MR. CHIKA C. MBONU V. CHIEF DR. CHRISTOPHER EZEALA IGBOJEKWE & ANOR
(2013)LCN/5916(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/PH/436/2009
RATIO
“I am aware that the Supreme Court in NIGERIA AIRWAYS LTD v F. A. LAPITE (1990) 11-12 SC 60 (1990) N.W.L.R. (pt.163) 392 held that where appellate court holds that the plaintiff had no reasonable cause of action or lacked the locus standi to bring the action the proper order to make in the circumstance is one striking out the action, and not to go into the merits. There are other issues in this appeal touching on the merits of the suit before the trial court. The general rule, when an intermediate appellate court reaches a conclusion on one issue or some issues raised before it, it should normally proceed to consider the other issues bearing in mind that its conclusions may be set aside by the court higher in hierarchy. There are exceptions to the practice. One of them is; where the appellate reaches the decision to send the case back to the trial court for re-hearing or trial de novo it should normally refrain from considering the other issues on the merits of the case as doing this may prejudice a fair determination of the issues of the hearing. See Oguntade JSC in EAGLE SUPER PACK (NIG) LTD V. A. C. B. PLC (2006) (supra).” Per EKO, J.C.A.
“It is trite that if a court has no jurisdiction to hear and determine a cause or matter before it, any step taken by it to hear and determine the matter are null and void. See TIMITIMI v AMABEBE & ORS 14 WACA 374; MADUKOLU v. NKEMDILIM (1962) 1 SCNLR 341 which were cited and relied upon in MR. OLADITI ADESOLA v. ALHAJI RAIMI ABIDOYE & ANOR (1999) 14 N.W.L.R. (Pt.637)28.” Per EKO, J.C.A.
“It is settled law that it is the plaintiff’s claim that determines the question of the court’s jurisdiction to entertain the suit before it. See ADEYEMI v. OPEYORI (1976) 6-10 SC 31; AMAECHI v. INEC (2007) (No 2) (2007) 18 N.W.L.R. (pt. 1065)98. The reason for this, as the Supreme court stated in UWAIFO v. A – G (1982)7 SC 124, is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the judicial powers of the State vested in the courts by the Constitution. Jurisdiction, as observed by Karibi-Whyte, JSC in A-G OF FEDERATION v. GUARDIAN NEWSPAPERS LTD (1999) 9 N.W.L.R. (pt.618) 187 means no more than the authority which a court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision; and that the limits of this jurisdiction may be circumscribed or restricted by statute. See also NATIONAL BANK v. SHOYOYE (1977) 5 SC. 181.” Per EKO, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
C. E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MR. CHIKA C. MBONU Appellant(s)
AND
1. CHIEF DR. CHRISTOPHER EZEALA IGBOJEKWE
2. PARMEX GENESEC CONSORTIUM LTD Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): This Appellant was the 2nd Defendant in the suit of the 1st Respondent in this appeal commenced by way of originating summons of the Federal High Court, Port Harcourt in the Suit No. FHC/CS/PH/277/2008. The cause of action is adumbrated by paragraphs 2, 3, 4, 6 and 7 of the verifying Affidavit. The said averments are herein below reproduced viz:
2. That by a letter dated November 1, 2002 the 1st defendant as promoter and for the 2nd defendant invited me to invest in the now defunct ASSURANCE BANK NIGERIA LIMITED. A copy of the said letter is hereto exhibited and marked Exhibit “A”.
3. That sequel to the said invitation which I accepted I entered into a BOARD MEMBERSHIP AGREEMENT dated 14th November, 2002 with the 1st defendant in which I was referred to as the INVESTOR and the 1st defendant was referred to as the PROMOTER. A copy of the said BOARD membership agreement is hereto exhibited and marked Exhibit “B”.
4. That the said BOARD MEMBERSHIP AGREEMENT (Exhibit B) was entered into in my office at plot 86 East/West Road, Rumuodara, Port Harcourt within the jurisdiction of this Honourable Court.
6. That in keeping with, my own obligation under the said BOARD MEMBERSHIP AGREEMENT (Exhibit B herein) I duty paid the sum of US$ 500,000 (five hundred thousand United States of America dollars) vide CITIBANK cheque Number 35864 of 11/11/2002 in certified bank draft in favour of Parmex Gensec Consortium (the 2nd defendant). The receipt of the said cheque was duly acknowledged by the 1st defendant as stated in clause 4 of the said BOARD MEMBERSHIP AGREEMENT. A copy of the CITIBANK cheque is hereto exhibited and marked Exhibit “C”
7. That since I paid the sum of US$500,000 (five hundred thousand United States of America dollars) as far back as 11/11/2002 and up till date, I have not been appointed as a BOARD member of the 2nd defendant bank and the money I paid has not been refunded to me.
