MR. VICTOR OSADEME & ANOR v. MR. P.E. AGBADAMU & ORS
(2012)LCN/5580(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/B/188/2006
RATIO
WORDS AND PHRASES: MEANING OF FUNCTUS OFFICIO
The phrase functus officio means, a task performed, fulfilling the function of, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. In the case of: FBN Plc. V. TSA Ind. Ltd. (2010) 38 W.R.N. p. 1 at p. 59, lines 45 – end and p. 50, lines 5 – 13, His Lordship, Adekeye, JSC on this point referred with a mark of approval to the case of: Olowu v. Abolere (1993) 5 NWLR (Pt. 293) p. 255 at p. 270 and stated that:
A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, reopen or revisit the matter, Once a court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process. Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Anyaegbunam v. A-G. Anambra State (2001) 6 NWLR (Pt. 710) 532, Mohammed v. Husseini (1998) 14 NWLR (Pt. 584) 108. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JURISDICTION: IMPORTANCE OF JURISDICTION
The law is settled beyond peradventure that an issue of jurisdiction once raised must be resolved. In the case of: NBN Plc. V. TSA Ind. Supra at page 36, lines 16 – 26, this legal position was reaffirmed by the supreme court per Adekeye, JSC that:
Usually where a court’s jurisdiction is challenged by the defence, it is better to settle the issue one way or the other before proceeding to hearing of the case on the merits. Any failure by the court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which rendered any further step taken in the proceedings a nullity. A – G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; (1989) 6 SCNJ 134, Madukolu v. Nkemdilim (2001) 46 WRN 1; (1981) 1 NCLR 135, Sofekun v. Akinyemi (1981) 1 NCLR 135.
Also in the case of: A. – G. Rivers Sate v. A.- G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) p. 31 at p.214, paras. B – D, Rhodes-Vivour, JSC held:
Jurisdiction is threshold matter, and so it must be resolved at the earliest opportunity, as any proceedings conducted without jurisdiction would amount to a nullity no matter even if the proceedings were conducted with aplomb. It is so important that it can be raised at any stage of the proceedings even on appeal or in the Supreme Court for the first time. See Bronik Motors Ltd. and Anor. V. Wema Bank Ltd. (1983) 1 SCNLR p. 296; Usman Dan Fodio university v. Kraus Thompson organisation Ltd. (2001) 15 NWLR (pt. 736) p. 305.
Jurisdiction can be raised informally, although it is desirable some process is filed so that the adverse party is not taken by surprise. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JURISDICTION: DEFINITION OF JURISDICTION
The term jurisdiction imports and connotes the authority, competence and legal power which a court of law or tribunal possesses to hear a matter before it and reach a decision on such a matter. Where a court lacks the power and competence, it cannot legally adjudicate over a matter. This is because the competence of a court is an essential element in determining its jurisdiction. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JURISDICTION: EFFECT OF ANY DEFECT IN COMPETENCE OF A COURT ON ITS PROCEEDINGS
Consequently, any defect in competence is fatal and the whole proceedings will amount to a nullity however well conducted and decided. See the cases of: Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) at p. 36; (2) Madukolu v. Nkemdilim (1962) All NLR p. 587 and (3) Abdulhamid v. Akar (2006) All FWLR (pt. 321) p. 1191 at p. 1204. Also in the case of: Okadigbo v. Emeka (2012) All FWLR (pt. 523) p. 1869 at pgs. 1877, para. C and P. 1881, paras. E – F, the learned Chukwuma-Eneh JSC restated the legal position regarding the jurisdiction and competence of courts over cases before them in these words:
It is trite that where an objection as the instant ones raise fundamental issues touching on the vires of the court to entertain a matter as the instant appeal, it is incumbent on the court to have it disposed of first as to proceed to entertain the matter in circumstances where the court has no vires to do so comes to naught being a mere academic exercise… PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. MR. VICTOR OSADEME
2. MRS S. OSADEME Appellant(s)
AND
1. MR. P.E. AGBADAMU
2. MR AUDU WAMIU
3. FEDERAL MINISTRY OF WORKS AND HOUSING, BENIN CITY
4. MR. FEMI ONI
5. MR. EMMANUEL OTOBO
6. MR. CHUKS OTOBO Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment): This is an appeal from the decision of the Federal High Court sitting in Benin City in Suit No. FHC/B/CS/54/2000 delivered on 28th day of June, 2005.
