NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. THE HON. CAPTAIN EMMANUEL IHENACHO & ORS
(2016)LCN/8502(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of April, 2016
CA/L/1254/2014
RATIO
PROCEDURE: ISSUE OF JURISDICTION; PURPOSE AND NATURE OF JURISDICTION
The issue of jurisdiction is a threshold issue in adjudication by a court of law and as such, it is basically considered expedient to resolve same before proceeding to consider any matter presented to a court on the merit. It therefore goes without saying that the determination of a matter by a court will amount to a nullity if done without jurisdiction notwithstanding how right or correct the decision reached might be. The jurisdiction of a court to entertain a matter is therefore fundamental to the extent that if a court has no jurisdiction to hear or determine a case, the whole proceedings become null and void. In other words, jurisdiction is the basis on which any court or tribunal tries a case because it is the authority it has to decide on a matter before it. The importance of jurisdiction to adjudicate on any matter by a court cannot therefore be overemphasised. See AJAO VS ALAO (1986) 5 NWLR (PT 45) 802; UTIH VS ONOYIVWE (1991) 1 NWLR (PT 166) 166; (1991) 1 SCJN 25; GALADIMA VS TAMBAI (2000) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU (1989) 6 SC (PT 11) Page 1. YUSUF VS OBASANJO (2004) 5 SCM. 193.
Jurisdiction of court is not conferred by the court itself but by the constitution or a statute. Consequently, no court shall have the jurisdiction to go beyond the provisions of the enabling law, otherwise it will be ultra vires. See UGBA VS SUSWAM (NO 2) (2012) 6 SC (PT 11) 56 and ARJAY LTD VS AIRLINE MANAGMENT SUPPORT LTD (2003) 5 SCM 17 A.G RIVERS STATE VS A.G AKWA-IBOM STATE (2011) 8 NWLR (PT 1248) 31.
It is also trite law that in determining the jurisdiction of a court to entertain a Suit, the primary and ultimate port of call is the writ of summons, the statement of claim and the reliefs sought therein. Consequently, when an issue of jurisdiction is being addressed, it must be determined on the basis of the plaintiffs averment in his statement of claim and not on the Defendants answer in the statement of defence. See A. G. KWARA STATE VS AGBASO (2010) 6-7 SC 85; OLOFU VS ITODO (2010) 12 SC (PT 1) 165 and the case of PDP VS SYLVA (2012) 13 NWLR (PT 1316) 85 at 127 where the Supreme Court held per RHODE VIVOUR JSC that:-
Jurisdiction of a court to entertain a Suit is resolve by scrupulous examination of the writ of summons, the statement of claim and reliefs claimed. No other document should be examined.
Also in FIRST BANK OF NIGERIA PLC VS GOVERNMENT OF ONDO STATE (2012) 11 NWLR (PT 1312) 502 this court held that it is the Claimants claim as endorsed in the writ of summons and or the statement of claims that determines whether or not a court has jurisdiction to entertain a matter before it. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
WORDS AND PHRASES: MEANING OF A PORT
Section 64 of the NIMASA Act 2007 defines Portto mean:-
Port means “any place in Nigeria, navigable river or channel leading into such place having facilities for ships to moor, load or discharge including off shone cargo landing facilities, inland dry ports, harbor, berths, jetties, pontoons, or buoys and wharves within the limit of the ports and includes any place declared to be a port under this Act. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUDGMENT: CONCURRING JUDGMENT; WHAT CONSTITUTES A CONCURRING JUDGMENT
In this regard, the case of NWANA VS FCDA (2004) 13 NWLR (PT 889) 128 is quite apt, wherein it was held that a concurring judgment compliments, edifies and adds to a leading judgment. It could at times be an improvement of the leading judgment when the Justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. The Apex court further held that in so far as a concurring judgment performs some or all of the above functions, it has equal force with or as the leading judgment in so far as the principle of stare decisis are concerned. It therefore follows that it is only where a supposed concurring judgment goes contrary to what is contained in the leading judgment that it can be termed a dissenting judgment. But the mere fact that a concurring judgment proffers in a more correct or positive way, what is contained in a leading judgment does not coat it with the garb of a dissenting judgment because a concurring judgment may provide further elucidation or expound on the content or intent of a leading judgment and this still qualifies it as a concurring judgment. See NWANA VS FCDA supra; NWANI BAKARI (2007) LPELR (7629) CA., ENANG VS UMOH (2012) LPELR (8386) CA. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JURISDICTION: ISSUES WHERE THE FEDERAL HIGH COURT WILL HAVE JURISDICTION OVER
What is more, the views expressed by NIKI TOBI JSC in EDEGBEROS supra on the confluence of party in litigation and subject matter of Litigation as being relevant in determining whether the Federal High Courts should have exclusive jurisdiction to entertain a suit is the current state of the law having gained much credence and judicial approval by the Supreme Court. In PDP VS SYLVA supra at page 138 of the Report, the Supreme Court held that:-
“When the jurisdiction of the Federal High Court is in issue, the following must co-exist:-
(a) The parties or party must be the Federal government or its agency
(b) Subject matter of litigation.
It added in paragraph (E) therein that it is not enough only to have an agency of the Federal government before a Federal High Court will have jurisdiction. See also WEMA SECURITIES & FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PT 1484)93; In OBIUWEUBI VS CENTRAL BANK OF NIGERIA (2011)7 NWLR (PT 1247) 465 at page 492 the Supreme Court held per Rhodes Vivour JSC that:-
“For the Federal High Court to have jurisdiction under section 230 of the 1979 Constitution or in Section 251 of the 1999 Constitution the following must co-exist:-
(a) Parties or a party must be the Federal government or its agencies:
(b) Subject matter of litigation.
That is to say jurisdiction is a combination of parties and subject matter. The words used in this piece of legislation are plain as plain can be and have been interpreted by this court on several occasions. See NEPA VS EDEGBERO (2002) 18 NWLR (PT 798) p. 79; OLORUNTOBA-OJU VS ABDUL-RAHEEM & 3 ORS (2009)5-6 SC (PT 11) P. 57; (2009) 13 NWLR (PT 1157)83.