The 1st Respondent, as the plaintiff, took the action against two defendants, namely the Appellant (1st Defendant) and the 2nd Respondent, as the 2nd Defendant. His claims are-
1. The sum of US$500,000.00 (Five Hundred Thousand United States of America dollars) being refund of the money paid by the plaintiff to the defendants since 11/11/2002 for the purposes of
a. Purchase of Shares of ASSURANCE BANK OF NIGERIA LIMITED and
b. the appointment of the plaintiff as a Board Member (that is to say, a Director) of ASSURANCE BANK OF NIGERIA LIMITED as per the Board MEMBERSHIP Agreement dated 14th November, 2002 which purchases have not been fulfilled.
2. Interest at the rate of 35% per annum on the sum of US $500,000.00 (Five Hundred Thousand united States of America dollars) with effect from 1/6/2004 till the date of judgment and thereafter of the rate of 10% per annum till full payment of the judgment sum.
The writ on the Undefended Summons was issued on 10th November, 2008.
The Appellant, as 1st Defendant, upon filing his Notice of Intention to Defend the Suit together with an affidavit disclosing his defence to the suit on the merits; raised a preliminary objection to the effect that the Federal High Court by dint of section 251 of the Constitution 1999, had no jurisdiction to entertain the suit. The Notice of Preliminary objection, supported by on affidavit, is at pages 112 – 115 of the Record.
The Federal High Court heard the Preliminary Objection and dismissed it on 1st December, 2008. The Appellant, as the 1st Defendant, filed Notice of Appeal against this ruling dismissing the preliminary objection on 10th December, 2008.
The Appellant’s application for an order staying further proceedings in the suit pending the determination of his appeal was dismissed on 30th July, 2009. The Lower court thereafter proceeded in the trial, and on the same 30th July, 2009 it entered judgment against the Appellant and the 2nd Respondent. The Appellant filed another Notice of Appeal on 31st July, 2009 against the decision against him. The Record and the briefs of argument exchanged by the parties are in respect of this Notice of Appeal filed on 31st July, 2009.
The Appellant and 1st Respondent filed and exchanged briefs of argument in this appeal. The 2nd Respondent did not file any brief of argument.
The appeal was heard on 15 January, 2013. Mr. C.V.C. Ihekweazu of counsel for the Appellant adopted the Appellant’s Brief filed on 2nd November, 2009, and the Appellant’s Reply Brief containing the Appellant’s response to the preliminary objection raised and argued in the 1st Respondent’s Brief filed on 3rd August, 2012. Counsel prayed that the appeal be allowed on the arguments canvassed in those briefs on all the issues therein. For the 1st Respondent, B.E.I. Nwofor, SAN, had urged that the preliminary objection raised and argued in the 1st Respondent’s Brief filed on 3rd August, 2012 be upheld. The preliminary objection was argued of pages 1 – 9 of 1st Respondent’s Brief. In the event the Preliminary Objection was not upheld the Senior Counsel urged us to dismiss the appeal, on merits, on all the arguments on the two issues formulated for the determination of the appeal by the 1st Respondent.
The three (3) issues formulated and argued by the Appellant are as follows:-
2.01 Whether on the documentary Affidavit evidence Presented before the Lower Court by the Appellant and Respondents, the Lower Court was right when it entered judgment in favour of the 1st Respondent, having regard to the position of the Law and the overriding interest of justice.
GROUND 1
2.02 Whether the Lower Court was right when it held that the Appellant’s Affidavit disclosing a disclosing a defence on the merit lacks any triable issue to warrant the case to go to trial.
GROUND 2.
2.03 Whether the Lower Court was jurisdiction to entertain the 1st Respondent’s claim. GROUND 3.
For the 1st Respondent, as alternative to the preliminary Objection, only two issues have been formulated from the Appellant’s three (3) grounds of appeal. They are as follows:-
“1 . The sum of US$500,000.00 (five hundred thousand United State of America dollars) being refund of the money paid by the plaintiff to the defendants since 11/11/2002 for the purposes of
(a) the purchase of shores of ASSURANCE BANK NIGERIA LIMITED and (b) the appointment of the plaintiff as a Board member (that is to say, a Director) of ASSURANCE BANK NIGERLA LIMITED as per the Board membership agreement dated 14th November 2002 which purposes have not been fulfilled.
