MR. FIDELIS ACHU & ANOR v. PRINCE PAUL OKON EFFIONG & ORS
(2019)LCN/13685(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of July, 2019
CA/C/93/2019
JUSTICES:
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. MR. FIDELIS ACHU
2. EBIANG ACHU’S ENTERPRISES LTD – Appellant(s)
AND
1. PRINCE PAUL OKON EFFIONG
2. TERESA ATIMANU ANYIN
3. GINATE TRIM NIGERIA LIMITED
4. LAFARGE AFRICA PLC – Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF JURISDICTION SHOULD BE HANDLED FIRST WHEN RAISED IN ANY PROCEEDINGS
The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law. Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1. PER OGBUINYA, J.C.A.
INGREDIENTS OF A COURT’S JURISDICTION
A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. YarAdua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OGBUINYA, J.C.A.
WHETHER OR NOT THE FEDERAL HIGH COURT HAS JURISIDICTON OVER A CAUSE OF ACTION INVOLVING MINES AND MINERALS
It is, sufficiently, settled law, that once a cause of action involves/appertains to any of the items in the provision, including mines and minerals, Federal High Court, not the lower Court, will be imbued with the exclusive jurisdiction to entertain it. The converse is true, id est, where a matter falls outside it, save in few recognised exceptions, the Federal High Court will be derobed of jurisdiction, see C.G.G. (Nig.) Ltd. v. Ogu (2005) 8 NWLR (Pt. 927) 366; Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 272; Cotecna Int’l Ltd. v. I.M.B. Ltd (2006) 9 NWLR (Pt. 985) 275; Trade Bank Plc. v. Benilux (Nig.) Ltd (2003) 9 NWLR (Pt. 825) 416; FMBN v. Olloh (2002) 9 NWLR (Pt. 773) 475; Omnia (Nig.) v. Dyktrade (2007) 15 NWLR (Pt. 1056) 576; I.T.P.P. Ltd. v. UBN Plc. (2006) 12 NWLR (Pt. 995) 483; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416; S.P.D.C. (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587; S.P.D.C. v. Isaiah (supra); NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Lokpobiri v. Ogola (supra); John Int’I Ltd. v. FHA. It is, also, trite, that in determining the jurisdiction of the Federal High Court, a Court considers the parties and subject-matter of an action, see Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465; N.E.P.A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; NNPC v. Orhiowasele (supra); NURTW v. RTEAN (2012) 10 NWLR (Pt. 1307) 170; Agbule v. W.R.P. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Enterprises Bank Ltd. v. Aroso (2014) 3 NWLR (Pt. 1394) 256; ABIEC v. Kanu (2013) 13 NWLR (Pt. 1370) 69; Wema Sec. & Fin. Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93. Here, the appellant quarrels with the subject matter, and not the party, jurisdiction of the lower Court. PER OGBUINYA, J.C.A.
WHETHER OR NOT A STATEMENT OF CLAIM DETERMINES THE JURISDICTION OF THE COURT
To begin with, the case-law has endorsed, in toto, a statement of claim as the major barometer to be employed by the Court to gauge the presence or absence of jurisdiction, law, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; NURTW v. RTEAN (supra); Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt.1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1449) 123; Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1466) 124: Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWLR (Pt. 1471) 570; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Adetona v. I.G. Ent. Ltd. (2011) 7 NWLR (Pt. 1247) 535; Lokpobiri v. Ogbola (2016) 3 NWLR (Pt. 1499) 328. PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Cross River State, holden at Calabar (hereinafter addressed as the lower Court), coram judice: Ayade E. Ayade, J., in Suit No. HC/273/2018, delivered on 5th February, 2019. Before the lower Court the appellants and the fourth respondent and the respondents were the defendants and the claimants respectively.
