NIGERIA AIRWAYS LTD. (INLIQUIDATION) & ORS. v. HARUNA MOHAMMED MAHDI
(2013)LCN/6118(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/K/34/2008
RATIO
“Disputes between of landlord and tenant are within the exclusive jurisdiction of the State Courts where the matter arise i.e. where the land is situated. In Achebe v. Nwosu (2002) FWLR (pt. 106) page 1000, it was held that the subject matter of the suit is what determine whether the Federal High Court has exclusive jurisdiction or not and that the Federal High Court has no jurisdiction to entertain land disputes, since it is not one of the Court listed in section 39 and 41 of the Land Use Act. See Omotosho v. Adullahi (2008) All FWLR (pt. 402) page 1114, Federal Mortgage Bank of Nigeria v. Olloh (2002) FWLR (pt.107) page 1244.” Per ABOKI, J.C.A.
“It is settled law that a Court of law derives its jurisdiction from the Constitution, statute or charter establishing it or constituting that Court.” Per ABOKI, J.C.A.
“Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – Atiku v. Bodinga (1988) 2 NWLR (Pt. 76) 369, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508, Anibi v. Shotimehin (1993) 3 NWLR (Pt. 282) 461, Elelu-Habeeb v. Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423.” Per ABIRU, J.C.A.
“In ascertaining whether a Court has jurisdiction to entertain a matter, the statement of claim or where absent the writ of summon are the only document to be looked at. See Inakoju v. Adeleke (2007) All FWLR (pt. 333) page 1, Abdulraheem v. Oloruntoba – Oja (2007) All FWLR (pt. 334) page 267.The Court is not to look at the defendants counter-claim or any other process. See Kashogban v. Adeogun (No.2) (2007) All FWLR (pt. 396) page 641.” Per ABOKI, J.C.A.
In Oloruntobo – Oju v. Dopamu (2003) FWLR (pt. 158) page 1268, the Court held that the Federal High Court being a Court of limited jurisdiction whose jurisdiction is clearly circumscribed by section 251 of the Constitution, it is the subject matter of a suit that would determine whether or not the Federal High Court would exercise jurisdiction. See: Omosowami v. Chiedozie (1998) 9 NWLR (pt. 566) page 477. In NEPA v. Edegbero (2003) All FWLR (pt.139) page 1556, the Supreme Court opined that in construing section 251(1) as a whole, two important matters that must be considered are the parties to the action and the subject matter of the suit, Even though one of the party to the action may be an agency of the Federal Government, where the acts complained of has nothing to do with any executive or administrative action or decision of an agency of the Federal Government, it is the State High Court that would have jurisdiction over the matter. See Odutola v. NITEL (2006) All FWLR (pt. 335) page 73.” Per ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
1. NIGERIA AIRWAYS LTD. (INLIQUIDATION)
2. ADE A. BABINGTON ASHAYE (LIQUIDATOR)
3. SABU ENGINEERING CO. LTD.
4. ALHAJI BUBA SHIRA (PROPERTY MANAGER) Appellant(s)
AND
HARUNA MOHAMMED MAHDI Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the leading Judgment): This appeal is against the ruling of the Federal High Court of Justice, Kano, delivered on 6th day of June, 2007 by Adeniyi F. A. Ademola J.
The summary of the facts that gave rise to this appeal was that the appellants filed an Originating Motion before the lower Court in which they sought for an order directing the defendant (hereinafter called the Respondent) to deliver possession of the premises situate at No.6 Lafiya Road, Kano and to give an inventory of all the property belonging to the 1st appellant that were under his control and custody to the 2nd and 4th Appellants.
The Respondent filed a preliminary objection challenging the jurisdiction of the lower Court to entertain the said Originating Motion. Consequently, the lower Court upheld the said preliminary objection and accordingly struck out the application. The lower Court equally ordered that Appellants’ action be transferred to the High Court of Justice, Kano State.
Vexed by the said ruling, the Appellants appealed to this Court vide a notice of appeal containing 3 grounds of appeal.
The Appellants had in accordance with the relevant rules of this Court duly filed their brief of argument and at the hearing of the appeal the Appellants adopted and relied on their brief of argument.
The Respondent did not file his brief of argument.
The Appellants’ brief of argument dated 3/3/2008 and filed on 4/3/2008 was settled by Mustapha Bulama Esq.