The Appellants as plaintiffs at the trial court filed a writ against the Respondents as defendants jointly and severally claiming as per their Amended Joint Statement of Claim as follows:
(a) A Declaration that the plaintiffs are entitled to possession of all that piece or parcel of land (allocated space) lying and situate at the Low Cost Housing Estate, Ikpoba Hill, Benin City bounded by street 56, 59, 52 and a thorough fare between street 58 and 52 measuring approximately 2,292 square meters for each of the plaintiffs and demarcated in survey plan prepared by the 3rd Defendant and that the lease to the plaintiffs in still valued subsisting.
(b) Special damages of Six Hundred thousand Naira (N600,000.00).
(c) General Damages: Two Million Naira (N2,000,000.00) for trespass.
(d) Perpetual Injunction restraining the defendant from further trespass into the allocated space lying and situate at the Low Cost Housing Estate, Ikpoba Hill, Benin City, measuring approximately 2, 295 square meters per each of the plaintiffs.
(e) An order directing the defendants to deliver possession of this land to the plaintiffs and an order setting aside any other subsequent grant of plaintiffs’ land or any part thereof to the 1st, 2nd 4th – 5th defendants as illegal and void.
The brief background facts of this matter are that, sometime in September, 1989, the 3rd Respondent allegedly allocated to the Appellants a parcel of land at the low cost housing estate, Ikpoba Hill, Benin City, for the purpose of establishing thereon a school and bookshop. The Appellants took possession and got the land surveyed. Thereafter in 1991, the Appellants set up a duly registered nursery school on the site. However, sometime in 1997, some officials of the 3rd Respondent allegedly invaded the land and destroyed the structures thereon.
Subsequently, the 3rd Respondent wrote a letter to the Appellants to the effect that the said parcel of land had been allocated to eight individuals, including the 4th, 5th and 6th Respondents but not the 1st and 2nd Respondents. Allegedly, the 1st, 4th, 5th & 6th Respondents trespassed on the land thereby destroying the remaining structures and economic trees planted thereon by the Appellants.
Hence, the Appellants instituted against the Respondents the suit, the subject-matter of this appeal, at the Federal High Court, Benin City. At the close of trial, the learned trial Judge dismissed the suit for want of the jurisdiction of the trial Court to adjudicate upon the said suit. The Appellants are displeased with the said decision and they filed an appeal to this Court vide their notice and grounds of appeal dated and filed on 19th September, 2005. The notice and grounds of appeal contained two grounds of appeal. See pages 142 to 144 of the record of appeal.
Mr. M.K. Agienoji, the learned counsel or the Appellants prepared an Appellants’ brief of argument dated and filed on 13th November, 2006. In the brief, two issues were distilled from the two grounds of appeal for determination.
The two issues are:
Issue 1
Whether it was not functus officio of the Judge to decline jurisdiction suo motu at the stage of judgment after first ruling that he had jurisdiction to try the suit?
Issue 2
Whether it was right for the Judge to decline jurisdiction and dismiss plaintiffs’ case having regard to Section 251 (1) of the 1999 Constitution which vests the court with jurisdiction?
The learned counsel for the Respondents, Chief C.O. Ihensekhien prepared the 1st – 6th Respondents’ amended brief of argument dated and filed, by the order of this Court, on 28th April, 2010. In it, the Respondents’ counsel adopted the two issues raised for the determination of this appeal in the Appellants’ brief of argument. I have reproduced above the two issues.
At the hearing of this appeal by this Court on the 23rd day of May, 2012, learned counsel for the parties identified, adopted and relied on their respective briefs of argument for and against this appeal. I believe the two issues formulated by the Appellants’ counsel and adopted by the Respondents’ counsel are sufficiently apt for the resolution of this appeal. I now proceed to consider them seriatim.
ISSUE ONE
Whether it was not functus officio of the Judge to decline jurisdiction suo motu at the stage of judgment after first ruling that he had jurisdiction to try the suit?
