NDDC & ORS v. GOVT. OF RIVERS STATE & ANOR (2020)

NDDC & ORS v. GOVT. OF RIVERS STATE & ANOR

(2020)LCN/14158(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/PH/308/2018

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Between

NIGER DELTA DEVELOPMENT COMMISSION (NDDC) 2. CHIEF VICTOR NDOMA-EGBA, SAN 3. MR. NSIMA U. EKERE 4. MR. DEREK MENE 5. MR. SAMUEL ADJOGBE APPELANT(S)

And

1. THE GOVERNMENT OF RIVERS STATE 2. ATTORNEY-GENERAL OF RIVERS STATE RESPONDENT(S)

RATIO

THE DOCTRINE OF STARE DECISIS

Indeed, it is a trite fundamental doctrine that where, as in the instant case, the legislature employs the word ‘shall’ in a statute (the Constitution inclusive), it signifies a command. The envisaged (contemplated) act must be complied with. See ONOCHIE VS. ODOGWU (2006) 6 NWLR (Pt. 975) 65 @ 89; UGBA VS. SUSWAM (2012) LPELRSC./91/2012 (consolidated).
Thus, by the well cherished doctrine of stare decisis (Judicial precedent) the decision of the apex Court in the foregoing authorities of ONOCHIE VS. ODOGWU (Supra) & UGBA VS. SUSWAM (Supra) et al, are strictly binding upon the Court below in the instant case. Invariably, the doctrine of stare decisis denotes that a point of law that has been decided and settled upon by a superior Court should be followed by the Court(s) below it. See ROYAL EXCHANGE ASS.NIG, LTD VS. ASWANI TEXTILES IND. LTD (1991) 2 NWLR (Pt.176) 639 @ 672; ATOLAGBE VS. AWUNI (1997) 7 SCNJ 1 Paragraphs 20, 24 & 35. PER SAULAWA, J.C.A.

WHETHER OR NOT THE COURT CAN GIVE OUT ORDERS BEYOND WHAT THE PARTIES HAVE SOUGHT IN THE RELIEFS

It ought to be reiterated, at this point and stage, that justice is only meaningfully appreciable where it is administered within the parameters of laid down rules and not predicated upon whims and caprices of the Court. That being the case, therefore, a Court must at all times desist any unsavoury temptation to dispose itself to a Father Christmas, thereby dishing out orders far beyond what the parties have sought in the reliefs thereof. See AYOADE VS. SPRING BANK PLC (2014) 4 WLR (pt.1396) 9 @ 132, where in the apex, Court aptly held:
The trial judge obviously confusing his robes with Santa Clause outfit turned himself into Father Christmas and dished out orders both in the judgement and ruling far beyond what was asked by the parties… It is a long abiding principle of adjudication, that a Court cannot grant reliefs not sought by the parties. PER SAULAWA, J.C.A.

IBRAHIM MUHAMMAD MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a natural consequence of the ruling of the Federal High Court holden at Port Harcourt, delivered on June 8, 2018 in Suit No. FHC/PH/CS/71/2017. By the ruling in question, the Court below, coram F.O.G. Ogunbanjo J; made an order thereby transferring the suit to the Rivers State High Court on ground of lack of jurisdiction.

Dissatisfied with the said ruling of the Court below, the Appellants deemed it expedient to appeal to this Court. The notice of appeal filed on June 13, 2018, is predicated upon two grounds.

The appeal having been duly entered on 17/08/18, the learned counsel proceeded to file the respective briefs thereof. Most particularly, the extant Appellants’ brief was filed on 19/09/18. It spans a total of 16 pages. At page 8, two issues have been couched:
1. Considering the state of the law and settled judicial pronouncements binding as precedents over the trial Court, whether the trial Court, having heard both the preliminary objection and substantive suit together, was right to determine and pronounce ONLY on the Appellants’

preliminary objection without considering and making pronouncement on the merit of the substantive suit in the alternative for the benefit of the Appellate Court? (Ground 1)
2. Whether the Appellants’ constitutional rights to fair hearing have not been breached by the grant of an order of transfer of the suit to Rivers State High Court by the trial Court, same having not been sought for by party? (Ground 2)

The issue No.1 is extensively argued at pages 8 – 12 of the brief. It is submitted in the main, that although the Court below heard both the preliminary objection and the substantive suit together, it however merely upheld the preliminary objection and failed to determine the merits of the substantive suit in the alternative. This procedure adopted by the Court below is allegedly contrary to the decision in KATTO VS. CBN (1991) 9 NWLR (Pt. 214) 126 @ 149.