In the Appellants’ brief of argument, 2 issues for determination were raised to wit:
1. Was the reliefs claimed by the Appellants “contractual in nature” and outside the provisions of Section 251 of the 1999 constitution having regards to the provisions of section 440 of the companies and Allied Matters Act 2004 and Rule 62 of the winding up Rules 2001. Ground one.
2. Whether the liquidator and the Company require leave of the lower trial Court before commencing an action in their names. Ground two”.
In the consideration of this appeal, I shall adopt the 1st issue for determination formulated by the Appellants.
On the said sole issue, learned counsel to the Appellants opined that the lower Court erred in law when it struck out the action that was filed by the Appellants for lack of jurisdiction.
Learned counsel contended that the lower Court ought to have entertained the Appellants’ action as the substratum of the said action revolved around the regulation and management of a Company which are matters which squarely and exclusively fall within the jurisdiction of the Federal High Court.
Learned counsel to the Appellants referred the Court to the provisions of sections 440 and 650 of the Companies and Allied Matters Act, section 62 of the Winding Up Rules 2001, paragraphs 5 – 9 of the affidavit in support of the originating motion and the cases of Yalaju Amayu v. A.R.E.C. Ltd. (1990) 4 NWLR (pt. 145) 441 – 442 and Onura v. Kaduna R.P.C Ltd. (2005) 6 NWLR (pt. 921) 393.
In conclusion, learned counsel to the Appellants urged the Court to resolve this issue in favour of the Appellants.
It has been argued on behalf of the Appellants that the action before the lower Court revolved round the regulation and management of a Company which are matters squarely and exclusively within the jurisdiction of the Federal High Court.
It is settled law that a Court of law derives its jurisdiction from the Constitution, statute or charter establishing it or constituting that Court.
In ascertaining whether a Court has jurisdiction to entertain a matter, the statement of claim or where absent the writ of summon are the only document to be looked at. See Inakoju v. Adeleke (2007) All FWLR (pt. 333) page 1, Abdulraheem v. Oloruntoba – Oja (2007) All FWLR (pt. 334) page 267.The Court is not to look at the defendants counter-claim or any other process. See Kashogban v. Adeogun (No.2) (2007) All FWLR (pt. 396) page 641.
Where the action is commenced by an originating summons or motion, the process to be looked at to find out if the Court has jurisdiction, is the affidavit in support of the Originating Process. See Inakoji v. Adeleke (supra).
In the instant appeal, the Appellants who were the Applicants before the lower Court commenced their action by an originating motion brought pursuant to section 62 of the Companies Winding up Rules 2001 and Order 2 Rules 1 and 2 of the Federal High Court Civil Procedure Rules 2000 and under the inherent jurisdiction of the Court.
The reliefs sought from the Court by the Applicants/Appellants is reproduced as follows:
“1. AN ORDER directing the Respondent to deliver to the 1st Appellants the property situate and known as No.6, Lafia Road, Nasarawa G.R.A. Kano”
2. AN ORDER directing the Respondent to make an inventory of all the property belonging to the 1st Applicant and deliver the said property to the 4th Applicant”
3. AND for any order or orders as the Honourable Court may deem fit to make in the circumstance”.
Paragraphs 8, 9, 14 and 15 of the affidavit in support of the Originating Motion at page 3 – 5 of the Record of appeal are pertinent and are hereby reproduced as follows:
“8. That the Respondent was allocated house No.6 Lafiya Road, in the year 1998 by the 1st Applicant with an inventory of the property of the 1st Applicant a copy of the said inventory was shown to me and annexed herewith and marked as annexure 1m – 3”
“9. That the 4th Applicant who is the property manager of the 1st Applicant who is based in Kano has on several occasion approached the Respondent to deliver up the property situate at No. 6 Lafiya Road, Kano with all the property mentioned in annexture 1m – 3 but has refused to do so”
“14. That the 2nd Applicant has already sold through bidding the premises No. 6 Lafiya Road Kano to the 3rd Applicant but he is yet to deliver the said property to the buyer”
“15. That unless the Court grants this application, the 2nd Applicant who has already collected, the purchase price of the said premises from the 3rd Applicant and used it to pay the respondent and other staff of the 1st Applicant will not be in position to deliver vacant possession of the said premises to the 3rd Applicant.”
In this appeal the action at the lower Court having been commenced by an originating motion, only the affidavit in support of the originating motion should be looked at to ascertain whether that Court has jurisdiction. The Court has no business, looking at the counter-affidavit or any other process. See Kashogban v. Adeogun (No.2) (2007) All FWLR (pt. 396) page 661.
