GLAXOSMITHKLINE PHARMACEUTICAL NIGERIA LIMITED & ANOR v. MR CHARLES OBEN
(2016)LCN/8300(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of March, 2016
CA/L/274/2012
RATIO
COURT: JURISDICTION; STATUTORY PROVISION FOR THE JURISDICTION OF THE FEDERAL HIGH COURT
Before going into the merits of this appeal, recourse must be had on S.251 of the 1999 Constitution which confers jurisdiction on the Federal High Court. Section 251 provides as follows:
(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,
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties,
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory notes and other fiscal measures.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
(f) any Federal enactment relating to copyright, patent, designs, trademarks and passing – off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of good and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by sea.
(h) diplomatic, consular and trade representation:
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency
(k) aviation and safety of aircraft
(l) arms, ammunition and explosives
(m) drugs and poisons
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas)
(o) weights and measures
(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 a declaration injunction affecting the validity of any executive administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
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.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; THE PREREQUISITES OF A COURT IN THE EXERCISE OF ITS JURISDICTION
It is settled that one of the prerequisites of a Court in the exercise of its jurisdiction is that the subject matter of the action must be within its jurisdiction, and there should be no feature in the case which prevents the Court from the exercise of its jurisdiction. Madukolu vs Nkemdilim (1962) 2 SCNLR pg.341 (1962) 1 All NLR Pt.4 pg 587. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHEN CAN A PARTY WHO PERCIEVES THAT A COURT HAS NO JURISDICTION RAISE THE ISSUE AND WHAT IS THE CORRESPONDING OBVLIGATION OF THE COURT
It is important for a party who perceives that a Court has no jurisdiction to hear a cause or matter to raise the issue at the earliest opportunity, Correspondingly, a Court is expected to decide the issue of Court’s jurisdiction to hear a case when a challenge is raised at the earliest opportunity. Nnonye vs Anyichie (2005) 2 NWLR Pt.910 pg 623. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHETHER IT IS THE RULE OF COURT OR THE STATUTE CREATING THE COURT THAT VEST JURISDICTION ON THE COURT
It is not the Rules of Court that vests jurisdiction on the Court rather it is the Statute creating a Court that vests jurisdiction on a Court, see Onuorah vs. KRPC (2005) 6 NWLR Pt.921 Pg.393, Afribank (Nig) Plc vs Akwana (2006) 5 NWLR Pt.927 pg.393; Afribank (Nig) Plc vs Akwana (2006) 5 NWLR Pt.974 Pg.619. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHAT DOES THE COURT CONSIDER IN DETERMINING WHETHER A COURT HAS JURISDICTION TO ENTERTAIN A MATTER
It is settled law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. Gafar vs Government, Kwara State (2007) 4 NWLR Pt.1024 Pg.375, Onuorah vs K.R.P.C (supra), Tukur vs Government of Gongola State (1989) 4 NWLR Pt.117 pg.517; Nkuma vs Odili (2006) 6 NWLR Pt.977 pg 587. It therefore behooves this Court to look at the statement of claim to determine what the subject matter is. It is true that Section 251(1)(m) talks about “Drugs and Poisons” per. UZO I. NDUKWE-ANYANWU, J.C.A.
DAMAGES: WHAT MUST THE RESPONDENT PROVE TO BE ENTITLED TO DAMAGES
It is settled that for anyone to be entitled to damages, there must be negligence and a wrong. For the Respondent to be entitled to damages, he must prove that the Appellants’ owed him a duty of care. It therefore means that the thrust of the claim of the Respondent is on the tort of negligence. The Respondent from his claims perceived that the Appellants owed him a duty of care. That is why the Respondent is claiming for damages and restraining order against the Appellants. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHETHER A COURT CAN ADJUDICATE ON A CLAIM THAT THE SUBJECT MATTER IS NOT WITHIN ITS JURISDICTION
The tort of negligence does not fall under the ambit of what is envisaged by Section 251(1) of the 1999 Constitution, Where the subject matter of the claim is not within the jurisdiction of the Court adjudicating, there is nothing to adjudicate.
The Supreme Court in Adelakun vs Ecu-line (2006) 5 SC Pt 11 pg 32, (2006) LPELR pg.13 per Onnoghen, JSC unequivocally said of Section 251 of the 1999 Constitution.
