GOVERNMENT OF RIVERS STATE & ANOR. v. BARNAX ENGINEERING COMPANY NIGERIA LIMITED (2010)

GOVERNMENT OF RIVERS STATE & ANOR. v. BARNAX ENGINEERING COMPANY NIGERIA LIMITED

(2010)LCN/3593(CA)

In The Court of Appeal of Nigeria

On Sunday, the 28th day of February, 2010

CA/A/159/2006

RATIO

JURISDICTION: AT WHAT STAGE IN A PROCEEDING CAN THE ISSUE OF JURISDICTION BE RAISED

It is however a well settled principle of law that, the issue of jurisdiction which determines the competence of the court to exercise its jurisdiction can be raised at any stage of a trial and indeed even for the first time on appeal. BRONIK MOTORS LTD v. WEMA BANK LTD (1983) 1 SCNLR 296, EZE v. FEDERAL REPUBLIC OF NIGERIA 1987) 1 NWLR (Pt.51) 506 at 516 and ONYEMA v. OPUTA (1987) 3 NWLR (Pt.60) 259. It is also in the interest of justice to raise the issue of jurisdiction viva-voce and suo motu by the Court so as to save time and cost and to avoid a trial in nullity. See PETROJESSICA ENTERPRISES LTD v. LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt.244) 675 at 696; OSADEBAY v. ATTORNEY GENERAL BENDEL STATE (1991) 1 NWLR (Pt.169) 525 and KATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt.214) 126. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: WHETHER A COURT IN ONE STATE HAS JURISDICTION OVER A MATTER WHICH IS WITHIN THE JURISDICTION OF ANOTHER STATE

A court in one state does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another state. See RIVERS STATE GOVERNMENT OF NIGERIA & ANOR v. SPECIALIST KONSULT (supra), DALHATU v. TURAKI (2003) 15 NWLR (PT.843) 310. The Supreme Court admonished courts to seriously guard their territorial jurisdiction wherein it held that judges of the High Court of the Federal Capital Territory, Abuja ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: WHAT VESTS JURISDICTION ON COURTS

It is not the rules of court that vest jurisdiction in the court but rather, the statute creating it. In this respect it is the Constitution of the Federal Republic of Nigeria, 1999 that one has to look to determine the jurisdiction of the High Court of the Federal Capital Territory. Section 257 sets out its jurisdiction and it read:

257(1) Subject to the provisions of Section 251 and any other provision of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High court of the Federal Capital Territory, Abuja 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 or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) … PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: WHEN WILL A COURT BE COMPETENT TO EXERCISE JURISDICTION

A court is only competent to exercise jurisdiction where the following conditions are satisfied;

a) The Court is properly constituted as regards members and qualifications of members of the bench and no member is disqualified for one reason or another;
b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and
c) The case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the jurisdiction. Jurisdiction is therefore a crutial and radical question. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. GOVERNMENT OF RIVERS STATE
2. ATTORNEY GENERAL OF RIVERS STATE Appellant(s)

AND

BARNAX ENGINEERING COMPANY NIGERIA LIMITED Respondent(s)

HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A. (Delivered the Leading Judgment) This is an appeal against the Ruling of his lordship, Honourable Justice H. Muktar of the High court of the Federal Capital territory, Abuja (as he then was), delivered on 25th October, 2005, wherein judgment in the sum of N186, 365,852.99 (One Hundred and Eighty-Six Million, Three Hundred and Sixty-Five Thousand, Eight Hundred and Fifty-Two Hundred, Ninety-Nine Kobo) was entered against the defendants under the undefended list procedure as per the plaintiff’s claim endorsed on the writ of summons.
The Respondent, who was the plaintiff at the High Court, instituted an action against the Defendants (now Appellants) under the undefended list procedure, claiming the following reliefs:-
1. The sum of N185, 688,938.92 (one hundred and eighty-five million, six hundred and eighty-eight thousand, nine hundred and thirty-eight naira, ninety-two kobo) being the principal outstanding balance for the supply of four (4) units of princess 330 cruise boats to the defendants.
2. N676, 914.07 (six hundred and seventy-six thousand, nine hundred and fourteen naira, seven kobo) only being the balance for the supply of generating plant to the defendants.
3. Whereof the plaintiff claims a total of N186, 365,852.99 (One Hundred and Eighty-Six Million, Three Hundred and Sixty-Five Thousand, Eight Hundred and Fifty-Two Naira, Ninety-Nine Kobo).
On the 25th of October, 2005 when the matter came up for hearing, the Defendants represented by Ayo Adewole, who was holding the brief of the Attorney General, sought for adjournment to enable him come properly before the Court. This application was opposed by Mr. Uche, Counsel for the Plaintiff/Respondent, who argued that the matter having been brought under the undefended list, that the only option open to the Court was to enter judgment in favour of the Plaintiff, the Defendants having not filed a Notice of Intention to defend the suit (see page 67 of the Record).
The Court upholding the submission of Mr. Uche for the Plaintiff accordingly entered judgment in favour of the Plaintiff as per its writ of summons.
The Defendants/Appellants are aggrieved by this ruling and have appealed to this Honourable court, vide a notice of appeal, dated 26th October, 2005 and filed on the 28th October, 2005. The Defendants/Appellants have filed a lone ground of appeal and have raised a lone issue for determination in this appeal.
The ground of appeal, without its particulars is hereby reproduced:-
GROUND OF APPEAL
The learned trial Judge erred in law by assuming jurisdiction in the suit when the Defendants/Appellants live and carry on business in Port-Harcourt, Rivers State and the transaction; subject matter of this suit took place in Port-Harcourt, Rivers State.
In compliance with the rules and Practice of this Court, parties filed and exchanged briefs of argument.
In the Appellants’ brief settled by I.R. Minakiri, (Mrs.), Director of Civil Litigations, Ministry of Justice, Port-Harcourt, Rivers State, one issue was raised for determination of the appeal to wit:-
”Whether the High Court of Abuja had the requisite jurisdiction to entertain and adjudicate on this suit.”
The Respondent’s brief settled by A.U. Osunwa, Esq., also formulated a lone issue for determination to wit:-
”Whether the High Court of Abuja had the jurisdiction when it adjudicated on this suit.”
At the hearing of the appeal, learned Counsel for the Appellants, Mrs. I.R. Minakiri, Esq., adopted and relied on the Appellants’ brief of argument, dated 29th August, 2006 and filed on the 5th of September, 2006 and urged this Honourable Court to set aside the judgment of the lower Court by dismissing the suit filed against the Appellants, for want of jurisdiction, with substantial cost to the Appellants.
Learned Counsel for the Respondent, A.U. Osunwa, Esq., also adopted and relied on the Respondent’s brief of argument, dated 23rd October, 2006, filed 10th November, 2006 and deemed properly filed and served, on the 24th of April, 2007, and urged this Honourable Court to uphold the decision of the lower court and award a substantial cost against the Appellants.
The lone issue as formulated by both the Appellant and the Respondent are saying the same thing, the competence or jurisdiction of the trial court to adjudicate over the claims of the Respondent. The issue as formulated by the Appellant is adopted in the determination of the appeal.
In arguing the lone issue for determination to wit:-
”Whether the High court of Abuja had the requisite jurisdiction to entertain and adjudicate on this suit.”
Learned Counsel for the Appellants submitted that from the totality of endorsements on the Plaintiff/Respondent’s writ of summons and other documents attached to the affidavit in support of the claim, the indisputable fact is that the Plaintiff’s claim borders on breach of contract and therefore governed by Order 9 Rule 3 of the High Court of the Federal Capital Territory Rules, 2004. She relied on the authority of RIVERS STATE GOVERNMENT v. SPECIALIST KONSULT (2005) 7 NWLR (PT.923) 145 at 178 paras D-G.
According to learned Counsel for the Appellants, from the provision of Order 9, Rule 3 supra, the question is, was the contract performed or ought to have been performed in Abuja, or do the Defendants reside or carry on business in Abuja?
She submitted that the question must be answered in the negative and humbly referred this Honourable Court to Section 3(3) of the 1999 Constitution, as well as SPECIALIST KONSULT (supra) page169 paras E-H. She further submitted that the contract for the supply of boats and generating sets by the Plaintiff/Respondent to the Defendants/ Appellants was discharged also in Port-Harcourt where the use of boats were required and not in Abuja.
The shipping documents attached to the Plaintiff’s affidavit in support of its claim is a confirmation of the fact that the supply was made in Port-Harcourt.
It is against this backdrop that learned Counsel for the Appellants argued that the place of performance, the business place as well as the residence of the Defendants is in Port-Harcourt and not Abuja.
