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FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA & ORS v. PROFESSOR THEOPHILUS ZUBAIRU ADAMA & ORS (2013)

FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA & ORS v. PROFESSOR THEOPHILUS ZUBAIRU ADAMA & ORS

(2013)LCN/6539(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of November, 2013

CA/A/12/2013

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA – (CA/A/12/2013)

AND

1. GOVERNING COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA

2. CHAIRMAN, GOVERNING COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA – (CA/A/12A/2013) Appellant(s)

AND

1. PROFESSOR THEOPHILUS ZUBAIRU ADAMA

2. PROFESSOR MOHAMMED ABUBAKAR TANKO SULEIMAN

3. PROFESSOR MUSA GALADIMA

4. GOVERNING COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA

5. CHAIRMAN, GOVERNING COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA – (CA/A/12/2013)

AND

1. PROFESSOR THEOPHILUS ZUBAIRU ADAMA

2. PROFESSOR MOHAMMED ABUBAKAR TANKO SULEIMAN

3. PROFESSOR MUSA GALADIMA

4. FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA – (CA/A/12A/2013)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

When it is argued that a Court has or does not have jurisdiction to entertain a claim, if that Court is a creation of the Constitution, a statute, or warrant, the first port of call is to examine those provisions to determine whether they confer jurisdiction or not. The next is to consider whether the proper parties suing or defending are before the Court. In S.M. Timitimi & Ors. vs. Chief Amabebe & Ors. (1953) 14 WACA 374 Coussey J.A. defined “jurisdiction” at page 376 as follows: “In the first place want of jurisdiction is not to be presumed as to a Court of superior jurisdiction; nothing is out of its jurisdiction but that which specially appears to be so. On the other hand an inferior Court, such as a Native Court, is not presumed to have any jurisdiction but that which is expressly provided. Jurisdiction, when used in the con we are considering it, means the power or authority to judge. A Court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein. It must be remembered that jurisdiction derives from the Crown and in Nigeria is conferred, so far as affects Native Courts, by ordinances and orders constituting those Courts and giving them powers.” At page 377 his Lordship distinguished between the jurisdiction of a superior as against an inferior Court as follows: “There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency. In Re Padstow Total Loss and Collision Assurance Association (2) decides that where there is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is Appealable.” PER TUR, J.C.A.

DEFINITION OF JURISDICTION

Jurisdiction is the legal authority, the extent of the power given to a Court by the law or statute establishing the said Court. This jurisdiction may be limited or unlimited. It may be limited either locally, that is, in terms of the geographical area over which the Court’s jurisdiction may extend. It may be limited personally as where a quorum is required for the Court to be properly constituted. It may be limited as to the amount over which the Court should not exceed for the case to fall within its jurisdiction. It may be limited as to the type or character of the questions to be determined by and in the Court. It may be limited by and as to the value of the property in litigation, etc. when the jurisdiction of the Court is thus limited, that Court is called a Court of limited jurisdiction. When there is no such limitations the Court is called a Court of unlimited jurisdiction.” In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.1117) 517 at 561, Oputa, JSC held that, “…Courts are creatures of statutes and it is the statute that creates a particular Court that will also confer on it its jurisdiction.” The principal but not the ancillary claims confer jurisdiction on a Court. See Raymond S. Dongtoe vs. Civil Service Commission Plateau State (2007) 4 SC (Pt.1) 43 at 56; Din vs. Attorney-General of the Federation & Ors. (1988) 4 NWLR (Pt. 87) 147 and Bornu Radio Television Corporation vs. Egbuonu (1990) 2 NWLR (Pt.171) 81 at 89. Therefore, a Court must have jurisdiction before it can be competent to adjudicate and make binding orders, and the proper parties must be present to confer jurisdiction. Jurisdiction must be vested in a Court before the rights of the parties can be determined. See Nyarko vs. Akowuah 14 WACA 426; Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 90. PER TUR, J.C.A.

DETERMINATION OF A CAUSE OF ACTION

The cause of action is usually determined from the nature of the grievances that gave rise to the dispute and the remedies being claimed. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157; Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967; Izenkwe vs. Nnadozie 14 WACA 361; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 and Inakoju vs. Adeleke (2007) All FWLR (Pt.353) 3. The Court will look at the lone question for determination and the remedies claimed by the three professors. In suits instituted by way of Writ of Summons supported by a Statement of Claim, it is the facts in the Claim that the Court examines to see if it has jurisdiction. See Ogbimi vs. Ololo (1993) 7 SCNJ (Pt.2) 447; Nosiru Bello vs. Attorney-General of Oyo State & Ors. (1986) 5 NWLR (Pt.5) 828 and Attorney-General of Kwara State vs. Olawale (1993) 1 SCNJ 208. In this case I have to examine the Originating Summons. PER TUR, J.C.A.

INTERPRETATION OF STATUTES

In Maxwell On The Interpretation of Statutes, 12th edition by P.St.J. Langan, pages 6-7 appears the following statement of the law on the importance of preambles: “Many old statutes have preambles in which the main objects of the Act are set out, and these are legitimate aids in construing the enacting acts.” Lord Normand L.C. held in Attorney-General vs. H.R.H. Prince Ernest Augustus of Hanover (1957) A.C. 436 at 467-468 as follows:

“When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions…” See also Chairman, L.E.D.B. vs. Said (1968) NMLR 183 at 187 and Okeke vs. Attorney-General of Anambra State (1992) 1 NWLR (Pt.215) 60 at 83. PER TUR, J.C.A.

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Registrar and Secretary of the Council of the Senate of the Federal University of Technology, Minna, Niger State caused to be advertised in the Daily Trust Newspaper of Friday 25th, May, 2012 the position of the Vice-Chancellor of the University soon to be vacant from the 27th day of November, 2012. Consequently, the Governing Council of the University, in accordance with the relevant provisions of the Universities (Miscellaneous Provisions) Act, No 11 of 1993 (as Amended by Act No. 25 of 1996), and the Universities (Miscellaneous Provisions) Amendment Act, 2003 approved that appropriate machinery be set in motion for the selection of a suitably qualified candidate to fill this vacancy. Paragraph 2(a)-(j) of the advert set out the requirements to be met by any candidate eligible to vie for the position as follows:

“2. REQUIREMENT FOR THE POST:

a. The candidate must be a serving professor who has spent not less than 10 years of unbroken service in the University and must be someone whose area of specialization fits into the main programmes of the University, Environmental Technology, Information and Communication Technology, Entrepreneurship Management Technology and the Sciences.

b. The candidate must not be more than 60 years of age by November 2012.

c. The candidate must demonstrate academic excellence in terms of quality publications, teaching, credible community service and proficiency in Information and Communication Technology (ICT).

d. The candidate should possess considerable administrative experience within the University system and must show demonstrable ability to attract funds to the University.

e. The candidate must be of courage and transparent honesty who can take decisions on the merit of facts, equity and patriotism and not on the basis of parochial interests or primordial pressures. Candidate should also be free from conflict of interest.

f. The candidate must have the highest moral standards, impeccable character and proven integrity with irrevocable commitment to best practices in corporate governance, with particular emphasis on accountability, transparency, probity and ensure judicious utilization of scarce resources for optimum public good.

g. The candidate should be above board and will not foster personal, racial, ethnic, political, religious or other sectional interest. The candidate should also be capable of inspiring members of the University community toward the attainment of its goals.

h. The candidate must enjoy good physical and mental health and be free from any inhibiting health condition.

i. The candidate must be generally acceptable to the University Community and should have varied societal linkages.

j. The candidate must also satisfy the basic requirements for appointment into the University as approved by the Governing Council of the University.”

