FEDERAL AIRPORTS AUTHORITY OF NIGERIA v. OGBONNA ANI
(2010)LCN/4019(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of October, 2010
CA/E/288/2006
RATIO
PRELIMINARY OBJECTION: DUTY OF THE RESPONDENT TO ADDUCE FACTS IN AN AFFIDAVIT TO JUSTIFY HIS OBJECTION WHERE HE RAISES A A PRELIMINARY OBJECTION THAT DEALS WITH THE FACTS
It is important to note that, preliminary objection, by its very nature deals with law and there is no need for supporting affidavit. In a preliminary objection, the applicant deals, with law and the ground is that the court process has not complied with the enabling law or rules of court therefore should be struck out. It could be on abuse of court process. But if a preliminary objection leaves the exclusive domain of law and deals with the facts, then the burden rest on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the court of the facts he has relied upon. See A.G. Fed. Vs. A.N.P. (2003) 18 NWLR (Pt.851) 182 at 207. A – D. PER MOHAMMED L. TSAMIYA. J.C.A.
ISSUE OF JURISDICTION : ESSENCE OF THE ISSUE OF JURISDICTION IN THE ADJUDICATION OF ANY MATTER
It is more than settled that the issue of jurisdiction is fundamental pre-requisite in the adjudication of any matter. It has been properly or aptly described as the “life wire of all suits’, and where a court does not have jurisdiction to entertain a suit before it, the proceeding however well conducted, will be a nullity. See Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 520 where the Supreme Court, per Obaseki, J.S.C. said: “If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on the hearing and determination of the suit, matter or claim…There is no justice in exercising a jurisdiction where there is none. It is as he then was injustice to the law, to the court and to the parties to do so.” PER MOHAMMED L. TSAMIYA. J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
FEDERAL AIRPORTS AUTHORITY OF NIGERIA – Appellant(s)
AND
OGBONNA ANI – Respondent(s)
MOHAMMED L. TSAMIYA. J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Enugu State High Court (herein referred to as the trial court) delivered on 21st November 2003.
The facts of the case according to record of this appeal are that, Respondent as plaintiff sued the Federal
Aviation Authority of Nigeria, (the defendant) as watchman. He was employed by the then Nigeria Airports Authority (N.A.A.) on 13th December 1976. He was absorbed into permanent establishment in the Federal Public Service on
1st April 1977 , and on 1st April 1981 he was confirmed into permanent and pension able post. On 11th December 1989, one Isaac., alleged that his shop within the Airport Hall was broken into by unknown person. The Respondent being among the security men on duty on the night of the incident, was charged to Court with his colleagues
before the Chief Magistrate Court Enugu with burglary and stealing and was interdicted. After the trial, the Respondent was discharged and acquitted on 25/8/1995. By a letter dated 11/9/1995, and signed by one O. M. Osinubi (Mrs.) the Respondent was dismissed from service pursuant to S.1(1) of the public Officers (special (provisions) Act 1983 (Decree No.17)Thereafter, on 25/7/2001 the Respondent sued Federal Civil Aviation) of Nigeria the Defendant at the High Court of Enugu State, Enugu, seeking:
A. (i) the withdrawal of his dismissal letter issued against him.
(ii) Re-instatement to the service and placement at par with his Counterparts.
(iii) payment of all moneys due to him from 11th September 1995 till date or, Alternatively;
B (i) Retirement with effect from the dare he would have put in 35 years of service or attained 60 years which
ever is earlier,
(ii) payment of all his entitlements enblock from 3rd August 1990 when he was interdicted up till the effective date of hrs retirement as afore said.
At the trial court the main thrust of the Respondent’s case was that the proper procedure was not followed
before his employment was brought to an end. The trial court, in a considered judgment delivered on 21/11/2003, granted all the reliefs sought before it.
Aggrieved and dis-satisfied with the judgment of the lower court, the Federal Airports Authority of Nigeria (herein referred to as the Appellant) appealed to this court. The Notice of Appeal contains three (3) Grounds of Appeal
filed on 22/2/2005 with the leave of this Court granted on 14/5/2005 when 14 days extension of time from that 14/5/2005 within which to file Notice and Grounds of Appeal.
