IKENNE LOCAL GOVERNMENT v. WEST AFRICAN PORTLAND CEMENT PLC
(2011)LCN/4388(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of March, 2011
CA/I/175/2006
RATIO
PROLIFERATION OF ISSUES: WHETHER A PARTY CAN BE ALLOWED TO FORMULATE MORE ISSUES THAN THE GROUNDS OF APPEAL FILED
It is wrong and unacceptable to formulate more issues than the grounds of appeal filed as proliferation of issues confounds rather than clarifies matters in controversy. see the cases of ONYIOLA VS. AYASHE (1996) 2 N.W.L.R part 432 at 567; OYEKAN VS. AKINRINWA (1996) 7 N.W.L.R part 459 at 128 and ONYEMAIZE v. OJIAKO (2000) 6 NWLR Pt. 659 pg 25 at 38-39 paras H-A. PER MODUPE FASANMI, J.C.A.
ISSUE OF JURISDICTION: ESSENCE OF THE ISSUE OF JURISDICTION OF A COURT TO ENTERTAIN A MATTER; WHAT ARE THE ESSENTIAL ELEMENTS OF THE JURISDICTION OF COURT
It is trite that the question of jurisdiction is a very fundamental issue which can be raised at any stage of proceedings be it in the trial court, the appellate Court or even the apex Court’ Thus due to the complex and fundamental nature thereof, the issue of jurisdiction can even be raised suo motu by the Court itself, albeit subject to affording the parties the opportunity to address it thereupon. See KOTOYE V. SARAKI (1994) 7 NWLR PT. 357 PG.414 AT 466 PARAGRAPHS B-C, OBADA V. MILITARY GOVERNMENT OF KWARA STATE (1990) 6 NWLR PT. 157 PG. 482 AT 493 PARAGRAPH F, PG.494 PARAGRAPHS A-B. This proposition is predicated on the well established principle that without jurisdiction, a court of law cannot exercise the jurisdictional power thereof as any such exercise will be null and void no matter how well the proceedings were conducted. The learned jurist Karibi-Whyte J.S.C in an all encompassing consideration of the nature of jurisdiction stated concisely in A.G. (FEDERATION) v. GUARDIAN NEWSPAPERS LTD & 5 OTHERS (1999)5 S.C Part III at 59 as follows:”It is well settled and our Courts are replete with decided cases which have established the principle that the word jurisdiction means the authority which a Court has to decide matters before it or take cognizance of matter presented in a formal way for its decision –
See MDAEYO vs. OGUNNAYA (1979) 1 S.C at 181. It is a fundamental principle which determines the jurisdiction of the Court. See ADEYEMI VS. OPEYORI (1976) 6-10 SC at 31. This is because it is the Plaintiff who invokes the Constitutional right for a determination of his rights and accordingly the exercise of the judicial powers of the Constitution vested in the Courts.” The Supreme Court in the case of TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989)4 N.W.L.R Part 119 at 517 again summarized the elements of the jurisdiction of court into two essential factors namely:- (i) The legal capacity, the power and authority of a Court to adjudicate concerning the particular subject matter in controversy (ii) The geographical area in which the legal jurisdiction of the Court can be exercised. Jurisdiction is very fundamental and it is the nerve centre of the entire litigation. All Courts in Nigeria derive their power and jurisdiction in particular from either statute or Constitution which is the supreme organic fundamental law and the ground norm of the country. See NUHU VS. OGELE (2003), 18 N.W.L.R Part 852 at 251 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Page 169 at 197 paras C-D. Therefore jurisdiction being a radical and crucial question of competence, any defect in the competence and jurisdiction of a court or an action is fatal as the proceedings therein would result in a nullity however well conducted and determined because such a defect is said to be extrinsic to the adjudication see ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R page 159 at 202-203 paras H-C per Adekeye J.S.C. PER MODUPE FASANMI, J.C.A.
JURISDICTION OF THE COURT: WHAT DETERMINES THE JURISDICTION OF THE COURT TO ENTERTAIN A MATTER
It is trite law also that it is the statement of claim that determines the jurisdiction of the court. See the cases of ADEYEMI vs. OPEYORI supra and STABILINI VISINONI LTD. VS. F.V.I.R. (2009) 13 N.W.L.R. Part 1157 page 200 at 222 paras E-F… PER MODUPE FASANMI, J.C.A.