The facts of the case, which metamorphosed into the appeal, are amenable to brevity and simplicity. The Mfamosing Community is in Akamkpa Local Government Area of Cross River State. In 2016, the Community, which hosts the fourth respondent, had an iron ore extraction and supply contract with the fourth respondent. The Community, including the first-third respondents, entered into an oral agreement with the second appellant as the company to be used to formalise the iron ore extraction and supply contract. There was a memorandum of understanding to this effect of 23rd May, 2017. In furtherance of it, the first, third respondents, financial partners, entered into an oral agreement
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with the appellants, who had no funds, to finance the contract. The first, third respondents expended the total sum of N23m to finance the contract. The appellants made irregular repayments of the sum to the first, third respondents and could not liquidate the huge sum at once. There were meetings on mode of repayment which the appellants failed to honour. Sequel to that, the first, third respondents beseeched the lower Court, via a writ of summons filed on 21st June, 2018, and tabled against the appellants and the fourth respondent, the following reliefs:
i. A DECLARATION that the 1st & 2nd Defendants are in breach of their contract with the Claimants.
ii. The sum of N500,000,000.00 (Five Hundred Million Naira) as General/punitive damages for breach of contract.
iii. The sum of N23,096,000.00 (Twenty Three Million, and Ninety Six Thousand Naira) as special damages for monies expended by the Claimants in the course of the contract.
iv. AN ORDER directing the 1st and 2nd Defendants jointly and severally to account to the Claimants for the profits made by them on account of their business relationship with the 3rd
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Defendant.
v. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd Defendant from further contracting with the 1st and 2nd Defendants on the behalf of the Claimants and the Mfamosing Community.
vi. AN ORDER directing the 1st & 2nd Defendants to immediately pay to the Claimants the sum of Two Hundred Thousand Naira (N200,000.00) only being the cost of litigation.
vii. AN ORDER directing the 1st & 2nd Defendants to pay the Claimants 10% (Ten percent) interest per month on the entire judgement sum from the date of judgement till same is fully liquidated.
In reaction, the appellants joined issue with the first, third respondents and denied liability in their statement of defence.
On 23rd July, 2018, the first, third respondents filed an application wherein they prayed the lower Court for:
1. AN ORDER of INTERLOCUTORY INJUNCTION restraining the 3rd Defendant/ Respondent from further contracting with the 1st and 2nd Defendants/Respondents on the behalf of the Claimants/ Applicants and the Mfamosing community, pending the determination of this suit.
2. AND SUCH FURTHER ORDERS as this honourable court may deem
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fit to make in the circumstances.
The lower Court, duly, heard the application. In a considered ruling delivered on 5th February, 2019, found at pages 414 – 431 of the record, the lower Court granted the application.
The appellants were dissatisfied with the decision (ruling). Hence, on 8th February, 2019, the appellants lodged a 2-ground notice of appeal, copied at pages 434 – 436 of the record, and prayed this Court as follows:
a. An order allowing the appeal.
b. An order setting aside the Ruling of the High Court of Cross River State sitting at Calabar Division and delivered by Honourable Justice Ayade E. Ayade on the 5th day of February, 2019 in Suit No. HC/273/2018.
c. An order striking out Suit No. HC/273/2018 pending before the High Court of Cross River State, Calabar Division, Calabar, as the Court lacks the requisite jurisdiction to hear and determine the Suit. Or alternatively.
d. An order directing the Chief Judge of the Cross River State Judiciary to reassign the Suit to another Court for proper trial.
Thereafter, the parties filed and exchanged their respective briefs of argument in line with the
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procedure regulating the hearing civil appeals in this Court. The appeal was heard on 13th May, 2019.
During its hearing, learned counsel for the appellants, Eni Okoi, Esq., adopted the appellants brief of argument, filed on 5th April, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first, third respondents, Ini-Obong Udoh, Esq., adopted the first, third respondents brief of argument, filed on 3rd May, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it. The fourth respondents counsel, E. M. Agom, Esq, informed the Court that the fourth respondent filed no brief of argument.
In the appellants brief of argument, learned counsel distilled two issues for determination to wit:
a. WHETHER FROM THE WRIT OF SUMMONS AND STATEMENT OF CLAIM (PGS. 1-13 OF THE RECORDS OF APPEAL) THE LOWER COURT HAD JURISDICTION TO HEAR AND DETERMINE THE SUIT?
b. WHETHER THE APPELLANTS RIGHT TO FAIR HEARING HAD BEEN DEPRIVED THEM WHEN THE JUDGE OF THE LOWER COURT GRANTED THE INTERLOCUTORY EXECUTORY ORDER AGAINST
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THE APPELLANTS WITHOUT CONCLUSIVELY HEARING THE SUIT?