Ironically their lordships relied on the case of NEPA VS EDEGERO supra in reaching its decision and this no doubt means that the stance of NIKI TOBI JSC on confluence of party in litigation and subject matter of litigation in his concurring judgment has broadened the frontiers of our jurisprudence in the determination of the jurisdiction of the Federal High Court as prescribed by Section 251 of the 1999 Constitution. In this regard, I make bold to assert that the current position of the law as expounded by the Supreme Court is not that, once the Federal Government or any of its agencies is a party to a claim no matter the nature of the claim, the Federal High Court must assume jurisdiction. Rather the extant law is that, for the Federal High Court to assume jurisdiction under Section 251 of the 1999 Constitution, the dual requirements of party in litigation and subject matter of litigation must be satisfied. That is to say that it is not enough that the Federal government or any of its agencies is a party in the suit, it must also be shown that the subject matter of litigation fall within the items enumerated in Section 251(1) of the 1999 Constitution. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY Appellant(s)
AND
1. THE HON. CAPTAIN EMMANUEL IHENACHO
2. INTERGRATED OIL AND GAS LIMITED
3. ZIAKADE PATRICK AKPOBOLOKEMI
4. BARRISTER CALLISTUS NWABUEZE OBI
5. HAJIA LAMI TUMAKA Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Lagos State delivered by S.B.A CANDIDE-JOHNSON J. on the 27th day of October 2014 in Suit No LA/ADR/91/2013 wherein the Appellants preliminary objection challenging the jurisdiction of the trial court to entertain the Suit was dismissed.
In brief, the facts of the case are that the 1st Respondent herein who was a former Minister of Interior is the Chairman/Chief of Executive of the 2nd Respondent (Integrated Oil and Gas Limited). Sometime in August 2012 the 2nd Respondent signed a Through put Agreement with PDR Ventures Ltd (PDR) wherein PDR agreed to store 3000349 metric tonnes of Diesel in a tanker farm owned by the 2nd Respondent at Ibafon Apapa, Lagos State. The said diesel was conveyed by a ship called MT GRACE and on arrival to Lagos with the said cargo of diesel, on the 29-8-2012, the said ship was boarded by the Nigerian Navy, the Department of Petroleum Resources and the Customs and Excise for inspection and clearance. Upon clearance, the aforesaid agencies accompanied the ship to the Tank farm where the diesel was discharged and the ship allowed to depart therefrom. The said diesel was thereafter sold to the public.
However, about 12 days after the departure of the ship MT Grace, the 3rd to 5th respondents who are officers of the Appellant herein, together with the officers of the Nigerian Police and other armed forces invaded the said, 2nd Respondents Tank Farm on the allegation that the diesel earlier discharged by MT Grace was stolen. Five top staffers of the 2nd Respondent were arrested and detained at the 3rd Respondents office and later transferred to the office of the State Security Services (SSS) for interrogation.
On 14-9-2012 the same group of persons returned back to the Tank Farm, got it sealed up and arrested the 1st Respondent who was subsequently released after interrogation. On the same date, the 3rd Respondent and the Appellants issued a press release to the effect that the 1st Respondent was arrested in connection with sea robbery and oil theft and which press release was reported in Thisday and Punch Newspapers as well as on the internet. These publications were considered libellous by the Respondents who consequently commenced a Suit at the trial court claiming damages and injunctive reliefs from the Appellants and the 3rd Respondent.
The Appellant herein reacted by filing a motion on notice supported by a written address challenging the jurisdiction of the Lagos State High Court to entertain the Suit. The 1st and 2nd Respondents in opposing the said motion, filed a counter-affidavit and written address. In a considered Ruling delivered on 27-10-14 the trial court dismissed the Appellants objection to jurisdiction.
The Appellant was not satisfied with the Ruling and consequently filed a Notice of Appeal dated 6-11-2014 but filed on 4-11-2014.
Briefs of argument were subsequently filed and served by the parties and same were respectively adopted at the hearing of the Appeal on 4-2-2016. The 3rd to 5th Respondents did not however file any brief of argument.
In the Appellants brief of argument filed on 29-12-2014 but deemed properly filed and served on 24-3-2015 two issues were formulated from the three grounds of Appeal as follows:-
In the light of the provisions of Section 251(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) and other Acts vesting jurisdiction in the Federal High Court as variously interpreted by the Supreme Court and the Court of Appeal in several binding judicial precedents, whether the High Court of Lagos State has the requisite jurisdiction to entertain the Suit in which agencies of the Federal Government of Nigeria were sued as defendants
In respect of executive or administrative decisions or actions they took against the 1st-2nd Respondents. (Grounds 1 and 2 of the Notice of Appeal)
(ii) Whether the trial court was right in refusing to strike out the suit on the additional grounds that the suit is Statute barred and that several persons whom serious criminal and tortuous allegations were made against in the statement of claim were made parties to the suit.(Grounds 1 and 2 of the Notice of Appeal)
In the 1st and 2nd Respondents brief of argument dated and filed on 15-6-2015, the following two issues were also formulated for determination. Viz:-
(1)Whether the trial court was right when it dismissed the Appellants objection and held that it had jurisdiction to entertain the suit. (Grounds 1 and 3).
(ii) Whether the trial court was right when it refused to make any finding on the issues of limitation and non-joinder and deferred determination to a later date. (Ground 2)
The issues as formulated by the parties are no doubt similar in con but I minded to adopt that of the Appellant in the Resolution of this appeal.
ISSUE ONE
Arguing on this issue Learned Counsel for the Appellant referred to numerous authorities on the fundamental nature of jurisdiction in the process of adjudication and without which any decision reached by a court amounts to a nullity.
It was also emphasised that it is the claim before the court that has to be examined, to ascertain whether or not it comes within the jurisdiction conferred on the court. The following cases were cited in support. ADEYEMI VS OPEYORI (1976) 9-10 SC 311; WESTERN STEEL WORKS VS IRON & STEEL WORKERS (1987) 1 NWLR (PT 49) 284; TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517; ALHAJI IBRAHIM ABDUL HAMID VS TALAL AKAR (2006) 1 SCM at 13.
It was further submitted that in the instant case, the 1st and 2nd Respondents claim as endorsed on the writ of summons is for damages for alleged tortiuous acts of the Appellant and the 3rd to 5th Respondents in the course of the exercise of their statutory duties over matters and connected with Nigerian Territorial waters and Federal Ports and their precincts. Therefore, the Lagos State High Court has no jurisdiction to entertain the claims because the Appellant and the 3rd to 5th Respondent are agency and agents respectively of the Federal Government and the claims are for a declaration and injunction or administrative actions/decision taken by the Appellant.