Further submitted, that the refusal of the Court below to make a definitive pronouncement on the issues properly by the parties amounted to breach of fair hearing. See ANAMBRA STATE GOVERNMENT VS. A.S.H.A (2013) 3 NWLR (Pt. 1341) 236 @ 256, et al.

In the circumstance, the

Court is urged to resolve issue 1 in favour of the Appellants.

The issue No. 2 is canvassed at pages 12 – 4 of the brief, to the effect that the order transferring the suit to the Rivers State High Court was not sought, thus rendering the transfer a nullity.

Further submitted that a Court cannot grant a relief not specifically sought. See NALSA & TEAM ASSOCIATE VS. NNPC (1991) 8 NWLR (Pt. 212) 652 @ 671; COMMISSIONER OF WORKS, BENUE STATE VS. DEVCON LTD (1988) 3 NWLR (Pt. 83) 420, et al.
In the circumstance, the Court is urged to resolve issue 2 in favour of the Appellants.
Conclusively, the Court is urged to allow the appeal.

Contrariwise, the Respondents’ brief filed on 09/01/19, was settled by M.S, Agwu, Esq. That brief spans a total of 16 pages. At page 3, a preliminary objection has been raised thereby challenging the competence of the appeal.

Urging upon the Court to strike out the appeal, the learned counsel relies on the provision of Section 22(4) of the Federal High Court Act; LOVE DAY VS. COMPTROLLER, FEDERAL PRISONS, ABA (2013) 18 NWLR (Pt. 1386) 379 @ 408; ADUMU VS. COMPTROLLER, FEDERAL PRISONS, ABA

(2013)LPELR-CA/OW/292A/2011, et al.

Thus, the learned counsel urged upon the Court to strike out the appeal, the same being founded on an order of transfer under Section 22(2) of the Federal High Court Act.

Under paragraph 4.1 at page, 4 of the Respondents’ brief, a sole issue has been couched:
“Whether in the circumstances of this case, the learned trial Judge was wrong when he refused to resolve any other issue for determination (other than the issue of jurisdiction) and proceeded to order the transfer of the suit to the High Court of Rivers State? (Appellants’ Grounds 1 and 2).”

The sole issue has been argued at pages 4 – 14 of the brief. In a nutshell, the submission of the learned counsel is to the effect, that it is not in all cases that when a trial Court holds that it lacks jurisdiction that it proceeds to determine the subject matter. See Section 22(2) of the Federal High Court Act (supra); MAFIMISEBI VS. GOVERNOR OF ONDO STATE (2012) LPELR- 8477 (CA).

It is argued that as much as the principle enunciated in KATTO VS. CBN (SUPRA) AND STOWE VS. BENSTOWE (2012) 9 NWLR (PT. 1306) 450 remains good

law, however, in the circumstances of Section 22(2) of the Federal High Court Act (supra), the Court is not required to pronounce on the merits of the substantive case or determine any other issue other than the issue of jurisdiction. See BELIEVERS FISHERIES VS. UTB TRUSTEES LIMITED (2010) LPELR – 3864 (CA); OMISADE VS. AKANDE (1987) 2 NWLR (PT. 55) 158; A.D.H LTD VS. A.T LTD (2006) 10 NWLR (PT. 989) 635; et al.

On the whole, the Court is urged to resolve the sole issue, and strike out or dismiss the appeal.

The Appellants’ Reply Brief was filed on 23/01/19. It spans a total of 9 pages. Paragraphs 2.0 – 2.2, at pages 1 – 5 of the brief deal with response to the Respondents’ Preliminary Objection. By the submission thereof, the learned counsel has conclusively urged upon the Court to dismiss the Preliminary Objection for lacking in merits.