In the first, third respondents brief of argument, learned counsel crafted two issues for determination viz:
a. Whether from the writ of summons and statement of claim (as contained in Pages 1-13 of the records of appeal), the subject matter of the suit was well within the jurisdiction of the lower Court, to hear and determine accordingly.
b. Whether the right to fair hearing of the Appellants was breached or deprived the Appellants in the hearing and determination of the interlocutory Application before the lower Court.
A close look at the two sets of issues shows that they are identical in substance. Infact, the first third respondents issues can be, conveniently, subsumed under the appellants. For this reason of sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal.
Arguments on the issues:
Issue one.
Learned counsel for the appellants submitted that the contract between the appellants and the first- third respondents was not a simple contract but for extraction of
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mineral (iron ore) for which the lower Court had no jurisdiction to hear. He referred to Section 251(1) (n) of the Constitution, as amended, to show that it was the Federal High Court that had jurisdiction. He relied on Adewale Shodipo v. FRN (2017) LPELR- 42774 (CA) which restated the ingredients of jurisdiction. He described the issue as one of subject matter jurisdiction which had been resolved in NEPA v. Edegbenro (2002) LPELR- 1957 (SC).
On behalf of the first- third respondents, learned counsel argued, per contra, that the lower Court had jurisdiction because the contract was a simple contract on contract financing and profit sharing and not for the purpose of extraction and supply of iron ore. He posited that the jurisdiction of the Court could be determined from the statement of claim. He referred to Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169. He insisted that the case was on a simple contract for which the lower Court had jurisdiction to hear it. He relied on TSKJ (Nig.) Ltd. v. Otochem (Nig.) Ltd. (2018) LPELR- 44294 (SC); WEMA Securities and Finance Plc. v. NAIC (2015) 16 NWLR (Pt. 1484) 93; Adelekan v. Ecu-Line
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(2006) 5 SC (Pt. 11) 32.
Issue two:
Learned counsel for the appellants contended that the grant of the application touched on the substantive issues, before the lower Court, which deprived them of their right to fair hearing. He cited University Press Ltd. v. I. K. Martins Nig. Ltd. (2000) LPELR- 3421 (SC).
For the first- third respondents, learned counsel submitted that the appellants duly filed processes against the application and were not denied fair hearing. He added that once a party had been given an opportunity to present his case, a Court would not force him to utilise the opportunity. He relied on Audu v. INEC (2010) 13 NWLR (Pt. 1212) 431. He explained the essence of interlocutory injunction. He asserted that the lower Court had the discretion to grant it while acting judicially and judiciously. He referred to Florence Owolabi Enterprises Ltd. v. WEMA Bank Plc. (2011) LPELR- 4168 (CA); Oduntan v. General Oil Ltd. (1995) LPELR-2249 (SC). He reasoned that the lower Court examined the necessary facts and factors before granting the application. He maintained that the interlocutory injunction did not determine
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the substantive issues.
Resolution of the issues.
In due obeisance to the dictate of the law, I will settle issue one first. The hub of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544)
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175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. YarAdua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in
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order to infuse jurisdiction in a Court.