In Oloruntobo – Oju v. Dopamu (2003) FWLR (pt. 158) page 1268, the Court held that the Federal High Court being a Court of limited jurisdiction whose jurisdiction is clearly circumscribed by Section 251 of the Constitution, it is the subject matter of a suit that would determine whether or not the Federal High Court would exercise jurisdiction. See: Omosowami v. Chiedozie (1998) 9 NWLR (pt. 566) page 477.
In NEPA v. Edegbero (2003) All FWLR (pt.139) page 1556, the Supreme Court opined that in construing Section 251(1) as a whole, two important matters that must be considered are the parties to the action and the subject matter of the suit, Even though one of the party to the action may be an agency of the Federal Government, where the acts complained of has nothing to do with any executive or administrative action or decision of an agency of the Federal Government, it is the State High Court that would have jurisdiction over the matter. See Odutola v. NITEL (2006) All FWLR (pt. 335) page 73.
In the instant appeal it is very clear from the reliefs sought by the Applicants/Appellants in the originating motion that the claim before the lower Court relates to recovery of premises situate at No.6 Lafiya Road, Kano in possession of the Respondent.
The 1st Appellant having been wound-up and its property at No.6 Lafiya Road, sold to the 3rd Appellant. The provision of the Company and Allied Matters Act (CAMA) has no Application to the matter presented before the lower Court which is the subject of this appeal. Also in the instant appeal, the subject matter of the Appeal being recovery of premises by a Receiver and the person who brought the property of the 1st Appellant (hitherto an agency of the Federal Government) has nothing to do with any executive or administration action or decision of the Federal Government, the 1st Appellant having since been wound-up before the action was instituted.
The relationship between Appellants and the Respondent is purely that of a landlord and tenant.
A tenant has been defined to include all persons who occupy premises lawfully whether that person pays regular rent or indeed no rent at all. The qualification for becoming a tenant is lawful occupation, whenever the initial entry is lawful. Such occupier becomes a tenant to the landlord. See: Registered Trustee of Mission v. All States Trust Bank Plc (2003) FWLR (pt. 72) page 1804,
African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (pt. 210) page 419, Salam v. Araba (2004) All FWLR (pt.204) page 85 at 96, Oduye v. Nigeria Airways Ltd. (1987) NWLR (pt. 55) page 126 at 147, Enigbokan v. Akinosho (1957) SCNLR 9 at 11-12.
In the instant Appeal the respondent by remaining in possession and occupation of No.6 Lafiya Road, Kano after the expiration of his employment with the 1st appellant has become a tenant at sufferance.
A tenant at sufferance is defined as one who enters into a land by lawful title and after his title has ended continues to retain possession thereof without the consent of the landlord. He can be sued by the former landlord for compensation or damages for the use and occupation of such land. See: Netus Construction (W.A.) v. Aboderin (1998) 60 LRCN 4036. African Petroleum Ltd v. Owudunni (supra) at page 396-7.
The proper way by which landlord can recover possession from a tenant is by issuance of statutory notices and thereafter by order of Court.
The lower Court is right to have declined jurisdiction to entertain the matter, not being a matter under the Company and Allied Matters Act (CAMA) or under the provision of Section 251 of the 1999 Constitution of the Federal Republic of Nigeria which both conferred jurisdiction on the Federal High Court to entertain disputes arising from the provision of both statutes.
Disputes between of landlord and tenant are within the exclusive jurisdiction of the State Courts where the matter arise i.e. where the land is situated.
In Achebe v. Nwosu (2002) FWLR (pt. 106) page 1000, it was held that the subject matter of the suit is what determine whether the Federal High Court has exclusive jurisdiction or not and that the Federal High Court has no jurisdiction to entertain land disputes, since it is not one of the Court listed in Section 39 and 41 of the Land Use Act. See Omotosho v. Adullahi (2008) All FWLR (pt. 402) page 1114, Federal Mortgage Bank of Nigeria v. Olloh (2002) FWLR (pt.107) page 1244.
The Federal High Court was right in transferring the matter to the High Court of Justice, Kano, the Court seized with the proper jurisdiction to entertain the matter. There is no merit in this appeal and it is hereby dismissed. The Ruling of the Federal High Court Kano delivered on 6th June, 2007 and the consequential order made therein are hereby affirmed.
