN (2002) FWLR [pt.99] 1021 at 1037, cited by the Appellants, accommodates these views. PER EJEMBI EKO, JCA
JURISDICTION OF THE COURT: WHICH COURT IS CONFERRED WITH THE JURISDICTION TO ENTERTAIN OR DETERMINE ANY CASE IN WHICH THE CLAIM IS CONNECTED WITH, OR PERTAINS TO, MINES AND MINERALS, INCLUDING OIL FIELD, OIL MINING AND NATURAL GAS
The pith of this issue is the question whether from the pleadings or evidence there are available materials to sustain the learned trial Judge’s decision that the Federal High Court had no jurisdiction to entertain the claim of the Appellants against the Respondent, as the defendant. There are decisions of this Court and the Supreme Court from which to infer that the Federal High Court has jurisdiction to entertain or determine any case in which the claim in tort or trespass is connected with, or pertains to, mines and minerals, including oil field, oil mining and natural gas. C.G.G. (NIG) LTD v. ASAGBARA (2000) FWLR [pt.17 110 is a case in which the Plaintiff (the respondent), an employee of an oil company, was seriously injured by a sharp object left in the swamp along the company’s oil exploration line while maintaining the oil company’s said oil exploration lines. He sued for negligence at the Rivers State High Court, The State High Court assumed jurisdiction. On appeal to this Court, it was held by a split decision that the State High Court lacked jurisdiction. Pats-Acholonu JCA (as he then was) who read the lead judgment stated at page 122 The injury alleged to have given rise to the action in the court below – sprang from the performance of the Respondent’s duty as an employee of the Appellant in drilling operation in respect of oil. If the drilling exercise is in respect water prospecting, any alleged act of negligence will be dealt with in a State High Court. In interpretation of statutes, any word used must be so construed to vive proper meaning to the expression without in any way bringing confusion. The expression, as appearing in section 7 of Decree 60 of No 107 of 1993, shall be construed in such a way as to understand the purport of that provision. It would in such interpretation show that what is being complained about is connected with and pertaining or relating to activities which have direct bearing to the operation of oil prospecting, seismic survey, and such activities as equally applying to gas. In a matter arising out of the drilling operations or activities to effectuate an end, causes of action from them would have to be determined in the Federal High Court and not in the State High Court. Soon after this foregoing decision, the Supreme Court, in SPDC v. ISAIAH (2001) FWLR [pt.56] 608, held on 18th May, 2001 (thus putting it beyond doubt) that if the cause or matter should be connected with or pertain to mines and minerals, including oil field, oil mining, geological surveys and natural gas, the jurisdiction of the Federal Court shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to mines and minerals, oil field, oil mining et cetera. ISAIAH’S case has these facts: in July, 1988 an old tree fell on the appellant’s pipeline and indented it, thereby obstructing free flow of crude oil. In the course of repairing the dented pipeline, crude oil spilled into the swamp, spreading quickly to the respondents farmlands, fish ponds etc and did extensive damages to respondents thereby. The respondents sued at the State High Court. Appellant’s objection that only the Federal High court had exclusive jurisdiction to entertain the respondents’ action was upheld at the supreme court. The supreme court interpreted section 7 of the Federal High court (Amendment) Decree No 60 of 1999 viz-a-viz section 230 (1) (0) of Decree 107 of 1993 and the identical provisions section 2sL (1) (n) of the 1999 Constitution. section 251 (1) (n) of the 1999 constitution provides: 251. (1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (n) mines and minerals (including oil fields, oil mining, geological survey and natural gas). section 7 (1) & (3) of the Federal High court Act cap F12, LFN 2004 (reproduced verbatim from the Federal High Court (Amendment) Decree 60, 1991) provide – 7. (1) The court shall to the exclusion of any other have original jurisdiction to try causes and matters(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas) (3 where jurisdiction is conferred upon the court under subsections (1), (2) and (3) of this section such jurisdiction shall be include jurisdiction to hear and determine ail issues relating to, arising from or ancillary to such subject matter. I have read the Respondent’s Brief, particularly the submissions on issue 1. From the peculiar facts of this case, I do not think Mr. Wogu