The advert further set out the method of making the application, and to whom as follows:

“METHOD OF APPLICATION:

4.1. Interested candidates who meet the conditions stated above should submit 25 copies of their applications and comprehensive current curriculum vitae duly signed and dated.

4.2. The Curriculum Vitae must include the candidate’s name in full, place and date of birth, marital status; number and ages of children, nationality, academic qualifications, details of teaching, research, administrative, fund-attraction and managerial experiences, academic distinctions, membership of academic and professional bodies, scholarly publications and names and addresses of three referees.

4.3. The application must also include a statement of candidate’s vision for the University in the next 5 years in not more than 1,000 words and not less than 600 words.

4.4. Candidates must request their referees to forward references on them directly to the Registrar and Secretary to Council. Such referees should be able to attest to the candidate’s claims to higher academic and managerial capabilities as well as candidate’s moral uprightness.

4.5. Applications are to be submitted under confidential cover in envelope; marked at the top left hand corner “post of vice-Chancellor, FTU, MINNA” to reach the Registrar, Federal University of Technology, P. M. B 65, Minna, Niger State, Nigerian, not later than Six (6) weeks from the date of this publication.”

By this publication, (1) Professor Theophilus Zubairu Adama (2) Professor Mohammed Abubakar Tanko Suleiman and (3) Professor Musa Galadima of the Federal University of Technology, Minna, Niger State were of the view that they were academically, morally, socially or otherwise qualified to vie for the post of Vice-Chancellor upon the position becoming vacant on 27th November 2012. However, a new Registrar and Secretary to the Council of the University placed another advert in the Daily Trust of Monday, 28th May, 2012 setting forth new requirements for any candidate aspiring to the position of Vice Chancellor as follows:

“2. REQUIREMENT FOR THE POST

a. The candidate must have been a professor for not less than 10 years with an unbroken service within the University system during this period. He/She must be someone whose area of specialization fits into the main programmes of the University namely, Agriculture Technology, Engineering Technology, Environmental Technology, Information and Communication Technology, Entrepreneurship, Management Technology and the Sciences.

b. The candidate must not be more than 60 years of age by November 2012.

c. The candidate must demonstrate academic excellence in terms of quality publications, teaching, credible community service and proficiency in Information and Communication Technology (ICT).

d. The candidate should possess considerable administrative experience within the University system and must show demonstrable ability to attract funds to the University.

e. The candidate must be of courage and transparent honesty who can take decisions on the merit of facts, equity and patriotism and not on the basis of parochial interests or primordial pressures. Candidate should also be free from conflict of interest.

f. The candidate must have the highest moral standards, impeccable character and proven integrity with irrevocable commitment to best practices in corporate governance, with particular emphasis on accountability, transparency, probity and ensure judicious utilization of scarce resources for optimum public good.

g. The candidate should be above board and will not foster personal, racial, ethnic, political, religious or other sectional interest. The candidate should also be capable of inspiring members of the University community toward the attainment of its goals.

h. The candidate must enjoy good physical and mental health and be free from any inhibiting health condition.

i. The candidate must be generally acceptable to the University Community and should have varied societal linkages.

j. The candidate must also satisfy the basic requirements for appointment into the University as approved by the Governing Council of the University.

Paragraph 4 of the advert contained the following information:

“4. METHOD OF APPLICATION:

4.1. Interested candidates who meet the conditions stated above should submit 25 copies of their applications and comprehensive current curriculum vitae duly signed and dated.

4.2. The Curriculum Vitae must include the candidate’s name in full, place and date of birth, marital status; number and ages of children, nationality, academic qualifications, details of teaching, research, administrative, fund-attraction and managerial experiences, academic distinctions, membership of academic and professional bodies, scholarly publications and names and addresses of three referees.

4.3. The application must also include a statement of candidate’s vision for the University in the next 5 years in not more than 1,000 words and not less than 600 words.

4.4. Candidates must request their referees to forward references on them directly to the Registrar and Secretary to Council. Such referees should be able to attest to the candidate’s claims to higher academic and managerial capabilities as well as candidate’s moral uprightness.

4.5. Applications are to be submitted under confidential cover in envelope; marked at the top left hand corner “Post of Vice-Chancellor, FTU, MINNA” to reach the Registrar, Federal University of Technology, P. M. B 65, Minna, Niger State, Nigerian, on or before Friday, July 6, 2012. For further information, applicants are advised to visit the University’s website: www. futminna.edu. ng.

NOTE: This publication supersedes the earlier one which The NATION Newspapers of Friday, May 25, 2012.

(signed)

M.D. Usman

Registrar and Secretary to Council.”

The advert of Monday, 28th May, 2012 therefore superseded that of Friday, 25th May, 2012. The effect is that the advert of Monday, 28th May, 2012 counter-manded that of Friday, May 2012. A “counter-mand” is a contradictory command that overrides or annuls a previous one; it is an action that has the effect of voiding something previously ordered. By this development the three professors felt they could no longer meet the requirements to apply for the vacant post of Vice-Chancellor of the University when the post became vacant. Aggrieved, they jointly took out an Originating Summons in the High Court of Justice, Minna, Niger State on 28th September, 2012 against (1) The Federal University of Technology, Minna (2) The Governing Council and (3) The Chairman of the Governing Council of the University alleging that the conditions in the advert of Monday, 28th May, 2012 was a calculated attempt by the outgoing Vice-Chancellor, Professor M. S. Audu, to exclude each of them as indigenes of Niger State from vying for the post. That such conditions and requirements do not exist in other Universities of Technology or elsewhere in this country. The following lone question was set down for determination in the lower Court, namely:

“In setting-out the qualities of persons who may apply for the office of Vice-Chancellor of the 1st Defendant, is the requirement that a “candidate must have been a professor for not less than 10 years with an unbroken service within the University system during this period” a nationally accepted or popular requirement taking into consideration its tendency to exclude applicants from the 1st Defendant’s host State and its unpopularity among Federal Universities in Nigeria.”