RULES OF INTERPRETATION: DUTY OF THE COURT WHERE THE WORDS OF A DOCUMENT, LEGISLATION OR CONSTITUTION ARE CLEAR, PLAIN AND UNAMBIGUOUS
Where the words of a document, legislation or Constitution are clear, plain and unambiguous, there is no need to give them any other meanings than their ordinary, natural and grammatical construction would permit unless that would lead to absurdity. See N.B.M LTD VS. WEIDE & CO. NIG. LTD (1996) 8 N.W.L.R Part 465 at 150; BRONIK MOTORS LTD VS. WEMA BANK LTD (1983) 6 SC at 158; N.N.P.C VS. LATIN INVESTMENT LTD (2006) 2 N.W.L.R Part 955 page 506 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Part 1215 page 169 at 198 paras B-D and 205 paras B-D. PER MODUPE FASANMI, J.C.A.
JURISDICTION OF COURT: CONDITIONS THAT MUST BE SATISFIED FOR A COURT TO HAVE JURISDICTION TO ENTERTAIN A MATTER
The cardinal authority installing jurisdiction of the Court is the case of MADUKOLU VS. NKEMDILIM (1962) 2 N.S.C.C page 374 or (1962) 2 SCNLR page 341 wherein jurisdiction of Court is firmly assumed to be present if all the following conditions are satisfied. (a) If the Court is properly constituted with respect to the number and qualification of its members (b) The subject matter of the action is within it jurisdiction (c) The action is initiated by the due process of law and (d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See the case of A. G LAGOS STATE VS. DOSUMU (1989) 3 N.W.L.R Part III page 552 at 556-567. PER MODUPE FASANMI, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
IKENNE LOCAL GOVERNMENT Appellant(s)
AND
WEST AFRICAN PORTLAND CEMENT PLC Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of an Ogun State High Court of Justice delivered on the 12th of April 2006 wherein the Court declined jurisdiction to hear the suit in respect of collection of rates and occupancy fees by the Appellant against the Respondent.
Dissatisfied with the ruling.
Appellant filed a notice of appeal dated 17th May, 2006.
The brief facts of the case are that:
Appellant in its writ of summons and paragraph 12 of the Statement of Claim claimed against the Respondent as follows:
(1) DECLARATION:
(a) That Defendant is in physical occupation of the non-urban rural area parcel of land measuring approximately 50 acres situate lying and being in the vicinity of and opposite TROPICAL PAINTS COMPANY along Iperu/Sagamu Road, Iperu and have been in such occupation prior to 30th September, 1998.
(b) That the land referred to in (a) above is within the territorial and administrative jurisdiction of the Plaintiff.
(c) That pursuant to Section 1 & 2 of the Taxes and Levies (Approved List for Collection) Decree 1998 the Plaintiff is the appropriate tax authority entitled to assess or collect occupancy fees listed as item 7 in part III of the Schedule to the Decree aforesaid in respect of the land referred to in (a) and (b) above (d) That the occupancy fees assessed due and payable to the Plaintiff by the Defendant excludes and does not include any royalties, compensation, rent or any surface rent paid or payable to the Federal or and Ogun State Governments under any enactment or law.
(2) Order of Court:-
(a) That the Defendant is liable to pay occupancy fees as assessed due and payable to the Plaintiff with effect from 1st October, 1998 in respect of their occupation of the land referred to in claim 1 (a) and (b) above:
(b) Restraining the Defendant whether by itself, its servants, agents contractors’ workers’ privies or otherwise howsoever described from entering the aforesaid land or from remaining in occupation thereof until after every outstanding sum of money representing the whole or part thereof of its liability for occupancy fees as assessed with interests and penalties from 1st October 1998 to date is paid lo the Plaintiff
(3) The sum of N36,000,000:00 (Thirty Six Million Naira) being occupancy fees assessed due and payable in respect of Defendant’s occupation of the parcel of land referred to in claim 1(a) and (b) above with effect from 1st October, 1998 to 30th September, 2004.
(4) The sum of N7,560,000.00 (Seven Million Five Hundred and Sixty Thousand Naira) being pro-rated interest on the amount in claim 3 above at the rate of 27% per annum from 1st October, 1998 to 30th September, 2004
(5) The sum of N3,6000,000.00 (Three Million, Six Hundred Thousand Naira) being penalties due and payable on (3) above at 10% per annum
(6) Interest payable on the joint amounts claimed in claims 3, 4, and 5 above at the rate of 21% per annum with effect from 1st October, 2004 until judgment and thereafter at the rate of 60% until final Payment.