is right in relying on the case of NKUMA v. ODILI (2006) 6 NWLR (Pt.977) 587. This case and NKUMA v. ODILI are distinguishable. In the said NKUMA v. ODILI the dispute was over who, amongst the two communities, was entitled to claim the money deposited by NIGERIA AGIP OIL COMPANY (AGIP) as compensation, to the owners of the parcel of land , for its oil exploration on the land. The cause of action here is too remote to causes or matters connected with, pertaining to, relating to or arising from oil mining and natural gas. The duty of the oil company to pay compensation for the land they carry oil exploration and mining operations on, like the right of the host community to demand such compensation, may be connected with oil and gas exploration. However, the secondary issue of who is the proper person to take the compensation can not, directly, be. A simple case of land dispute aggravated by payment of compensation is clearly too remote, and removed from the jurisdiction of the Federal High court. Mr. wogu for the Respondent submits, correctly, that the claim of the Appellants on the face of the statement of claim reveals the nature of their claim. I, however, part ways with him when he submits that the trespass the Appellants complain of against the Respondent is separable from the acts of “clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of Plaintiffs’ economic life on the land.” I earlier underlined for emphasis this part of the claim. In my humble view, the trespass the Plaintiff/Appellants complain of is qualified and particularized by the alleged sundry activities of the Defendant/Respondent. It may be a case of inelegant drafting on their part. But equity looks at the substance, and not the form. As I understand their claim, the Plaintiffs/Appellants are asking the court below to order the Defendant/Respondent to pay them N50,000,000.00 for unlawfully entering their land and starting thereon “clearing, drilling, dredging and installation of oil welts,’ etc. “Trespass” is the word they ascribed to these sundry acts, activities or operations of the defendant. The operative word in the claim is the word By after the words “Trespass on the Plaintiffs’ land.” Apropos, the word “TRESPASS” is the name the Plaintiffs give for the alleged sundry activities or operations of the Defendant that follow immediately after the word “By”. Those activities or operations of the Defendant are merely descriptive of or mere particulars of the type of trespass the Plaintiffs are suing the Defendant for. The plaintiffs are not claiming damages for mere book trespass or ordinary trespass that Respondent’s counsel wants us to believe. The court below fell for trap. Clearly, what the Plaintiffs complain of are causes or matters connected with, or pertaining to, or are related to oil mines, oil fields and natural gas. I think sections 7 and 8 of the Evidence Act should have been very handy in this regard. By section 7 of the said Act “facts which are so connected to the facts in issue as to form part of the facts in issue are relevant whether they occurred at the same times or places.” By dint of section 8 thereof facts which are the immediate occasion’ cause or effect of the facts in issue are relevant. By operation of either provisions or both it is indubitable that the trespass simultaneously with “clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of Plaintiffs economic life on the land” form one cause of action which can not be prosecuted piecemeal. The cause of action is connected with, or pertains to, or is related oil and gas exploration and exploitation. From these foregoing analyses, I am satisfied that the learned trial Judge was in error when held that his court, the Federal High court, had no jurisdiction in the cause or matter. Only the Federal High court, to the exclusion of any other court, including the state High court, has jurisdiction over the plaintiffs/Appellants, cause of action. Accordingly, I resolve this issue in favour of the Appellants. PER EJEMBI EKO, JCA
EVALUATION OF EVIDENCE: WHETHER IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE, MAKE FINDINGS OF FACTS, AND APPORTION PROBATIVE VALUE THERETO AND NOT THAT OF AN APPELLATE COURT TO DO SO; CIRCUMSTANCE UNDER WHICH THE APPELLATE COURT WILL NOT INVOKE SECTION 15 OF THE COURT OF APPEAL ACT
The law, as espoused by Onnoghen, ISC in YADIS LTD V. CINIC LTD (2007) 30.1 NSCQR 495 at 518 519, is that it is the primary duty of the trial court to evaluate evidence, make findings facts, and apportion probative value thereto and not that of an appellate court to do so. Only the trial court has that advantage and materials to discharge this primary function. It had the advantage of hearing and watching the witnesses testify. The appellate court lacks that advantage. I do not think this is such a case that this Court can invoke section 15 of the Court of Appeal Act to perform that primary function where the trial court had abdicated its responsibility. PER EJEMBI EKO, JCA