Paragraphs 3.0 – 3.14 at pages 5 – 9 of the reply brief, deal specifically with points raised in the sole issue by the Respondent’s learned counsel. The learned counsel has urged upon the Court to resolve the sole issue in favour of the Appellants, and accordingly

allow the appeal.

Having amply considered the nature and circumstances surrounding the appeal, the far-reaching submissions of the learned counsel contained in the respective briefs of argument thereof vis-à-vis the record of appeal as a whole, I am inclined to first and foremost deal with the Respondents Preliminary Objection before proceeding to determine the appeal on the merits.

DETERMINATION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
Instructively, the essence of preliminary objection is to challenge the jurisdiction of the Court or competence of the action or appeal. See HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547 (2010) LPELR – 1357 AT 90 paragraph D.
By the very nature thereof, a preliminary objection deals strictly with law. Thus there is no need for a supporting affidavit. The ground upon which the objection is such that the process is incompetent for failing to comply with the enabling law or rules of Court, therefore ought to be struck out. As aptly held by the apex Court where:
“The preliminary objection is successful, the Court will not hear the merits of the matter as it will be struck out. However, if

a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance stands the risk of his objection being throughout or rejected. If he fails to satisfy the Court of this facts he has relied.”
SeeA.G. FEDERATION VS. ANPP (2003) 18 NWLR (Pt.851) 182; (2003) 12 SC (Pt. 11) 146; (2003) LPELR 630 (SC) per Niki Tobi, JSC @ 22 paragraphs A – E.
Indeed, a notice of preliminary objection can be given in the respondent’s brief. However, the respondent is required to seek the leave of Court to move the said notice of objection thereof prior to the commencement of the oral hearing of the appeal. Otherwise, the preliminary objection would be deemed abandoned and waived, thus liable to be discountenanced. See OFORKIRE VS. MADUIKE (2003) 5 NWLR (Pt. 812) 166; (2003) LPELR – 2269 (SC) @ 11 – 12 paragraphs B – A; NSIRIM VS. NSIRIM (1990) 3 NWLR (Pt. 138) 285 @ 296 – 297; OKWUAGBALA VS. IKWUEME (2010) 19 NWLR (Pt. 1226) 54 SC @ 15 paragraphs D – G;

AUTO IMPORT EXPORT VS. ADEBAYO (2002) 18 NWLR (Pt. 799) 554 @ 580.

In the instant case, the Respondents’ preliminary objection (pages 3 – 4 of the Respondents’ brief) basically objects to the hearing and determination of the appeal on the ground that same is incompetent, thus ought to be struck out.
The preliminary objection is fundamentally predicated upon the provision of Section 22(4) of the Federal High Court Act, which is to the effect:
Every order of transfer made pursuant to Subsection (2) or (3) of this Section shall operate as a stay of proceedings before the Court which such proceedings are brought or instituted and shall not be subject to appeal.
Interestingly, the origin of the provisions of Section 22 of the Federal High Court Act, laws of the Federation 2004, could be traced to the Federal Revenue Decree, NO.13 1973 thereby establishing the Federal Revenue Court, the precursor of the present Federal High Court.
By Section 1 of the Federal Revenue Court Decree, 1973 (supra), it was provided thus:
(1) There is hereby established a High Court of Justice which shall be styled ”The Federal Revenue Court.”

(2) The Federal Revenue Court shall consist of the following:
(a) The president, who shall have overall control and supervision of the administration of Federal Revenue Court and
(b) Such other judges (not less than 4) as the Head of the Federal Military Government may by order prescribe.
(3) The Federal Revenue Court shall be a superior Court of record and, save as otherwise provided by law, shall have all the powers of the High Court of Justice of any of the states at the Federation.
(4) The Court shall assume its junctions on such dates, as may be appointed by an order made by the Head of the Federal Military Government.
The provision of Section 7 of the Federal Revenue Court (supra) spelt out the extent of the jurisdiction and powers of Court. Whereas, Section 8 of the said law most explicitly provided:
8(1) In so far as jurisdiction is conferred upon the Federal Revenue Court the respect of the causes or matters mentioned in the foregoing, provisions of this part of the High Court or any other Court of a state shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, cease to