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
Now, the appellants chief grievance is that the firs,t third respondents cause of action borders on extraction of mineral which is outside the jurisdictional competence of the lower Court. Expectedly, the first, third respondents took an antithetical stand, id est, that it is within its jurisdiction because it relates to simple contract. In this wise, the provision of Section 251 (1) (n) of the Constitution, as amended, is of note. To this end, I will, borne out of necessity, pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus:
251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to
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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
n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
It is, sufficiently, settled law, that once a cause of action involves/appertains to any of the items in the provision, including mines and minerals, Federal High Court, not the lower Court, will be imbued with the exclusive jurisdiction to entertain it. The converse is true, id est, where a matter falls outside it, save in few recognised exceptions, the Federal High Court will be derobed of jurisdiction, see C.G.G. (Nig.) Ltd. v. Ogu (2005) 8 NWLR (Pt. 927) 366; Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 272; Cotecna Int’l Ltd. v. I.M.B. Ltd (2006) 9 NWLR (Pt. 985) 275; Trade Bank Plc. v. Benilux (Nig.) Ltd (2003) 9 NWLR (Pt. 825) 416; FMBN v. Olloh (2002) 9 NWLR (Pt. 773) 475; Omnia (Nig.) v. Dyktrade (2007) 15 NWLR (Pt. 1056) 576; I.T.P.P. Ltd. v. UBN Plc. (2006) 12 NWLR (Pt. 995) 483; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798)
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79; Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416; S.P.D.C. (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587; S.P.D.C. v. Isaiah (supra); NNPC v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211; Lokpobiri v. Ogola (supra); John Int’I Ltd. v. FHA. It is, also, trite, that in determining the jurisdiction of the Federal High Court, a Court considers the parties and subject-matter of an action, see Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465; N.E.P.A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; NNPC v. Orhiowasele (supra); NURTW v. RTEAN (2012) 10 NWLR (Pt. 1307) 170; Agbule v. W.R.P. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318; Enterprises Bank Ltd. v. Aroso (2014) 3 NWLR (Pt. 1394) 256; ABIEC v. Kanu (2013) 13 NWLR (Pt. 1370) 69; Wema Sec. & Fin. Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93. Here, the appellant quarrels with the subject matter, and not the party, jurisdiction of the lower Court.
To begin with, the case-law has endorsed, in toto, a statement of claim as the major barometer to be employed by the Court to gauge the presence or absence of
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jurisdiction, law, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; NURTW v. RTEAN (supra); Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt.1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1449) 123; Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1466) 124: Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWLR (Pt. 1471) 570; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Adetona v. I.G. Ent. Ltd. (2011) 7 NWLR (Pt. 1247) 535; Lokpobiri v. Ogbola (2016) 3 NWLR (Pt. 1499) 328.
In order to pay total fidelity to the law, I have consulted the mountainous main record, the spinal cord of the appeal, particularly at the residence of the writ of summons and the 53 statement of claim wrapped at pages 1-11 of it. I have, painstaking and assiduously, perused them with the finery of a tooth comb. Interestingly, they are obedient to comprehension. The meat of the contract between the feuding parties is embedded in the verbose 25-paragraph statement of claim which colonises pages 4-11 of the
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elephantine record. In this wise, the foremost averments are located in paragraphs 9-13 of it. Since they are pivotal to the issue, it is germane to extract them, verbatim ac literatim, as follows:
9. The Claimants aver that in furtherance of the Memorandum of Understanding, they entered into an oral Agreement as financial partners with the 1st and 2nd Defendants to finance the execution of the contract as the 1st and 2nd Defendants did not have the finance and the mining licence to execute the contract.
10. The Claimants aver that the 1st and 2nd Defendants did not have a mining licence prior to this contract, and that the 2nd Claimant gave the 1st and 2nd Defendants the sum of N2,000,000.00 (Two Million Naira), where the sum of N1,000,000.00 (One Million Naira) cash was given to the 1st Defendant by the 2nd Claimant, while the 2nd Claimant transferred the sum of N1,000,000.00 (One Million Naira) to the 2nd Defendant for the purpose of obtaining the mining licence for the execution of the contract on the 8th day of March, 2017. The Account Statement of the 2nd Claimant from Zenith Bank Plc evidencing the said payment is hereby pleaded and will be
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relied upon at the trial.
11. The Claimants aver that the claimants and the 1st and 2nd Defendant entered into an oral Agreement that due to the lack of funds on the part of the 1st and 2nd Defendants, that the Claimants should assist in getting the accommodation for the operation of the business and for residential purposes for the operations of the business, to hire 2 (two) excavators and four (4) trucks for the operation of the business.
12. The Claimants aver that in furtherance of the said oral Agreement, that the 3rd Claimant paid the sum of N700,000.00 (Seven hundred Thousand Naira) only to Ocarion Construction Limited being part payment of the debt owed by the 1st and 2nd Defendants to the said company. The receipt of payment of the said debt dated 22/2/2017 is hereby pleaded and will be relied upon at the trial.