DUTY OF COURT: WHETHER ALL COURTS BELOW THE SUPREME COURT ARE BOUND TO TAKE ALL ISSUES CANVASSED BY THE PARTIES AND MAKE PRONOUNCEMENTS ON THEM
The position of the law, and the practice has been become entrenched, that all courts below the Supreme Court are bound to take all issues canvassed by the parties and make pronouncements on them, even in alternative and even when such issues appear superfluous and spent. This is to enable the court exercising appellate jurisdiction to exercise its powers to determine the issues. See IFEANYI CHUKWU LTD v. SOLEH BONEH LTD (2000) FWLR (pt.27) 2046 at 2074; ADAH v. NYSC (2004) 13 NWLR [pt.891] 639 at 649 – 650. This principle could not have been inappropriate when one takes into consideration the fact that evidence of the parties had been concluded and the various counsel had put in their final addresses and the matter had been adjourned for judgment. PER EJEMBI EKO, JCA
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. DR. TAMUNOSA A.T. ALLISON
2. MR. KEVIN WARIBO
3. MADAM STELLA ALLISION
(for themselves and as representing the Allison Egbeson Family Of Oloma-Bonny Town in Bonny LGA of Rivers State) Appellant(s)
AND
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Respondent(s)
EJEMBI EKO, JCA (Delivering the Leading Judgment): Before the Federal High Court (Coram: R.M. Aikawa, J) sitting at Port Harcourt the appellants, as the Plaintiff, had the following claim in the statement of claim that accompanied their writ of summons taken out on 23rd August, 2007 in the suit no FHC/PHC/CS/1278/2007.
WHEREOF the Plaintiffs claim against the Defendant the sum of N50,000,000.00 (Fifty Million Naira) only as damages for trespass on the Plaintiffs’ said land by clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of plaintiffs’ economic life on the land.
The underlinings are provided by me for emphasis and purpose, which I shall come to in due course.
The parties exchanged pleadings. In paragraphs 2 and 5 of the statement of claim the Plaintiff now the Appellant, averred –
2. The Defendant is a limited liability company engaged in the business of oil exploration and exploitation in Nigeria with an office in port Harcourt within the jurisdiction of this Honourable Court.
5. Sometime between the years 2003 to 2004, the Defendant broke and entered upon of the defendant Kpa pasu land situate at Oloma- Town in Bonny Local Government Area of Rivers State without the consent of the Plaintiffs. The Defendant upon entry of the said land cleared same, caused part of it to be dredged, drilled and installed oil wells as well as gas pipelines. Defendant caused economic trees thereon to be burnt and also used part of the land as dumpsite. The area the Defendant trespassed to carry out its activities measures 13.788 Acres or 5.579 Hectares and it is verged red while the area dredged is verged brown in the survey plan filed along with this statement of claim. The plaintiffs caused the area to be photographed. Plaintiffs hereby plead the negatives and photographs.
The survey plan referred to above is at page 9 of the Record. The Respondent, as the Defendant, in the amended statement of Defence denied that it entered the portion of Kpakpasu land without the consent of the Plaintiffs’ Allison Family. In paragraphs 3, 4, 5, 10 and 14 of the said amended statement of Defence the Defendant/Respondent averred that in 1981 they sought and obtained the consent of the Plaintiffs’ Allison to enter upon the said portion of Kpakpasu land for its operations. It is further averred that the Defendant paid compensation to the Plaintiffs’ Allison Family in May 1981 and that in “furtherance of the aforesaid negotiations and compensation” the Defendant took possession of the said portion of land and had “remained in lawful possession at all times material to this action.” It is necessary that paragraphs 10 and 14 of the amended statement of defence be reproduced. That is –
10. The Defendant further avers that in furtherance of the said negotiations, the Plaintiffs’ community gave the Defendant a written authority to enter the land pursuant to which the Defendant entered thereupon. The said written authority is hereby pleaded and shall be relied upon at the hearing of this action.
14. The Defendant avers and shall at the trial contend that it did not trespass into the Plaintiffs’ land, having obtained the consent of the Plaintiffs to enter thereupon.