The learned counsel for the Appellants submitted that the trial Court was functus officio when it dismissed the Appellants’ suit in its judgment delivered on 28th June, 2005, for want of jurisdiction. Earlier in the course of proceedings at the trial Court, the 1st Respondent’s counsel had filed a motion on notice challenging the jurisdiction of the Federal High Court to adjudicate on the matter.
In a ruling delivered on 11th October, 2001, the learned trial Judge struck out the motion challenging its jurisdiction, for non-compliance with the provisions of Order 25 Rule 1 of the Federal High Court (Civil Procedure) Rules. He stated that it was erroneous for the trial Court to make the pronouncement after the consideration of the said motion. Learned counsel in this regard relied on the cases of: (1) Fajimi v. Speaker Western House of Assembly (1962) 1 SCNLR, p. 300; (2) Uku v. Okumagba (2001) 41 W.R.N., p.133 at p. 134 and (3) Alex O. Onwuchekwa v. A.C.B (Nig.) Ltd. & Anor. (1999) 5 NWLR (Pt. 603) at p. 415. As neither the 1st Respondent nor any of the other Respondents challenged the ruling by way of appeal and none of the Respondents subsequently raised the issue of jurisdiction as a point of law to be set down for determination in their respective statements of defence. The learned trial Judge thereafter proceeded to assume jurisdiction and heard the testimonies of the parties and their witnesses, followed by the addresses of counsel to the parties. Although the learned trial Judge stated in his judgment at pages 127 to 141 of the record of appeal that he directed the parties to address the court on the issue of jurisdiction, such directive is nowhere indicated or shown in the records of proceedings. What is more, the 1st Respondent’s counsel who initially raised the issue of jurisdiction did not address the court on the point. The other Respondents who were represented by counsel also did not address the court on jurisdiction.
On the other side, the Respondents’ learned counsel submitted that in the ruling of the trial Court on the motion on notice filed by the 1st Respondent herein which challenged the decision of the Federal High Court to adjudicate on land matters was struck out for non compliance with the provisions of Order 25 rule 1 of the Federal High Court (Civil Procedure) Rules. Counsel restated that the Latin expression funtus officio simply means task performed or making an order in a matter twice. In other words, the Judge no longer has jurisdiction or competence to give another decision on the same matter. He relied on the cases of: Omoregbe v. Lawani (1980) 3 – 4 SC p. 129 and (2) Koiki v. First Bank of Nigeria Plc. (1994) 8 NWLR (Pt. 365) p. 665 at pgs. 683 – 684 paras, H – B. The ruling dated 11th October, 2001 delivered by the learned trial Judge on the interlocutory application to dismiss the suit for lack of jurisdiction was struck out as being premature. As such the learned trial Judge who had not decided on the merits of the application and had not given a final order thereon cannot be functus officio. There being no further application to dismiss the action for lack of jurisdiction by the Respondents even after having raised same in their statement of defence. In his opinion, the learned trial Judge, acted properly when he proceeded to call for evidence from the parties before him. The Court was within authorized jurisdiction to suo motu raise the issue at the failure of the parties to raise the issue of jurisdiction at the address stage. This is because the issue of jurisdiction is a point that goes to the root of the entire matter and its proceedings. The issue could therefore be raised at any stage of the proceedings either by any of the counsel or suo motu by the court. On this submissions, learned counsel relied on the cases of: (1) Chief Ntonoba Ekara v. Joseph Okongo Takim (1995) 5 NWLR (pt. 394) p. 242 at p. 254, paras. A – B and (2) Chief Daniel Awodele Oloba v. Isaac Olubodun Akereja (1988) 7 SC (Pt. 1) p. 1 at p. 11 paras. 24 – 39. The learned trial Judge was therefore right when he proceeded to take evidence and at the end of it, he was able to see clearly that it lacked jurisdiction to entertain the subject-matter of the suit, as there is nowhere in the record of appeal that the Court ever ruled that it had no jurisdiction to try the suit.