13. The Claimants aver that in furtherance of the said oral Agreement between the Claimants and the 1st and 2nd Defendants, the Claimants expended the sum of N23,096,000.00 (Twenty Three Million, and Ninety-Six Thousand Naira), in the business of the 1st and 2nd Defendants as part of the oral contract between the Claimants and
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the 1st and 2nd Defendants, which the Claimants now plead as special damages.
It is decipherable from these displayed critical averments, inter alia, that the kernel of the contract inter se (between the first, third respondents and the appellants) was/is on contract financing and sharing of profits/gains emanating from it. In other words, the first-third respondents, which possessed the financial wherewithal, were to equip the appellants, who, may be, were impecunious, with the requisite resources/funds to enable the latter to execute the other contract of extraction and supply of iron ore. It exhibited the hallmark or feature of contract of loan sum of money lent with interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343. It made the appellants acquire status of indebtedness a state owing money, or something owed, or debt to another person, see Barbedos Ventures Ltd. v. FBN Plc. (2016) 4 NWLR (Pt. 1609) 241. The first- third respondents alleged a breach/violation of the contract by the appellant owing their failure to liquidate/repay the contract sum in regular manner after reaping from its
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benefits by usage. To my mind, the cause of action, as anatomized above, which parented the suit, whence this appeal, ultimately, germinated from, is a classic exemplification of simple contract. It is, totally, not connected to mining, which entails/connotes use of explosive in works or mineral exploration activity as espoused in C.G.G. (Nig. v. Ogu (2005) 8 NWLR (Pt. 927) 366. Put simply, the contract does not, in the least, fall within the restricted perimeter of Section 251(1) (n) of the Constitution, as amended, outlined above.
One of the recognized instances that divests the Federal High Court of exclusive/sole jurisdiction, under Section 251(1)(n) of Constitution, as amended, is in the realm of simple Contract. Once it is established, that an action is rooted in a simple contract, the lower Court will be clothed with the jurisdiction to entertain it. Hence, it has been confirmed, with magisterial finality, that in a simple contract (as in the instant case between the parties), it is the High Court and not the Federal High Court that has jurisdiction to entertain and determine it, see I.T.P.P. Ltd. v. UBN Plc (2006) 12 NWLR (Pt. 995) 483
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at 504, per Ogbuagu, JSC, Adelekan v. ECU-Line NV (2006) 12 NWLR (Pt. 993) 33; A.D.H Ltd. v. A.T. Ltd. (2006) 10 NWLR (Pt. 989) 635; Osun State Government v. Dalami (2007) 9 NWLR (Pt. 1038) 66; Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt. 921) 393; Wema Sec. Fin. Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93. Indubitably, the casus belli comes within the wide domain of simple contract as expounded in these ex cathedra case-law authorities.
Besides, my viewpoint is further solidified by the nature of the first- third respondents reliefs outlined at the cradle of this judgment. Indisputably, the nature of claims determines the nature of a suit or cause of action and, by extension, the competence of a Court entertain it, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 428; Amadi v. Sokoto L.G. (2012) 5 NWLR (Pt. 1292) 181. A microscopic examination of the suit, amply, discloses that the heart of the relief is for recovery of debt which arose from a simple contract for which the lower Court is clad with the garment of jurisdiction to entertain, see John Shoy Int’l Ltd. v. FHA (supra); Essi v. Nigeria Ports Plc. (2018) 2 NWLR (Pt. 1604) 361. On
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this premise, I hold the, humble, view that the lower Court was the forum competens clothed with the jurisdiction to determine the first- third respondents action. In effect, the lower Court did not fracture the law when it assumed jurisdiction and entertained the application.
This brief juridical survey, conducted in due consultation with the law, with due reverence, exposes the poverty of the learned appellants counsels terse submission on the issue. It is lame and cannot fly. On this score, I dishonour the appellants enticing invitation to crucify the lower Courts decision on the undeserved altar of want of jurisdiction for lack of legal justification. In the result, I will not hesitate to resolve issue one against the appellants and in favour of the first, third respondents.
Having dispensed with issue one, I proceed to settle issue two. It chastises the lower Courts grant of the interlocutory injunction and branded it as a determination of the substantive issues in the suit. The issue, though seemingly stubborn, is canalised within a narrow compass.