The parties filed depositions on oath of their witnesses. The Plaintiffs, now appellants called a total of four (4) witnesses, who were duly cross-examined. The Defendant/Respondent called a lone witness and he was duly cross-examined. Several documents were tendered. At the close of the evidence S. O. Wogu, Esq. of counsel for the Defendant and Chief F.F. Egete, of counsel to the plaintiffs filed and exchanged closing addresses. Mr. Wogu’s Reply on points of law is at pages 182 – 184 of the Record. The learned trial Judge in his reserved judgment delivered on 20th May, 2010 (pages 189 – 194 of the Record) upheld the preliminary objection of Mr. Wogu that the Federal High Court had no jurisdiction in the matter in view of the fact that paragraph 6 of the statement of claim and the various averments therein merely or simply made “allegations of interference with the Plaintiffs’ right of possession.” The learned trial Judge consequently struck out the suit holding that the Plaintiffs’ cause of action did not fall within the jurisdiction of the Federal High Court vested in it by section 25I (1) of the 1999 Constitution. He declined to exercise his discretion under section 22 (2) of the Federal High Court Act which empowers him to transfer to the State High Court any matter the Federal High Court finds it has no jurisdiction over and over which the State High Court has jurisdiction. This appeal is against the said decision.
The Appellants filed three (3) grounds of appeal, out of which they formulated three (3) issues for determination in the Appellants’ Brief filed on 11th October, 2010. In the Respondent’s Brief settled by S.O. Wogu, Esq. and filed on 26th October, 2010, the Respondent formulated 3 issues for determination in the appeal.
The Appellants formulated their three issues as follows –
1. whether the trial court was right in declining jurisdiction to entertain this suit on the grounds that the Plaintiffs’ case is on trespass without considering the defendants’ activities/operations on the land (the purport of the trespass)?
2. Assuming the Plaintiffs’ case was founded on trespass, was it right for the learned trial Judge to strike out the case instead of transferring the same to the Rivers State High Court?
3. was it legally right for the learned trial Judge not to consider the evidence of the parties and all the issues raised in the addresses of the parties, come to a conclusion (or enter a judgment on same) alongside with the issue of jurisdiction?
For the Respondent Mr. Wogu of counsel, after adopting the appellant’s three issues, re-phrased them as follow –
1. Whether the trial court was wrong in declining jurisdiction to entertain the appellant’s suit.
2. In the peculiar circumstance of the case before him, was the learned trial Judge wrong in striking out the case instead of transferring same to the Rivers State High Court.
3. Whether the learned trial Judge who had declined jurisdiction, was wrong in not considering the evidence of the parties and other issues raised in the addresses of the parties; coming to a conclusion (or entering judgment o same) alongside the issue of jurisdiction.
The Appellants, on issue 1, submit that from the facts pleaded in paragraph 5 of the statement of claim, together with the relief claimed therein the trespass of the defendant, they complain of, is one connected with, pertaining to, arising from or ancillary to oil mining. They further submit that the learned trial Judge could have determined the issue of its jurisdiction from either the statement of claim or the evidence available. It is trite that jurisdiction, being a threshold matter; the issue can be taken at any stage. It can be taken after the statement of claim had been filed: see IZENIKWE v. NNADOZIE (1952) 14 WACA 361 at 363; ADEYEMI v. OPEYORI (1976) 9 10 SC 31. It all depends on the materials available. The opinion of Uwaifo, JSC in NDIC v. CBN (2002) FWLR [pt.99] 1021 at 1037, cited by the Appellants, accommodates these views.
The pith of this issue is the question whether from the pleadings or evidence there are available materials to sustain the learned trial Judge’s decision that the Federal High Court had no jurisdiction to entertain the claim of the Appellants against the Respondent, as the defendant.
There are decisions of this Court and the Supreme Court from which to infer that the Federal High Court has jurisdiction to entertain or determine any case in which the claim in tort or trespass is connected with, or pertains to, mines and minerals, including oil field, oil mining and natural gas. C.G.G. (NIG) LTD v. ASAGBARA (2000) FWLR [pt.17 110 is a case in which the Plaintiff (the respondent), an employee of an oil company, was seriously injured by a sharp object left in the swamp along the company’s oil exploration line while maintaining the oil company’s said oil exploration lines. He sued for negligence at the Rivers State High Court, The State High Court assumed jurisdiction. On appeal to this Court, it was held by a split decision that the State High Court lacked jurisdiction. Pats-Acholonu JCA (as he then was) who read the lead judgment stated at page 122
The injury alleged to have given rise to the action in the court below – sprang from the performance of the Respondent’s duty as an employee of the Appellant in drilling operation in respect of oil. If the drilling exercise is in respect water prospecting, any alleged act of negligence will be dealt with in a State High Court. In interpretation of statutes, any word used must be so construed to vive proper meaning to the expression without in any way bringing confusion.