have jurisdiction in relation to such causes or matters.
It was equally provided under Section 22 of the Federal Revenue Court Decree,1973 (supra) thus:
22(1) A judge of the Federal Revenue Court may at any time or at any stage of the proceedings in any cause or matter before final judgement either with or without application from any of the parties there to transfer such cause or matter before him to any other judge of the Federal Revenue Court.
(2) No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of the High Court of a state in which it ought to have been brought, and the judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a state in accordance with rules of Court to be made under Section 43 of this Decree.
(3) Every order of transfer made pursuant to Subsection (2) above shall operate as a stay of proceedings before the president or the Judge before whom such proceedings are brought or instituted.
(4) Any order

made pursuant to this section shall not be subject to appeal.
Most interestingly, the foregoing provisions of Section 22 have been a subject of Judicial interpretation of delite of the Supreme Court in a plethora of authorities, one of the earliest of which was the case of SAMUEL HAR-COURT OLAWOLE WILLIAMS VS. AG, FEDERATION, (1975)/ALL NLR 245 (1975) 4 SC 175; (1975) LPELR-SC. 404/74.
The facts of WILLIAMS VS. AGFED (Supra) are not far fetched. The case originated from the High Court of Western State, Ibadan vide a writ of summons:
The plaintiffs claim against the defendant is for a sum of 644,16.02 (Six Hundred and Forty Four pounds Sixteen shillings and Two pence) being the amount granted to the defendant as a loan by the Federal Government of Nigeria under an agreement dated 30th October, 1952.
The case came up before the learned Chief Justice of the then Western State on 18/09/72. Pleadings were ordered. In the absence of any record as to further proceedings or orders in the High Court, Ibadan, but the case was listed before Sowemimo, AG. J., in the Federal Revenue Court in Lagos. The Defendant’s counsel raised an objection to

the jurisdiction and competence of the Federal Revenue Court to hear and determine the suit. Issues having been joined by the learned counsel to the respective parties, Sowemimo, J; (as the learned lord then was) ruled, inter alia thus:
In my view, the fact that by virtue of the Federal Revenue Court Decree 1973,which made the High Court of a state cease to have jurisdiction in matters which Section 7 of the Federal Revenue Court Decree 1973 will not affect the validity of the original suit filed in that Court and neither will it affect subsequent proceedings being entertained in the Federal Revenue Court. The case was not transferred to this Court on application of either party, but since the High Court ceased to have jurisdiction to entertain the suit it was sent to the Federal Revenue Court which has jurisdiction to deal with such cause of action. It is therefore a misconception to contend that this Court has no jurisdiction to entertain the suit merely because, the suit was originally filed in the High Court of Western State, Ibadan. The objection is therefore Over ruled. Defendant to pay costs of N10.

Upon an appeal, the apex Court held:
It is opportune at this juncture to consider the meaning and implications of Section 22 of the Federal Revenue Court Decree…
By the provisions of Section 22(4) an order of Transfer made by virtue of that section shall not be subject to any appeal Section 22(1) deals with the transfer of cases by one judge of the Federal Revenue Court to another judge of the same Court. Truly, Section 22(2) deals with orders of transfers, which have effect extra-territorially but on its proper construction the section relates only to matters ”Other in the Federal Revenue Court instead of the High Court of a state. ”In that case, Section 22(2) empowers the judge of the Federal Revenue Court before whom the case is listed to cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with the Rules of Court made for the Federal Revenue Court by virtue of powers conferred by Section 43 of the Federal Revenue Court Decree. In the case in hand, there was no action taken in the Federal Revenue Court and although Section 22 of the Decree was cited to him in argument by learned counsel for the appellant, the learned trial judge