Reference was then made to section 22(1) (f) (g) (h) (o) (p), (2) (a), (d) (f) (h) of the NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY ACT, 2007, as well as section 23(1) (2), (5) (a to j) of the said Act on the duties and functions of the Appellant. On the definition of a Port Learned Counsel referred to section 64 of the NIMASA ACT 2007 to submit that the Oil Tank Farms at Ibafon claimed by the 1st and 2nd Respondents to have been entered and sealed off by the Agents of the Appellant is a Port within the meaning of section 64 of the NIMASA ACT 2007 and the Appellant by virtue of section 23(5) (j) has power to enter the said Tank Farm with the aid and assistance of other government Agencies responsible for security.
In this regard Learned Counsel referred to section 251 (1) (g) (p) (q) and (r) of the 1999 Constitution and section 1 (g) and (i) and 19 of the Admiralty Jurisdiction of the Federal High Court.
It was then submitted that the fact that the Appellant and the 3rd to 5th Respondents are Agency and agents of the Federal Government is not in dispute going by paragraphs 4, 5, 6, 7, 13 14 and 15 of the 1st and 2nd Respondents statement of claim in which case the Lagos State High Court has no jurisdiction to entertain the Suit as presently constituted and had erroneously interpreted the decision in NEPA VS EDEGBERO (2003) FWLR (PT 139) 1556 given the lead judgement of OGUNDARE JSC on the interpretation of section 230 (1) (q) (r) and (s) of the Decree 107 of 1993 which is similar to section 251 (1) of the 1999 Constitution and added to that is the contribution by NIKI TOBI JSC to the said judgment.
It was then argued that the concurring judgment of NIKI TOBI JSC regarding the confluence of party in litigation and subject matter of litigation did not feature in the lead judgment of OGUNDARE JSC and therefore it is not the decision of the Supreme Court in EDEGBEROS case but at best a dissenting judgment going by the status of a concurring judgment as explained in the case of NWANA VS F.C.D.A. (2004) 13 NWLR (PT 889) 128 at 140; see also OSUN STATE INDEPENDENT ELECTORAL COMMISSION VS ACTION CONGRESS (2010) 19 NWLR (PT 1126) 273.
On this basis it was submitted that the opinion of OGUNDARE JSC represents the decision of the Supreme Court in EDEGBEROS case and the Learned Trial Judge was wrong to have relied on the contributions of TOBI JSC.
On subsequent decisions that flow from that of NEPA V EDEGBERO (SUPRA) Learned Senior Counsel cited BENSON AGBULE VS WARRI REFINERY AND PETROCHEMICAL COMPANY, (2013) 6 NWLR (PT1350) 318 SC OR (2012) LPELR-20625(SC) ; ABIA STATE INDEPENDENT ELECTORAL COMMISSION VS CHIEF OKECHI KANU (2013) 13 NWLR (PT1370)69; MINISTER OF WORKS AND HOUSING VS SHITTU, (2007)16 NWLR (PT1060)351; MINISTER, FEDERAL MINISTRY OF HOUSING & URBAN DEVELOPMENT &ANOR VS ALHAJI MUSTAPHA BELLO (2009)12 NWLR (pt1155)345.; OLADELE FUNSHO OLADIPO V NIGERIA CUSTOMS BOARD (2009)12 NWLR (PT 1156)563 ; WEMA SECURITY & FINANCE PLC VS NAIC (2015) 16 NWLR (PT1484)93 at 132-134 and COUNCIL OF LEGAL EDUCATION VS HAIRAT ADERINSOLA BALOGUN &ORS (2011) LPELR-4005 (CA).
On the subject matter approach to jurisdiction, it was submitted that the alleged arrest and interrogation of the 1st and 2nd Respondents staff and employees and the press release which gave birth to this Suit arose from and relate to the exercise of the executive and administrative functions of the 3rdto5th Respondents and the Appellant under section 22 and 23 of NIMASA ACT 2007 and covered by section 251 (1) (p) (q) (r) of the 1999 Constitution. The following cases were cited in support. ANIAKOR VS NIGERIA POLICE FORCE (2014) 15 NWLR (PT 1429) 155 at 172; and UNIVERSAL TRUST BANK LTD VS UKPABIA &ORS (2000)8 NWLR (PT670)570.
On the jurisdiction of the Federal High Court on persons, it was contended that the State High Court lacks jurisdiction to hear the 1stand 2nd Respondents in this Suit because the current position of the law is that where the Federal Government and/or any of its agencies is a party to any Suit, the Federal High Court has exclusive jurisdiction to entertain the action, notwithstanding the nature of the claim. Vide, ABIA STATE INDEPENDENT ELECTORAL COMMISSION VS CHIEF OKECHI KANU (2013) ALL FWLR (PT 696) 546 at 556 and NEPA VS EDEGBERO (Supra) where the Supreme Court held that once a party to Suit is the Federal Government or any of its agencies only the Federal High Court has exclusive jurisdiction to entertain the case notwithstanding the nature of the subject matter of the claim. This court was then urged to allow the appeal.
Replying on the Appellants issue No (1), Learned Senior Counsel for the 1st and 2nd Respondents referred to and distinguished the followed cases relied on by the Appellant; MINISTER OF WORKS & HOUSING V SHITTU (2007) 16 NWLR (PT1060)351; MINISTER, FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT & ANOR (2009) 12 NWLR (PT1155) 345 OLADELE FUNSHO OLADIPO VS NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (PT1156)563; COUNCIL OF LEGAL EDUCATION & ORS VS HAIRAT ADERINSOLA BALOGUN & ORS. (2011) LPELR 4005 (CA); ANIAKOR VS NIGERIA POLICE FORCE (2014) 15 NWLR (PT 1429) 155 at 172; ABIA STATE INDEPENDENT ELECTORAL COMMISSION VS CHIEF OKECHI KANU (2013) ALL FWLR (PT 696) 546.
It was then contended that though the cases discussed the significance of jurisdiction to adjudication, they are however inapplicable to this case because the element of parties and subject matter of the action were identified before the courts upheld the objections to jurisdiction.
In the instant case, it was conceded by Learned Senior Counsel that the Appellant is a Federal Government Agency thrust with the responsibility of the management and administration of Nigerian Waterways, so the authorities cited in support to prove that status by the Appellant are unnecessary.
He added that the substance of this appeal is whether the Federal High Court is vested with the exclusive jurisdiction to determine all disputes in which the Federal Government or any of its agencies is a party irrespective of the claim.