The expression, as appearing in section 7 of Decree 60 of No 107 of 1993, shall be construed in such a way as to understand the purport of that provision. It would in such interpretation show that what is being complained about is connected with and pertaining or relating to activities which have direct bearing to the operation of oil prospecting, seismic survey, and such activities as equally applying to gas. In a matter arising out of the drilling operations or activities to effectuate an end, causes of action from them would have to be determined in the Federal High Court and not in the State High Court.
Soon after this foregoing decision, the Supreme Court, in SPDC v. ISAIAH (2001) FWLR [pt.56] 608, held on 18th May, 2001 (thus putting it beyond doubt) that if the cause or matter should be connected with or pertain to mines and minerals, including oil field, oil mining, geological surveys and natural gas, the jurisdiction of the Federal Court shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to mines and minerals, oil field, oil mining et cetera. ISAIAH’S case has these facts: in July, 1988 an old tree fell on the appellant’s pipeline and indented it, thereby obstructing free flow of crude oil. In the course of repairing the dented pipeline, crude oil spilled into the swamp, spreading quickly to the respondents farmlands, fish ponds etc and did extensive damages to respondents thereby. The respondents sued at the State High Court. Appellant’s objection that only the Federal High court had exclusive jurisdiction to entertain the respondents’ action was upheld at the supreme court. The supreme court interpreted section 7 of the Federal High court (Amendment) Decree No 60 of 1999 viz-a-viz section 230 (1) (0) of Decree 107 of 1993 and the identical provisions section 2sL (1) (n) of the 1999 Constitution.
section 251 (1) (n) of the 1999 constitution provides:
251. (1) Notwithstanding anything to the contrary contained in this constitution
and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(n) mines and minerals (including oil fields, oil mining, geological survey and natural gas).
section 7 (1) & (3) of the Federal High court Act cap F12, LFN 2004 (reproduced verbatim from the Federal High Court (Amendment) Decree 60, 1991) provide –
7. (1) The court shall to the exclusion of any other have original jurisdiction to try causes and matters(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas) (3 where jurisdiction is conferred upon the court under subsections (1), (2) and (3) of this section such jurisdiction shall be include jurisdiction to hear and determine ail issues relating to, arising from or ancillary to such subject matter.
I have read the Respondent’s Brief, particularly the submissions on issue 1. From the peculiar facts of this case, I do not think Mr. Wogu is right in relying on the case of NKUMA v. ODILI (2006) 6 NWLR (Pt.977) 587. This case and NKUMA v. ODILI are distinguishable. In the said NKUMA v. ODILI the dispute was over who, amongst the two communities, was entitled to claim the money deposited by NIGERIA AGIP OIL COMPANY (AGIP) as compensation, to the owners of the parcel of land , for its oil exploration on the land.
The cause of action here is too remote to causes or matters connected with, pertaining to, relating to or arising from oil mining and natural gas. The duty of the oil company to pay compensation for the land they carry oil exploration and mining operations on, like the right of the host community to demand such compensation, may be connected with oil and gas exploration. However, the secondary issue of who is the proper person to take the compensation can not, directly, be. A simple case of land dispute aggravated by payment of compensation is clearly too remote, and removed from the jurisdiction of the Federal High court.
Mr. wogu for the Respondent submits, correctly, that the claim of the Appellants on the face of the statement of claim reveals the nature of their claim. I, however, part ways with him when he submits that the trespass the Appellants complain of against the Respondent is separable from the acts of “clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of Plaintiffs’ economic life on the land.” I earlier underlined for emphasis this part of the claim. In my humble view, the trespass the Plaintiff/Appellants complain of is qualified and particularized by the alleged sundry activities of the Defendant/Respondent. It may be a case of inelegant drafting on their part. But equity looks at the substance, and not the form. As I understand their claim, the Plaintiffs/Appellants are asking the court below to order the Defendant/Respondent to pay them N50,000,000.00 for unlawfully entering their land and starting thereon “clearing, drilling, dredging and installation of oil welts,’ etc.