made no reference whatsoever to that section in his ruling. He certainly thought, as we do, that Section 22(2) does not apply to the present proceedings.
Per Coker, JSC @ 14 paragraphs A-G.
With particular regard to the findings of Sowemimo, Ag. J., to the effect that the cesser of jurisdiction by the Western State High Court, Ibadan, would not “affect the validity of the original suit filed in that Court” and the subsequent proceedings of the Federal Revenue Court there in, the Apex Court held:
These conclusions seem to us a non sequitur… The learned trial judges view of the law was clearly mistaken.
In the circumstances, we decide that the complaint of the appellant is fully justified and his appeal must and does succeed. The appeal is allowed and the ruling of the Federal Revenue Court Lagos, in this matter dated 30th September, 1974, including the order for costs is set aside. It is ordered that the plaintiff’s case be struck out and that this shall be the judgment of the Court. The respondent shall pay to the appellant the costs of these proceedings fixed in the Federal Revenue Court at N10 and in this Court at N142.
Per Coker, JSC @ 14 paragraphs A-F.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant case, it is a trite fundamental doctrine, that where an order, decision or judgement of a Court finally and completely resolves (determines) the rights of the parties in the case it is deemed a final decision in all the ramifications thereof. SeeALOR VS. NGENE (2007) 11 NWLR (Pt. 1062) 163; LUKE LOVEDAY VS. THE COMPTROLLER OF PRISONS, FEDERAL PRISONS ABA (2013) LPELR 22072 (CA) Per Abba Aji, JCA (as the learned lord then was) @ 41 paragraphs F-G; GLOBAL SCENE LTD VS. THE REGISTRAR OF TRADE MARKS (2011) A 11 FWLR (Pt.538) 877 @ 895; OGOLO VS. OGOLO (2006) ALL FWLR (Pt.313) 1 @ 16.
With particular regard to the instant case, the vexed order of the Court, dated 08/06/2018, is to the effect:
In view of the above, by the powers conferred on this Court in Section 22(2) of the Federal High Court Act CAP. F12, Laws of the Federation 2004, this matter is hereby transferred to the High Court of Rivers state for hearing and determination.
By virtue of the unambiguous provisions of Section 22(1),(2),(3) and (4) of the Federal High Court Act CAP. F12, 2004, the order copiously alluded to above by the

Court below thereby transferring the vexed suit to the High Court of Rivers state, is most undoubtedly a final decision, thus liable and capable of being appealed to the Court of Appeal. Undoubtedly, this point has been determined in a plethora of formidable authorities. Most particularly, in the case of LOVEDAY VS. COMPTROLLER OF FEDERAL PRISONS ABA (Supra), this Court aptly postulated:
Considering the provisions of Section 22(1),(2),(3) and (4) of the Federal High Court Act (supra), the decision of the Federal High Court to transfer the application to the Port Harcourt Division of the Federal High Court is an appealable decision. The word decision in relation to a Court is defined in Section 318 of the 1999 Constitution (as amended) as any decree order, conviction, sentence or recommendation. It is pertinent to note that Section 22(4) of the Federal High Court Act refers to the transfer carried out under subsections (2) and (3) of Section 22 as not subject to appeal and clearly excluded Subsection (1). It is trite that in the construction of statutes or laws, what is excluded is not meant to be included. Subsection (1) is not subject to

Subsection (4) of Section 22 of the Act.
It is also settled that of any order decision, or Judgment of Court finally and completely determines the rights of the parties in the case, it is a final decision. See ALOR VS. NGENE (2007) 11 NWLR (Pt.1062) 163.
By the trite rule of stare decisis, the Court of appeal is bound by the foregoing decision Ngene, Comptroller et al. Hence, against the back drop of the foregoing far-searching postulation, I have no hesitation any longer in coming to the most inevitable conclusion, to the effect that the Respondents’ preliminary objection is grossly devoid of merits, and same is hereby dismissed.

Thus, having dismissed the Respondents’ preliminary objection for being unmeritorious, I have deemed it expedient to proceed to determine the appeal on the merits.

DETERMINATION OF THE APPEAL ON THE MERITS
As copiously alluded to above, the Appellants’ have distilled two issues from the two grounds of appeal. I am amenable to adopting the two issues in question for the ultimate determination of the appeal anon.