The crux of this issue is the consequence or effect of the ruling of the trial Court, delivered on 11th October, 2001. The said ruling was delivered pursuant to a motion on notice filed by the 1st Respondent challenging the jurisdiction and competence of the trial Court to adjudicate upon the suit of the Appellants at the Court. I wish however before proceeding further to point out that I have thoroughly searched every page of the record of appeal and I am unable to see the said motion. However the ruling in respect thereof is at pages 56A to 56B of the record. In the said ruling, the learned trial Judge ruled inter alia that:
The Plaintiff filed a writ of summons but did not file any statement of claim. The Writ of summons according to the rules of Court are supposed to be filed with the statement of claim. In this case the plaintiff has not filed any Statement of Claim. Order 26(1).
On the other hand by the provisions of Order 25 Rule 1 of the Rules of this Court demurrer actions have been abolished.
The Defendant is supposed to raise any point of law in his pleadings, and the Court may decide to take it first or dispose of it during the trial.
The Defendant therefore has failed to comply with the Provisions of Order 25 Rule 1. If he intends to file any objection on points of law, he has to wait for the Plaintiff to file his statement of defence and plead the points inside it. The application is therefore premature. The Motion for interlocutory injunction also cannot be heard as the Plaintiff did not file his statement of claim.
The poser therefore is, whether the learned trial Judge by reason of his pronouncement reproduced above had become functus officio and consequently lacked the jurisdiction to proceed as he did, to deal with the main suit? The phrase functus officio means, a task performed, fulfilling the function of, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. In the case of: FBN Plc. V. TSA Ind. Ltd. (2010) 38 W.R.N. p. 1 at p. 59, lines 45 – end and p. 50, lines 5 – 13, His Lordship, Adekeye, JSC on this point referred with a mark of approval to the case of: Olowu v. Abolere (1993) 5 NWLR (Pt. 293) p. 255 at p. 270 and stated that:
A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, reopen or revisit the matter, Once a court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process. Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Anyaegbunam v. A-G. Anambra State (2001) 6 NWLR (Pt. 710) 532, Mohammed v. Husseini (1998) 14 NWLR (Pt. 584) 108.
Although the learned counsel for the Appellants in one breath submitted that the trial Court had become functus officio and lacked the capacity to deliver the judgment under review, both himself and the learned counsel for the Respondents are ad idem that, in the ruling in contention, the learned trial Judge by implication, struck out the two motions that is, the one at the instance of the 1st Respondent challenging his jurisdiction to adjudicate upon the suit and the other at the instance of the Appellants for an interlocutory injunction against the Respondents. The learned trial Judge’s reason for the striking out orders was that the motions were premature, the Respondents having failed to comply with the provisions of Order 26 Rule 1 of the Federal High Court (Civil Procedure) Rules, to file their defence to the suit filed against them by the Appellants, as the latter were equally yet to file and serve their statement of claim. This is the reason I am at one with the position of the Respondents’ learned counsel that, since the learned trial Judge merely struck out the said motions, especially that challenging his jurisdiction, it cannot be said that he heard and determined the motions on the merits and I so hold. Therefore, my answer to the above poser is in the negative and I hold that the trial Court was not functus officio to proceed to the hearing of the substantive matter.
Regarding the point that it was the learned trial Judge, that suo motu raised the issue of jurisdiction, after perusing the entire record of appeal, I have to agree with the submissions of the Appellants’ learned counsel that none of the Respondents ever raised the issue of jurisdiction after the ruling of 11th October, 2001. The Appellants’ counsel in his final address adverted to this point and submitted in these words that:
This court is competently entitled to entertain this case. The land belongs to the Federal Government of Nigeria. The Federal Ministry of Works is part of the Federal Government of Nigeria. This court has jurisdiction, ……………..
Section 251 of the Constitution.