As a necessary prefatory remarks,
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the first, third respondents application was for interlocutory injunction. In a legal parlance, an injunction is a judicial mandate, which operates in personam, by which, on certain established principles of equity, a party is required to do or refrain from doing a particular thing or act. It may be prohibitory or mandatory, see Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172; Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605; Aboseldehyde Lab. Plc. V. U. M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91; Adeleke v. Lawal (2014) 3 NWLR (Pt. 1393) 1. It is located in the expansive realm of equity: body of principles constituting what is fair and right, see Aboseldehyde Lab. Plc. V. U. M. B. Ltd. (supra); Azuh v. UBA Plc. (2014) 11 NWLR (Pt. 1419) 580. It is meant to keep matters in status quo until the dispute between the parties is resolved, see Aboseldehyde Lab. Plc. v. U. M. B. Ltd. (supra); Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) 315/(1992) 3 SCNJ 129; Falomo v. Banigbe (1998) 6 SCNJ 42; Ogbonnaya v. Adapalm Ltd. (1993) 6 SCJ 23; Ideozu v. Ochoma (2006) 25 NSCQ 451/(2006) 4 NWLR (Pt. 970) 364.
A grant or refusal of an interlocutory injunction is
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at the discretion of the Court, which discretion must be exercised judicially and judiciously, see Onyesoh v. Nnebedun (supra); ACB v. Awogboro (1996) 2 SCNJ 233, Falomo v. Banigbe (supra). A supplication for interlocutory injunction is rooted in the wide domain of equitable remedy which, in turn, borders on discretion. In the sight of the law, discretion, which has become a commonplace in Court proceedings, is the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of others, see Suleiman v. C. O. P., Plateau State (2008) 8 NWLR (Pt. 1089) 298; Ajuwa v. SPDCN Ltd. (2011) 18 NWLR (Pt. 1279) 797. That informs the basis of the hallowed principle of law that Courts exercise of discretion in one case cannot be a binding precedent on another Court. It can only serve as a guide, see Amaechi v. Omehia (2013) 16 NWLR (Pt. 1381) 417.
Now, the appellants coup de main, as already noted, is that the lower Court defiled the law when it granted the substantive prayers by dint of the interlocutory injunction. It is long settled, that the law, seriously, frowns upon a
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Court, whether trial or appellate, delving into and determining a substantive matter at interlocutory stage, see Falomo v. Banigbe (supra); Adeleke v. Lawal (2014) 3 NWLR (Pt. 1393) 1, Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Adetona v. Zenith International Bank Ltd. (2011) 18 NWLR (Pt. 1279) 627; Akinrimisi v. Maersk (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 73; ABIEC v. Kanu (2013) 13 NWLR (Pt. 1370) 69; FRN v. Borisade (2015) 5 NWLR (Pt. 1451) 1556; Bulet Int’l (Nig) Ltd. v. Olaniyi (2016) 10 NWLR (Pt. 1521) 580; Exxon Mobil Corp. v. Archianga (2018) 14 NWLR (Pt. 1639) 229; In Re: Abdullahi (2018) 14 NWLR (Pt. 1639) 272.
I have, in due allegiance to the desire of the law, situated the interlocutory injunction with the reliefs upon which the suit is erected. The raison detre for the juxtaposition is plain. It is to discover whether or not the lower Court transgressed the law in its judicial act. To begin with, the relevant prayer is claim v., already set out at the dawn of the judgment, which is for perpetual injunction restraining the 3rd Defendant [fourth respondent] from further contracting with the 1st and 2nd Defendants
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[appellants] on behalf of the Claimants and the Mfamosing Community. In law, there is a yawning gap between interlocutory and perpetual injunctions. The former preserves the res in dispute pending the determination of the case hosting it. The latter, which occurs in twilight of proceedings, is granted, after trial, to protect an established right from further infringement and obviate multiplicity of actions, see Globe Fishing Inds. Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265; Anyanwu v. Uzowuaka (2009)13 NWLR (Pt. 1159) 445; Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd. (2012) 10 NWLR (Pt. 1308) 291.