“it is this section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court” NDIC vs Jackson Devos Ltd (2014) LPELR 23378,
See also Pfizer Specialties Ltd vs. Chyzob Pharmacy Ltd and Ors (2006) LPELR 11780 where Garba JCA held as follows. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. GLAXOSMITHKLINE PHARMACEUTICAL NIGERIA LIMITED
2. GLAXOSMITHKLINE PLC, UK Appellant(s)
AND
MR CHARLES OBEN Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against Ruling of the Federal High Court sitting at Lagos State delivered on 18th November, 2011 by Hon. Justice S. J. Adah.
?The facts briefly stated are as follows:
Sometime in September 2009, the Plaintiff/Respondent travelled to Burkina Faso for his regular medical consultation with his physician, Prof Nebie, who prescribed for him a drug known as Zyloric. The drug was/is manufactured by the Defendants/Appellants. Shortly after he began taking the prescription, he developed adverse reactions to the drug and as a result was hospitalised in Burkina Faso and was later transfer to another hospital in Abidjan for intensive care and further to Wellington Hospital, London. He was diagnosed with Steven-Johnson Syndrome usually caused by an allergic reaction to allopurinol. It was alleged that Zyloric produced by the Appellants contained such chemical substance. However, the Appellants did not disclose in the information leaflet that the drug may produce such adverse effect associated with allopurinol. Hence, the Respondent commenced this suit at the
Lower Court by filing a writ of summons on the 26th day of May, 2010 seeking the following reliefs against the 1st Defendant now 1st Appellant:
“a. an order of the Court directing the Defendant to stop manufacturing and distribution of its Zyloric drug, till it satisfactorily establishes that the drug can no longer result in adverse reactions with the propensity to cause death or permanent disability.
b. special damages of 2,000 Pounds and 13,500 Pounds,
c. damages for permanent loss of good health and dependence on drugs; the sum of N400,000,000.
d. and interest on claim(2) at the prevailing commercial rate of interest until judgment and thereafter 6% per annum until liquidated.”.
In response, the 1st Appellant filed its memorandum of appearance and filed its Statement of Defence and other accompanying processes.
Later on, the Respondent brought an application to amend its Statement of Claim in order to join the 2nd Appellant in the suit, which was granted by the Lower Court on the 21st November 2010.
Upon being served with the originating processes, the Appellant filed a notice of Preliminary Objection, objecting to
hearing of the suit on two grounds namely:
“i. That the Federal High Court presided over by Hon. Justice S. J. Adah lacked the jurisdiction to hear and determine the claim of the Plaintiff in suit no. FHC/IKJ/CS/16/2010 Mr. Charles Oben v. GlaxoSmithKline Pharmaceutical Nigeria Plc & GlaxoSmithKline Plc, UK; the subject matter being a claim for the tort of negligence.
ii. The Federal High Court lacks jurisdiction to hear and determine the Claim of the Plaintiff in the suit, being a claim in respect of injury alleged to have been caused by a drug not alleged to have been manufactured in Nigeria, prescribed by a doctor outside Nigeria, and procured and ingested by the Plaintiff outside Nigeria, and alleged to be manufactured by a Defendant not resident or domiciled in Nigeria.”
The application was heard. In its ruling, the learned trial judge, dismissed the 2nd Appellant’s said objection.
Dissatisfied with the ruling, the Appellants filed a Notice of Appeal on the 26th day of March, 2012 consisting of two grounds of Appeal. In accordance with the Rules of this Court, parties filed their respective brief of argument. The Appellants’ brief
was filed on the 8th day of April, 2013; while the Respondent’s brief was filed on the 9th day of May, 2013. The Appellants’ reply brief was filed on the 24th day of May, 2013.
The Appellants, in their brief formulated two issues for determination viz:
“1. Whether having regard to the fact of the suit, the Federal High Court has the jurisdiction to entertain the Plaintiff’s/Respondent’s action.
2. Whether the Federal High Court in Nigeria is the forum conveniens or appropriate Court for the adjudication of the claims of the Plaintiff/Respondent.”
The Respondent on its own part adopted the above said issues.