The Respondent defaulted in filing its Statement of Defence and filed application for extension of time within which to file the statement of Defence, The application was granted on the 9th of November, 2005.
Before the hearing of the Respondent’s application for extension of time, Respondent had filed a notice of preliminary objection dated 14th October, 2005. The grounds of the objection are:
(a) That the Plaintiff’s suit does not disclose any reasonable cause of action and same should be struck out
(b) That the Court lacks the jurisdiction to entertain the matter
(c) That the Plaintiff’s suit is not properly constituted.
At the end of the arguments before it, the lower court declined jurisdiction to entertain the Appellant’s case and ruled that the matter be heard before the Federal High Court. Appellant filed a notice of appeal on the 17th of May, 2006. In line with the rules of this court, Appellant filed his brief of argument on the 7th of August, 2007 while the Respondent’s/Cross-Appellant’s brief was filed on 20/9/07 and the Appellant’s reply brief and the Respondent’s/ cross-Appellant brief was filed on 8/10/07 Appellant filed one ground of appeal and distilled the following issues for determination:
(i) Whether from the contents of the writ of Summons and the Statement of Claim filed by the Appellant in this case at the lower Court it can justifiably be held that the High Court of Ogun State lacks jurisdiction to entertain, hear and determine the Appellant’s case against the Respondent
(ii) Which High Court has jurisdiction to hear and determine disputes or cases arising from item 7 in part III of the Schedule of Taxes and Levies (Approved List for Collections) Decree No. 21 of 1998
(iii) Whether the case of Mobil Producing Nigeria unlimited vs. Tai Local Government Council (2004) 10 Comm. L.R. 99 at 108 is indistinguishable and applicable to this case.
The Respondent/Cross-Appellant formulated one issue thus:
Whether in view of the provision of Section 251 (1) (b) of 1999 Constitution, the Court below was not right in striking out the Appellant’s claim on the ground that it lacked the requisite jurisdiction to entertain the action, I have carefully studied the issues formulated by the Appellant and the Respondent and I observe that Appellant formulated three issues from one ground of appeal filed. It is wrong and unacceptable to formulate more issues than the grounds of appeal filed as proliferation of issues confounds rather than clarifies matters in controversy. see the cases of ONYIOLA VS. AYASHE (1996) 2 N.W.L.R part 432 at 567; OYEKAN VS. AKINRINWA (1996) 7 N.W.L.R part 459 at 128 and ONYEMAIZE v. OJIAKO (2000) 6 NWLR Pt. 659 pg 25 at 38-39 paras H-A.
The Respondent’s sole issue is a replica of issue one of the Appellant though couched differently. Appellant’s issue one to my mind will adequately deal with whether or not the High Court has jurisdiction to entertain the suit, Issues 2 and 3 formulated by the Appellant are therefore subsumed in issue one. The appeal will therefore be determined on issue one,
ISSUE ONE
Whether from the contents of the writ of summons and the Statement of Claim filed by the Appellant in this case at the lower Court, it can justifiably be held that the High Court of Ogun State lacks jurisdiction to entertain, hear and determine the Appellant’ case against the Respondent. Learned counsel for the Appellant submitted that the jurisdiction of the Court is so important that it has been adjudged as the main pillar which the validity of any decision of any Court stands and around which other issues rotate. He argued that no matter how well conducted the proceedings, once the Court has no jurisdiction, the whole exercise is in futility: He referred to the cases of OGUNMOKUN VS. MILITARY ADMINISTRATOR, OGUN STATE (1999) 3 N.W.L.R Part 594 page 261 at 265; SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD VS. ISAIAH (2001) 5 S.C Part II at page 1 and ATTORNEY GENERAL OF THE FEDERATTON VS. SODE (1990) 1 N.W.L.R Part 126 page 500 at 541.
He submitted that the lower Court erroneously held that it lacked jurisdiction to entertain the Appellant’s case against the Respondent not because the court was not properly constituted or that the case came to Court not initiated by due process or that proper parties were not present but only by reason of the particular subject matter in controversy between the parties and also on the erroneous view taken by the Lower court of the decision in the Mobil Producing Nig. Unlimited vs. Tai Local Government council case which is distinguishable on the facts and not applicable in law to this case.
Learned counsel for the Appellant submitted further that in so far as the subject matter of the litigation affects the jurisdiction of court, that issue will be determined by the nature of the plaintiff’s claim in relation to the constitutional and statutory provisions establishing the court. Submit that it is the Plaintiff’s originating process namely the writ of summons and Statement of Claim that will and should be considered by the Court to determine whether or not it has jurisdiction to entertain the plaintiff’s case.