2. Interest of the rate of 35% per annum on the sum of US$500,000.00 (five hundred thousand United states of America dollars) with effect from 1/6/2004 till the date of judgment and thereafter of the rate of 10% per annum till full payment of the judgment debt”
Notwithstanding the so much fuss made of the Preliminary Objection the 1st Respondent paid no filing fee for Notice of Preliminary objection brought under order 10, Rule 1.There is nothing wrong with the respondent raising notice of preliminary objection in the respondent’s brief, provided that he shall pay filing fees for the Notice. The payment of filing fee gives validity for the Notice of Preliminary objection brought under order 10 Rule 1 of the court of Appeal Rules, 2011. Order 12 Rule 1 read together with the Third schedule to the said Rules makes payment of the stipulated fees mandatory. It is my firm view that the non-payment of the mandatory filing fee for the preliminary objection brought pursuant to order 10, Rule 1 of the Rules of this court renders the preliminary objection Incompetent. Order 10, Rule 3 cannot save the situation because the Notice of preliminary objection is invalidated by the fact of its non-compliance with order 12 Rule 1 read together with the Third schedule to the Rules. Order 10 Rule 3 merely or only saves a Notice of preliminary Objection that fails to comply with order 10.
The Preliminary Objection raised and argued at pages 4-9, both pages inclusive, being incompetent is hereby discountenanced.
The crux of this appeal is the question: whether the Federal High Court has jurisdiction to entertain the 1st Respondent’s claim. This issue arises from Appellant’s ground 3 in the Notice of Appeal filed on 31st July, 2009. It is apparent that the appeal in substance, particularly from the said ground 3 of the complaints in the Notice of Appeal, is directed against, or challenges, the vires or legality of the entire proceedings culminating in the final judgment delivered by the court below on 30th July, 2009. The issue raised as to the jurisdiction of the Federal High Court to entertain the suit of the 1st Respondent’s claim is common to both the Appellant and the 1st Respondent.
Arguments are canvassed in their respective briefs on this issue.
I have decided, in this judgment, to address this fundamental issue of jurisdiction first before any other issue.
Jurisdiction is the very basis on which any court or tribunal established by law tries a case. It is the lifeline of all trials.
The entire proceedings of any court or tribunal are a nullity if the court or tribunal lacks jurisdiction to entertain the action. See the Supreme Court statement on jurisdiction in NDIC v. CBN (2002) 3 SC.1. In OKOYE v. C.P.M.B. LTD (2008) 15 N.W.L.R. (Pt.1110) 335 Tobi, JSC stated that jurisdiction is “the lifeblood of adjudication” and being such, the issue can be raised at anytime in the proceedings, even on appeal at the Supreme Court for the very first time. See also F.R.N. v. IFEGWU (2003) 15 N.W.L.R. (pt.842)113: TUKUR v. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 592. It is so important that the law does not place the duty to raise the absence of jurisdiction on any particular party. See ELUGBE v. OMOKHAFE (2004) 18 NWLR (Pt.905) 319. The Court can raise it Suo motu as was done in ADESANYA v. THE PRESIDENT (1981)2 NCLR 358.
From experience, and the usual practice, it is always the defendant who raises it. That is exactly what the 1st Respondent did in this case. He raised the issue of jurisdiction by way of preliminary objection of the trial court. The trial court, in a considered ruling, overruled him. He has now raised it in the appeal against the final decision or judgment of the trial court. I think he is on firm ground to raise it. Even when a party fails to raise a preliminary objection based on jurisdiction of the trial court, he can still contest the correctness of the decision based on issue of jurisdiction on the appeal. See ELUGBE v. OMOKHAFE (supra). He can raise it even for the first time at the Supreme Court as could be seen from F.R.N. v IFEGWU (supra); TUKUR v. GOVT OF GONGOLA STATE (supra).
It is settled law that it is the plaintiff’s claim that determines the question of the court’s jurisdiction to entertain the suit before it. See ADEYEMI v. OPEYORI (1976)6-10 SC 31; AMAECHI v. INEC (2007) (No 2) (2007) 18 N.W.L.R. (pt. 1065)98. The reason for this, as the Supreme court stated in UWAIFO v. A – G (1982)7 SC 124, is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the judicial powers of the State vested in the courts by the Constitution.