ISSUE NO.1
The first issue raises the vexed question of

whether or not considering the state of the law and settled judicial pronouncements binding as precedent there upon, it was right for the Court below to determine and pronounce only on the Appellants’ preliminary objection without considering and making pronouncement on the merits of the substantive suit for the benefit of the appellate Court. The said first issue is distilled from ground one of the notice of appeal.
In the instant case, it is not all controversial, that in the course of the vexed ruling thereof, the Court below made some far-reaching to the conclusive effect:
In view of the foregoing, to my mind, the plaintiffs claim does not fall within the purview of the Section 251 (1) of the Constitution. It is therefore my Ruling that this Court lacks jurisdiction to hear and determine this matter.
Having decided that the Court lacks jurisdiction, it will be an exercise in futility to do anything further in this suits. The Court will therefore not resolve any other issue for determination formulated by the learned counsel in this suit.
As copiously alluded to here in above, the Court below having unmistakably held that

it would not resolve any other issues raised by the respective parties, proceeded, without much ado, to transfer the matter to the High Court of Rivers State ”for hearing and determination.” In doing so, the Court below made it categorically clear, that it was guided by the authoritative decision of the Supreme Court in AG, KANO STATE VS. AG, FEDERATION (2007) 6 NWLR (Pt.1029) 164 @ 174 RATIO 9, to the following effect:
Where a Court has no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility.
The genesis of the vexed ruling of the Court below resulting in transferring the case to the Rivers State High Court is traceable to the Appellants’ motion on Notice, dated 14 /07/17 (pages 182-199 of the Record). By the said motion, the Appellants urged upon the Court below to strike out the suit (FHC/PH/CS/71/2017) for want of competence. The motion was predicated upon a total of four grounds:
(i) The principal claim of the plaintiffs relates to affirmation of plaintiffs rights under the laws of River State.
(ii) Plaintiffs claim relates essentially to construction of structures

and the need for obtaining appropriate approvals and permits under the laws of Rivers State.
(iii) There is no feature in plaintiffs case that brings the case within the ambit of the jurisdiction of the Federal High Court.
(iv) Plaintiffs complaint is not cognisable at the Federal High Court.
The Appellants’ raised a sole issue in the written Address thereof (pages 187-199 of the Record) to the following effect:
Whether having regard to the nature of the claim of the plaintiffs, this is a case in which the Federal High Court is clothe(sic) with jurisdiction to entertain the plaintiffs claim.
Issues were joined by the respective parties on that singular issue. Consequent where upon, the Court below whole heartedly agreed with the Appellants’ in the vexed ruling in question, thereby submitted itself to the unequivocal dictates of the provisions of Section 22(2) of the Federal High Court Act,2004, viz:
No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a state or of the Federal Capital Territory, Abuja in which it ought to

have been brought and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or the Federal Capital Territory, Abuja.
In my considered view, the word “shall” as couched in the phrase “No cause or matter shall be struck out“ under Section 22(2) of the Federal High Court Act, 2004 (supra), signifies a command which must be complied with.
Indeed, it is a trite fundamental doctrine that where, as in the instant case, the legislature employs the word ‘shall’ in a statute (the Constitution inclusive), it signifies a command. The envisaged (contemplated) act must be complied with. See ONOCHIE VS. ODOGWU (2006) 6 NWLR (Pt. 975) 65 @ 89; UGBA VS. SUSWAM (2012) LPELRSC./91/2012 (consolidated).
Thus, by the well cherished doctrine of stare decisis (Judicial precedent) the decision of the apex Court in the foregoing authorities of ONOCHIE VS. ODOGWU (Supra) & UGBA VS. SUSWAM (Supra) et al, are strictly binding upon the Court below in the instant case. Invariably, the doctrine of stare decisis denotes that a point of

law that has been decided and settled upon by a superior Court should be followed by the Court(s) below it. See ROYAL EXCHANGE ASS.NIG, LTD VS. ASWANI TEXTILES IND. LTD (1991) 2 NWLR (Pt.176) 639 @ 672; ATOLAGBE VS. AWUNI (1997) 7 SCNJ 1 Paragraphs 20, 24 & 35.
The corollary of the Appellants’ grouse in the instant appeal is predicated on the supposition that the Court below having upheld the Appellants’ objection, to the effect that it has no jurisdiction to hear and determine the matter, it (Court) ought not to have proceeded to transfer same to the Rivers State High Court. In my considered view, there is every cogent reason for me to hold that the Appellants’ challenge to the transferred the matter by the Court below to the Rivers State High Court is highly preposterous, to say the least. As aptly postulated in the course of the determination of the preliminary objection. The provisions of Section 22 of the Federal High Court Act, 2004 (supra) have been a subject of judicial pronouncement in a plethora of authorities by both apex Court and Court of Appeal alike. See MAFIMISEBI VS. GOVERNOR OF ONDO STATE (2012) LPELR-8477(CA)