It was then submitted that it is not in dispute that the 1st and 2nd Respondents Suit is founded on allegations of tortiuous acts and this the Appellant agrees with but only contends that since an agency of the Federal Government is a party in the Suit, the proper court to exercise jurisdiction is the Federal High Court by virtue of section 251 (1) of the 1999 Constitution.
It was however contended that the jurisdiction of the Federal High Court is limited to the 18 major items listed under section 251 (1).
Therefore, whenever the issue of its jurisdiction is being canvassed, attention should be focused on the concurrence and confluence of the two critical elements of party-in litigation and subject of ligation, failing which the State High Court is to assume jurisdiction as held by the Supreme court in ONUORAH VS KADUNA REFINERY & PETROCHEMICAL CO. LTD (2005) 6 NWLR (PT 921) 393.;
Learned Senior Counsel also analysed the decision in NEPA VS EDEGBERO (Supra) relied on by the Lower Court to argue that, though the Appellant is an agency of the Federal Government, the relief sought by the 1st and 2nd Respondents does not fall within the items listed in section 251 (1) as in the case of NEPA VS EDEGBERO where the matter arose out of the administrative action or decision of the Appellant, in which case it satisfied the two pronged test of subject of litigation and party in litigation to vest the Federal High Court with jurisdiction.
It therefore contrasts with the instant case where the Appellant is an agency of the Federal Government but the subject matter of the Suit is not itemised in section 251 (1) of the 1999 Constitution.
It was therefore submitted that it was wrong for the Appellant to contend that once the Federal Government or any of its agencies is a party to a Suit for declaration, damages or injunction, the Federal High Court would have exclusive jurisdiction notwithstanding the claim.
On the necessity for the requirement of party in litigation and subject matter of litigation to be satisfied before the Federal High Court can assume jurisdiction the following cases were referred to; ONUORAH VS KADUNA REFINERY & PETROCHEMICAL CO. LTD. Supra; NATIONAL UNION OF ROAD TRANSPORT WORKERS VS ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (2012) LPELR 7840 (SC); OMOTESHO VS ABDULLAHI (2008) 2 NWLR (PT 1072) 526 at 547; ALAMIEYESEIGHA VS IGONIWARI (NO 2) (2007) 7 NWLR (PT 1034) 524 at 579.
It was further submitted that by the definition of a Port under section 64 of NIMASA ACT 2007, it does not include a Tank Farm as that of the 2nd Respondent which does not have the facilities for ships to moor and load or discharge, therefore the act of the Appellant and its agents were outside the scope of their legitimate powers, but in their personal capacities.
This court was then urged to dismiss the appeal and uphold the Ruling of the Lower Court.
The Appellants reply to the submissions made by the 1st and 2nd Respondents is in the Appellants reply brief filed on 19-1-2016 but deem properly filed on 4-2-2016.The issues addressed therein will be considered as the need arises in this judgment.
The main thrust of this appeal is whether the Lagos State High Court has the jurisdiction to entertain the action instituted before it by the 1st and 2nd Respondents against the Appellant and the 3rd to 5th Respondents.
The issue of jurisdiction is a threshold issue in adjudication by a court of law and as such, it is basically considered expedient to resolve same before proceeding to consider any matter presented to a court on the merit. It therefore goes without saying that the determination of a matter by a court will amount to a nullity if done without jurisdiction notwithstanding how right or correct the decision reached might be. The jurisdiction of a court to entertain a matter is therefore fundamental to the extent that if a court has no jurisdiction to hear or determine a case, the whole proceedings become null and void. In other words, jurisdiction is the basis on which any court or tribunal tries a case because it is the authority it has to decide on a matter before it. The importance of jurisdiction to adjudicate on any matter by a court cannot therefore be overemphasised. See AJAO VS ALAO (1986) 5 NWLR (PT 45) 802; UTIH VS ONOYIVWE (1991) 1 NWLR (PT 166) 166; (1991) 1 SCJN 25; GALADIMA VS TAMBAI (2000) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU (1989) 6 SC (PT 11) Page 1. YUSUF VS OBASANJO (2004) 5 SCM. 193.
Jurisdiction of court is not conferred by the court itself but by the constitution or a statute. Consequently, no court shall have the jurisdiction to go beyond the provisions of the enabling law, otherwise it will be ultra vires. See UGBA VS SUSWAM (NO 2) (2012) 6 SC (PT 11) 56 and ARJAY LTD VS AIRLINE MANAGMENT SUPPORT LTD (2003) 5 SCM 17 A.G RIVERS STATE VS A.G AKWA-IBOM STATE (2011) 8 NWLR (PT 1248) 31.
It is also trite law that in determining the jurisdiction of a court to entertain a Suit, the primary and ultimate port of call is the writ of summons, the statement of claim and the reliefs sought therein. Consequently, when an issue of jurisdiction is being addressed, it must be determined on the basis of the plaintiffs averment in his statement of claim and not on the Defendants answer in the statement of defence. See A. G. KWARA STATE VS AGBASO (2010) 6-7 SC 85; OLOFU VS ITODO (2010) 12 SC (PT 1) 165 and the case of PDP VS SYLVA (2012) 13 NWLR (PT 1316) 85 at 127 where the Supreme Court held per RHODE VIVOUR JSC that:-
Jurisdiction of a court to entertain a Suit is resolve by scrupulous examination of the writ of summons, the statement of claim and reliefs claimed. No other document should be examined.
Also in FIRST BANK OF NIGERIA PLC VS GOVERNMENT OF ONDO STATE (2012) 11 NWLR (PT 1312) 502 this court held that it is the Claimants claim as endorsed in the writ of summons and or the statement of claims that determines whether or not a court has jurisdiction to entertain a matter before it.
In the instant case, the kernel of the Appellants complaint is that the Lagos State High Court lacks jurisdiction to hear the Suit filed by the 1st and 2nd Respondents because the Appellant and the 3rd to 5th Respondent are agency and agents of the Federal Government and the Suit is based on the tortuous acts committed by the Appellant and its officers in the discharge of their executive and administrative functions. Therefore only the Federal High Court has jurisdiction to entertain the Suit by virtue of section 251(1) (g) (p) (q) and (r) of the 1999 Constitution.
The said section 251 (1) (g) (p) (q) and (r) of the Constitution of Federal Republic of Nigeria 1999 (as amended) provides as follows:-
251 (1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-
(g)Any admiralty jurisdiction including shipping and Navigation on the River Niger or River Benue and their effluents and on such other inland waterways as may be designated by any enactment to be on international waterway, all Federal ports, (including the Constitution and powers of the Ports Authorities for Federal Ports) and carriage by sea;
(p) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provision of this Constitution, the operation an interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administration action or decision by the Federal Government or any of its agencies.