Jurisdiction, as observed by Karibi-Whyte, JSC in A-G OF FEDERATION v. GUARDIAN NEWSPAPERS LTD (1999) 9 N.W.L.R. (pt.618) 187 means no more than the authority which a court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision; and that the limits of this jurisdiction may be circumscribed or restricted by statute. See also NATIONAL BANK v. SHOYOYE (1977) 5 SC. 181.
Let me pause at this juncture to ask what was the nature of the claim the 1st Respondent, as the plaintiff, took before the Federal High court, sitting at Port Harcourt for adjudication? In otherwords, what claim did the plaintiff present of the trial Court to invoke its constitutional authority to adjudicate between him and the Appellant?
The claim has to be considered viz-a-viz the trial court’s jurisdiction vested by statute or the constitution.
The contention of the Appellant’s Counsel is that the facts disclosed by the pleadings reveal total failure of consideration and breach of contract without more and that the facts remove the claim of the 1st Respondent from the jurisdiction vested in the Federal High Court by Section 251 of the Constitution. Counsel submits further that the 1st respondent had approached the trial court to order the Appellant and 2nd Respondent to return or refund his money on the ground that there had been a total failure of consideration, or for money had and received for purposes that were not fulfilled. Appellant’s Counsel submits that the private transaction, the subject of the dispute, does not relate to any irregularity or non-compliance with any provisions of the Companies and Allied Matters Act such as could have invoked the jurisdiction of the Federal High Court vested by of section 251 (1) (e) of the constitution of the Federal Republic of Nigeria 1999.
The transaction, the subject of the litigation is the Board Membership Agreement dated 14th November, 2001, Exhibit “B” It is an investment agreement, made pursuant to Exhibit “A” a letter dated 1st November, 2002 whereby the 1st Respondent, as the plaintiff, was invited by the 1st Respondent/Appellant to invest in Assurance Bank Nigeria Ltd Exhibit “B” was sequel to this Exhibit “A”.
This letter, Exhibit A, cajoled the plaintiff/1st Respondent to invest in Assurance Bank Nigeria Limited as “This presents the shortest route to own a bank” since the Federal Government of Nigeria “has stopped issuing banking Licences” Recitals 1 and 2 in the Board Membership Agreement, Exhibit “B”, set the tone for the agreed terms. They state:
WHEREAS:
1. The investor is a business man desirous of investing his capital in a worthwhile venture.
2. The promoter as an astute and seasoned Banker presently working to turn around the fortune of the Assurance Bank Ltd had invited the investor to invest huge capital in purchase of shares of the said Assurance Bank Ltd.
3…
The investor is the present 1st respondent. He was the plaintiff at the trial. The Promoter is the present Appellant. He was the 1st Defendant at the trial court.
After the Recitals the terms agreed solemnly are as follows:
1. That the investor makes a total payment of the sum of $1m (One million Dollars) to PARMEX GENESEC CONSERTIUM for the purchase of shares of Assurance Bank Ltd.
2. That the payment makes the investor a Board member of the aforesaid Bank in a space of 12- 18 calendar months at which time the Promoter and his team are expected to turn the Bank around and at which time approval will be secured from the Central Bank of Nigeria to increase the number of Board members of the said Bank.
3. The investor is to pay half of the said $1m that is to say $500,000.00 (Five Hundred Thousand US Dollars) and the other half of Five Hundred Thousand US Dollars paid as soon as the board membership appointment is confirmed.
4. In furtherance of 3 above and in partial fulfilment of the agreement, the investor hereby forwards half of the total sum, that is, $500,000.00 (Five Hundred Thousand US Dollars) via Citi Bank cheque Number 35864 of 11/11/2002 in certified Bank Draft drawn in favour of Parmex Genesec Consortium which is the authorized share dealer (the receipt of the cheque whereof the Promoter hereby acknowledges).
These are the terms of the Board Membership Agreement executed on 14th November, 2002. The Appellant submits that this agreement, the breach of which is the subject of the litigation against him, does not fall within the jurisdiction of the Federal High Court that entertained the suit. Both the 1st Respondent, through his counsel, and to some extent the Learned trial Judge previously, had expressed the opinion that “the contract, – is a special kind of contract for the purchase of shares and appointment as a director of a Board of a bank”; and therefore the trial court has jurisdiction, by dint of Section 251(1) (e) of the Constitution, to entertain the suit. And that the transaction is governed by Companies and Allies Matters Act. It is on this basis that they distinguished the case of ONUORAH v KADUNA REFINING & PETRO-CHEMICAL CO. LTD (2005) 6 N.W.L.R. (pt.921)393, that held that the Federal High Court has no jurisdiction to entertain disputes or causes founded on contract. They reasoned that the transaction in Exhibit “B” is not a “simple Contract” though they concede also that this is a dispute over a contract.