Learned Counsel for the Appellant cited the case of ADEYEMI VS. OPEYORI (1976) 9-10 SC page 31 at 49. Learned counsel for the Appellant contended that in so far as the learned trial Judge had looked at and considered the contents of the Appellant’s Writ of Summons and Statement of Claim and found that it disclosed reasonable cause of action, to that extent, the jurisdiction of the lower Court to entertain and hear and determine the Appellant’s case against the Respondent on the Appellant’s originating processes filed at the lower Court is sacrosanct. He contended further that in so far the Constitutional and statutory exclusive jurisdiction of the High Court relate to taxation, Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria is clear and it is not applicable to the provision in item 7 under Part III of the Schedule in the Taxes and Levies (Approved List for collection) Decree 21 of 1998. Taxation of companies under Section 251 (1) (b) of the 1999 Constitution depends on its profitability whereas Occupancy fees in Item 7 Part III of the Schedule I Decree 21 of 1998 is payable by persons corporate or incorporate in occupation of land in rural areas. He urged the Court to resolve this issue in favour of the Appellant because it is the High Court of Ogun State and not the Federal High court that has jurisdiction to entertain, hear and determine disputes on cases arising from Item 7 in Part III of the Schedule to the Taxes and Levies (Approved List for Collection) Decree 21 of 1998.
The Taxes and Levies (Approved List for Collection) Decree 1998 excludes fees collectable by the Federal and State Government and the Act of the National Assembly does not confer jurisdiction on the Federal High Court and finally that the case of MOBIL PRODUCING NIGERIA UNLIMITED v. TAI LOCAL GOVERNMENTS AND OTHERS is not about land and therefore distinguishable and inapplicable to the case on appeal.
Learned Counsel for the Appellant urged the Court to allow the appeal.
Learned counsel for the Respondent submits that the claim of the Appellant highlights and reflects the central issue or fulcrum of the claim to be recovery of sums allegedly due and payable as right of occupancy fee, interests and penalties thereon. To facilitate effective determination of the Appellant’s claim vis-a-vis the preliminary objection of the Respondent, the trial court was right to have considered the provision of section 251 (1) (b) of the 1999 Constitution in respect of the taxation of companies. He submitted that the exclusive jurisdiction conferred on the Federal High Court by virtue of Section 251 (1) (b) of the 1999 Constitution covers the gravamen of the Appellant’s claim, being taxes imposed on a company. Learned Counsel for the Respondent submitted that it is not in dispute that what the Appellant sought to recover from the Respondent was taxation, neither was it contested that the Respondent is a company within the con of the Companies and Allied Matters Act. The claim of the Appellant for right of Occupancy fee pertains to and is connected with Companies taxation over which Federal High Court has exclusive jurisdiction. He referred to the case of S.P.D.C. VS. MAXON (2001) 9 N.W.L.R Part 719 at 501. For this, the trial Court lacked the requisite jurisdiction to entertain the Appellant’s suit against it, being claim for right of occupancy fee against the Respondent, a corporate entity, a subject matter outside the jurisdiction of the State High Court same being a tax imposed on a company. Learned Counsel for the Respondent submitted that the mere fact that the dispute centres around land which is regulated by the provisions of the Land Use Act 1978 is not enough justification to exclude it from the jurisdiction of the Federal High Court, same having formed a basis bf corporate taxation’. He went further to state that the purport and meaning of Section 251 (1) (b) are clear and unambiguous and ought to be given its literal and ordinary meaning. The provisions of the said section do not only cover Federal High Court jurisdiction in respect of matters connected with or pertaining to the revenue of the Federal Government but are also extended to other civil causes or matters including Companies taxation, admiralty e.t.c without any other restriction except as provided by the Constitution. He referred to the case of Jamal steel structures Limited vs, A.C.B (1973) N.S.C.C page 619 at 622 and submit therefore that the conclusion reached by the court below, whichever way it was arrived at was in accordance with the law and in line with the provision of section 251 (1) (b) of the constitution. The said provision of the Constitution was therefore properly applied in the case for determination before the Court which is the subject matter of this appeal.
Learned counsel for the Respondent urged this court to dismiss this appeal with substantial cost as it lacks merit.