It is not in dispute that the Federal High Court enjoys exclusive jurisdiction to hear and determine matters as listed in section 251 (1) of the 1999 Constitution or as may be prescribed by an act of the National Assembly. However, though the Federal High Court enjoys such exercise of jurisdiction to the exclusion of any other court on matters so itemised under Section 251 (1) (a) to (s). To all intents and purposes the exclusive jurisdiction is hedged within the confines of the aforementioned section and as held in the case of EZE VS A.G FEDERATION (1987) 1 NWLR (PT 51) 506, the limited jurisdiction of the Federal High Court is not easy to scale over.
In the instant case, the reliefs sought by the 1st and 2nd Respondents in the Lower Court as per their writ of summons filed on 12-2-13 are herein-below set out:-
The Claimants claim is for:
(1) Damages (including general, special and exemplary damages) of N90 billion, N349 million (ninety billion, three hundred and forty nine million naira) misfeasance in public office, malicious falsehood, conspiracy to injure economic interests, trespass to land, defamation, assault and false imprisonment.
(2) Interest on the said sum of N90 billion, N349 million (ninety billion, three hundred and forty nine million naira) at the rate of 25% per annum from 14th September 2012 until the entire sum is paid to the Claimants.
(3) An Order of injunction compelling the Defendants to punish in the First Defendants website, the Guardian Newspaper, Thisday Newspaper and Punch Newspaper, a retraction of an apology for the defamatory statements that they made against the Claimants on 14th September 2012 and 15th September 2012;
(4) Further or other relief; and
(5) The costs of this action.
From the above set out reliefs claimed by the 1st and 2nd Respondents coupled with the averments in paragraph 8 to 38 of their statement of claim. It is quite glaring and beyond doubt that the substance of their claim in the Lower Court hinges on the alleged wrongful acts of the Appellant and the 3rd to 5th Respondents.
The Appellant did not dispute this fact but strongly argued that the action taken by them borders on, or relates to their executive and administrative functions as conferred by sections 22 and 23 of the NIMASA ACT 2007 and therefore falls under Section 251(1) (r) of the 1999 Constitution in which case it is the Federal High Court and not the Lagos State High Court that has jurisdiction to entertain the Suit.
The question then is whether the Suit is based on tort simpliciter or whether the said tort was a product of any executive or administrative action or decision by the Federal Government or any of its agencies.
That the 3rd to 5th Respondents are agents of the Federal Government by virtue of their position in the Appellant which is an agency of the Federal Government is not in dispute. In the 1st and 2nd Respondents statement of claim, it was averred in paragraphs 4 to 7 as follows:-
4. The First Defendant is a statutory body that is charged with the promotion of the development of indigenous commercial shipping in international and coastal shipping trade and the regulation and promotion of maritime safety, security, marine pollution and maritime labour.
5. The Second defendant was at the material times, the director general and chief executive officer of the First Claimant.
6. the Third Defendant was at all material times, the executive director maritime labour and cabotage services of the First Defendant.
7. The Fourth Defendant was at all material times, the head of public relations of the First Defendant.
As regards the issue whether the act of the Appellant complained of constitutes an executive or administrative action or decision by the 3rd to 5th Respondents who are agents of the Appellant.
The answer is not far fetched having been averred to in paragraph 17 to 23 of the statement of claim and they are herein below set out.
17. The First Defendant is a statutory body and its agents, the Armed Forces, the Nigerian Police and the State Security Services, are organs of the government. The Second Defendant, the Third and the Fourth Defendant were public officers at all material times.
18. each material conduct of the Defendants, their agents and servants was in the purported exercise of public functions.
19. This is a case of targeted malice by the First Defendant and its officers and agents. They acted in bad faith and /or recklessly in the exercise of their statutory functions in that:
a. They issued all the necessary permits which allowed M.T. Grace to discharge its cargo at Second Defendants oil tank farms;
b. The Nigerian Navy inspected M.T Grace and its cargo before it permitted her to proceed to the Second defendants oil tank farms;
c. The First Defendant and the other government organs (including the Navy, the Customs and the Department of Petroleum Resources) inspected M.T Grace (including its documents, permits and cargo) on 29th August 2012 and cleared it to discharge its cargo at the Second Claimants tank farm and then accompanied it to the said oil tank farm and were present from the time it started discharging the said cargo until the time it completed the discharge and left the premises of the second Claimant;
d. The First Defendant and the other government organs that issued the said permits in respect of M.T Grace and its cargo of diesel knew that she and her cargo were not owned by the Claimants and they also knew the ostensible origin of the cargo that she was discharging at the second defendants oil tank farms, and as such even if M.T. Grace was used to hijack vessels and steal file, there was no reasonable ground to suspect that the Claimant were part of a cartel that was involved in the hijack of vessel and theft of fuel. This contention is supported by the application by the owner of MT Grace, Danyomile Marine Services Limited to the Commanding Officer of the Naval Base, Beecroft Dockyard, Lagos for MT Grace to discharge 3, 000 metric tonnes of diesel loaded from MT. Ralb of Awaritse Nigeria Limited at offshore into the Second Defendants tank farm, Ibafon, Lagos between 29th August 201 and 28th September 2012 (This application is dated 28th August 201 and was approved by Nigeria Navy) and the Department of Petroleum Resources permit dated 29th August 201 clearing M.T Grace to load 3000.349 metric tonnes of diesel belonging to PDR Venture at Cotonou and to discharge it at the Second Claimants depot.
e. Even if the said cargo that M.T Grace was discharging at the Second Defendants said oil tank farm was stolen, there was no reasonable ground to believe that the Claimants knew that it was stolen before they accepted it. The First Defendant and the said government agencies well knew or ought to have known that the Second Claimant was entitled to rely on: (i) the said documents presented to it by PDR ventures Limited, (ii) the fact that Department of Petroleum Resources and other government agencies had examined the vessel and her documents on 29th August 2012 before clearing it to discharge its cargo at the Second Claimants said oil tank farm; (iii) the fact that officers of these government agencies then accompanied the vessel to the Second Claimants said oil tank farm and were present from the time of the commencement of the discharge of the cargo to the completion of discharge of the cargo and the departure of the vessel;
f. There was no reasonable ground for suspecting that the Claimants were part of a cartel that was involved in the hijacking of vessels ad theft of fuel theft the said vessels were carrying;
g. Even if there was a reasonable ground for suspecting that the Claimant knowingly accepted stolen cargo(which is not the case), there was no lawful excuse for stealing off the Second Claimants said premises and for assaulting and humiliating the First Claimant and other persons on the said 13th and 14th September 2012.