This, in my view, is a distinction without a difference. As stated by Oguntade JSC in EAGLE SUPER PACK (NIG) LTD v A.C.B. PLC (2006) 19 N.W.L.R. (pt. 1013) 20, where the foundation of the plaintiff’s action or claim is the agreement between him and the defendant, the action must be seen as an action in contract.
Exhibit “B” contains the terms of the contract between the 1st Respondent, as the plaintiff, and the Appellant and one other, as the defendants. The foundation of the plaintiff’s action against these defendants at the trial court is the agreement in Exhibit “B”. The 1st Respondent alleges breach of the contract in Exhibit “B”. He says that the defendants in the suit at the court below received money from him for purposes or services they failed to deliver to him. It is therefore, a matter of an alleged total failure of consideration. The suit was filed to compel the defendants to return to the plaintiff the money they had and received for purposes that they, the defendants, failed to deliver to him as agreed. Certainly, this type of suit is not contemplated to be within the jurisdiction of the federal High court donated by section 251 (1)(d) & (e) of the constitution, 1999, which are herein below reproduced:
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 Notional Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in Civil causes and matters –
(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, carnage, Legal tender, bills of exchange, letters 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 enactments replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
I do not see how the contract in Exhibit “B” can be stretched to fall within the ambit of the above provisions of Section 251 (1) of this Constitution. The 1st Respondent paid the sum agreed as material consideration for two purposes. That is; (1) for the purchase of shares in Assurance Bank Nigeria Ltd and (2) upon the payment of the said money he would be made “a Board member of the said bank in the space of 12 – 18 calendar months”.
He now alleges that the defendants have breached the terms of the contract or agreement. Breach of contract is the substance of the suit of the trial court.
I have read the judgment of the Supreme Court in ONUORAH v. KADUNA REFINING & PETRO-CHEMICAL CO. LTD (supra). The judgment made no such distinction between simple contract and any other kind of contract as both the learned trial judge and Mr. Nwofor SAN of counsel to 1st Respondent seem to hold out. Akintan JSC who read the Lead Judgment had this to say:
A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the (1999) constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, section [251 (1)] provides limitation to the general and all embracing jurisdiction of the state High Court because items listed under the said section (251 (1)) can only be determined exclusively by the Federal High court. All other items not included in the list would, therefore, still be within the jurisdiction of the state High Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court that court therefore had no jurisdiction to entertain the appellant’s claim.
Akintan JSC was interpreting Section 230 (1) of the 1979 Constitution, reproduced verbatim in Section 251 (1) of the 1999 Constitution.
Clearly, the learned trial judge did not read the entire judgment in the ONUORAH case (supra). The portion of her ruling of 1st December, 2008 of page 131 of the Record, reproduced of page 27 of the 1st Respondent’s Brief, settled by B.E.I. Nwofor, SAN, suggests that she read only “ratio 3”, which is merely on editorial note, and not the judgment. It is not always wise for Counsel and courts to rely only on editorial notes, and fail or neglect to read the main of the decision they rely on.
This appeal is against the judgment delivered on 30th July, 2009, and not against the Ruling of 1st December, 2008. Mr. Nwofor, SAN of Counsel to 1st Respondent, made copious references to the said Ruling of 1st December, 2008 in this Brief of 1st Respondent. With all deference to the Senior Counsel, he was merely confusing issues.
I find of page 312 of the Record that in the judgment delivered on 30th July, 2009 the learned trial judge made this very important finding, that is:
14. The 1st Defendant’s contention that the plaintiff’s action is founded on contract is true and undisputed.
Having so found, the learned trial judge should have declined jurisdiction at this juncture since “the plaintiff ‘s action founded on contract” does not come within the jurisdiction of the Federal High Court by dint of Section 251 (1) of the Constitution to be on line with ONUORAH’s case (supra) see also ADELEKAN v ECU-LINE NV (2006)12 N.W.L.R. (pt.993) 33 where Onnoghen, JSC stated that the jurisdiction of the Federal High court does not include civil causes or matters founded on contract or damages for tort or negligence.
