F.J. AKWADWO V. NITEL TELECOMMUNICATION LTD.
(2012)LCN/5461(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/A/166/2009
RATIO
FINDING OF FACT: EFFECT OF AN UNCHALLENGED FINDING OF FACT
Where there was a finding of fact that has not been challenged on appeal the presumption is that there is no complaint about that finding and that the parties are satisfied therewith: HON. MUYIWA INAKOJU & ORS v. ADELEKE (2007) 4 NWLR [pt.1025] 423. As stated in UOR v. LOKO (1988) 2 NWLR [pt.77] 430 at 442, the appellant himself, before the appellate court can interfere with any finding of fact, must show that the views expressed by the Court below are wrong. The rationale for this is that an appeal is against the correctness of the judgment below and a challenge of its correctness on grounds of law, mixed law and fact, or facts simpliciter, as the case may be. Accordingly, the court of Appeal lacks power to disturb any finding of fact or decision not challenged in an appeal: IDIOK v. THE STATE (2008) 342 NSCQR 827; A.S.C.O.N. v. AKINBAMI (2008) ALL FWLR [pt.401] 937 at 949.PER EJEMBI EKO, J.C.A.
JURISDICTION: FEDERAL HIGH COURT: WHEN THERE IS A SUIT AGAINST THE FEDERAL GOVERNMENT , THE FEDERAL HIGH COURT HAS JURISDICTION
Accordingly, therefore, in any suit or action against it, as an agency of the Federal Government, irrespective of whether or not the subject matter is one over which the Federal High Court has jurisdiction vested in it by the Constitution, the Federal High Court is the proper forum to go. Appellant then further submits that this is the effect of NEPA v. EDEGBERO (2002) 12 SCNJ 173 re-affirmed by OLORUNTOBA-OJU v. DOPAMU (2008) 7 NWLR [pt.1085] 1. It was then pointed out for the Appellant that the Supreme Court, by its decision in OLORUNTOBA-OJU v. DOPAMU (supra), has departed from it earlier decisions in ONUORAH v. KADUNA R.P.C. LTD. (2005) 6 NWLR [pt.921] 393 and ADELEKAN v. ECU-LINE NV (2006) 12 NWLR [pt.993] 33. PER EJEMBI EKO, J.C.A.
JURISDICTION: JURISDICTION IS DETERMINED BY THE CLAIM OF THE PLAINTIFF ENDORSED ON THE WRIT OF SUMMONS AND STATEMENT OF CLAIM
The law espoused in ONUORAH v. KADUNA R & P.C. LTD. (supra) is that “disputes founded on contracts are not included in the jurisdiction conferred on the Federal High Court.” The settled position of the law is that the jurisdiction of the court is determined by the claim of the plaintiff endorsed on the writ of summons and the statement of claim: TUKUR v. GOVERNMENT OF GONGOLA STATE (2002) 14 NWLR [pt.788] 538 at 563.PER EJEMBI EKO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
F.J. AKWADWO Appellant(s)
AND
NITEL TELECOMMUNICATION LTD. Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This appeal, against the decision of the Federal High Court (Coram: S.J. Adah, J) sitting at Abuja, turns on only one issue. That is, whether the trial court was right to have declined jurisdiction in the suit of the Appellant. The Appellant, as the plaintiff, had approached the federal High court claiming:
a. N153, 273.00 (being the short fall of his salary for the period he worked from 1986 – 1993).
b. N986, 661.99 (being the short fall of his salary for the period 1994 – 1997).
c. N50, 000.00 (Accident bounds he was entitled to).
He claimed these sums totaling “N1, 189,934.99 being the entitlements and benefits (he) ought to enjoy and which he did not while in the service and employ of the Defendant.” The claim as articulated by the statement of claim rested on one firm fulcrum: contract of service. He claimed these sums as a right against his former employer, the Nigerian Telecommunications Limited (NITEL) that absorbed some former staff, including himself, of the defunct P & T. He had raised these claims based on his conditions of service with the Respondent whom he had described as a limited liability company. He was clearly enforcing the terms of contract between himself and the Respondent. The facts are not in dispute.