Learned Counsel further argued that the trial court did not properly apply the rules of court by ascertaining the place of performance, residence and place of business of the Defendants before arriving at its decision and thereby falling into the error of assuming jurisdiction when it has none.
She posited again that the issue at stake in this matter is that of territorial jurisdiction, which brings into play, Section 272 of the 1999 Constitution and submitted that jurisdiction cannot be determined by rules of court. It is either a matter of the Constitution or the enabling law. She placed reliance on the following authorities; RIVERS STATE GOVERNMENT v. SPECIALIST KONSULT (supra); MADUKOLU v. NKEMDILIM (1962) ALL NLR 589 at 594.
Learned Counsel further opined that jurisdiction being a threshold issue is so important that it may be raised by any of the parties or by the Court, suo motu, if parties fail to raise the same to avoid the Court acting in vain and referred to the case of OLUTOLA v. UNILORIN (2004) 18 NWLR (Pt.905) 450 PARA C-7.
The point to be made is that submitting to jurisdiction of a court is no answer to want of jurisdiction for a total want of jurisdiction cannot be cured by the assent of the parties. If a court does not possess an initial jurisdiction, over a subject matter, it is not possible that the consent of the individual could confer jurisdiction. She relied on the case of ONYEMA v. OPUTA (1987) 3 NWLR (PT60) 259 at 262.
Jurisdiction it is submitted could be raised even at the Supreme Court for the first time. Any defect is fatal because the proceedings are a nullity no matter how well conducted and decided. See OLUTOLA v. UNILORIN (2004) 18 NWLR (Pt.905) 416 at 458 PARA P-H; WESTERN STEEL WORKERS v. IRON AND STEEEL WORKERS UNION (SUPRA), SKENKONSULT v. UKEY (1981) 1 SC 6 at 26.
In conclusion, learned Counsel for the Appellants submitted with respect, that the High Court of the Federal Capital Territory, in assuming jurisdiction over the instant suit acted without competence and therefore, its decision is a nullity. She therefore urged this Honourable Court to set aside the ruling of the lower Court for want of jurisdiction, with substantial cost to the Appellants.
In his response, learned Counsel for the Respondent submitted that this court has held in a number of cases that to determine jurisdiction, regard must be given to the claim of the Plaintiff. He relied on the following authorities: DR. SELO-OJE MEN & ANOR (2004) 12 NWLR (Pt.887) 411 at 415 ratio 2, IFEAJUNA v. IFEAJUNA (2000) 9 NWLR (Pt.671) 107 ratios 1, 2, 4, and submitted that, a look at the Plaintiff/Respondent’s writ of summons and affidavit thereto will disclose that the Plaintiff/Respondent is claiming liquidated sums of money owed him by the Defendants/Appellants which part had already been paid by the Appellant and that this narrows the case of the Respondent to the issue of recovery of debt owed him by the Appellants as per the contract entered into by both parties in Abuja. He therefore submitted that the Plaintiff’s action is governed by Order 9 Rule 4 (1) of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules, 2004 and not Order 9 Rule 3 of the said Rules as claimed by the Appellant.
According to learned Counsel for the Respondent, most of the negotiations took place in Abuja between the Managing Director of the Plaintiff and the Executive Head of State of the Defendants and submitted that the course of action, which resulted to this suit arose in the FCT and that the trial Court rightly assumed jurisdiction when he commenced and determined the suit in the High court of the FCT, Abuja.
He referred to the case of ARJAH LIMITED v. AIRLINE MANAGEMENT LTD (2003) 14 NSCQLR 29 at 33 Ratio 2, and opined that by virtue of paragraph 8 of the Plaintiff/Respondent’s affidavit in support of the suit under the undefended list, the contract in question was made in the F.C.T so the High Court of the F.C.T was right to have assumed jurisdiction. In trying to distinguish between the case of RIVERS STATE GOVERNMENT v. SPECIALIST KONSULT (supra); which was copiously referred to, by the Appellants and t he present suit, learned Counsel for the Respondent submitted that whereas in the RIVERS STATE GOVERNMENT v. SPECIALIST KONSULT case, the contract was not stated as having been made in Lagos, in the present case, by virtue of paragraph 8 of the Plaintiff/Respondent’s Affidavit, which was not controverted by the Appellants, the contract was stated to have been made in Abuja and so the court where the contract was made has jurisdiction to try the suit vide Order 9 Rule 4(1) (supra). He referred also to Order 9 Rule 5 of the High Court of the F.C.T Civil Procedure Rules, Abuja and submitted that by virtue of Section 257(1) & (2) of the 1999 Constitution, the lower court did not act outside its jurisdiction, as the Appellants never objected to the jurisdiction of the Court at the trial. He placed reliance on the case of AINA v. ABIODUN (2005) 10 NWLR (Pt.933) 373, as well as the case of NNONYE v. ANYICHIE (2005) 2 NWLR (Pt.910) 623.
On whether the Court was properly constituted, learned Counsel for the Respondent relied on Section 258 of the 1999 Constitution as well as the case of MADUKOLU v. NKEMDILIM (1962) ALL NLR 589 at 594 and submitted that the lower court was competent when it adjudicated on the suit and urged this Honourable court to so hold.
It is therefore his final submission that the High Court of the Federal Capital Territory rightly assumed jurisdiction to try this matter when it did, and therefore has a valid decision and prayed this Honourable Court to uphold the decision of the lower court and award a substantial cost against the Appellant.
I have carefully considered the arguments canvassed by both counsel for the Appellants as well as the Respondent on the lone issue and it seems to me that this appeal is pivoted on the threshold issue of jurisdiction. It is apparent from the record of proceedings that this issue was not raised at the court of first instance; that is to say, before the High Court of the Federal Capital Territory, Abuja save during the application filed for stay of Execution, The Appellants have not filed anything before the lower Court.