The three Professors wanted, upon the Court interpreting the lone question in their favour, to be granted the following declaratory reliefs, namely:

“1. A Declaration that the requirement that the change in the primary quality of an applicant to the office of the 1st Defendant’s Vice-Chancellor within two days of the first publication i.e. that the candidate must:

‘be a serving professor who has spent not less than 10 years of unbroken service in the University…’

to the requirement that the candidate must:-

‘have been a professor for not less than 10 years…’

is an unaccepted requirement taking into consideration its tendency to exclude applicants from the 1st Defendant’s host State and its non-popularity among Federal Universities in Nigeria.

(3) An Order setting aside the whole process already undertaken and a reversion to the advertisement published in the Daily Trust Newspaper of Friday, May 25, 2012.

(4) An Order directing the Defendants to accept, process and consider the applications from all persons that have met the requirements as in the publication in the Daily Trust Newspaper of Friday, May 25, 2012.”

Professor Theophilus Zubairu Adama deposed to a 25 paragraph Affidavit with the consent and authority of his co-Professors on 28th September, 2012 to which was annexed Exhibits “A”-“H”. A Written Address accompanied the Originating Summons. Upon service of the Summons, Mrs. U.N. Kolo, female, the current Registrar and Secretary of the Governing Council of the University and the Senate deposed to a Counter-Affidavit of 27 paragraphs to which was annexed Exhibits “FUT1”-“12”. On the 2nd day of October, 2012 Olajide Ayodele, SAN filed a Notice of Preliminary Objection as follows:

“TAKE NOTICE that the 1st to 3rd Defendants do hereby raise a Preliminary Objection to the competence of this Honourable court to hear this Suit and shall at the hearing urge that same be struck out.

AND FURTHER TAKE NOTICE that the Grounds upon which the Objection is raised are:

1. The 1st-3rd Defendants are all Federal Government Agents and acting in such capacity in this suit.

2. The res of this suit is the “appointment” of the Vice-Chancellor of the 1st Respondents of which this Court has been precluded to adjudicate on.

3. Section 251 (1)(p)(q)(r) of 1999 Constitution has vested jurisdiction in this nature on the Federal High Court and not the Niger State High Court.”

The Preliminary Objection was supported by a Written Address setting forth reasons why the Originating Summons was incompetent and should be struck out. Isau Abdulhakeem Femi, Esq., a legal practitioner in the chambers of Messrs Yusuf O. Ali & Co deposed to a Counter Affidavit on 3rd December, 2012 followed by a Written Address by Yusuf O. Ali SAN. This is because in the course of the proceedings the Federal University of Technology applied and was granted leave to change her Counsel from Messrs Olajide Ayodele, SAN to Messrs Yusuf O. Ali SAN. The learned Judge ruled on 3rd December, 2012 that the High Court and not the Federal High Court had jurisdiction to entertain the Originating Summons and grant relief. The Court dismissed the Preliminary Objection.

The Federal University of Technology filed a Notice of Appeal on 3rd December, 2012 (P.328 to 332 of the printed Record) against the following Respondents (1) Professor Theophilus Zubairu Adama (2) Professor Mohammed Abubakar Tanko Suleiman (3) Professor Musa Galadima (4) Governing Council, Federal University of Technology, and (5) Chairman, Governing Council, Federal University of Technology Minna in Appeal No. CA/A/12A/2013. The Notice of Appeal contained three Grounds numbered (i)-(iii).

On the same 3rd December, 2012 another Notice of Appeal was filed by the following aggrieved parties as Appellants, namely, (1) Governing Council, Federal University of Technology, Minna and (2) Chairman, Governing Council, Federal University of Technology, Minna. The Respondents were (1) Professor Theophilus Zubairu Adama (2) Professor Mohammed Abubakar Tanko Suleiman (3) Professor Musa Galadima and (4) Federal University of Technology, Minna. The Appeal was numbered CA/A/12/2013. The Notice of Appeal had four Grounds numbered (i) to (iv) signed by Olajide Ayodele, SAN.

The learned Counsel to the Federal University of Technology, Minna, Yusuf Ali, SAN filed the Appellant’s Brief on 14th January, 2013 followed by a Deeming Order on 21st March, 2013. Ibrahim Isiyaku, SAN filed a Joint Brief on behalf of the 1st, 2nd and 3rd Respondents on 22nd April, 2013 within time.

APPEAL NO.CA/A/12/2013

Olajide Ayodele, SAN settled Brief for the three Appellants, namely, (1) Governing Council, Federal University of Technology (2) Chairman, Governing Council, Federal University of Technology, Minna on 29th January, 2013 within time. Ibrahim Isiyaku, SAN settled Brief for the 1st-3rd Respondents. No Brief was filed on behalf of the Federal University of Technology, Minna though named as the 4th Respondent on the face of the brief.

Before the Appeal would come up for hearing Olajide Ayodele, SAN, Counsel to the Appellants in Appeal No.CA/A/A/12A/2013 filed a Motion on Notice on 15th May, 2013 praying that the two Appeals should be consolidated. The Motion was moved by Rotimi Ojo, Esq. of Counsel on 21st October, 2013 and upon there being no objection from any of the learned silk appearing for the parties, the Application was granted. Appeal No.CA/A/12A/2013 was consolidated with CA/A/12/2013 on 21st October, 2013.

APPEAL NO.CA/A/12A/2013

Ibrahim Isiyaku, SAN also filed an Application on 22nd April, 2013 supported with an Affidavit praying for a Deeming Order to regularize the 1st-3rd Respondents’ Brief filed out of time. There being no objection from Rotimi Ojo, Esq. and Yusuf Ali, SAN, the Application was granted. The 1st, 2nd and 3rd Respondents’ Brief of 22nd April, 2013 was deemed properly filed and served on parties/Counsel. Yusuf Ali, SAN adopted the Appellants’ Brief of 14th January, 2013 with a Deeming Order made on 23rd March, 2013. In the course of proffering oral argument the learned silk cited additional authorities to show why the Appeal should be allowed, namely, Inagbedion vs. Selo (2013) 8 NWLR (Pt.1356) 211. Yusuf Ali SAN of Counsel to the Appellant took objection to the alternative relief claimed by the Respondents that if the Appeal succeeds the Court should invoke Section 15 of the Court of Appeal Act, 2004 to entertain the Originating Summons or direct that the Originating Summons before the lower Court should be transferred to the Federal High Court by virtue of Section 2 of the High Court (Amendment) Law of Niger State for hearing and determination. Learned Counsel submitted that since the lower Court could not apply Section 15 of the Act (supra), this Court lacks the jurisdiction to do so. Moreover, the law cited by the Respondents’ learned silk that the lower Court could simply transfer the Originating Summons if it was found that the Court had no jurisdiction was promulgated by the Government of Niger State and came into existence in the year 2013. The learned silk urged this Court to allow this Appeal.