In declining jurisdiction to entertain the claim of the Appellant, as the Plaintiff, the learned trial Judge stated inter alia that:
The subject matter of the action has to do with matters bothering on the contract of employment of the Plaintiff and the defendant.
This finding of fact has not been challenged. It therefore remains binding forever on the parties.
On the jurisdiction of the Federal High Court to entertain the action of the Appellant founded on the breach of contract of service the learned trial Judge had earlier held –
The learned counsel for the defendant is of the opinion that this Court has no jurisdiction to entertain this matter because the constitutionally endowed jurisdiction of this Court does not cover the cause of action. The jurisdiction of this Court I must say categorically here is as dispensed by Section 251 of the 1999 Constitution. Under this section a list or index of subject matters and organs or agencies that are amenable to the jurisdiction of this Court are listed. The Constitution was so specific about this. The only area that gets closer to confer jurisdiction is Section 251 (1) (p), (q), (r). These sub-paragraph read as follows-
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
The learned trial Judge also found, from the Amended Statement of Claim, that the Respondent, sued as the defendant, is a limited liability company and it was not suggested or averred that it was an agency of the Federal Government or any arm of the Federal Government. Again, this finding of fact has not been challenged.
Where there was a finding of fact that has not been challenged on appeal the presumption is that there is no complaint about that finding and that the parties are satisfied therewith: HON. MUYIWA INAKOJU & ORS v. ADELEKE (2007) 4 NWLR [pt.1025] 423. As stated in UOR v. LOKO (1988) 2 NWLR [pt.77] 430 at 442, the appellant himself, before the appellate court can interfere with any finding of fact, must show that the views expressed by the Court below are wrong. The rationale for this is that an appeal is against the correctness of the judgment below and a challenge of its correctness on grounds of law, mixed law and fact, or facts simpliciter, as the case may be. Accordingly, the court of Appeal lacks power to disturb any finding of fact or decision not challenged in an appeal: IDIOK v. THE STATE (2008) 342 NSCQR 827; A.S.C.O.N. v. AKINBAMI (2008) ALL FWLR [pt.401] 937 at 949.
The contention of the Appellant is anchored on his submission that the Respondent, NITEL, is an agency of the Federal Government. Accordingly, therefore, in any suit or action against it, as an agency of the Federal Government, irrespective of whether or not the subject matter is one over which the Federal High Court has jurisdiction vested in it by the Constitution, the Federal High Court is the proper forum to go. Appellant then further submits that this is the effect of NEPA v. EDEGBERO (2002) 12 SCNJ 173 re-affirmed by OLORUNTOBA-OJU v. DOPAMU (2008) 7 NWLR [pt.1085] 1. It was then pointed out for the Appellant that the Supreme Court, by its decision in OLORUNTOBA-OJU v. DOPAMU (supra), has departed from it earlier decisions in ONUORAH v. KADUNA R.P.C. LTD. (2005) 6 NWLR [pt.921] 393 and ADELEKAN v. ECU-LINE NV (2006) 12 NWLR [pt.993] 33. It was also held in this case that contract and tort are clearly outside the jurisdiction donated to the Federal High Court.
The Appellant, in these submissions, proceeds on one fallacy.
And that is, the false assumption that NITEL is an agency of the Federal Government. Firstly, he did not appeal the finding that it has not been suggested or averred in the Amended statement of claim that NITEL, a limited liability company, is an agency or an arm of the Federal Government of Nigeria. That finding is neither perverse nor assailable. Secondly, the subject matter or the substance of the action at the Federal High Court in this case is an enforcement of a contractual right of the Appellant against the Respondent. The subject matter of the action in OLORUNTOBA-OJU v. DOPAMU (supra) as found at page 24, in the lead judgment of Oguntade, JSC, which was unanimously concurred by the other justices of the Supreme Court, “relates more to the infraction of the provisions of the University of Ilorin Act than in the mere pursuit of Trade Union activities.” It is on that note that the Supreme Court held that it is the Federal High Court that was conferred with jurisdiction to entertain that action.