In the instant case, which was placed under the undefended list was instituted by means of a specifically endorsed writ of summons. The contention of the Appellant is that the deposition of the Respondent in the supporting affidavit for the placement of the suit under the undefended list and all documents Exhibited are that the suit entered in the instant suit was founded on contract for the supply of goods to the Appellants and the Appellants have failed to make complete payment, which means that the contract was not fully discharged on the part of the Appellants which denotes a breach of contract. The Respondent on the other hand is of the view that the claims of the Respondent before the trial Court as per its writ of summons disclose that the Respondent is claiming liquidated sums of money owed him by the Appellants, part of which had already been paid by the Appellants which narrows the issue to recovery of debt owed by the Appellants to the Respondent.
With respect to the learned Counsel for the Respondent what is in issue before the trial court; that is the claim of the Respondent is clearly one of breach of contract and not for recovery of debt as maintained by the learned counsel. A reading of the Respondent’s affidavit in support of the suit for undefended list procedure was that, the Appellants entered into an agreement with the Respondent for the supply of four (4) numbers of princess cruise boat and generating set, which was eventually supplied to the Appellants in Port Harcourt.
The Appellants on the other hand failed to make full payment of the contract sum which denotes that the Appellants was in breach of the agreement for failure to accomplish its own side of the agreement. This clearly denotes a breach of the contractual agreement on the part of the Appellants and not a recovery of debt as contended by the Respondent’s counsel.
Learned Counsel for the Appellants therefore relied on Order 9 Rule 3 of the High Court of the FCT Civil Procedures Rules, 2004 to contend that the High Court of the FCT does not have jurisdiction to entertain the matter, since the contract was entered into in Port Harcourt and the Appellants also reside in Port Harcourt. The Respondent contends that the applicable Rules of Court in the instant case is Order 9 Rules 4 and 5 and not Order 9 Rule 3 as submitted by the learned Appellants’ counsel. By virtue of Order 9 Rule 3 of the Rules of the High Court of the FCT, all suits for specific performance or breach of contract shall be commenced and determined where the contract ought to have been performed or where the defendant resides or carries on business in the Federal Capital Territory.
Order 9 Rule 3, of the High Court of the FCT Civil Procedure Rules, 2004 provides:-
”All suits for Specific Performance or breach of contract shall where the contract ought to have been performed or where the defendants resides or carries on business in the Federal Capital Territory be commenced and determine in the Federal Capital Territory.”
In the Respondent’s own view, it is Order 9 Rule 4 of the High Court of the FCT Civil Procedures Rules, 2004 that applies to the circumstances of this case.
Order 9 Rule 4, provides:-
”All other suits shall where the defendant resides or carries on business or where the cause of action arose in the federal Capital Territory, Abuja.”
By the provisions of the Rules, the determinant factor of jurisdiction of court based on contract depends generally on one of the following three alternatives, namely;
a) Where the contract was made;
b) Where the contract ought to have been performed; and
c) Where the defendant or one of the defendants resides.
While it does appear to me that jurisdiction of a court cannot be determined by Rules of court as it is a matter of the Constitution or the enabling statute, in the instant case, it is clear from the facts and the Respondent’s own documents attached to the affidavit in support of the suit on the undefended list procedure, that the contract for the supply of boats and generating set by the Respondent to the Appellants was discharged in Port Harcourt where the goods were to be used and the place of business of the Appellants and the place of performance of the contract was in Port Harcourt.
Given these facts, can the Respondent’s contention that because most of the negotiations took place in Abuja between the Managing Director and the Executive Head of State of the Appellants as averred in its paragraph 8 of the affidavit in support of the suit, the cause of action which resulted in this suit arose in the FCT and the trial Court rightly assumed jurisdiction be sustained? The issue at stake here is the territorial jurisdiction of the court to determine this matter.