See paragraph 3 at page 126 of the record of appeal. I can not find in the printed record where the Respondents’ counsel reacted to the issue, nay, not even the 1st Respondent that initially raised it. In paragraph 3 at page 141 of the record, the learned trial Judge stated that he directed the parties to address him on the issue of jurisdiction but that it was only the Appellants’ counsel that mentioned it in his address, wherein he submitted that the trial Court has competence to entertain the subject-matter of the suit. With due respect to the learned trial Judge, I must again agree with the Appellants’ counsel that, the printed record does not contain any such directive or order of the learned trial Judge. It can not therefore be said that the issue of jurisdiction was properly raised either by the parties or even suo motu by the trial Court, after the ruling of the 11th October, 2001. One can confidently say that the issue of jurisdiction was not even in dispute or contention, for the mere mention of same in the judgment of the trial Court was not enough to impute this. The learned counsel for the two parties did not submit in respect thereof for the Judge’s consideration. The justice of this matter requires that the issue of jurisdiction be thrashed out on the merits before the trial court can make any valid pronouncement on it, one way or the other. The law is settled beyond peradventure that an issue of jurisdiction once raised must be resolved. In the case of: NBN Plc. V. TSA Ind. Supra at page 36, lines 16 – 26, this legal position was reaffirmed by the supreme court per Adekeye, JSC that:
Usually where a court’s jurisdiction is challenged by the defence, it is better to settle the issue one way or the other before proceeding to hearing of the case on the merits. Any failure by the court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which rendered any further step taken in the proceedings a nullity. A – G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; (1989) 6 SCNJ 134, Madukolu v. Nkemdilim (2001) 46 WRN 1; (1981) 1 NCLR 135, Sofekun v. Akinyemi (1981) 1 NCLR 135.
Also in the case of: A. – G. Rivers Sate v. A.- G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) p. 31 at p.214, paras. B – D, Rhodes-Vivour, JSC held:
Jurisdiction is threshold matter, and so it must be resolved at the earliest opportunity, as any proceedings conducted without jurisdiction would amount to a nullity no matter even if the proceedings were conducted with aplomb. It is so important that it can be raised at any stage of the proceedings even on appeal or in the Supreme Court for the first time. See Bronik Motors Ltd. and Anor. V. Wema Bank Ltd. (1983) 1 SCNLR p. 296; Usman Dan Fodio university v. Kraus Thompson organisation Ltd. (2001) 15 NWLR (pt. 736) p. 305.
Jurisdiction can be raised informally, although it is desirable some process is filed so that the adverse party is not taken by surprise.
Assuming without conceding that the learned trial Judge in the instant matter raised the issue of jurisdiction suo motu, it is trite that he should afford both sides the opportunity to address him on it. see the case of: Leader & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (pt. 1225) p. 329 at p. 340, paras. A – E, the learned Fabiyi, J.S.C, with erudition restated this legal position in the following words:
Let me start by making the point that the raising of the issue of competence suo motu while writing the judgment equates with what is often referred to as cloistered justice. It is not the duty of a court to embark upon same by making enquiry into the case outside the court. A Judge is an adjudicator; not an investigator. See: Duriminiya v. C.O.P. (1961) NRNLR 70 at 74; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; (1999) 9 NWLR (pt. 620) 552.
A Judge should not raise a point suo motu without hearing from the parties. This is to avoid being accused of descending into the arena. He has no business to bridge the yawning gap in the case of a party to the proceedings. See Ajuwon v. Akanni (1993) 9 NWLR (pt. 316) 182; Salubi v. Nwariaku (1997) 5 NWLR (Pt. 505) 442; Olorunfemi v. Asho & 2 Ors. (1999) 1 SC 55; (1999) 1 NWLR (Pt. 585) 1. It is not correct for a court to give a decision on a point of which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised. see: Victino Fixed Odds Ltd. v. Joseph Ojo & 2 Ors. (2010) 3 SC 26 at 39; (2001) 4 NWLR (Pt.703) 372 at 388. see also the case of: Ogembe v. Usman (2011) 17 NWLR (Pt.1277) p.638 at p. 656 paras. E – F. Galadima, JSC made the following pronouncements:
challenging the jurisdiction of the court is a threshold issue.
It is a warning signal to the court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance, a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The court can suo motu raise it: Leventis v. Petro Jessica (supra). While the court has a duty to give parties an opportunity to be heard on any issue it raises suo motu.
It is on the above score that this issue must be and is hereby resolved against the Appellants and in favour of the Respondents.
ISSUE TWO
whether it was right for the Judge to decline jurisdiction and dismiss plaintiffs’ case having regard to Section 251 (1) (r) of the 1999 constitution which vests the court with jurisdiction?