Indisputably, what the lower Court favoured the first, third respondents with was an interlocutory injunction. It is, totally, divorced from perpetual injunction which is the focus of their prayer in claim 25 v. of their statement of claim. Thus, the interlocutory injunction, dished out by the lower Court, did not constitute an erosion of the substantive prayer of perpetual injunction. It does not constitute any coup de grace to the grant or refusal of the solicitation for perpetual injunction at the end of the proceedings. Put bluntly and simply, the
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decision of the lower Court, at interlocutory stage, is not guilty of the appellants charge that it delved into and determined the substantive case. In essence the lower Court did not injure the law when it granted the interlocutory injunction. It flows, that all the castigations, which the appellants rained against it, are idle and pale into insignificance. It will smell of judicial sacrilege to tinker with a judicial act that is not injudicious or hostile to the law. In sum, I have no choice than to resolve the issue two against the appellants and in favour of the first, third respondents.
By way of obiter, this appeal resurrects the needlessness of pursuing interlocutory appeal which the case law had, roundly, deprecated in a galaxy of authorities. The appeal, journeying at the measured millipede speed of Court processes, consumed almost a year out of the meagre time for determination of the case. Meanwhile, the substantive matter is sentenced to compulsory incubation, in the congested dockets of the lower Court, waiting for the outcome of the appeal. Undeniably, the substantive matter would have been completed within the time
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frame utilised in pursuit of this appeal. Presently, the competing rights of the parties to the res remain indeterminate with the negative consequences appurtenant to them. This is a far cry from good case management!
On the whole, having resolved the two issues against the appellants, the destiny of the appeal is obvious. It is bereft of any bubble of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 5th February, 2019. The parties, shall bear the respective costs they incurred in the defence and prosecution of the doomed appeal.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the draft judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA and am in complete agreement with the analysis and resolution arrived at in dismissing the appeal.
I wish to just add my voice to the obvious misunderstanding of the import of Section 251 of the 1999 Constitution of the Federal Republic of Nigeria (as altered) and as it touches on the jurisdiction of the Federal High Court. The
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uncertainty was settled in the case ofONUORAH VS. KADUNA REFINERY and PETROCHEMICAL COMPANY (2005) LPELR-2707 (SC) which in dear terms explained the import of Section 230(1) which is in pari materia with the current Section 251(1) of the extant constitution. The apex Court in the case of PORTS AND CARGO HANDLING SERVICES CO. LTD. & ORS. VS. MIGFO (NIG.) LTD. & ANOR. (2012) LPER 9725(SC) again held thus:
Now to the examination and of a plethora of cases of this Court and the Court below where have been pronouncement on the lack or jurisdiction of the Federal High Court on the type of the case of simple contract. In ONUORAH VS. KADUNA REFINERY and PETROCHEMICAL COMPANY (supra) the provision of Section 230(1) the 1979 Constitution (as amended), in with S 252(1) (g) of the 1999 Constitution, Which vests jurisdiction the Federal High on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies was considered. Nonetheless, the subsection quoted above has not conferred jurisdiction on the Court where the Plaintiffs claim is founded on contract.”
There is therefore a
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difference between a claim founded on contract and a dispute with regards to the technical and exclusive areas of the jurisdiction of the Federal High Court mentioned in Section 251(1) Of the 1999 Constitution which does not cover claims founded on contract.
I join my brother in dismissing the appeal and also abide by the other orders made the lead judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: The lead judgment of my learned brother Obande F. Ogbuinya, JCA, represent my view that the lower Court was the forum competent clothed with the jurisdiction to determine the suit. It is also my view that the lower Court had exercised its discretion judiciously and judiciary in granting the interlocutory injunction. I adopt the reasoning and conclusions in dismissing the appeal and abide by the consequential orders.
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Appearances:
Eni Okoi, Esq. with him, Diana O. Musa, Esq. For Appellant(s)
Ini-Obong Udoh, Esq. for the 1st-3rd Respondents.
E. M. Agom, Esq.for the 4th Respondent For Respondent(s)
Appearances
Eni Okoi, Esq. with him, Diana O. Musa, Esq. For Appellant
AND
Ini-Obong Udoh, Esq. for the 1st-3rd Respondents.
E. M. Agom, Esq.for the 4th Respondent For Respondent