Isiyaku, SAN for the 1st -3rd Respondents also adopted the Brief of Argument filed on 22nd April, 2013 with a Deeming Order on 21st October, 2013. The learned silk drew this Court’s attention to paragraph 4.16 of the Brief of Argument and urged that this Appeal should be dismissed.

Rotimi Ojo, Esq. of learned Counsel to the 4th and 5th Respondents did not file any Brief in the Appeal. Counsel however prayed that “2nd and 3rd Defendants” from the heading of the Brief filed by Olajide Ayodele, SAN 29th January, 2013 in Appeal No.CA/A/12/2013 should be deleted to read “Appellants’ Brief”. There being no objection from Yusuf Ali SAN and Isiyaku, SAN of Counsel, the Application was granted. The “2nd and 3rd Defendants” were struck out from the Brief filed on behalf of the 1st and 2nd Appellants. Rotimi Ojo, Esq. adopted the Appellants’ Brief of 29th January, 2013 and urged that the Appeal be allowed.

Isiyaku, SAN of learned Counsel to the 1st, 2nd and 3rd Respondents adopted the Brief filed on 22nd April, 2013 with a Deeming Order of 21st October, 2013, urging that the Appeal should be dismissed.

APPEAL NO.CA/A/12A/2013

Yusuf Ali, SAN reviewed the facts coupled with the documentary Exhibits and the Ruling of the learned trial Judge before formulating the lone Issue for determination to be as follows:

“Whether the lower Court was right in holding that the State High Court has jurisdiction to entertain and determine the Plaintiffs’ case when all the Defendants are agencies of the Federal Government and the subject matter deals with the functions of the said agencies?”

 

Learned Counsel relied on Section 251(1) (p) (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999; Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR (Pt. 3) 581 at 589-590; Dapianlong vs. Dariye (2007) 8; Adeyemi vs. Opeyori (1976) 9-10 SC 51; Western Steel Works vs. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) 284 and Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1025) 427 at 588-589 to argue that it is the claims in the Writ or Originating Summons that determines the jurisdiction of a Court of Justice. That the conditions precedent for the initiation of proceedings must exist to confer jurisdiction over any given subject matter. Furthermore, the proper parties must be before the Court. The learned silk referred to the Federal Universities of Technology Act No.13 of 1986 and the Universities (Miscellaneous Provisions) Act (supra) which set out the mode of appointing Vice-Chancellors whenever a vacancy occurs. It was contended that the Appellant and the 4th-5th Respondents were the bodies charged with the general control and superintendence of the University, hence the lower Court had no jurisdiction to entertain the Originating Summons and it should be struck out. The learned silk relied on Futech. Yola vs. Futuless (2005) 12 NWLR (Pt.938) 175 at 200; Obi vs. INEC (2007) 11 NWLR (Pt.1045) 565 at 636; Elelu-Habeeb & 1 Ors. vs. A-G Federation & 2 Ors. (2012) 2 MJSC (Pt.111) 1 at 46; Osakwe vs. F.C.E. Asaba (2010) NWLR (Pt.1201) 1 at 32 for the submission.

In the Brief filed on 22nd April, 2013 and deemed on 21st October, 2013, Isiyaku, SAN of Counsel to the 1st -3rd Respondents set out the following issue for determination:

“Whether, having regard to the claim of and reliefs sought by the 1st -3rd Respondents (as Plaintiffs), the Niger State High Court has jurisdiction to adjudicate on the matter.”

The learned silk agreed that the proper parties and the subject matter has to fall within Section 251(1) (p),(g) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 for a Court to have jurisdiction to entertain the Originating Summons. That it is usually the reliefs sought in the Pleadings or the Originating Summons that is considered to determine the jurisdiction of the Court, citing PDP vs. Sylva (2012) 13 NWLR (Pt.1316) 85 at 138; NEPA vs. Edegbero (2002) 18 NWLR (Pt.288) 79 and Section 251(1) (p) (g) and (v) of the Constitution of the Federal Republic of Nigeria, 1999. The learned silk however contended that it is not in all cases that the jurisdiction of the High Court is ousted simply because her agencies are parties in the proceedings. Reference was made to Omosonwan vs. Chiedozie (1998) 5 NWLR (Pt.566) 447 at 484; NIMR vs. NURTW (2010) 12 NWLR (Pt.1208) 328 at 352; ITPP Ltd. vs. UBN Plc (2006) 12 NWLR (Pt.995) 483 at 504; Lufthansa Airlines vs. Odiese (2006) 7 NWLR (Pt.978) 34 at 86 and Adetona vs. Zenith Bank Ltd. (2009) 3 NWLR (Pt.1128) 577 at 596. Counsel also referred to the provisions of the Universities (Miscellaneous Provisions) Act (supra) and the facts in support of the Originating Summons. The authority of Futech, Yola vs. Futuless (2005) 12 NWLR (Pt.938) 175 was cited to show that the lower Court had the jurisdiction to entertain the Summons.

The learned silk submitted in the alternative that where this Court finds that the lower Court had no jurisdiction, rather than striking it out, the Court should transfer the Originating Summons to the Federal High Court for hearing and determination, citing Section 72(2) of the High Court (Amendment) Law of Niger State. Relying on the authorities of BFD (Nig.) Ltd. vs. UTB Ltd. (2010) 6 NWLR (Pt.1189) 185 at 204 and Fasakin Foods vs. Shosanya (2006) 10 NWLR (Pt.987) 126 the learned silk urged that this Appeal should be dismissed.

APPEAL NO.CA/A/12/2013

Oladele Ayodele, SAN who settled the Appellants’ Brief of 29th January, 2013, referred to the facts in the Originating Summons, before identifying the following issues for determination:

“Whether having regard to the claim made by the Respondents and the reliefs sought by them before the Court, the Court below, the Niger State High Court has jurisdiction to adjudicate in the matter.”

The learned silk repeated the same argument in Appeal No. CA/A/12A/2013. Counsel contended that the meaning of the words “management”, “Administration” and “control” will be lost sight of to hold that the lower Court has jurisdiction to entertain the Originating Summons. Ibrahim Isiyaku, SAN, maintained the same argument as in Appeal No. CA/A/12A/2013 such that I do not need to reproduce the same arguments again. In Appeal No.CA/A/12/2013, Rotimi Ojo, Esq. adopted the Brief settled by Olajide Ayodele, SAN for the Appellants on 29th January, 2013, and urged that the Appeal should be allowed.