20. The First Defendant, it servants and its agents exercised public power for improper and/or ulterior motives.
21. The actions of the First defendant, its servants and it agent were unlawful.
22. The First Defendant, its servant and its agent intended to injure the Claimants. They also knew that their conduct was capable of causing loss to the Claimants or alternatively, they were reckless as to whether their conduct would cause loss to the claimants.
23. As a result of the conduct of the First Defendant, its servants and its agents, the Claimants have suffered considerable loss and damage.
From the above set out averments it is not in doubt that the Appellant and the 3rd to 5th Respondents were exercising their administrative and executive functions when they committed the acts complained of by the 1st and 2nd Respondents. In other words, the activities of the Appellant which resulted in the alleged injury to the 1st and 2nd respondents were carried out in the exercise of the executive and administrative actions as prescribed by paragraph (r) of section 251 (1) of the 1999 Constitution and this removes the Suit from the scope of jurisdiction of the Lagos State High Court and placed under the exclusive jurisdiction of the Federal High Court.
What is more sections 22 and 23 of the Nigerian Maritime Administration and Safety Agency Act (NIMASA) 2007 exhaustively listed the duties and powers of the Appellant for which the 3rd to 5th Respondents are the alter egos and any act done pursuant to the duties, functions and powers enumerated in the two sections to my mind, constitute executive or administrative actions or decisions within the ambit of Section 251 (1) (p) (r) of the 1999 Constitution provided such acts are done within the territorial confines of the Appellant as prescribed by law. The scene of the act allegedly complained of was the 2nd Respondents tank Farm at Ibafon and their pleadings show that the ship M.T Grace navigated to and moored beside the Tank Farm to discharge its cargo of diesel.
Section 64 of the NIMASA Act 2007 defines Port to mean:-
Port means any place in Nigeria, navigable river or channel leading into such place having facilities for ships to moor, load or discharge including off shone cargo landing facilities, inland dry ports, harbor, berths, jetties, pontoons, or buoys and wharves within the limit of the ports and includes any place declared to be a port under this Act.
(Underling for emphasis)
From the above definition there is no doubt that the 2nd Respondents Tank Farm at Ibafon, Lagos falls within the area or operational jurisdiction of the Appellant whose officers in the execution of the functions and duties as conferred on the Appellant by Section 22 and 23 of the NIMASA Act engaged in the transactions which are the subject of the action in the Lower Court.
For purposes of clarity I herein below set out some of the functions and powers of the 3rd Respondent as prescribed by the NIMASA Act 2007. Section 22(1) (f) (g) (h)(o)(p) and (2)(a) (f) (h) provides thus:-
2(1) The functions and duties of the agency shall be to:-
(f) Provide search and rescue services.
(g) Provide directions and ensure compliance with vessel security measures.
(h) Carry out air and coastal surveillance;
(o) Provide National Maritime Search and Rescue service;
(p) Provide Maritime Security, and
22(2) (a) Inspect ships for the purposes of maritime safety, maritime Security, maritime labour and prevention of maritime pollution.
(f) Generally to perform any other duty for ensuring maritime safety and Security or do all matters incidental thereto;
(h) Perform any other prescribed functions relating to or incidental to any of the matters referred to in this subsection.
Furthermore, some of the powers of the Appellant as prescribed in Section 23 (1) (2) and (5) include the following:-
23(1) In addition to any other powers conferred on it by this or any Act, the Agency has, subject to this Act, power to do all things necessary for or incidental to or in connection with the performance of its functions.
(2) Without limiting the generality of Subsection (1), the powers includes, subject to this Act,
(5) The Agency shall, in addition, have powers to:-
(a) Receive and consider any report of the commission of an offence;
(b) Stop, enter, board, inspect and search any Vessel aircraft and to detain any vessel on aircraft within the Nigerian Maritime zone;
(c) Demand the production of any other document and to inspect such license, permit record, certificate or other document or make copies or take extracts from such license, permit, record, certificate or document in relation to matters provided for under this Act;
(e) Exercise to right of pursuit;
(h) Arrest any person whom it has reason to believe has committed an offence;
(j) Enter parts, terminate and vessels to monitor and investigate matters related to maritime labour, ship safety and security.
The kernel of the 1st and 2nd Respondents complaint is that their Tank Farm at Ibafon was entered into and sealed off by the Appellant and its officers with the support of a contingent of Policemen, Soldiers, Naval personnel, employees of a company called Global West Vessel Specialist Limited and other Security officers on the suspicion that the consignment of diesel discharged by the vessel MT. Grace into the 2nd Respondents Tank Farm was stolen from a vessel that was a victim of sea piracy and armed robbery on the Nigerian Territorial waters.
By the definition of a port in section 64 of the NIMASA Act 2007 as well as the powers of the Appellant as conferred by the said Act it seems to me that it bears no further argument that the acts of the Appellant in the Tank Farm as well as the arrest of the 1st Respondent for interrogation constitute executive and administrative actions relating to a maritime issue which brings it within the sphere of paragraph (g) and (r) of section 251 (1) of the 1999 Constitution.
In this regard the case of NEPA VS EDEGBERO (supra) which was the object of analysis, interpretation and rationalisation by the parties is quite relevant here because the Supreme Court therein made it clear that by the provisions of Section 251 (1) of the 1999 Constitution, exclusive jurisdiction is vested in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government, the operation and interpretation of the constitution as it affects the Federal Government as well as any action or proceedings for a declaration an injunction affecting the validity of any executive or administrative action or decisions by the Federal Government. See also OBIUWEUBI VS CENTRAL BANK OF NIGERIA (2011)7 NWLR (PT 1247)465 wherein the Apex court held at page 514-515 that section 230(1) of the 1979 Constitution which is in pari materia with Section 251(1)(p) of the 1999 Constitution vest exclusive jurisdiction in the Federal High Court in Civil causes and matters arising from administration, management and control of the Federal Government and its agencies, the operation and interpretation of the constitution as it affects the Federal Government and its agencies as well as any action, proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government and its agencies. In PDP VS SYLVA (2012)13 NWLR (PT 1316) 85 at 138, it was emphatically held therein that section 251 of the 1999 Constitution confers exclusive jurisdiction on the Federal High Court in respect of the items listed in the Section. It is therefore my firm view that from the facts of this case as detailed in the statement of claim and the nature of reliefs sought therein, the proper court with jurisdiction to entertain the suit is the Federal High Court and not the Lagos State High Court as held by the Lower Court in its ruling.