@28-29; PETROJESSICA ENT. LTD VS. LEVENTIS TECH. COY LTD.(1992) 5 NWLR (Pt. 244) 675 @694; OMISADE VS. AKANDE (1987) 2 NWLR (Pt.55) 15, et al.
Undoubtedly, in all the foregoing authorities and many more, the doctrine is to the unmistaken effect, that a trial Court, such as the Court below in the case at hand, was obligated to transfer the case before it to the High Court of a state, upon discovering that the matter is beyond the scope or ambit of the jurisdictional competence thereof.
What’s more, in the case of PETROJESSICAENT. LTD VS. LEVENTIS TRADINGS CO. LTD (1992) 5 NWLR (Pt.244) 675 @ 694-695 Paragraphs F-A;(1992) LPELR-2915(SC) Uwais, JSC (As the learned lord then was) had a cause to reiterate the trite principle to the effect that:
The learned trial Judge was right to have transferred the case to the High Court of Bendel State, Benin, on finding that the case did not relate to admiralty and that he had no jurisdiction to hear it. In doing so, he acted in accordance with the provisions of Section 22 Subsection (2) of the Federal High Court Act, Cap.134…as well as the decision of this Court in

Mokelu vs. Federal Commissioner for Works and Housing (1976) 1 NMLR 329 at p.333.

In the circumstances, against the back drop of fore going postulation, I am on the considering view that the most inevitable answer to the first issue ought to be in the positive, and same is here by resolved against the Appellants’.

ISSUE NO. 2
The second issue raises the very fundamental question of whether or not the Appellants’ constitutional rights to fair hearing have been breached by the granting of the order of transfer of the suit (FHC/PH/CS/71/2017) to the Rivers State High Court for trial, same having not been sought by the party. The second issue distilled from ground 2 of the notice of appeal.
There is no gainsaying the fact that, having answered the first issue in the positive and resolved same against the Appellants’, the ultimate answer to the second issue ought to be in the negative and equally resolved against them, for some obvious reasons.
Fundamentally, the grouse of the Appellants under the second issue questions the validity of the order of the Court below transferring the suit to the Rivers State High Court. Therefore, having

not been prayed for by either of the parties, the order of transfer of the suit tantamount to fundamental breach of the Appellants’ right to fair hearing. Allegedly, the said decision, having been made without giving the respective parties an opportunity to address the Court thereupon, is rendered a nullity.
It ought to be reiterated, at this point and stage, that justice is only meaningfully appreciable where it is administered within the parameters of laid down rules and not predicated upon whims and caprices of the Court. That being the case, therefore, a Court must at all times desist any unsavoury temptation to dispose itself to a Father Christmas, thereby dishing out orders far beyond what the parties have sought in the reliefs thereof. See AYOADE VS. SPRING BANK PLC (2014) 4 WLR (pt.1396) 9 @ 132, where in the apex, Court aptly held:
The trial judge obviously confusing his robes with Santa Clause outfit turned himself into Father Christmas and dished out orders both in the judgement and ruling far beyond what was asked by the parties… It is a long abiding principle of adjudication, that a Court cannot grant reliefs not sought by the parties.

The fact that Courts of law, both trial and appellate, are strictly devoid of jurisdictional competence to raise and determine issues or points of law suo motu without according the respective parties before them the opportunity to be heard, is no longer controversial, at all. Undoubtedly, it would tantamount to a sheer breach of the fundamental right to fair hearing, cherishingly enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, for any Court be it a trial or appellate Court, to raise an issue or point suo motu and determine same without according the respective parties in the case before it the opportunity to be heard and address it there upon. I think it was in the case of COLE VS. MATTIN (1968) ALL WLR 161 (the locus classicus), where the Supreme Court reiterated the trite fundamental doctrine on the point:
We have frequently stated in the past and we must reiterate again now, that it is most desirable that if a Court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, the judge