When it is argued that a Court has or does not have jurisdiction to entertain a claim, if that Court is a creation of the Constitution, a statute, or warrant, the first port of call is to examine those provisions to determine whether they confer jurisdiction or not. The next is to consider whether the proper parties suing or defending are before the Court. In S.M. Timitimi & Ors. vs. Chief Amabebe & Ors. (1953) 14 WACA 374 Coussey J.A. defined “jurisdiction” at page 376 as follows:

“In the first place want of jurisdiction is not to be presumed as to a Court of superior jurisdiction; nothing is out of its jurisdiction but that which specially appears to be so. On the other hand an inferior Court, such as a Native Court, is not presumed to have any jurisdiction but that which is expressly provided.

Jurisdiction, when used in the con we are considering it, means the power or authority to judge. A Court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein. It must be remembered that jurisdiction derives from the Crown and in Nigeria is conferred, so far as affects Native Courts, by ordinances and orders constituting those Courts and giving them powers.”

At page 377 his Lordship distinguished between the jurisdiction of a superior as against an inferior Court as follows:

“There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency. In Re Padstow Total Loss and Collision Assurance Association (2) decides that where there is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is Appealable.”

Again in Sanusi Aiyeriyina Alade vs. Olalere Akanji Alemuloke & 2 Ors. (1988) 2 SC (Pt.1) instances of a Court not having jurisdiction to entertain or adjudicate over a given subject matter in dispute were adumbrated at pages 10-11 by Oputa, JSC as follows:

“The fact that the jurisdiction of the Ibadan City No. 1 Grade “A” Customary Court, the Court of first instance has been challenged in the High Court and the Court of Appeal makes it desirable, and I may even say, necessary to clarify the concept of unlimited jurisdiction in a Court.

Jurisdiction is the legal authority, the extent of the power given to a Court by the law or statute establishing the said Court. This jurisdiction may be limited or unlimited. It may be limited either locally, that is, in terms of the geographical area over which the Court’s jurisdiction may extend. It may be limited personally as where a quorum is required for the Court to be properly constituted. It may be limited as to the amount over which the Court should not exceed for the case to fall within its jurisdiction. It may be limited as to the type or character of the questions to be determined by and in the Court. It may be limited by and as to the value of the property in litigation, etc. when the jurisdiction of the Court is thus limited, that Court is called a Court of limited jurisdiction. When there is no such limitations the Court is called a Court of unlimited jurisdiction.”

In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.1117) 517 at 561, Oputa, JSC held that, “…Courts are creatures of statutes and it is the statute that creates a particular Court that will also confer on it its jurisdiction.” The principal but not the ancillary claims confer jurisdiction on a Court. See Raymond S. Dongtoe vs. Civil Service Commission Plateau State (2007) 4 SC (Pt.1) 43 at 56; Din vs. Attorney-General of the Federation & Ors. (1988) 4 NWLR (Pt. 87) 147 and Bornu Radio Television Corporation vs. Egbuonu (1990) 2 NWLR (Pt.171) 81 at 89. Therefore, a Court must have jurisdiction before it can be competent to adjudicate and make binding orders, and the proper parties must be present to confer jurisdiction. Jurisdiction must be vested in a Court before the rights of the parties can be determined. See Nyarko vs. Akowuah 14 WACA 426; Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 90.

The argument boils down to this: Is it the lower Court that has the jurisdiction to entertain this Originating Summons or the Federal High Court?

In my humble view it is the party that argues that a particular Court has no jurisdiction to entertain a given subject matter that has the onus of showing the proper Court with jurisdiction. In Mostyn vs. Fabrigas (1775-1802) All E.R. Rep.266, the Defendant was the Governor of the Island of Minorca in Spain. The Governor imprisoned the Plaintiff and subsequently banished him from Minorca in Spain. The Plaintiff instituted an action in St. Mary’919197le’919197bow in the Ward of Cheap, London, claiming damages for assault and false imprisonment. Objection was raised on behalf of the Governor that he was not guilty of the allegations. Besides he was Governor by letters Patent from the Crown; that he had detained and banished the Plaintiff because he was raising a sedition and a mutiny on the Island. In consequence of this the Defendant/Governor had ordered his detention in prison, eventually banishing him from the Island. That the Defendant as Governor was invested with such privileges and rights of doing so. But the Plaintiff’919191s plea was that the assault and false imprisonment arose in the Island of Minorca, out of the realm of England and nowhere else thereby admitting the locality where the cause of action arose. It was shown at the trial that the assault and false imprisonment arose at the Arraval of St. Philips, where the injury complained of was done. That it was not within either of the four precincts, but in a district of itself more immediately under the power of the Governor, and that no Judge of the Island could have exercised jurisdiction there without a special appointment from the Governor. Upon these facts the trial Judge left it to the jury, who found a verdict for the Plaintiff and awarded him the sum of 3,000 damages. When the Appeal came before the Court of Kings Bench (Lord Mansfield, C.J., Aston, Willes and Ashurst, J.J). Counsel to the Appellant’s argument was that because on the Plaintiff’s own showing, the cause of action had arisen in Minorca, Spain out of the realm, the trial Judge who tried the case should have declined jurisdiction. In dismissing the argument, Lord Mansfield, C.J. held at pages 269 to 270 of the judgment as follows:

“In every plea to the jurisdiction, you must state another jurisdiction. Therefore, if an action is brought here for a matter arising in Wales to bar the remedy sought in this Court, you must show the jurisdiction of the Court of Wales. In every case to repel the jurisdiction of the King’s Court, you must show a more proper and more sufficient jurisdiction, for, if there is no other mode of trial, that alone will give the King’s Courts a jurisdiction. In this case no other jurisdiction is shown, even so much as in argument. If the King’s Courts of justice cannot hold plea in such case, no other Court can do it. For it is truly said that a Governor is in the nature of a viceroy, and, therefore, locally during his government no civil or criminal action will lie against him. The reason is because on process he would be subject to imprisonment. But here the injury is said to have happened in the Arraval of St. Philip’s, where without his leave no jurisdiction can exist. If that be so, there can be no remedy whatsoever if it is not in the King’s Courts because when he is out of the government and is returned with his property into this country there are not even his effects left in the island to be attached.”

The importance of the authority of Mostyn vs. Frabrigas (supra) is that if the argument is that the State High Court where the Originating Summons or claim was instituted had no jurisdiction the party objecting has the onus of showing why and how that Court lacks jurisdiction, and, secondly, why it is the Federal High Court that should exercise jurisdiction. This will be done by referring to the statutes by which the two Courts came into existence and by determining the causes and matters upon which jurisdiction is conferred.