It is trite that the question of jurisdiction is a very fundamental issue which can be raised at any stage of proceedings be it in the trial court, the appellate Court or even the apex Court’ Thus due to the complex and fundamental nature thereof, the issue of jurisdiction can even be raised suo motu by the Court itself, albeit subject to affording the parties the opportunity to address it thereupon. See KOTOYE V. SARAKI (1994) 7 NWLR PT. 357 PG.414 AT 466 PARAGRAPHS B-C, OBADA V. MILITARY GOVERNMENT OF KWARA STATE (1990) 6 NWLR PT. 157 PG. 482 AT 493 PARAGRAPH F, PG.494 PARAGRAPHS A-B. This proposition is predicated on the well established principle that without jurisdiction, a court of law cannot exercise the jurisdictional power thereof as any such exercise will be null and void no matter how well the proceedings were conducted. The learned jurist Karibi-Whyte J.S.C in an all encompassing consideration of the nature of jurisdiction stated concisely in A.G. (FEDERATION) v. GUARDIAN NEWSPAPERS LTD & 5 OTHERS (1999)5 S.C Part III at 59 as follows:
“It is well settled and our Courts are replete with decided cases which have established the principle that the word jurisdiction means the authority which a Court has to decide matters before it or take cognizance of matter presented in a formal way for its decision –
See MDAEYO vs. OGUNNAYA (1979) 1 S.C at 181. It is a fundamental principle which determines the jurisdiction of the Court.
See ADEYEMI VS. OPEYORI (1976) 6-10 SC at 31. This is because it is the Plaintiff who invokes the Constitutional right for a determination of his rights and accordingly the exercise of the judicial powers of the Constitution vested in the Courts.”
The Supreme Court in the case of TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989)4 N.W.L.R Part 119 at 517 again summarized the elements of the jurisdiction of court into two essential factors namely:-
(i) The legal capacity, the power and authority of a Court to adjudicate concerning the particular subject matter in controversy
(ii) The geographical area in which the legal jurisdiction of the Court can be exercised. Jurisdiction is very fundamental and it is the nerve centre of the entire litigation. All Courts in Nigeria derive their power and jurisdiction in particular from either statute or Constitution which is the supreme organic fundamental law and the ground norm of the country. See NUHU VS. OGELE (2003), 18 N.W.L.R Part 852 at 251 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Page 169 at 197 paras C-D.
Therefore jurisdiction being a radical and crucial question of competence, any defect in the competence and jurisdiction of a court or an action is fatal as the proceedings therein would result in a nullity however well conducted and determined because such a defect is said to be extrinsic to the adjudication see ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R page 159 at 202-203 paras H-C per Adekeye J.S.C.
It is trite law also that it is the statement of claim that determines the jurisdiction of the court. See the cases of ADEYEMI vs. OPEYORI supra and STABILINI VISINONI LTD. VS. F.V.I.R. (2009) 13 N.W.L.R. Part 1157 page 200 at 222 paras E-F,
Appellant’s Statement of Claim is contained at pages 3-5 of the record of appeal, The reproduction of paragraphs 1,2,3,4,5,8 and 12 of the same is relevant and they state as follows:
1. The Plaintiff is a democratically elected Local Government Council whose existence is guaranteed and established under Sections 3 and 7 of the Constitution of the Federal Republic of Nigeria, 1999, and specifically listed as a local government Area of Ogun State of Nigeria in the second column of part 1 of the First Schedule to the aforesaid Constitution with its Administrative Headquarters and Secretariat at Ikenne within the jurisdiction of this Court.
2. The Defendant purports to be a public Limited liability Company allegedly established or and registered under the Companies and Allied Matters Act and engaged in business of manufacturing cement and has its “Shagamu works” or principal place of business at km. 64 Old Lagos-Shagamu Road, in Sagamu Local Government Area within the jurisdiction of this Court.
3. With effect from 29th March, 1978, all land comprised in the territory of each State of the Federal Republic of Nigeria and Ogun State in particular are by the provisions of the Land Use Act vested in the Governor of the State and the Plaintiff has statutory powers in respect of land not in an urban area within the Local Government area.
4. By provisions of the Land Use Act aforesaid the Plaintiff has exclusive right to all the land in non-urban rural areas of its local government area against all persons including the Defendant except the Governor of Ogun State and such non-urban rural area land of its local government area includes the parcel of land approximately 50 acres situate, lying and being in the vicinity of and opposite TROPICAL PAINTS COMPANY along Iperu-sagamu Road physically occupied by the Defendant prior to 30th September, 1998.
5. By the provisions of sections 1 and 2 of the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) DECREE 1998 the plaintiff is the appropriate tax authority entitled to assess or collect occupancy fees listed as item 7 in part III of the Schedule to the Decree in respect of the parcel of land physically occupied by the Defendant as averred in paragraph 4 above.