should have the matter reopened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it. It is our view only after so acting that a Court should adjudicate on a technical point taken by the Court itself particularly when the defect, if there is one, could be cured in the Court in its discretion gives leave to amend.
Per Lewis, JSC @ 163. See also ARC. OLUSOLA VS. TRUST HOUSE PROPERTIES LTD (2010) LPELR – 4769 (CA) Per Saulawa, JCA.
REGISTERED TRUSTEES OF APOSTOLIC CHURCH OF LAGOS AREA VS. AKINDELE (1967) NMLR 263 per Lewis JSC @ 246, TRUTEC INVESTMENTS SERVICE LTD VS. MONI PULO LTD: CA/L/308M/03: 18/03/2010.
In the instant case, the Court by the order thereof transferring the suit (FHC/PH/CS/71/2017) to the Rivers State High Court on ground of lack of jurisdiction, had undoubtedly acted in accordance to the dictate of the mandatory provisions of Section 22(2) of the Federal High Court Act, 2004 (supra).
As aptly posited by the Respondents’ learned counsel, the exercising of such power under Section 22(2) of the Federal High Court Act

(supra) has nothing whatsoever to do with raising an issue or point of law suo motu, there by requiring inviting the respective parties to address the Court thereupon.
What is more, the appellants’ were at all time represented by their legal practitioner, who as a learned gentleman ought to have envisaged the likely resultant implication of the provisions of Section 22(2) of the Federal High Court Act (2004) (supra), in the event of upholding the Appellants’ application (preliminary objection) in question.
In my considered view, the application of the provision of Section 22(2) of the Federal High Court Act (2004) (supra), thereby mandating the Court below to transfer the cause or matter before it to a High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, has nothing to do with according opportunity to the respective parties to address the Court or present their cases without any hindrance. Contrary to the highly misplaced proposition by the learned counsel, the issue of transferring the suit to the Rivers State High Court below has nothing to do with raising an issue suo motu, which

would have been obligated upon the Court to invite the respective parties to further address it thereupon. Most undoubtedly, no new or issue suo motu has been raised by the mandatory exercise of the judicial discretion imposed upon the Court below by the operation of the provisions of Section 22(2) of the Federal High Court Act, 2004 (Supra). And I so hold. See FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) 1 NWLR 329 @ 333; ALUMINIUM MANUFACTURING CO. LTD. VS. NIGERIAN PORTS AUTHORITY (1987) 1 NSCC 18 @ 224; (1987), 1 SCNJ 94; PETROJESSICA ENTERPRISES LTD VS. LEVENTIS TRADING COY LTD (1992) 5 NWLR (Pt.244) 675 @ 694-695 Paragraphs F-A; (1992) LPELR 2915 (SC) Per Uwais, JSC (as the learned Lord then was).

In the circumstances, the second issue ought to be and same is hereby answered in the negative, and resolved against the Appellants.

Hence, having resolved both issues raised by the Appellants’ against them, there is no gainsaying the fact that the instant appeal is grossly devoid of merits, and same is hereby resultantly dismissed by me.

Consequently, the ruling of the Federal High Court, Coram F.O.G., Ogunbanjo, J; delivered on June 18, 2018 is hereby affirmed.
There shall be no order in regard to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother IBRAHIM MUHAMMAD MUSA SAULAWA, JCA.

I totally agree with the exquisite reasoning and conclusion therein. The two issues in this appeal should be resolved against the Appellants. I have no hesitation in holding that the appeal completely lacks merit and should be dismissed.

I abide by the consequential orders in the leading judgment in the circumstance.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity of reading the lead judgment prepared by my learned brother IBRAHIM M.M. SAULAWA, JCA. I agree entirely with the reasoning and conclusion reached therein.

The appeal for lacking merit is hereby dismissed. I thus affirm the ruling of the Federal High Court sitting in Port Harcourt in Suit. No. FHC/PH/CS/71/2017 and delivered on 8th June, 2018 by Coram F.O.G. Ogunbanjo, J.
I make no order as to costs.
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Appearances:

S.O. AJAYI, ESQ. For Appellant(s)

E.C. UKALA, SAN with him, M.S. AGWU, ESQ., R.W.B. NNWOKA, ESQ., and O.M. AKINDEKO, ESQ. For Respondent(s)