Briefs of argument were filed and exchanged. The Appellant filed its brief on 4/2/2006 and Reply brief on 9/8/2007 while the Respondent on receipt of the Appellant’s brief’ filed his brief. On 29/6/2007. The Respondent, also earlier
to his brief’ filed Respondent’s Notice of Appeal on 18/3/2005. The appellant identified three issues for determination in his brief of argument. They read:
1. Whether the Enugu State High Court has jurisdiction to try the suit at all. This issue covers ground one.
2. Whether the trial court was right in proceeding to try the suit without resolving the issue of jurisdiction. This issue covers ground two.
3. Whether the suit in the High Court can lie against a non-existing Person.
The respondent in his brief identified 4 issues for determination and they are:
1. Whether the trial court had jurisdiction to try the suit in the first instance and if it does not whether the Court
of Appeal has the jurisdiction to transfer the matter to the appropriate Court that has jurisdiction to try same
(This issue covers Ground one of the Notice of Appeal and the alternative, prayer in the Respondent’s Notice of Appeal).
2. Whether the issue of jurisdiction was canvassed by the appellant at the trial court and if the answer is in the negative, whether it could validly raise same on appeal without leave of this court being fresh issue (Distilled from Ground two of the Notice of Appeal).
3. Whether the suit was actually commenced against a non-existing person and whether the use of the word “Aviation” in the place of “Airport” in the name of the defendant/Appellant was not a simple case of misnomer, an irregularity, which the appellant was deemed to have waived not having raised same at the lower court. (Distilled from Ground three of the Notice of Appeal).
4. Whether the plaintiff/Respondent was actually dismissed having regard to the fact that he was purported to have been dismissed under a non-existing law. (Distilled from prayer one of the Respondent’s Notice of Appeal).
At the hearing of this appeal before us on 28/9/2010, learned counsel for the Appellant adopted the appellant’s Brief of argument and the Reply Brief. Learned counsel for the Respondent adopted their Respondent’s brief. He in
addition to the Respondent’s Brief, argued that he raised a preliminary objection which he incorporated in their Brief of argument and their argument on it is contained on pages 1 – 2 of their Brief.
In their objection, the Respondent contended that the Appellant failed to comply with the conditions prescribed by the Registrar of the trial Court contained at p.50 of the Record. He further contended that by the condition prescribed, the Appellant ought to deposit certain sums of money for the compilation of the Record within 90 days from the date of settlement of Record, i.e from 20/4/2005. But the appellant failed to do so. The Registrar of the trial court in order to cover the failure of the Appellant, alleged that the Appellant fulfilled the condition by importing payments made on 7/4/2005 long before the record was settled. Failure to comply with the period within which to deposit the sums, the appeal is incompetent. He relied on some legal authorities including Okolo vs. U.B.N. (2004)
13 W.R.N 62 ratio 1.
In response to the preliminary objection, the Appellant submitted that whenever issues of facts are to be used in any application, whether it is a motion or preliminary objection, the facts should be deposed in an Affidavit. He
relied on section 86 of the Evidence Act. He contended that the Respondent failed to depose to an affidavit and
the failure is fatal to his objection.
The law is well settled that when the competence
of a procedural step or of appeal is challenged the court is duty bound first to consider the competence and rule
on it.
With this guidance in my mind, I will take the preliminary objection first. The Appellant submitted that since the preliminary objection is not supported by an affidavit containing the alleged facts it is not competent.
It is important to note that, preliminary objection, by its very nature deals with law and there is no need for supporting affidavit. In a preliminary objection, the applicant deals, with law and the ground is that the court process has not complied with the enabling law or rules of court
therefore should be struck out. It could be on abuse of court process. But if a preliminary objection leaves the exclusive domain of law and deals with the facts, then the burden rest on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the court of the facts he has relied upon. See A.G. Fed. Vs. A.N.P. (2003) 18 NWLR (Pt.851) 182 at 207. A – D.
This takes me to the merits of the objection. In the instance case Respondent challenged the competence of the appeal on the ground of the appellant’s failure to comply with the conditions prescribed by the Registrar of the trial Court, i.e. to deposit certain sums of money for the compilation of the Record within 90 days from the date of 20/4/2005. In my view, the respondent’s preliminary objection in this case, this deals with the facts and not with law. There is need therefore to adduce evidence to prove it. The Respondent in this circumstance, must justify the objection by adducing facts in an affidavit. He did not do so. Since he fails to satisfy this court of the facts he has relied upon, his objection therefore ought to fail and is hereby thrown out.