B. The Defendant physically occupies approximately 50 acres of land within the non-urban rural area administered by the plaintiff as described in paragraph 4 above outside Defendant’s principal place of business in Sagamu Local Government area and has been in that physical occupation and profitable commercial or industrial use and enjoyment thereof prior to 1st October, 1998 to date.
12. WHEREOF the plaintiff claims from and against the Defendant the following reliefs:-
(1) DECLARATION:-
(a) that Defendant is in physical occupation Of the non-urban rural area parcel of land measuring approximately 50 acres situate, lying and being in the vicinity of and opposite TROPICAL PAINTS COMPANY along Iperu/Sagamu Road, Iperu and have been in such occupation and use prior to 30th September, 1998;
(b) that the land referred to in (a) above is within the territorial and administrative jurisdiction of the Plaintiff;
(c) that pursuant to Sections 1 and 2 of the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) DECREE 1998 the Plaintiff is the appropriate tax authority entitled to assess or collect occupancy fees listed as item 7 in Part III of the Schedule to the Decree aforesaid in respect of the land referred to in (a) above.
(d) that the occupancy fees assessed due and payable to the Plaintiff by the Defendant excludes and does not include any royalties, compensation, rent or any surface rent paid or payable to or collectable by the Federal or and Ogun State Governments under any enactment or law;
From the totality of the Appellant’s statement of claim as rightly submitted and argued by the learned Appellant’s Counsel, it is apparent that the suit was for the recovery of Occupancy fees. The subject matter of the Appellant’s case under item 7 in Part III to the Schedule to Taxes & Levies (Approved List for Collection) Decree 21 of 1998 concerns right of Occupancy fees on lands in rural areas excluding those collectable by the Federal and State Governments. The right of occupancy fees involved in this case is neither a tax on the profits of the Respondents nor is it a revenue accruing to the Federal Government. The liability to pay right of Occupancy fees as rightly submitted by the Appellant in its reply brief is at best a deductible expenses of the Company wholly exclusively and reasonably incurred in the course and by reason of the Respondent’s occupation of the 50 acres of land within the territory and local Government Area of the Appellant for the Company’s business operation in the nature of and analogous to rents incurred and payable for office premises or staff salaries or bank charges. See the cases of SHELL DEV. CO (NIG.) LTD VS. FBIR (1996) 8 N.W.L.R Part 466 page 256 at 290-291 paragraphs B-D per Uwais CJN (as he then was) and GULF OIL NIG LTD VS. F.B.I.R (1997) 7 N.W.L.R Part 514 at 698.
The learned Respondent’s Counsel misconceived and misconstrued the provisions of Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria (1999) in so far as the Appellant’s claim as constituted was brought pursuant to item 7 of Part III of the TAXES AND LEVIES (APPROVED LIST FOR COLLECTION) DECREE 1998 was concerned. Constitutional provisions are to be interpreted liberally. It is not the duty of the Court to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See ACQUA LTD VS. ONDO STATE SPORTS COUNCIL (1990) 4 N.W.L.R Part 91 at 622. ISHOLA VS. AJIBOLA (1994) 11 N.W.L.R Part 352 at 506 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Part 1215 page 169 at 190-191 Eras G-A and 205 paras D-F. Where the words of a document, legislation or Constitution are clear, plain and unambiguous, there is no need to give them any other meanings than their ordinary, natural and grammatical construction would permit unless that would lead to absurdity. See N.B.M LTD VS. WEIDE & CO. NIG. LTD (1996) 8 N.W.L.R Part 465 at 150; BRONIK MOTORS LTD VS. WEMA BANK LTD (1983) 6 SC at 158; N.N.P.C VS. LATIN INVESTMENT LTD (2006) 2 N.W.L.R Part 955 page 506 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Part 1215 page 169 at 198 paras B-D and 205 paras B-D.