The determination of where a state has its business place ought to be determined by reference to the provisions of Section 3(3) of the Constitution of the Federal Republic of Nigeria, 1999, which state that the Headquarters of each state of the Federation shall be known as the Capital city of that state and which in the case of Rivers State is Port Harcourt. A State Government cannot therefore be said to carry on business at its liaison office in Abuja as contended by the learned Respondent’s counsel. A liaison office is merely for administrative convenience and cannot qualify as a place the business of a state government is carried out.
The submission of the learned Respondent’s counsel that the Appellants carry on business in Abuja merely because its liaison office is in Abuja is of no moment. See RIVERS STATE GOVERNMENT OF NIGERIA & ANOR v. SPECIALIST KONSULT (2005) 9 NWLR (Pt.923) 145.

. It is not the rules of court that vest jurisdiction in the court but rather, the statute creating it. In this respect it is the Constitution of the Federal Republic of Nigeria, 1999 that one has to look to determine the jurisdiction of the High Court of the Federal Capital Territory. Section 257 sets out its jurisdiction and it read:
257(1) Subject to the provisions of Section 251 and any other provision of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High court of the Federal Capital Territory, Abuja 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 or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) …
In the instant case, it cannot be denied that the subject matter of the Respondent’s claim relates to contract entered into and executed in Port Harcourt, Rivers State, a territory that is distinct and separate from the Federal Capital Territory. If any court must have jurisdiction over such a subject matter, it has to be the Courts in Rivers State. For the purpose of exercising jurisdiction, each state of the Federation is independent of the other and the jurisdiction of its courts is limited to matters arising in its territory.

A court is only competent to exercise jurisdiction where the following conditions are satisfied;
a) The Court is properly constituted as regards members and qualifications of members of the bench and no member is disqualified for one reason or another;
b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and
c) The case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the jurisdiction. Jurisdiction is therefore a crutial and radical question.

In the instant case, the High Court of the Federal Capital Territory was without jurisdiction to adjudicate on the Respondent’s claim. See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; SKENKONSULT v. UKEY (1981) 1SC 6, A.C. LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt.111) 552.
Based on what I have said therefore, this lone issue for determination is resolved in favour of the Appellants against the Respondent. Consequently, this appeal is meritorious and it is hereby allowed. The judgment of the trial court delivered on the 25th day of October, 2005 is hereby set aside. I make no order as to costs.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment Just delivered by my learned brother, Uwani Musa Abba AJi J.C.A. I agree with the reasoning and conclusion contained therein. I also allow the Appeal.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.

Appearances

Not represented.For Appellant

AND

O.S, Eremba, Esq.For Respondent