I am tempted to refer to one more authority on this issue, that is the case of ADETONA VS IGELE ENTERPRIES LTD (2011)7 NWLR (PT 1247)535 where the Supreme Court posited that even in Fundamental Human Right cases where the Constitution confers jurisdiction on both the Federal and State High Courts, the State High Courts are still devoid of jurisdiction where the subject matter falls within the exclusive jurisdiction of the Federal High Court and vice-versa. At page 564 of the Report it was held thus:-
It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the Fundamental right threatened or breached falls within the enumerated matters on which that court has jurisdiction. Thus Fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court. See TUKUR VS GOVERNMENT OF GONGOLA STATE (1989)3 NSCC 225 (1989)4 NWLR (PPT 117)517. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to section 46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by section 251 of the Constitution.
The point I seek to make here is that the exclusive jurisdiction of the Federal High Court on matters listed in Section 251)1) of the Constitution is held sacrosanct and jealously guarded by judicial authorities against encroachment by the State High Court. The same way the limited jurisdiction of the Federal High Court is under close watch and strongly hedged to avoid any intrusion or expansion into the sphere of jurisdiction of the State High Courts.
That brings me to one important issue that needs to be addressed and clarified given the strong argument presented on it by the Appellants.
It was contended in the Appellants brief that once the Federal Government or any of its agencies is a party in a suit the Federal High Court would exercise jurisdiction notwithstanding the nature of the claim. In this regard they strongly relied on the lead judgment of OGUNDARE JSC in NEPA VS EDEGBERO supra. It was also argued that the concurring judgment of NIKI TOBI JSC which addressed the issue of Confluence of party in litigation and subject matter of litigation is not the decision of the Apex Court in EDEGBEROS case but that of OGUNDARE JSC who read the lead judgment and at best the said concurring judgment having featured what was not in the lead judgment should at best be regarded as a dissenting judgment.. I however disagree with such postulation by the learned counsel for the Appellants. In this regard, the case of NWANA VS FCDA (2004) 13 NWLR (PT 889) 128 is quite apt, wherein it was held that a concurring judgment compliments, edifies and adds to a leading judgment. It could at times be an improvement of the leading judgment when the Justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. The Apex court further held that in so far as a concurring judgment performs some or all of the above functions, it has equal force with or as the leading judgment in so far as the principle of stare decisis are concerned. It therefore follows that it is only where a supposed concurring judgment goes contrary to what is contained in the leading judgment that it can be termed a dissenting judgment. But the mere fact that a concurring judgment proffers in a more correct or positive way, what is contained in a leading judgment does not coat it with the garb of a dissenting judgment because a concurring judgment may provide further elucidation or expound on the content or intent of a leading judgment and this still qualifies it as a concurring judgment. See NWANA VS FCDA supra; NWANI BAKARI (2007) LPELR (7629) CA., ENANG VS UMOH (2012) LPELR (8386) CA.
What is more, the views expressed by NIKI TOBI JSC in EDEGBEROS supra on the confluence of party in litigation and subject matter of Litigation as being relevant in determining whether the Federal High Courts should have exclusive jurisdiction to entertain a suit is the current state of the law having gained much credence and judicial approval by the Supreme Court. In PDP VS SYLVA supra at page 138 of the Report, the Supreme Court held that:-
When the jurisdiction of the Federal High Court is in issue, the following must co-exist:-
(a) The parties or party must be the Federal government or its agency
(b) Subject matter of litigation.
It added in paragraph (E) therein that it is not enough only to have an agency of the Federal government before a Federal High Court will have jurisdiction. See also WEMA SECURITIES & FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PT 1484)93; In OBIUWEUBI VS CENTRAL BANK OF NIGERIA (2011)7 NWLR (PT 1247) 465 at page 492 the Supreme Court held per Rhodes Vivour JSC that:-
For the Federal High Court to have jurisdiction under section 230 of the 1979 Constitution or in Section 251 of the 1999 Constitution the following must co-exist:-
(a) Parties or a party must be the Federal government or its agencies:
(b) Subject matter of litigation.
That is to say jurisdiction is a combination of parties and subject matter. The words used in this piece of legislation are plain as plain can be and have been interpreted by this court on several occasions. See NEPA VS EDEGBERO (2002) 18 NWLR (PT 798) p. 79; OLORUNTOBA-OJU VS ABDUL-RAHEEM & 3 ORS (2009)5-6 SC (PT 11) P. 57; (2009) 13 NWLR (PT 1157)83.
Ironically their lordships relied on the case of NEPA VS EDEGERO supra in reaching its decision and this no doubt means that the stance of NIKI TOBI JSC on confluence of party in litigation and subject matter of litigation in his concurring judgment has broadened the frontiers of our jurisprudence in the determination of the jurisdiction of the Federal High Court as prescribed by Section 251 of the 1999 Constitution. In this regard, I make bold to assert that the current position of the law as expounded by the Supreme Court is not that, once the Federal Government or any of its agencies is a party to a claim no matter the nature of the claim, the Federal High Court must assume jurisdiction. Rather the extant law is that, for the Federal High Court to assume jurisdiction under Section 251 of the 1999 Constitution, the dual requirements of party in litigation and subject matter of litigation must be satisfied. That is to say that it is not enough that the Federal government or any of its agencies is a party in the suit, it must also be shown that the subject matter of litigation fall within the items enumerated in Section 251(1) of the 1999 Constitution.
Notwithstanding my stance on the issue as above analysed, I find that in this appeal the Appellant is an agency of the Federal Government and the 3rd to 5th Respondents are agents of the Appellant. The subject matter of litigation also falls within the ambit of Sections 251(1) (p) (q) (r) of the 1999 Constitution the Federal High Court therefore has exclusive jurisdiction to hear and determine the suit and not the Lagos State High Court. On the whole, the issue is resolved in favour of the Appellant.
The resolution of this would have ordinarily closed the chapter in this appeal, but for what it is worth, I will proceed to address issue No (2) as formulated in the appellants brief of argument.