Now, Section 251 (1) (b) of the 1999 Constitution provides 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 –
(b) Connected with or pertaining to the section of Companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation” It is clear from the above provision that Section 251 (1) (b) of the (1999) Constitution is on Federal taxation of Companies i.e the tax companies are to pay to the Federal Government for operating as companies. The collection of ground rents for certificate of occupancy respecting land is an issue under the Land Use Act. It is quite different from taxation of companies. On a close examination of the entire provision of section 251 of the 1999 constitution prescribing the jurisdiction of the Federal High court to the exclusion of all other courts, there is nothing specifically conferring jurisdiction on that court in cases or matters concerning land disputes. Although the section also indicates that the National Assembly may confer additional jurisdiction to the court, there is no indication that such Act of the National Assembly had been promulgated conferring additional jurisdiction to the court to entertain causes and matters on land disputes, If any such additional jurisdiction had been given, the most relevant statute to examine is the Land use Act because jurisdiction of the Federal High court to entertain “Occupational fees” on land matters cannot be inferred by implication in the construction of section 251 of the 1999 constitution, the meaning of which is quite clear and plain as no causes or matters in land dispute are mentioned therein. See ADISA v. OYINWOLA (2000) 10 NWLR Pt.674 at 116 and ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Part 1215 page 169 at 204 paras D-F.
It is equally important to note that the Federal Government does not own land outside the Federal Capital Territory. Either the State or Local Government may grant Certificate of Occupancy to holder implying payment of ground rent to the State or Local government granting the Certificate of Occupancy.
It is therefore my view and also hold that the subject matter of the Appellants action is within the jurisdiction of the High Court of Ogun State.
The cardinal authority installing jurisdiction of the Court is the case of MADUKOLU VS. NKEMDILIM (1962) 2 N.S.C.C page 374 or (1962) 2 SCNLR page 341 wherein jurisdiction of Court is firmly assumed to be present if all the following conditions are satisfied.
(a) If the Court is properly constituted with respect to the number and qualification of its members
(b) The subject matter of the action is within it jurisdiction
(c) The action is initiated by the due process of law and
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See the case of A. G LAGOS STATE VS. DOSUMU (1989) 3 N.W.L.R Part III page 552 at 556-567.
Appellants Statement of Claim has satisfied all the conditions stated above. The learned trial Judge examined the Statement of Claim and found that it disclosed reasonable cause of action. The facts and circumstances of this case clearly show that it is a case outside the exclusive jurisdiction of the Federal High Court but a case within the jurisdiction of the High Court of the State where the Land is situated. It is quite clear from the provisions of Sections 39, 41 and 42 of the Land Use Act that specific, powers and jurisdiction in respect of land matters have been conferred on the State High courts, Area Courts, Customary Courts and Magistrate Courts. The Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters, See ADETAYO VS. ADEMOLA (2010) 15 N.W.L.R Part 1215 page 169 at 194-195 paras C-H and 204-205 paras F-8. I therefore hold that the High Court has jurisdiction to hear and determine disputes on cases arising from item 7 in part III of the Schedule to Taxes and Levies (Approved List for Collection) Decree 21 of 1998 as it has to do with land in rural areas and fees payable to the Local Government of the area concerned for its occupation. The case of MOBIL PRODUCING NIGERIA UNLIMITED vs. TAI LOCAL GOVERNMENT COUNCIL was to examine and determine whether the Federal High Court can interprete and pronounce on Local Government Bye Laws that impose tax on a Company.
This issue is quite distinguishable from the facts of the case in this appeal which is on Occupational fees. It is therefore inapplicable to the Appellant’s case.
On the score that the subject matter of this case is within the jurisdiction of the High Court of Ogun State where the land is situated by virtue of the Land Use Act, this appeal has merit and it is hereby allowed.
The ruling of the learned trial Judge in the Court below delivered on the 17th of May, 2006 that it has no jurisdiction to entertain this matter which is in respect of collection of rents on Occupancy fees for the Appellant from the Respondent is hereby set aside. The case is hereby referred back to the Chief Judge of Ogun State for re-assignment to begin denovo before another Judge.
Cross-Appeal
The Cross-Appeal was filed by the Respondents in the substantive appeal and the notice was filed on the 18th of August, 2006 containing two grounds of appeal, Respondent/Cross-Appellant filed his brief of argument on 20/9/07 and distilled two questions for determination. They are:
(a) Whether having regard to the contents of the writ of Summons and the Statement of Claim of the Plaintiff vis-a-vis the relevant laws relating thereto, the Plaintiff’s claim could be said to have disclosed a reasonable cause of action.
(b) Whether the learned judge’s decision to the effect that there is a reasonable cause of action disclosed in the Plaintiff’s Statement of Claim without the propriety of considering the parties submission thereon is valid in law.
While the Appellant/Respondent to the Cross Appeal filed his Appellant Reply brief and Respondent to Cross-Appeal brief on the 8th of October, 2007 and adopted the two questions formulated by the Cross-Appellant.