Appellant’s counsel appears to have misread and misconceived the opinion or statement of I.T. Muhammad JSC in his concurring judgment in OLORUNTOBA-OJU v. DOPAMU (supra) at pages 31 – 33, wherein he states inter alia that notwithstanding the nature of the claim, where the defendant is an agency of the Federal Government exclusive jurisdiction is vested in the Federal High Court. Reliance was placed on NEPA v. EDEGBERO (supra) for this statement. I will venture to say that this statement, not being the ratio decidendi of the unanimous decision in OLORUNTOBA-OJU v. DOMPAMA (supra), is a mere obiter dictum. Even if it were otherwise, it can not apply to this case; NITEL the Defendant/Respondent having not been found to be an agency of the Federal Government.
The law espoused in ONUORAH v. KADUNA R & P.C. LTD. (supra) is that “disputes founded on contracts are not included in the jurisdiction conferred on the Federal High Court.” The settled position of the law is that the jurisdiction of the court is determined by the claim of the plaintiff endorsed on the writ of summons and the statement of claim: TUKUR v. GOVERNMENT OF GONGOLA STATE (2002) 14 NWLR [pt.788] 538 at 563.
The learned trial Judge correctly, upon his dispassionate appraisal or evaluation of the Amended statement of claim of the Plaintiff/Appellant, found that the Defendant/Respondent, NITEL, is a limited liability company, not shown to be an agency of the Federal Government, had been sued on “matters bothering on the contract of employment of the Plaintiff and the Defendant.” These findings clearly exclude the Federal High Court from entertaining the suit. I completely agree with the learned trial Judge and the Respondent on this. The defect is fatal. See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT v. UKEY SEKONDI (1981) 1 SC 6.
On the foregoing reasons, I have no difficulty resolving the lone issue in the appeal against the Appellant. There is no substance in the appeal, which I hereby dismiss in the entirety. The decision, including the order striking out the suit no FHC/ABJ/CS/118/2000 is hereby affirmed. Parties shall bear their respective costs.
JIMI OLUKAYODE, BADA, J.C.A.: I read before now the Lead Judgment of my learned brother EJEMBI EKO, JCA just delivered and I agree with my Lord’s reasoning and conclusion reached therein.
I am also of the view that this appeal lacks merit and it is dismissed by me.
HUSSEIN MUKHTAR, J.C.A.: My learned brother EKO, J.C.A. has graciously permitted me to read the judgment he has just delivered in draft. I agree absolutely with the reasoning therein and the conclusion that the appeal is without substance.
The clarity of the scope of the jurisdiction of the Federal High Court under section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) leave no room for guessing the court’s competence or otherwise in any given case. It will be pertinent to reproduce a portion of the said section 251(1) as it relates to the instant appeal thus:-
“251(1) Notwithstanding anything 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 –
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for declaration or injunction affecting the validity or any executive or administrative action or decision by the Federal Government or any of its agencies.”
NITEL is a corporate entity incorporated under the Companies and Allied Matters Act. It is therefore not an agency of the Federal Government and is therefore not covered by section 251(1) of the Constitution.
The Federal High Court is vested with exclusive jurisdiction, inter alia, on matters relating to the administration or management and control of the Federal Government or any of its agencies. In the instant case, not only was the appellant’s claim outside the scope of section 251 of the Constitution but the subject matter too seems to be foreign to that provision.
The nature of the plaintiff’s claim is what determines jurisdiction. The plaintiff’s claim is for shortfall of salary and allowances and clearly outside the scope of section 251(i) of the Constitution,
For the foregoing and the lucid exhaustive reasoning in the lead judgment of my learned brother EKO, J.C.A., I have no hesitation in dismissing the appeal as lacking in merit. I adopt the consequential orders as made in the judgment.
Appearances
Sunday Edward, Esq.For Appellant
AND
A.A. Bello, Esq. with Z. A. Bello (Miss)For Respondent