The learned counsel for the Appellants argued that the trial Court perpetrated juridical and jurisprudential error when he held that the Federal High Court lacks jurisdiction to adjudicate on the subject-matter of the Appellants’ suit. As the Appellants instituted this action at the Federal High Court, Benin City because the 3rd Respondent, the Federal Ministry of works and Housing, from whose administrative action the cause of action emanated, is an agency of the Federal Government of Nigeria. By the provisions of Section 251 (1)(p) & (r) of the Constitution of Nigeria, 1999, the Federal High Court is vested with exclusive jurisdiction in civil causes and matters on the administration or the management and control of the Federal Government or any of its agencies. And on any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The reliefs sought by the Appellants as plaintiffs at the lower court are reflected in paragraph 24 of the Amended Joint Statement of Claim of the Appellants contained on pages 85 to 89 of the records. The declarations sought by the Appellants as plaintiffs at the trial Court is in respect of allocation of a piece of land belonging to the Federal Government of Nigeria by the 3rd Respondent, an agency of the Federal Government. The land in dispute which was initially allegedly allocated to the Appellants but later reallocated to the 1st, 4th, 5th and 5th Respondents.
Furthermore, learned counsel submitted that land allocation to individuals by the Federal Ministry of works and Housing is clearly an executive or administrative action which has affected the rights and interests of the Appellants, hence the Appellants approached the Federal High court seeking a declaration on the action. It is also instructive that the Appellants in their joint statement of claim equally sought an injunction against the Respondents restraining them from further trespassing on the said piece of land, amongst other ancillary reliefs. These are contained in paragraph 24 (a) (e) of the amended joint statement of claim of the Appellants. The Respondents’ action which is lucid and luminous has dovetailed or pigeonholed the administrative function of the 3rd Respondent, an agency of the Federal Government, within the ambit and parameter of section 251(1) (r) of the 1999 constitution of Nigeria. In his view, section 251 of the constitution which defines the exclusive jurisdiction of the Federal High Court does not state expressly or by implication that the Federal High court is forbidden from entertaining actions bordering on land belonging to the Federal Government or any of its agencies. Even section 251(1) (r) merely refers to declarations or injunctions, but is silent on the nature of the subject-matter of such declaration or injunction. He also argued that even though the learned trial Judge believed rightly or wrongly that the Federal High court has no jurisdiction to grant declarations on land, this is just part of the reliefs sought by the Appellants. Hence, the trial court should have adopted the equitable doctrine of severance or the blue pencil rule, by considering the other reliefs sought in line with the evidence adduced for the purpose of granting them rather than dismissing the suit out-rightly. Hence, the order of dismissal in counsel’s view is tantamount to throwing away the baby with the bath water. He contended that Relief (e) of the joint amended statement of claim of the Appellants is predicated on the contract or lease agreement between the Appellants and the 3rd Respondent which was subsisting between them before the purported subsequent lease agreement between the 3rd Respondent and the 1st, 4th, 5th and 6th Respondents.
It was further submitted in favour of the Appellants that, it is trite law that when a trial court makes a finding that it has no jurisdiction to adjudicate on a matter before it, the proper order to make is that of striking out and not of dismissal. Therefore, assuming without conceding that the learned trial Judge was right to hold that the Federal High court has no jurisdiction to entertain the subject-matter of the Appellants’ suit, the proper order to make in the circumstance is that of transfer to the state High court. In this regard, he relied on Section 22(1) of the Federal Revenue Court Act now Federal High court Act and the cases of: (1) Akinbobola v. Piisson Fisko Nig. Limited (2004) 22 WRN, p. 52 at p. 57 and (2) Din v. Attorney General of the Federation (1986) 1 NWLR (Pt.17) p. 471 at p. 473. In his opinion, the learned trial Judge erred to have declined jurisdiction. He urged this court to exercise its power under section 15 of the Court of Appeal Act and under order 1 rule 19 (3) of the Court of Appeal Rules, 2002. He equally in this vein relied on the case of: NDIC v. Akinsumade (2000) 8 NWLR (pt. 668) p. 293 at p. 305. Learned counsel also urged this court to hold that the Appellants have succeeded in proving their case on the balance of probability or preponderance of evidence pursuant to section 137 of the Evidence Act. The 3rd Respondent, an agency of the Federal Government, did not dispute or controvert the claim of the Appellants. He contended that the initial transaction between the Appellants and the 3rd Respondent is a valid contract by the principles of pact sunt servanda, the 3rd Respondent could not resile from it.