Has the learned silk appearing for the Appellant established from the enactments and judicial authorities that exclusive jurisdiction vests in the Federal High Court to determine the nature of the claims/remedies set down in the Originating Summons? To answer this question, we will require an examination of the Constitution, the Federal High Court Act, the relevant statutes that established the Federal University of Technology, the State High Court and the cause of action.

The cause of action is usually determined from the nature of the grievances that gave rise to the dispute and the remedies being claimed. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157; Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967; Izenkwe vs. Nnadozie 14 WACA 361; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 and Inakoju vs. Adeleke (2007) All FWLR (Pt.353) 3. The Court will look at the lone question for determination and the remedies claimed by the three professors. In suits instituted by way of Writ of Summons supported by a Statement of Claim, it is the facts in the Claim that the Court examines to see if it has jurisdiction. See Ogbimi vs. Ololo (1993) 7 SCNJ (Pt.2) 447; Nosiru Bello vs. Attorney-General of Oyo State & Ors. (1986) 5 NWLR (Pt.5) 828 and Attorney-General of Kwara State vs. Olawale (1993) 1 SCNJ 208. In this case I have to examine the Originating Summons.

The Federal High Court came into existence under the Federal High Court Act, Cap. F12, Laws of the Federation of Nigeria, 2004 (as amended) on 13th April, 1973. The preamble made it very clear that it was “An Act to establish the Federal High Court as a High Court with certain special powers and to provide for all other matters connected there with.” The Court’s existence is entrenched under Section 249(1) of the Constitution of the Federal Republic of Nigeria, 1999. The purpose of establishing the Federal High Court and endowing her with “special powers and to provide for all other matters connected therewith” in the preamble to the Act is of paramount importance. For the Court to exercise jurisdiction to the exclusion of any other Court in civil causes and matters this must be shown to be found in the four walls of either the Constitution or the Act (supra) or any other Act of the National Assembly as set out under Section 251(1) of the Constitution which reads as follows:

“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:-

(relating to)

(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 in so far as it affects the Federal Government or any of its agencies;

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

(s) Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

In Maxwell On The Interpretation of Statutes, 12th edition by P.St.J. Langan, pages 6-7 appears the following statement of the law on the importance of preambles: “Many old statutes have preambles in which the main objects of the Act are set out, and these are legitimate aids in construing the enacting acts.” Lord Normand L.C. held in Attorney-General vs. H.R.H. Prince Ernest Augustus of Hanover (1957) A.C. 436 at 467-468 as follows:

“When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions…”

See also Chairman, L.E.D.B. vs. Said (1968) NMLR 183 at 187 and Okeke vs. Attorney-General of Anambra State (1992) 1 NWLR (Pt.215) 60 at 83.

A compound reading of the entire provisions of Section 251(1)(a)-(g) of the Constitution (supra) will show that, when the question of jurisdiction of the Federal High or a State High Court arises, the Act and the Constitution shall be consulted. The question will be whether the Federal High Court has jurisdiction “…to the exclusion of any other Court,” bearing in mind the question(s) and relief(s) sought in the Originating Summons. I do not think the State High Court had jurisdiction to entertain the Originating Summons and to grant relief to the aggrieved professors in this circumstance. The advert of Monday, 28th May, 2012 is the cause of action that led to the institution of the Originating Summons. The Summons is challenging the action or decision and manner of “administration,” “management” and control of the Federal University of Technology, Minna, Niger State by the principal officers of the University. The cause of action in such a circumstance comes within Section 251(1)(p) of the Constitution (supra). The question in the Originating Summons is not to determine the “…operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.” That would have come within Section 251(q) of the Constitution (supra). I therefore hold that the claims and remedies sought do not come within the provisions of Section 251(q) of the Constitution (supra). But it seems to me that the remedies sought by the three professors constitutes “an action or proceeding for a declaration …affecting the validity of the executive or administrative action or decision” by the University being one of the agencies of the Federal Government under Section 251(1)(r) of the Constitution (supra).

The preamble to the Federal Universities of Technology Act Cap F23, Laws of the Federation of Nigeria, 2004 states categorically that it is “An Act to provide for the establishment of three Universities of Technology and for matters of administration and discipline of students and connected therewith.” Section 1(3)(a)(h) of the Act sets out the objects of each University as follows:

“(a) To encourage the advancement of learning and to hold out to all persons without distinction of race, creed, sex or political conviction, the opportunity of acquiring a higher education in technology.

(b) To develop and offer academic and professional programmes leading to the award of diplomas, first degrees, post-graduate research and higher degrees which emphasize planning, adaptive, technical, maintenance, developmental and productive skills in the engineering, scientific, agricultural, medical and allied professional disciplines with the aim of producing socially mature men and women with capability not only to understand, use and adapt existing technology, but also to improve on it and develop new ones.

(c) To act as agents and catalysts, through post graduate training, research and innovation for the effective and economic utilization, exploitation and conservation of the country’s natural, economic and human resources.

(d) To offer to the general population, as a form of public service, the results of training and research and to foster the practical applications of these results.

(e) To establish appropriate relationships with other national institution involved in training, research and development of technology.

(f) To identify the technological problems and needs of the society and to find solutions to them within the con of overall national development.

(g) To provide and promote sound basic scientific training as a foundation for the development of technology and applied sciences, taking into account indigenous culture and the need to enhance national unity; and

(h) To undertake any other activities appropriate for a university of technology of the highest standard.”

Section 2(1) and (2) describes who the principal officers of the University are to wit:

“(1) Each University shall consist of:-

(a) a Chancellor;

(b) a Pro-Chancellor;

(c) a Vice-Chancellor and a Senate;

(d) a body to be called Congregation;

(e) a body to be called Convocation;

(f) the campuses and colleges of the University.

(g) the schools, institutes and other teaching and research units of the University;

(h) the persons holding the offices constituted by the First Schedule to this Act other than those mentioned in paragraph (a)-(c) of this subsection;

(i) all graduates and undergraduates of the University; and

(j) all other persons who are members of the University in accordance with provisions made by statute in that behalf.

(2) The First Schedule to this Act shall have effect with respect to the principal officers of each University therein mentioned.”

The powers of the University and their exercise are as provided in Section 3(1)-(3) of the Act:

“(1) For the carrying out of its objects as specified in Section 1 of this Act each University shall have power:-

(a) To establish such campus, colleges, institutes, schools, extra-mural departments and other teaching and research units within the University as may from time to time be deemed necessary or desirable subject to the approval of the National Universities Commission.

(b) To institute professorships, readerships or associate professorships, lectureships, and other posts and offices and to make appointments thereto.

(c) To institute and award fellowships, scholarships, exhibitions, bursaries, medals, prizes and other titles, distinctions, awards and forms of assistance.