I think I have sufficiently demonstrated that the Federal High Court had no jurisdiction to entertain the claim of 1st Respondent, as the plaintiff, in the suit no FHC/CS/PH/1277/2008 that was “founded on Contract”. Consequently, the Federal High Court acted ultra vires in entertaining the said suit. The judgment delivered in the said suit on 30th July 2009 is a nullity. It is trite that if a court has no jurisdiction to hear and determine a cause or matter before it, any step taken by it to hear and determine the matter are null and void. See TIMITIMI v AMABEBE & ORS 14 WACA 374; MADUKOLU v. NKEMDILIM (1962) 1 SCNLR 341 which were cited and relied upon in MR. OLADITI ADESOLA v. ALHAJI RAIMI ABIDOYE & ANOR (1999) 14 N.W.L.R. (Pt.637)28.
Coming, as I do, to this conclusion it is my firm view that Appellant’s issue 3 and the 1st Respondent’s issue 2 should be, and are all hereby, resolved against the 1st Respondent and in favour of the Appellant.
I have shown that the Federal High court lacks jurisdiction to entertain the suit of the 1st Respondent, as the Plaintiff, against the Appellant as the 1st defendant, and the 2nd defendant/Respondent. The entire proceedings and the judgment purportedly delivered by the said Court on 30th July, 2009 are hereby set aside as they are a nullity.
The matter does not simply end like that. I am aware that the Supreme Court in NIGERIA AIRWAYS LTD v F. A. LAPITE (1990) 11-12 SC 60 (1990) N.W.L.R. (pt.163) 392 held that where appellate court holds that the plaintiff had no reasonable cause of action or lacked the locus standi to bring the action the proper order to make in the circumstance is one striking out the action, and not to go into the merits.
There are other issues in this appeal touching on the merits of the suit before the trial court. The general rule, when an intermediate appellate court reaches a conclusion on one issue or some issues raised before it, it should normally proceed to consider the other issues bearing in mind that its conclusions may be set aside by the court higher in hierarchy. There are exceptions to the practice. One of them is; where the appellate reaches the decision to send the case back to the trial court for re-hearing or trial de novo it should normally refrain from considering the other issues on the merits of the case as doing this may prejudice a fair determination of the issues of the hearing. See Oguntade JSC in EAGLE SUPER PACK (NIG) LTD V. A. C. B. PLC (2006) (supra).
I am minded to sending this matter to the Rivers State High Court. The Judge of the Federal High Court by virtue of Section 22 of the Federal High Court Act 2004 has powers to transfer any matter or cause to the State High Court where he is satisfied that the suit ought, in the first place, to have been filed and heard at the State High Court.
Accordingly, this action as suit is hereby transferred to the Rivers State High Court to be heard de novo. The file in the Suit No. FHC/CS/PH/277/2008 is hereby remitted to the Chief Judge of Rivers State for assignment to any judge of the court.
Parties shall bear their respective costs.
CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have read in draft the judgment just delivered by my learned brother, EJEMBI EKO, JCA. He has aptly and adequately dealt with the appeal wherein I also endorse the reasons and the conclusion arrived thereat. I therefore have nothing further to add but to endorse the judgment by allowing the appeal.
The suit shouldn’t have been filed in the Federal High Court in the first place. Consequently, the file is remitted to the chief Judge of Rivers state for assignment to a Judge of that court.
MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother EJEMBI EKO J.C.A. just delivered.
The jurisdiction conferred on Federal High Court is explicit under section 251 Subsection 1 of the 1999 constitution of the Federal Republic of Nigeria as amended. The jurisdiction does not include civil causes or matters founded on contract or damages for tort or negligence. Items listed under section 251 (1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. The Federal High Court lacks jurisdiction to entertain the suit. The entire proceedings and the judgment delivered by the said court amount to a nullity. See Madukolu v. Nkemdilim (1962) 2 N.S.C.C. page 374 at 375.
I agree entirely with his reasoning and conclusion that the case be remitted back to the Hon. Chief Judge of River State for assignment to any judge of the court. I abide with the order on cost made therein.
Appearances
C. V. C. Ihekweazu, EsqFor Appellant
AND
B.E.I. Nwofor SAN, with Omowumi Komolafe (Mrs) for the 1st Respondent.
C.C. Okoro, Esq with I. Brown (Miss) for 2nd Respondent.For Respondent