ISSUE 1
Learned counsel for the Appellant submitted that the trial Court was wrong to have assumed jurisdiction on the basis that the Respondent’s claim is based on the manufacturing and distribution of drugs. It is the contention of counsel that the claim of the Respondent is not based on the manufacturing and production of drugs but on the tort of negligence. In other words, the Respondent claim was based on the negligence of the Appellant to inform the customer of the content of the drug and its possible side effects. He
referred to the facts pleaded in the Respondent’s Statement of Claim. He also submitted that the fact that one of the reliefs prayed for by the Respondent is an order to stop the manufacturing and distribution of the drug, does not make it a claim about the manufacture and distribution of the drug. According to counsel, the Court will not only look at the reliefs but also at the totality of facts pleaded in arriving at the nature of the case before the Court.
He emphasised that the fact that a drug is involved in the case is not sufficient to clothe the Lower Court (Federal High Court) with jurisdiction especially where the substance of the case is based on the tort of negligence. He relied on the case of PFIZER SPECIALTIES LTD V CHYZOB PHARMACY LTD (2008) ALL FWLR (PT.414) 1455; JAMAL STEEL STRUCTURES LTD V ACB (1973) NSCC 619.
He submitted that Section 251(1)(m) of the 1999 Constitution of the Federal Republic of Nigeria is ambiguous and that reliance should be placed on Section 7(1)(n) of the Federal High Court Act. He thus urged this Court to hold that the claim of the Respondent being one for the tort of negligence, the trial Court lacked
jurisdiction to entertain it.
On the other hand, Counsel for the Respondent submitted that the trial Court was right in assuming jurisdiction. He submitted that from the provision of Section 251(1)(m) of the 1999 Constitution and Section 7(1)(n) of the Federal High Court Act, it is clear that the Federal High Court has exclusive jurisdiction to entertain matters relating to drugs. He further contended that in determining the jurisdiction of the Court, reference is made to the Plaintiff’s Statement of Claim and the reliefs sought.
He relied on the case of MADUKOLU & ORS V NKEMDILIM (1962) ALL NLR 581; INAKOJU & ORS V ADELEKE & ORS (2007) 4 NWLR (PT.1025) 423; C.G.G. (NIG) LTD V CHIEF LAWRENCE OSU (2005) 2 SCNJ 227 @ 257. According to counsel from the Respondent’s statement of claim, the Respondent’s principal claim before the Court was the manufacturing and distribution of the drug called Zyloric produced by the Appellants. Thus the Appellants’ argument that the claim is purely on the tort of negligence is misconceived. It is the contention of Counsel that assuming the State High Court has jurisdiction as it pertains to some heads
of claim, he submitted as long as the greater part of case fall within the jurisdiction of the Federal High Court, the proper Court to assume jurisdiction is the Federal High Court. He referred to the case of ELDER AMADI UCHEGBU V THE SHELL PETROLEUM DEV. CO. NIG. LTD (2010) 2 NWLR (PT.1178) 285 @ 306. He thus urged this Court to uphold the decision of the Lower Court.
In his reply, learned counsel for the Appellants conceded that where some issues can be entertained by one Court and another by another Court; it is the Court that has the jurisdiction to entertain all that should assume jurisdiction. However, it is the case of the Appellants that the entirety of this case falls within the jurisdiction of the State High Court. He further submitted that the provision of Section 251(1)(m) of the 1999 Constitution and Section 7(1)(m) of the Federal High Court Act should not be given their literal interpretation, as such interpretation will lead to absurdity whereby all claims relating or pertaining to drugs directly or indirectly would be taken to the Federal High Court thereby clogging the Court and preventing the Court from exercising or performing its
legitimate functions. He relied on the case on PDP V INEC & ORS (1999) 11 NWLR (PT.626) 200; PFIZER SPECIALTIES LTD V CHYZOB PHARMACY LTD (SUPRA).
ISSUE 2
Learned counsel for the Appellants submitted that Nigeria is not the forum conveniens or appropriate Court for this suit as far as the 2nd Appellant is concerned. He contended that the action is against the 2nd Appellant and that the 1st Appellant was used just to clothe this Court with jurisdiction. He submitted that this action ought to have been instituted either at a competent Court in Burkina Faso where the cause of action arose or in the United Kingdom where the 2nd Appellant is based. He relied on Order 2(9) of the Federal High Court (Civil Procedure) Rules and the case of NELSON NGOH GEORGE V S.B.N PLC (2009) 5 NWLR (Pt.1134) 321.