(d) To provide for the discipline and welfare of members of the University.

(e) To hold examination and grant degrees, diplomas, certificates and other distinctions to persons who have pursued a course of study approved by the University and have satisfied such other requirements as the University may lay down.

(f) To grant honorary degrees, fellowships or academic titles.

(g) To demand and receive from any student or any other person attending the University for the purpose of instruction, such fees as the University may from time to time determine subject to the overall directive of the Minister;

(h) Subject to Section 19 of this Act, to acquire, hold, grant, charge or otherwise deal with or dispose of movable and immovable property wherever situate.

(i) To accept gifts, legacies and donations, but without obligation to accept the same for a particular purpose unless it approves the terms and conditions attaching thereto.

(j) To enter into contracts, establish trusts, act as trustee, solely or jointly with any other person, and employ and act through agents.

(k) To erect, provide, equip and maintain libraries, laboratories, lecture halls, halls of residence, refectories, sports grounds, playing fields and other buildings or things necessary, suitable or convenient for any of the objects of the University.

(l) To hold public lectures and to undertake printing, publishing and book selling.

(m) Subject to any limitations or conditions imposed by statute, to invest any moneys appertaining to the University by way of endowment, not being immediately required for current expenditure, in any investments or securities or in the purchase or improvement of land, with power from time to time, to vary any such investments and to deposit any moneys for the time being not invested, with any bank on deposit or current account.

(n) To borrow, whether on interest or not and if need be upon the security of any or all of the property, movable or immovable, of the University, such moneys as the Council may from time to time in its discretion find it necessary or expedient to borrow or to guarantee any loan, advances or credit facilities.

(o) To make gifts for any charitable purpose.

(p) To do anything which it is authorized or required by this Act or by statute to do; and

(q) To do all such acts or things, whether or not incidental to the foregoing powers, as may advance the objects of the University.

(2) Subject to the provisions of this Act and of the statutes and without prejudice to Section 7(2) of this Act, the powers conferred on the University by subsection (1) of this section shall be exercised on behalf of the University by the Council or by the Senate or in any other manner which may be authorized by the statute.

(3) The power of the University to establish further campuses and colleges within the University shall be exercisable by statute and not otherwise.”

In my humble opinion the relationship of the Appellant with the Federal Government of Nigeria can be likened to that between a principal and an agency. The administrative actions or decisions of the University grieved the three professors into instituting the Originating Summons in the lower Court to claim reliefs against them. What the three professors did by Originating Summons constituted a challenge to “the administration or the management and control of the Federal Government or any of its agencies” under Section 251(1)(p) of the Constitution (supra). The Originating Summons is also “an action or proceeding seeking for a declaration and injunctive reliefs affecting the validity of the executive and administrative action or decision of an agency of the Federal Government” under Section 251(1)(r) of the Constitution. Section 318(1) of the Constitution (supra) does not define the word “action”; neither has the Interpretation Act (supra) done so. We are however authorized to seek recourse in precedents and dictionaries.

In Stroud’s Judicial Dictionary, 4th edition, Vol.1 page 45, the learned authors have stated what the word “action” is, “…(1) This is a generic term, and means a litigation in a civil Court for the recovery of individual wrong, in its proper legal sense, of suits by the Crown (Bradlaugh vs. Clarke, 8 App. Cas. 354; See also judgment of Brett, M.R., in A.G. vs. Bradlaugh, 14 Q.B.D. 667.” In Fenwick vs. East London Railway (1875) L.R. 20 Eq. 544 it was held that, “action” includes proceedings in law or in equity. For instance, a private Act which provided that “…no action in any of His Majesty’s Courts of Law” should be brought against certain ship owners without a month’s notice, was held not to apply to proceedings in the Admiralty Division of the High Court, for when the Act was passed the Admiralty Court was not one of His Majesty’s Court, nor were proceedings there called “actions”. See The Longford (1889) P.D. 34; Oloto vs. Attorney-General (1957) 2 FSC 74 at 81. Furthermore, “action” is defined as “The process of doing something; conduct or behaviour… A thing done… A civil or criminal judicial proceeding…” See Blacks Law Dictionary, 9th edition, page 32.

Section 251(1) of the Constitution does not also define what constitutes a “decision.” But Section 318(1) of the Constitution (supra) has defined “decision”; it “means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” Though the definition is “in relation to a Court,” examples of what constitute “decision” can be extended to other bodies or authorities such as the University of Technology, Minna, Niger State. This is because the Appellant/the co-Defendants take “action” or “decisions” on a day to day basis in managing the affairs of the University, one of which is being challenged by this Originating Summons.

I therefore hold that an Originating Summons is a civil cause or matter within the contemplation of Section 251(1)(p) and (r) of the Constitution. The management of an institution consists of those who are vested with a certain amount of executive or administrative discretion, and they exercise independent judgment in managing and controlling its affairs on day to day basis. Discretion vests in the management of such institutions to take decisions or actions in the best interest of the institution as they manage and control its affairs. The management uses executive or administrative powers and authority to control the institution. In the case of the Appellant, Section 251(1) of the Constitution, vests exclusive jurisdiction in the Federal High Court but certainly not in a State High Court or any other Court in Nigeria to determine disputes of this nature.

For the above reasons, Section 10(1) and (2) of the Interpretation Act (supra) reads as follows:

“10(1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”

I hold that to challenge the action or decision of (1) the University (2) the Governing Council, (3) the Chairman, Governing Council, (4) the Vice-Chancellor or the Senate of the Federal University of Technology, Minna, Niger State as the case may be, by action or proceedings seeking declaratory and injunctive reliefs affecting the validity of executive or administrative action or decision vests exclusively in the Federal High Court to the exclusion of any other Court in civil causes and matters. Section 272(1) of the Constitution (supra) provides as follows:

“Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue…”

The powers and authority of the High Court of a State is “subject to the provisions of Section 251 and other provisions of this constitution.” In Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (Pt.1157) 83 at 138-139 Adekeye, JSC held that:

“Whenever the phrase “subject to” is used in a statute the intention, purpose and legal effect is to make the provisions of the Section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words, the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable, subordinate and inferior to the provision of the other enactment.”

See also Idehen vs. Idehen (1991) 7 SCNJ (Pt.2) 196 at 215-216 and Agidigbi vs. Agidigbi (1992) 2 NWLR (Pt.221) 98.

Though the Federal High Court and the State High Court are superior Courts of record – see Section 6(5)(c) and (e) of the Constitution of the Federal Republic of Nigeria, 1999, the exercise of the powers and authority of a State High Court is subject to the jurisdiction of the Federal High Court under Section 251(1) of the Constitution. The express mention of the causes and matters in Section 251(1)(p) and (r) of the Constitution (supra) excludes High Courts of a State. The express mention of one thing in a constitution or an enactment excludes another. See Udoh vs. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 at 447; Attorney-General of Bendel State vs. Aideyan (1989) 4 NWLR (Pt.118) 646 and Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.