Having reached this decision, I shall examine the appeal on its merits.
After perusing the records of appeal, the grounds of appeal the judgment of the trial court as well as the issues identified by each party in the appeal, the crucial issue for determination is issue No.1 of the Appellant and issue No. 1 of the Respondent as the issues are identical. The question in both of them is on jurisdiction and I shall treat the first issue in both briefs together in view of their identical nature. I shall thereafter deal with the Respondent’s
issues if necessary. Issue No. 1 of the Appellant and issue No. 1 of the Respondent.
On this issue, the Appellant’s main contention under this issue is that the trial court lacks jurisdiction to try the suit by virtue of section 25 1 (1) (p) and (r) of the Federal Republic of Nigeria Constitution 1999. The court that has exclusive jurisdiction is the Federal High Court. That the Defendant in the trial is a Federal agent.
The Respondent in his brief of argument submitted response, a contrary view and argued that the trial court had jurisdiction to try the action filed by the Respondent. His reason is that the provision of section 251 of the Constitution (supra) is not applicable in the circumstances of this case.
That in determining the jurisdiction of the court it is the claim of the plaintiff on the writ of summons/statement of claim that could be looked at, and perusing his claim will show that the reliefs are not caught by the provisions of section 251 of the constitution (supra). He further submitted that the reliefs sought have nothing to do with the
said agency of Federal Government is being “administered, managed or controlled”. Neither is “declaration or injunction is part of the relief he claimed. He also contended of that it is not the law that once a matter affects an agency of the Federal Government, the High Court of a State is deprived its jurisdiction. In support of his contention he relied on Omosowon vs. Chiedozie (1998) 9 NWLR (Pt.566) 477, and the decision of this court, (Ilorin Division), in the case of Oloruntoba-Oju vs. Dopamu (2003) FWLR (Pt.158) 1268 at 1284 paras D-F.
With regards to the jurisdiction of this court to transfer this case to the Federal High Court, which argument covers his Respondent’s Notice, he submitted that this court has such power and jurisdiction and he relied on the case of Otubu vs. University of Jos (2002) FWLR (Pt.109) 1717 at 1734 – 1735 per Obadina, JCA (as he then was)
It is more than settled that the issue of jurisdiction is fundamental pre-requisite in the adjudication of any matter. It has been properly or aptly described as the “life wire of all suits’, and where a court does not have jurisdiction to entertain a suit before it, the proceeding however well conducted, will be a nullity. See Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 520 where the Supreme Court, per Obaseki, J.S.C. said:
“If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on the hearing and determination of the suit, matter or claim…There is no justice in exercising a jurisdiction where there is none. It is as he then was injustice to the law, to the court and to the parties to do so.”
Guided by these records of wisdom coming from the highest court of the land, I will consider the issue of jurisdiction canvassed in this appeal before anything else. Being a question of jurisdiction of the lower court whose power we are called upon to examine in this appeal, I shall attend to it first.
In resolving the submissions of counsel for the parties on this issue of jurisdiction, I will like to, at this juncture, examine the provisions of section 251 (1) (p) and (r) of the Constitution (supra) which provide respectively as follows:
Sec.251 (1): ………………………..
……………………..
(a) …………………
(b) …………………
(c) ……………….
(d) …………………
(e) ………………..
(f) …………………
(g) ……………….
(h) ………………..
(i) ………………..
(j) ………………..
(k) ……………….
(l) ………………..
(m) ……………….
(n) ……………….
(o) ……………….
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q) ………………….
(r) -Any action or proceedings for a declaration or injunction affecting the validity of any executive or
administrative action or decision by the Federal Government or any of its agencies;
And ………………………
(s) ………………………
It is important to note that the Defendant in the trial court, (Federal Aviation Authority of Nigeria) and the
Appellant are virtue of second Schedule (Exclusive List) to the Federal Republic of Nigeria Constitution 1999, item
3 are Federal Government establishments, therefore each of them is an agent of the Federal Government. Similarly, the action before the trial court is a proceeding for a, inter-alia withdrawal of the Respondent’s letter of dismissal
for being illegal and void. That action therefore, is well within the ambit or provisions of section 251 (1) (p) and (r)
of the Constitution (supra).