“Trespass” is the word they ascribed to these sundry acts, activities or operations of the defendant. The operative word in the claim is the word By after the words “Trespass on the Plaintiffs’ land.” Apropos, the word “TRESPASS” is the name the Plaintiffs give for the alleged sundry activities or operations of the Defendant that follow immediately after the word “By”. Those activities or operations of the Defendant are merely descriptive of or mere particulars of the type of trespass the Plaintiffs are suing the Defendant for. The plaintiffs are not claiming damages for mere book trespass or ordinary trespass that Respondent’s counsel wants us to believe. The court below fell for trap. Clearly, what the Plaintiffs complain of are causes or matters connected with, or pertaining to, or are related to oil mines, oil fields and natural gas.
I think sections 7 and 8 of the Evidence Act should have been very handy in this regard. By section 7 of the said Act “facts which are so connected to the facts in issue as to form part of the facts in issue are relevant whether they occurred at the same times or places.”
By dint of section 8 thereof facts which are the immediate occasion’ cause or effect of the facts in issue are relevant. By operation of either provisions or both it is indubitable that the trespass simultaneously with “clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of Plaintiffs economic life on the land” form one cause of action which can not be prosecuted piecemeal. The cause of action is connected with, or pertains to, or is related oil and gas exploration and exploitation.
From these foregoing analyses, I am satisfied that the learned trial Judge was in error when held that his court, the Federal High court, had no jurisdiction in the cause or matter. Only the Federal High court, to the exclusion of any other court, including the state High court, has jurisdiction over the plaintiffs/Appellants, cause of action. Accordingly, I resolve this issue in favour of the Appellants.
Issue 2 postulates that granted the Federal High court had no jurisdiction over the trespass alleged by the plaintiffs/Appellants the appropriate order, under section 22 (2) Federal High court Act, should not have been an order striking out the suit, but one transferring the suit to the appropriate High court.
This issue revolves round the power of the trial Federal High court under section 22 (2) of that court’s enabling or establishment statute. The unnecessary detour by Respondent’s counsel to subsections (1) and (3) of the Federal High court Act would only becloud the issue. It does not infact help the matter. Subsection (2) of sect ion 22 of the Federal High Court Act is clear in what it provides therein, That is:
22. (2) No cause or matter shall be struck out 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 the rules of court to be made under section 44 of this Act.
The learned trial Judge declined jurisdiction, having erroneously, held at page 194 of the Record that the claim of the plaintiffs being a “claim for trespass” does not fall within the jurisdiction of the Federal High court. He then proceeded to an order striking out the suit, instead of transferring it to the appropriate High court other than the Federal High court. The reason for this is that the suit “had already proceeded to full hearing” and “evidence had already been concluded when arguments as to jurisdiction of this court were canvassed.” This posture of the learned trial Judge clearly negates the letters and spirits of the unambiguous provisions of section 22(2) of the Federal High court that enjoin the court below not to strike out any cause or matter merely on the ground that such cause or matter was taken at the Federal High court instead of the High court of a state, and that the Judge of the Federal High court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High court other than the Federal High court in accordance with the Rules of the Federal High Court.
Order 49 Rules 5 and 6 of the Federal High court (civil procedure) Rules 2009 do not provide any backing for the reasons the learned trial Judge gave for not transferring the case, having found (though erroneously) that he had no jurisdiction. The said Rules Provide –
49. (5) Where a Judge has in the exercise of the Powers conferred by section 22(2) of the Act directed that any cause or matter be transferred to the High court of a state – the Judge shall make an order under his hand to that effect to the Chief Judge of the High Court of the State to which the matter is transferred.
(6)The Registrar shall forth with send a copy of the order made under rule 5 above duly certified by him to the Registrar of the state High Court named in the order together with certified copies of all entries in the books of the court relating to the cause or matter in question.