The facts of the cross-appeal are as stated in the substantive appeal determined. Being dissatisfied with part of the decisions of the lower court, the said Respondent filed the Cross-Appeal.
The issue of Appellant’s Statement of claim disclosing reasonable cause of action in the statement of claim of the Appellant has been overwhelmingly considered and disposed off in the substantive appeal that the Appellants Statement of claim has disclosed a reasonable cause of action. The pleadings cannot be said to disclose no reasonable cause of action, I think can stop here. Issue one is hereby resolved against the Respondent/Cross-Appellant. It is not necessary to take issue 2 in the light of my conclusion on issue one which has been couched differently because it is largely academic to do so. Courts of law are not interested in the final analysis, the cross-appeal lacks merit and it is accordingly dismissed, cost of Fifty Thousand Naira cumulatively is awarded in favour of the Appellant/Respondent to the Cross-Appeal against the Respondent/Cross-Appellant.
SIDI DAUDA BAGE, J.C.A.: My learned brother M. FASANMI, JCA, had before now, obliged me with a draft of the judgment just delivered. I agree with his reasonings and conclusions. The cross-appeal lacks merit and it ought to be dismissed and I hereby dismiss same.
I entirely agree with the lead judgment. More so, I abide by all the consequential orders made in the lead judgment including costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in advance the thorough judgment prepared by my learned brother, Fasanmi, J.C.A., with which I am in complete agreement. The Federal High Court does not have jurisdiction in respect of land or anything or matter connected with interest in land, as held by the Supreme Court in Adetayo v. Ademola (2010) 15 NWLR (Pt.1215)169. The claim in the court below is, at first sight, for recovery of occupancy fees for the physical occupation of land mass of approximately 50 acres by respondent inside the territorial administrative control and jurisdiction of appellant Local Government. The suit was brought under the Taxes and Levies (Approved List for Collection) Decree 1998. The suit is, accordingly, in respect of an interest in the physical occupation of land in a non-urban or rural area. It is not, with respects, on the law of taxation.
Sections 39, 40, 41 and 42 in part VII of the Land Use Act (cap. 202) Laws of the Federation of Nigeria omitted the Federal High Court among the list of courts that have jurisdiction over land matters and any proceedings affecting an interest in land. Among the courts so listed, the High court has exclusive original jurisdiction over land matters subject of a statutory right of occupancy and, also, by extension jurisdiction in respect of proceedings in respect of a customary right of occupancy granted or deemed granted by a Local Government in the State the High court is situate.
It is now trite that in determining whether a reasonable cause action is disclosed in a suit, the court confines itself to taking a glance at the statement of claim on its face value where pleadings are in place as in the court below. The Court does not scrutinize or examine documents or affidavit evidence whether from the defendant or the plaintiff for the purpose of ascertaining whether a reasonable cause of action is disclosed in the suit. All that the court is concerned at that stage is whether the statement of claim standing alone or on its own discloses a cause of action that has a chance of success. See the case of NICON Insurance Corporation v. Mr. Ayo Olowofoyeku (2005) 5 NWLR (Pt.973) 244 at 257 thus:
“It is worthy of note that amongst the salient rules which distinguish a claim which discloses cause of action from the one that does not that, where a statement of claim discloses some reasonable cause of action on the facts alleged in it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the court, it cannot be struck out. See Drummond Jackson v. British Medial Association (1970) 1 WLR 588. Wenlock v. Moloney (1965) 1 WLR 1238. For a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad. See Tika-Tore Press Ltd. v Umar (1968) 2 All NLR 107: Nagle v. Feliden (1966) 2 QB 633 at page 551. It should be noted as well that when considering the disclosure of cause of action, it is irrelevant to consider the weakness of the plaintiff’s claim. What is always important is to examine the averments in the pleadings and see if they disclose cause of action or raise some question fit to be decided by a Judge. See Ogunsanya v. Dada (1992) 4 SCNJ 162 at 169, (1992) 3 NWLR (Pt.232) 754; Yusuf v. Akindipe (2000) 8 NWLR (pt.669) 376.”
See also Ege Shipping and Trading Co. v. Tigris (1999) 14 NWLR (Pt.637) 70 at 90-91.
It is for the above reasons and the fuller reasons contained in the judgment of my learned brother, Fasanmi, J.C.A., that I would allow the appeal, and dismiss the cross-appeal and abide by the consequential orders contained in the said judgment.
Appearances
Absent.For Appellant
AND
Kayode Ajelagbe with Oludotun AjamobeFor Respondent