The Respondent has contended that it is not the law that once a matter affects an agency of the Federal Government, the High Court of a state is deprived of its jurisdiction and he cited the case of Omosowon vs. Chiedozie (supra) in support. He also submitted that the reliefs he sought have nothing to do with how the appellant as an agency of the Federal Government is administered, managed or controlled. Neither is declaration or injunction, part of his relief claimed before the trial court.
I have carefully read the claims of the Respondent and compared them with the provisions of the constitution set out above and am unable to agree with the Respondent’s submission and that argument in view is not valid.
By the interpretation of the Apex court of the provisions of section 251 (1) of the Constitution (supra) it may no longer be necessary, first to examine the nature of the reliefs or claim or claims sought by the plaintiff in the writ
of summons or statement of claim. It appears that it is sufficient that, once one of the parties whether plaintiff or defendants is the Federal Government or one of its organs.
The case of Omosowon vs. Chiedozie (supra) in the circumstance is not relevant in view of the authoritative decision of the Supreme Court in National Electricity Power Authority vs. Edegbero (2002) 18 NWLR (Pt.798) 79. The decision peremptorily declared that it is sufficient once one of the parties is Federal Government or its agencies, then the jurisdiction of the State High Court is ousted.
The dictum of the above Supreme Court, per Ogundare J.S.C. of blessed memory in the said case of Edegbero (supra) reads as follows:
“I have myself read the proviso to paragraph (q) and (s) of sub-section (1) of section 230 (which is in peri material with sec. 251 (1) of 1999 Constitution) reveals that the intention of the law makers was to take away from the jurisdiction of the State High Court and Confers same exclusively on the Federal High Court, action in which the Federal Government or any of its agencies is a party.”
The dictum quoted above is from the leading Judgment of the Supreme Court which is binding on this court and all other inferior courts in the land. I have no other alternative than to humbly and respectfully submit to and follow it. In the result the trial court lacks jurisdiction to entertain this action. The action falls squarely, within the exclusive jurisdiction of the Federal High Court since the Federal Government’s agency is a party to the action.
And this takes me to the second arm of this issue, i.e. whether this court can validly transfer the case to Federal High Court. The Respondent submitted that this court can validly transfer a matter to the court that has requisite jurisdiction for trial.
I have taken into consideration section 16 of the Court of Appeal Act. In my view, and by the decision of the Supreme court in Olutola vs. Unilorin (2004) 18 NWLR (Pt.905) 416 at 469, this court can exercise its section 16 jurisdiction in the matter. Jurisdiction of the court below is a precondition for the invocation of the provision of section 16 of this court’s Act. Since the Federal High Court has exclusive jurisdiction in this matter, it is appropriate to order the transfer of this case to it. Accordingly this case is hereby ordered to be transferred to the Federal High Court Enugu Division for re-trial de novo. Appeal succeeds, and allowed without costs being ordered.
Having reached the above decision it is not necessary to examine this appeal on other grounds of appeal since this issue disposes of the appeal.
AMINA A. AUGIE, J.C.A.: I have read the lead judgment just delivered by my learned brother, Tsamiya, JCA, and I agree with him that the appeal should be allowed.
The decision of the Supreme Court in NEPA v. Edegbero (2002) 18 NWLR (Pt.789) 79 definitely shut the door against the Respondent. In that case, the appointment of the Respondents were terminated following an industrial action they embarked on, and the Appellant’s contention was that the Niger State High Court had no jurisdiction to entertain the Respondents’ claims because the jurisdiction of that Court was ousted by a similar provision in the
1979 Constitution. The High Court overruled the Appellant, and this Court affirmed the decision of the High Court. Dissatisfied, the Appellant further appealed to the Supreme Court. In allowing the appeal, the Supreme Court held –
“It is not in dispute that the Defendant – NEPA is a Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the Plaintiffs. It is also not disputed that the
cause of action in this matter arose out of the administrative action or decision of the Defendant. ..In the light of
all these, the action on hand came squarely within the provision of Section 230(1) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the
Federal High Court.
In this case, there is no question that the cause of action arose out of the administrative action or decision of the Appellant. It follows that it is the Federal High Court that has the jurisdiction to entertain the action.
Thus, the appeal succeeds and is allowed by me. I abide by the consequential orders in the lead judgment including that as to no costs.
ABDU ABOKI. J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother Tsamiya JCA., and I agree with all the reasons and conclusions therein. I abide by the consequential orders.
Appearances
Igwe Kingsley ChimeFor Appellant
AND
Mr. Ibe CharlesFor Respondent