APPEAL NO.CA/A/12/2013

I have carefully considered the Issues raised and argued by the learned silk and Counsel to the Appellants and the Respondents. I adopt their reasoning in determining Appeal No.CA/A/12A/2013. For similar reasons, I hold that Appeal No.CA/A/12A/2013 and CA/A/12/2013 are hereby allowed. The Originating Summons in the lower Court is struck out.

Section 72(2) of the High Court (Amendment) Law, No.15 promulgated by the Government of Niger State came into force on 3rd April, 2013 whereas the cause of action that gave rise to the institution of the Originating Summons arose on Monday, 28th May, 2012. But Section 72(2) of the Law provides thus:

“72(2) No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the Federal High Court or the National Industrial Court 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 returned to the Chief Judge who may cause such cause or matter to be transferred to the Federal High Court or the National Industrial Court as the case may be in accordance with such Rules of Court made under Section 116 of the High Court Law or as may be in force in the High Court.”

3rd April, 2013 is the day the Executive Governor of Niger State gave assent to the Law enacted by the State House of Assembly. Even if Law No. 15 of 3rd April, 2013 were to apply to this proceeding there is nothing to show it was intended to have retrospective effect. See Afolabi vs. Governor or Oyo State (1985) 2 NWLR (Pt.9) 734; Habib vs. Principal Immigration Officer (1958) 3 FSC 75 and Ojokolobo vs. Alamu (1987) NWLR (Pt.61) 377. Moreover, the relevant law applicable to an action is that in force at the time the cause of action arose – see Utih vs. Onyiuwe (1991) 1 SCNJ 25 at 45; Uwanjo vs. Attorney-General of Bendel State (1989) 7 SC 124; Attorney-General vs. Dosunmu (1989) 3 NWLR (Pt.111) 525 and Are vs. Attorney-General (1960) 5 FSC 111/112.

Lastly, it is not within the competence of a State House of Assembly to embark on a voyage of enacting laws for State High Courts to be applied in Federal High Courts. Under the Constitution, rules of practice and procedure are promulgated for the Federal High Court by the Chief Judge of the Federal High Court. The Chief Judge of the States makes Rules governing practice and procedure for State High Court. See Sections 254 and 274 of the Constitution of the Federal Republic of Nigeria, 1999. Where a Court has no jurisdiction it cannot make an order transferring the suit to a Court with jurisdiction. See Okoli vs. Ezeoke (1958) 2 ENLR 26; Balogun vs. Adesanya 19 NLR 19; Ajayi vs. Odunsi (1959) 4 FSC 189 and Nigerian Leather Works Ltd. vs. Voss (1977) NNLR 220/223. A transfer can be however be effected where there is statutory provision to that effect. See Mokelu vs. Federal Commissioner for Works and Housing (1976) 1 NMLR 239. Since the lower Court had no jurisdiction to entertain the Originating Summons this Court lacks the jurisdiction to order a transfer of the Originating Summons to another Court of competent jurisdiction nor to invoke the provisions of Section 15 of the Court of Appeal Act, Laws of the Federation of Nigeria, 2004 to transfer the Summons.

The Application is refused. Both Appeals are allowed. The Originating Summons in the lower Court is struck out.

I make no order as to costs in respect of Appeal No.CA/A/12A/2013 and Appeal No.CA/A/12/2013.

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Tur, JCA. I agree with the reasoning and conclusion of my learned brother that the Appeals have merit.

The claims of the 1st, 2nd and 3rd Respondents in their Originating Summons, taken out in the High Court of Niger State, pertain to the management and administration of Federal University of Technology, Minna – a Federal Government institution, and only the Federal High Court has the jurisdiction to entertain same under section 251(1)(p) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It is for this reason and the very elaborate reasons in the lead judgment that I also allow each of the two consolidated Appeals.

I make no order for costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft before now, the judgment delivered by my learned brother, Tur JCA. I agree with his reasoning and conclusion reached in both Appeal Nos-CA/A/12/2013 and CA/A/12A/2013 that they are meritorious. They are hereby allowed.

Section 72(2) of the Niger State High Court (Amendment) Law, No. 15 of 3rd April, 2013 provides thus –

“72(2) No cause or matter shall be struck out by the court merely on the ground that such cause or matter was taken in the court instead of the Federal High Court or the National Industrial Court 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 returned to the Chief Judge who may cause such cause or matter to be transferred to the Federal High Court or the National Industrial Court as the case may be in accordance with such Rules of Court mode under Section 116 of the High Court law or as may be in force in the High Court.”

By this provision of the law, the Niger State High Court has the power to transfer a matter to either the Federal High Court or the National Industrial Court where the State High Court declines jurisdiction instead of striking out the suit. The statutory provision is in pari materia with the provisions of the Federal High Court, Cap. F.12, Laws of the Federation of Nigeria which empowers the Federal High Court to transfer a matter to the State High Court where the latter declines jurisdiction. See BFD (NIG) LTD v UTB (2010) 6 NWLR (PT. 1189) 185 at 204; FASAKIN FOODS v. SHOSANYA (2006) 10 NWLR (PT. 987) 126 at 161.

However, the commencement date of this law is 3rd April 2013, whereas this suit was instituted on 28th May 2012. The provision of the law which vests power of transfer on the Niger State High Court to Federal High Court where the latter declines jurisdiction cannot therefore apply to this case. Thus, the Lower Court did not have the jurisdiction to transfer the case to another court. The Court of Appeal cannot therefore exercise its powers under S. 15 of the Court of Appeal Act, Laws of the Federation 2004, to transfer this case to the Federal High Court. This is because the power under S. 15 of the Court of Appeal Act is only excisable if it is exercisable in the court below. For this reason, I also agree that the Originating Summons in the lower court be struck out. It is hereby struck out.

I make no order as to costs.

Appearances

Rotimi Ojo, Esq. with Gimba Mohammed, Esq.; A. Ayodele, Esq. and Isaac A. Folorunso, Esq.For Appellant

AND

Yusuf Ali, SAN, with Prof. Wahab Egbewole, Esq.; K.K. Eleja, Esq.; Alex Akoja, Esq.; Mrs. P. I. Ikpegbu, Esq.; Mrs. T. E. Akintunde, Esq.; H. T. Oloyede, Esq.; K. T. Sulyvan (Miss), Esq.; R. Abdulmalik, Esq. and Anaiebonan – For the 4th Respondent.

Ibrahim Isiyaku, SAN, with B.A. Oyefeso, Esq. – For the 1st-3rd Respondents.For Respondent