He further submitted that for the Court to determine forum conveniens, all parties need to be considered and not only the Plaintiff/Respondent. He relied on the case of MBADINUJU V I.C.N. LTD (2007) 12 NWLR (PT.1058) 524 @ 533. He also referred to the Affidavit of Oluwole Olukoya in support of the Defendants’/Appellants’ Notice of Preliminary Objection
dated 21st March, 2011 wherein, it was argued that it will be inconvenient for the 2nd Appellant to bring in witnesses from Burkina Faso to testify in Nigeria and also inconvenient to enforce any judgment that may be obtained or entered in Nigeria outside Nigeria.
He therefore urged this Court to hold that based on the above fact, the Nigerian Court (Federal High Court in Nigeria) would definitely not be the forum conveniens.
Learned counsel for the respondent however, submitted that the issue of forum conveniens is a matter for the discretion of the Court and in exercising the discretion, the Court will take into account some factors which include the following:
1. Whether the Court should exercise its discretion in the circumstances of the case and the facts before it.
2. Whether the Plaintiff would be subjected to tremendous hardship.
3. Whether the Defendant will suffer such hardship as the Plaintiff would and
4. Whether the laws applicable in the countries are similar.
It is the contention of counsel that in the instant case, the above stated factors tilt in favour of trying the case in Nigeria. Firstly, the
Plaintiff/Respondent will suffer tremendous hardship if the case is tried outside Nigeria as the Respondent has lost his job as a result of the medical condition caused by his use of the Zyloric drug and cannot bear the cost of trial in another jurisdiction. Secondly, the Defendants/Appellants being a multinational Corporation have sufficient resources to attend trial without any significant consequential hardship. Thirdly, Nigeria and the United Kingdom operate similar regimes and the laws in both countries are similar. The judgment entered under Nigerian law will be enforceable in the United Kingdom under the applicable Reciprocal judgment Enforcement Treaties.
In his reply, learned counsel for the Appellant submitted that in exercising its discretion, the Court must consider both effectiveness and submission in determining forum conveniens. He thus urged this Court to hold that Nigeria is not the forum conveniens.
Before going into the merits of this appeal, recourse must be had on S.251 of the 1999 Constitution which confers jurisdiction on the Federal High Court.
Section 251 provides as follows:
(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,
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties,
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking,
foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory notes and other fiscal measures.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
(f) any Federal enactment relating to copyright, patent, designs, trademarks and passing – off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of good and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by sea.
(h) diplomatic, consular
and trade representation:
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency
(k) aviation and safety of aircraft
(l) arms, ammunition and explosives
(m) drugs and poisons
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas)
(o) weights and measures
(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 a declaration injunction affecting the validity of any executive administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
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.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section.
The thrust of the Respondent’s case is on Section 251(1) (m).
The Appellants in their brief argued that the Federal High Court had no jurisdiction to deal with the subject matter of this suit in the Lower Court.
It is settled that one of the prerequisites of a Court in the exercise of its jurisdiction is that the subject matter of the action must be within its jurisdiction, and there should be no feature in the case which prevents the Court from the exercise of its jurisdiction. Madukolu vs Nkemdilim (1962) 2 SCNLR pg.341
(1962) 1 All NLR Pt.4 pg 587.
The Appellant as Defendants in the Federal High Court had objected to the jurisdiction of the Court. It is important for a party who perceives that a Court has no jurisdiction to hear a cause or matter to raise the issue at the earliest opportunity,
Correspondingly, a Court is expected to decide the issue of Court’s jurisdiction to hear a case when a challenge is raised at the earliest opportunity. Nnonye vs Anyichie (2005) 2 NWLR Pt.910 pg 623.
It is not the Rules of Court that vests jurisdiction on the Court rather it is the Statute creating a Court that vests jurisdiction on a Court, see Onuorah vs. KRPC (2005) 6 NWLR Pt.921 Pg.393, Afribank (Nig) Plc vs Akwana (2006) 5 NWLR Pt.927 pg.393; Afribank (Nig) Plc vs Akwana (2006) 5 NWLR Pt.974 Pg.619.