ITA G. MBABA J.C.A.: I have had the privilege of reading, in advance, the lead judgment just delivered by my learned brother, ABDU ABOKI, J.C.A. and I agree with him, completely, that there is no merit in this appeal and should be dismiss.
I,accordingly, dismiss it and abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Abdu Aboki, J.C.A. His Lordship has painstakingly considered and resolved the issue in contention in this appeal. I agree with the reasoning and conclusions contained therein.
The sole issue in contention in this appeal is whether the Federal High Court was right in holding that it had no jurisdiction to entertain the claims of the Appellants, as plaintiffs, against the Respondent, as defendant, and in transferring the case to the High Court for adjudication.
Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority.
It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute.
A court of law cannot add to or subtract from the provisions of a statute. As a matter of law,a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – Atiku v. Bodinga (1988) 2 NWLR (Pt. 76) 369, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508, Anibi v. Shotimehin (1993) 3 NWLR (Pt. 282) 461, Elelu-Habeeb v. Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423.
It is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the court – Elelu-Habeeb v. Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd. v. WorldGate Building Society Ltd. (2013) 1 NWLR (Pt. 1336) 581 and Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt.1342) 503. The court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction – Dagazau v. Bokir International Company Ltd. (2011) 14 NWLR (Pt.1267) 261. The Appellants commenced this action by an originating summons claiming:
i. An order directing the Respondent to deliver to the first Appellant the property situate and known as No.6, Lafia Road, Nasarawa GRA, Kano.
ii. An order directing the Respondent to make an inventory of all the property belonging to the first Appellant and deliver the said property to the fourth Appellant.
The case of the Appellants in the affidavit in support was that the property at No.6, Lafia Road, Nasarawa GRA Kano was allocated to the Respondent in 1998 by the first Appellant with an inventory property taken at the time and the inventory was attached as an exhibit to the affidavit. It was the case of the Appellants that the fourth Appellant, the property manager of the first Appellant had made several demands on the Respondent to deliver up the said property with all the items listed in the inventory and that the property had since been sold to the third Appellant but was yet to be delivered to him. It was the case of the Appellants that unless the Court granted the application, the second Appellant who had already collected the purchase price for the property and used same to pay the Respondent and other staff of the first Appellant will be unable to deliver vacant possession of the property to the third Appellant.
A look at the inventory attached as an exhibit to the affidavit shows that the property at No.6, Lafia Road, Nasarawa GRA Kano was allocated to the Respondent as the Station Manager of the first Appellant in 1998. When the inventory is read together with the case of the Appellants, as elaborated in the affidavit in the support of the originating summons, it is very clear that the essence of the claims of the Appellants in this matter was to recover possession of the property at No.6, Lafia Road, Nasarawa GRA Kano allocated as residential quarters to the Respondent who was its Station Manager as at 1998. It is a recovery of premises matter; pure and simple. The case has nothing to do with the operation of the Companies and Allied Matters Act.
Now the jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters”
The provision then proceeded to list eighteen specific areas in paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in paragraph(s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a court of enumerated jurisdiction and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction. Anao v. Sun Publishing Ltd. (2013) 3 NWLR (Pt 1341) 399. This point was succinctly made by Nweze, J.C.A. in Oladipo v. Nigerian Customs Service Board (2009) 12 NWLR (Pt.1156) 563 at page 585 thus:
“Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. In all, that section vested exclusive jurisdiction on the Federal High Court in eighteen major items. The implication of this technique is that the said court (Federal High Court) is actually a court of enumerated jurisdiction, that is, a court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein.
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated.
The effect of the circumscription of the jurisdiction of the court to those eighteen major items is that whenever the question of jurisdiction of the court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that court is not the proper forum for the ventilation of the action ….”
It is beyond contest that recovery premises is not one-eighteen itemized areas of jurisdiction of the Federal High Court in section 251 of the Constitution and the National Assembly has not passed any law since the Constitution conferring jurisdiction on the Federal High Court to hear cases of recovery of premises. The learned trial Judge of the Federal High Court was thus on firm ground when he declined jurisdiction and transferred the matter to the Kano State High Court.
It is for these reasons, and the fuller reasons contained in the lead judgment, that I also dismiss this appeal. I affirm the ruling of the Federal High Court delivered on the 6th of June, 2007 declining jurisdiction and transferring the matter to the Kano State High Court.
Appearances
Mustapha BulamaFor Appellant
AND
Respondent absent and unrepresentedFor Respondent