If the learned trial Judge had been a little bit patient and submitted to the prevailing dicta of the supreme court in ALUMINIUM MANAFACTURING CO. NIG LTD V. NPA (1987) 1 NSCC 224 at 234 and FASAKTN FOODS NIG LTD v. SHOSANYA (2006) 10 NWLR [pt.987] 126 147 – 148 he would not fallen in flagrant disobedience of the letters and spirit of section 22 (2) of the Federal High court Act. It is clear from the wordings of section 22 (2) of the said Act that the power vested in the learned trial Judge therein stretches beyond mere discretion. The power vested therein is synonymous with the function and duty of the learned trial Judge if the said section 22 (2) is read together section 318 of the 1999 Constitution.
This issue is resolved in favour of the Appellants. However, having held that the Federal High Court has jurisdiction to hear and determine the claim of the Plaintiffs/Appellants, it is no longer appropriate that an order be made transferring the case to the State High Court.
Three issues were raised in the final addressed of the two counsel at the court below. Only the issue of jurisdiction was considered and resolved, albeit wrongly. The other two issues were not considered. The court below did not evaluate the conflicting oral and documentary evidence of the parties. No findings of fact were made. The law, as espoused by Onnoghen, ISC in YADIS LTD V. CINIC LTD (2007) 30.1 NSCQR 495 at 518 519, is that it is the primary duty of the trial court to evaluate evidence, make findings facts, and apportion probative value thereto and not that of an appellate court to do so. Only the trial court has that advantage and materials to discharge this primary function. It had the advantage of hearing and watching the witnesses testify. The appellate court lacks that advantage. I do not think this is such a case that this Court can invoke section 15 of the Court of Appeal Act to perform that primary function where the trial court had abdicated its responsibility.
The position of the law, and the practice has been become entrenched, that all courts below the Supreme Court are bound to take all issues canvassed by the parties and make pronouncements on them, even in alternative and even when such issues appear superfluous and spent. This is to enable the court exercising appellate jurisdiction to exercise its powers to determine the issues. See IFEANYI CHUKWU LTD v. SOLEH BONEH LTD (2000) FWLR (pt.27) 2046 at 2074; ADAH v. NYSC (2004) 13 NWLR [pt.891] 639 at 649 – 650. This principle could not have been inappropriate when one takes into consideration the fact that evidence of the parties had been concluded and the various counsel had put in their final addresses and the matter had been adjourned for judgment. It would have therefore been more prudent for the learned trial Judge to have, in alternative to the issue of jurisdiction, considered the case on its merits. This is more so that the learned trial Judge struck out and refused to transfer it to appropriate State High Court under section 22 (2) Federal High Court Act read together Order 49, Rules 5 and 6 of the Federal High Court (Civil Procedure) Rules, 2009. He had thus created for the Plaintiffs a situation of complete helpness and thereby left only to lament that “there is no justice in this world any more.” The Plaintiffs had a right to the cause of action, which had not been extinguished by any Limitation statute. That is why the learned trial Judge should have resorted to ubi just, ibi remedium, the pragmatic principle of law and equity, which appears implicit in section 22 (2) of the Federal High Court Act. The law, as it is said can not be wanting in dispensing justice. He had unfairly shut against the plaintiffs the right to approach a court other than his court in order to ventilate their grievance.
Issue 3 is hereby resolved in favour of the Plaintiffs/Appellants. On the whole I allow the appeal. The case is hereby remitted to the Federal High court sitting at port Harcourt to be heard and determined by a Judge of that court other than R.M. Aikawd, J. The order striking out the suit No FHC/PHC/CS/1278/2007 made on 20th May, 2010 is hereby set aside.
The Appellants are entitled to costs assessed at N60,000.00 in favour of the Appellants against the Respondent.
M. DATTIJO MUHAMMAD, J.C.A.: I read before now the lead judgment of my learned brother EKO JCA and entirely agree with his reasoning and conclusion that this appeal has merit. I adopt the judgment as mine and allow the appeal. I abide by all the consequential orders made in the lead judgment.
T.O. AWOTOYE, J.C.A.: I had the opportunity of reading in draft of the judgment just delivered by my learned brother EJEMBI EKO JCA, I agree entirely with the judgment. I have nothing to add, I am in full agreement with the reasonings and Conclusion therein. I have nothing to add.
I abide by the consequential orders made and the costs as assessed in the lead judgment.
Appearances
Chief F.F. Egele with F.I AzoguFor Appellant
AND
S.O. Wogu, Esq. with A.O. Adeniyi, and I.D. NtukFor Respondent