Hence, the purported subsequent allocation of the land in dispute to the 1st, 4th, 5th and 6th Respondents was null and void. He contended further that at best, the subsequent allocation would raise the issue of priority of interest on the allocation. This is encapsulated in the principle of qui prior est tempores portior est juris; that is, he who is earlier in time is stronger in law. These contentions are predicated on the cases of: (1) Labode v. Otubu (2001) 21 WRN p.1 at p.6; (2) Dantshosho v. Mohammed (2005) 30 WRN p. 61; (3) Panbisbilder (Nig.) Limited v. First Bank Plc. (2000) 74 LRCN p. 109 at p. 116 and (4) Okechukwu v. Onuorah (2000) 15 NWLR (Pt. 691) p. 597 at p. 605.
On the other part, the learned counsel for the Respondents argued that the trial Judge was right when he held that the Federal High Court lacks jurisdiction to adjudicate on the Appellants’ action. The issue of title to land as claimed by the Appellants is not in the exclusive legislative list spelt out in the 2nd Schedule to the 1999 Constitution of the Federal Republic of Nigeria. The main relief sought by the Appellants is a declaration that they are the owners of the parcel of land in dispute. For it is the relief sought by a plaintiff that determines the jurisdiction of the court even if the nature of the defence put up by the defendant affects the issue of jurisdiction. In the instant case, the reliefs claimed center mainly on a declaration of the title to land and its ancillary reliefs. In this nation’s constitutional history, the State High Courts have always exercised adjudicatory power over the land matters. The learned counsel argued that the power of the Federal Legislature to make laws has always been confined to matters under the Exclusive Legislative List. Therefore any power or function not in the Exclusive Legislative List is residuary. Such residuary powers are vested in the component States, hence land does not feature in either the Exclusive or Concurrent Legislative Lists. It was further submitted that where a court lacks jurisdiction to entertain a main claim, which in the instant case is as spelt out in paragraph 24 of the amended joint statement of claim of the Appellants, for a declaration of title to land, it cannot grant any of the ancillary reliefs of the main claim. Therefore, the proper thing to do if there is a court that can determine all the issues involved in the case, is to approach that court, in this case, the High Court of Edo State.
This view is hinged on the cases of: Nigeria Social Insurance Trust Fund Management Board v. Rasheed Kola Adebiyi (1999) 13 NWLR (Pt.633) p.16 at p.27 para. E; (2) Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) p. 517 and (3) Tukur v. Taraba State (1997) 6 NWLR (Pt.510) p.549. The Appellants’ opinion that they have proved their case on the balance of probability and preponderance of evidence cannot stand in the face of the uncontradicted and unchallenged evidence of the 3rd Respondent as represented by one Oyedemi Isade Folorunso, who was the Assistant Town Planning Officer at the time of the alleged transaction between the Appellants and the 3rd Respondent. That evidence is that the Controller of Works had no right to allocate Federal Government land. This made the alleged transaction illegal ad void. Therefore the 1st, 2nd and 4th-6th Respondents got their allocation of land from the appropriate authority. However, counsel conceded that the trial Court had no jurisdiction to dismiss the case of the Appellants before it. All it had power to do, having found that it had no jurisdiction in the case, was to strike it out. He rested his stance on the cases of: (1) Fasakin Foods Ltd. v. Shosanya (2006) 142 LRCN p. 2702 at p. 2716 paras. F – P; (2) Okoye & 7 Ors v. Nigeria Construction and Furniture Co. Ltd. & 4 Ors. (1991) 7 SCNJ (Pt.11) p.365 at p.388; (3) NEPA v. Adegbenro & 15 Ors. (2002) 12 SCNJ p.173 at p.186; (4) Arjay Ltd. & 2 ors v.
Airline Management supported Ltd. (2003) 7 NWLR (Pt. 820) p.577 at p.610 and (5) Chief Lakanmi v. Adena & 3 Ors. (2003) 4 SCNJ p.348 at p.355.