It is settled law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. Gafar vs Government, Kwara State (2007) 4 NWLR Pt.1024 Pg.375, Onuorah vs K.R.P.C (supra), Tukur vs Government of Gongola State (1989) 4 NWLR Pt.117 pg.517;
Nkuma vs Odili (2006) 6 NWLR Pt.977 pg 587.
It therefore behooves this Court to look at the statement of claim to determine what the subject matter is.
It is true that Section 251(1)(m) talks about “Drugs and Poisons”
The Respondent as Plaintiff in the trial Court complained about the effect of the drug Zyloric on him after its use. The respondent also claimed for damages against the Appellants.
It is settled that for anyone to be entitled to damages, there must be negligence and a wrong. For the Respondent to be entitled to damages, he must prove that the Appellants’ owed him a duty of care. It therefore means that the thrust of the claim of the Respondent is on the tort of negligence. The Respondent from his claims perceived that the Appellants owed him a duty of care. That is why the Respondent is claiming for damages and restraining order against the Appellants.
The tort of negligence does not fall under the ambit of what is envisaged by Section 251(1) of the 1999 Constitution, Where the subject matter of the claim is not within the jurisdiction of the Court adjudicating, there is nothing to adjudicate.
The Supreme Court in
Adelakun vs Ecu-line (2006) 5 SC Pt 11 pg 32, (2006) LPELR pg.13 per Onnoghen, JSC unequivocally said of Section 251 of the 1999 Constitution.
“it is this section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court” NDIC vs Jackson Devos Ltd (2014) LPELR 23378,
See also Pfizer Specialties Ltd vs. Chyzob Pharmacy Ltd and Ors (2006) LPELR 11780 where Garba JCA held as follows.
“There is no doubt that the reasonable cause of action found by me earlier to have been disclosed by the pleadings of the Appellant is one grounded on tort of injury arising out of the Respondent act of contravening the provisions of the 1993 Decree which conferred rights and benefit to the Appellant. The mere fact of the use of the words “drugs” in the Decree and the phrases used in both the Federal High Court Act as well as the Constitution cannot seriously be contended to mean that the Court below has a blanket jurisdiction to entertain all sorts of actions in which drugs were involved.
That would mean that
for instance claims for destruction of drugs between individuals and/or companies or a claim for damages in respect of the wrong or negligent administration or dispensation of drugs by individuals against private doctors, clinics or Hospitals simply because drugs are involved would come within the provisions of Section 7(1) (n) of the Federal High Court Act and the Constitution, I am not prepared to accept such a wild and unreasonable contention, The act of the Respondents which resulted in the complaint of the Appellant is that of selling or distributing Viagra drug in Nigeria. The vital and relevant point in the claim is the sale of the product that happens to be the drug Viagra.
The claim being one based on tort, I agree with the learned Counsel for the two Respondents that it does not fall within the jurisdiction of the Court below. I for that reason find that the Court lacks the jurisdiction to entertain the claim.”
With the foregoing, since the Respondent’s claim is based on the tort of negligence and a claim for damages, the Federal High Court lacked the necessary vires to adjudicate.
The Federal High Court lacked the jurisdiction to hear this
case as it is constituted.
Issue one is therefore resolved in favour of the Appellants against the Respondent. Having resolved that the Federal High Court lacked the necessary jurisdiction, I cannot therefore deal with the second issue as it leads to no useful purpose.
This appeal is meritorious and therefore allowed. By the powers conferred on the Court by Section 15 of the Court of Appeal Act, I therefore transfer this suit to the Lagos State High Court. The Hon Chief Judge of Lagos State should assign this case to one of its Judges for hearing.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid Judgment written by my learned, brother, Uzo. I. Ndukwe-Anyanwu, J.C.A., which I had the honour of reading in print.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading the lead judgment just delivered by my learned brother U. I. NDUKWE-ANYANWU, JCA.
?I am in agreement with the reasoning and conclusion that the appeal has merit and should be allowed.
?I too hereby allow the appeal and abide by the consequential orders made in the lead judgment.
Appearances
R. Okpete with him, A. OkunaiyaFor Appellant
AND
J. A. AkinolaFor Respondent