So long on the submissions of learned counsel for both parties, the simple question under this issue is: was it proper for the learned trial Judge to dismiss the Appellants’ suit after declining to adjudicate upon same for want of jurisdiction? The learned counsel for both parties consented to the established legal principle and I agree with them that, when a trial court makes a finding that it has no jurisdiction to adjudicate upon a matter before it, all that it has power to do is, to strike out the matter. The learned counsel’s submission that, the proper order to make in the circumstance is that of transfer to the State High Court, is a fallacy. However, as earlier on stated by me in this judgment, the issue of jurisdiction of the trial Court to adjudicate on the Appellants’ suit had not been properly attended to and determined. I am therefore precluded from adjudicating upon this appeal which is against the judgment of the trial Court declining jurisdiction to determine the Appellants’ suit, nay not to talk of making any pronouncement on the evidence adduced by both parties in support of their respective cases. Indeed, the entire proceedings of the trial Court after the ruling delivered by it on 11th October, 2001, in my view are a nullity because the issue of the jurisdiction of the trial Court to adjudicate upon the Appellants’ suit remained and still remains undetermined. The term jurisdiction imports and connotes the authority, competence and legal power which a court of law or tribunal possesses to hear a matter before it and reach a decision on such a matter. Where a court lacks the power and competence, it cannot legally adjudicate over a matter. This is because the competence of a court is an essential element in determining its jurisdiction.
Consequently, any defect in competence is fatal and the whole proceedings will amount to a nullity however well conducted and decided. See the cases of: Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) at p. 36; (2) Madukolu v. Nkemdilim (1962) All NLR p. 587 and (3) Abdulhamid v. Akar (2006) All FWLR (pt. 321) p. 1191 at p. 1204. Also in the case of: Okadigbo v. Emeka (2012) All FWLR (pt. 523) p. 1869 at pgs. 1877, para. C and P. 1881, paras. E – F, the learned Chukwuma-Eneh JSC restated the legal position regarding the jurisdiction and competence of courts over cases before them in these words:
It is trite that where an objection as the instant ones raise fundamental issues touching on the vires of the court to entertain a matter as the instant appeal, it is incumbent on the court to have it disposed of first as to proceed to entertain the matter in circumstances where the court has no vires to do so comes to naught being a mere academic exercise…
The bottom line of this case therefore, is that the trial tribunal has no vires to entertain this matter ab initio and that jurisdiction is the enabling power for the court to act on matters placed before it, and without it the court labours for nothing:
Drexel Energy and Natural Resources Ltd and Ors. v. Trans International Bank Ltd and Ors. and there are no two ways to it. Lack of jurisdiction is that profound in its total incapacitation of any court’s decision as the decision creates no obligation nor confers any right. (The underlined is for emphasis) In sum, issue two is resolved against both parties. Accordingly, I hold that this appeal is without merit and it is hereby dismissed.
consequent upon all that I have stated in this judgment, I hold that, the proper order to make in this appeal is that of remitting it to the chief Judge of the Federal High court for reassignment to another Judge of that court save, Hon Justice I.N. Auta, who incidentally is the incumbent chief Judge of the Federal High court, to be heard de novo, specifically for the determination of the jurisdiction of the Federal High court to adjudicate upon the suit of the Appellants.
I make no order regarding costs.
HON. R.C. AGBOI, J.C.A.: I agree.
CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.: I have had a preview of the judgment prepared and read by my Lord OMOLEYE JCA. My learned brother had very carefully and ably dealt with the complaints of the parties, which bother mainly on the jurisdiction of the court, in this case the Federal High Court.
This appeal lacks merit and is hereby dismissed. This case is remitted to the chief Judge of the Federal High court for reassignment to another Judge of that court other than Hon. Justice I.N. Auta to be heard de novo and particularly to determine the jurisdiction of the Federal High Court to adjudicate upon the suit of the appellant. I also make no order as to costs.
Appearances
M.K. Agienoje Esq., with him H.A. Idebe Esq.,For Appellant
AND
Chief C.O. Ihensekhien with him Miss A. C. Ominike and Mrs. A.B. OjieforFor Respondent