ISSUE TWO
Dwelling on this issue, Learned Senior Counsel for the Appellant referred to the holding of the Learned trial Judgment at page 934 to 935 of the Vol II of the Record of Appeal to submit that the Learned Trial Judge was in serious error in refusing to decide on the issue properly raised by the Appellant in its motion on notice and written address. He added that the points of law relating to statute of limitation as raised by the Appellant touches on jurisdiction of the court and ought to be resolved before the court takes any further action on the matter. Vide THE OWNERS OF M.V. ARABELLA VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 5-6 SC (PT II) 189; WOHEEREM VS EMEREUWA (2004) 13 NWLR (PT 890) 398.
Further submitting that failure by the Lower Court to resolve the issue of statute barred action as raised by the Appellant amount to a denial of fair hearing, he cited the following authorities. IROLO VS UKA (2002) 14 NWLR (PT 786) 195 and DINGYADI VS INEC (2010) 4-7 SC (PT 1) 76 OR (2010) 10 NWLR (PT 1224) 154.
This court was then urged to resolve the issue in favour of the Appellant because the Trial Judge was wrong in refusing to pronounce on whether the striking out of the suit on the additional grounds that it is statute barred and/or that several persons whom serious criminal allegations were made against in the statement of claim were not made parties to the suit.
Responding on this issue in their own issue No. 2. Learned Senior Counsel for the 1st and 2nd Respondents justified the holding of the Learned Trial Judge at pages 934 to 935 of Vol II of the Record of Appeal given the conflicting provision of the Public Officers Protection Act and the NIMASA Act 2007 on the limitation period of three months and one year respectively.
This he argued, prompted the Learned Trial Judge to restrain himself from making any finding of fact because doing so will pre-empt the substantive suit. He added that, while dealing with preliminary or interlocutory matters, the court is not entitled to make any comments, pronouncements or observations in its Ruling which might prejudge or pre-empt the main issue in the proceedings relative to the interlocutory application.
He cited the case of TABIOWO VS DISU (2008) 7 NWLR (PT 1087) 533 at 546 and PDP VS ABUBAKAR (2007) Vol 41 WRN 61 at 91. He also contended that the cases of WOHEREM VS EMEREUWA (Supra) DINGYADI VS INEC (Supra) and UKA (Supra) relied on by the Appellant are distinguishable from the facts of this case. Moreso that the Appellants application was heard before the court made its decision. He then urged that the issue be resolved against the Appellant.
The Appellants reply on this issue is contained in pages 5 and 6 of the Appellants reply brief filed on 19-1-16 but deemed properly filed on 4-2-16. Therein it was submitted that the issue of the Public Officers Protection Act or non-joinder of parties were not mentioned anywhere in the 1st and 2nd Respondents Statement of claim in which case the decision of the Lower Court on the interlocutory matter would not have affected the substantive suit.
He added that issues of limitation of action are jurisdictional issue which the Lower Court should determine before going into the substantive matter as held in COMPTROLLER GENERAL OF PRISONS VS IDEHEN (2010) 3 NWLR (PT 1182) 503 at 515.
Therefore it was wrong for the Lower Court to have pushed an issue that borders on jurisdiction to be address during the trial of the substantive suit.
This court was then urged to allow the appeal.
Now the Learned Trial Judge had in the ruling at pages 934 to 935 of the Vol. II of the Record of Appeal held thus:-
With respect to the remaining matters touching Public Officers Protection Act as Statute of Limitation and Non-joinder of parties, it is my view that the facts material to the date of accrual of the cause of action are, on the pleadings, dynamic matters better suited for examination and evaluation at plenary Trial just as it is my view that if the Claimants having elected to sue whom they deem primarily liable to them, the Defendants are equally at liberty to cure such an alleged whomsoever, in their view, is essential as a Necessary party, as distinct from a necessary witness. Of course, in the final analysis, the issue of misjoinder and Non-joinder as a potential fatal defect, in my further view, is strategically best suited for final address and final judgement.
In any event, these matters within the con of the statutory protocols of the 2012 Lagos State rules are matters provided for under the Case Management Conference Agenda Clause qua, Order 25 Rule 1(2) (a) and (b) and Rule 2(a)-(m). I hold, therefore, that they are premature as they are best suited for plenary trial at best or for case management conference at the worst.
I should note also that in relation to the legitimate legal controversy generated by the Defendants regarding the Public Officers Protection Law (POPL) that the Claimants have called in aid the quaere whether the 1st Defendant even qualifies as a Public Officer properly defined and their additional contention of the competing and superior relevance, over the POPL, of the limitation period of 1 year contained in the Nigeria Maritime Administration and Safety Agency Act. The common denominator in both legislations is the ascertainment and/or proof of any act done capable of constituting the accrual of a cause of action. In effect, this court is determinative of, the substantive case itself. The proper order to make is to defer any decision on the two remaining issue to the Case Management Conference stage for consideration and I so hold.
The law is trite that in ascertaining the time when the cause of action accrued for the purpose of limitation law, the court only looks at the writ of summons and the statement of claim which contains averment as to when the cause of action arose and compared it with the date when the writ of summons was filed. Where it is apparent in the statement of claim that the period is beyond the time allowed by the limitation law, it renders the suit incompetent for being statute barred. See ELOBANJO VS DAWODU (2006) 15 NWLR (PT 1001) 76; WOHEREM VS EMEREUWA (Supra). In KOLO VS FBN PL;C (2003) 3 NWLR (PT 806) 216. It was held that the statement of claim is recognised as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued. Also in MILITARY ADMINISTRATOR OF EKITI STATE VS ALADEYELU & ORS (2007) 14 NWLR (PT 1055) 619, the Supreme Court relying on its earlier decision in WOHEREM VEMEREUWA (Supra) held that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. See also AMUSAN VS OBIDEYI (2005) 14 NWLR (PT 945) 322; GBADEHAN VS KILADEJO (2011) LPELR (8911) CA.
In the instant case, the Learned Trial Judge emphatically stated in the Ruling that:-
It is my view that the facts material to the date of accrual of cause of action are, on the pleadings, dynamic matters better suited for examination and evaluation at plenary trial……
This stance of the Learned Trial Judge is no doubt contrary to the principle of law established in the authorities above cited in this judgment to the effect that the writ of summons and statement of claim are the primary and only source of information to determine whether an action is statute barred. It does not therefore allow for going into a full blown trial before the issue is determined whenever raised in a suit, given the trite law that in any given case where a plea is raised that an action is statute bared it triggers off the issue of jurisdiction of the court to entertain the suit and this must be resolved by the court which at that stage is only allowed a peep into the key hole of the writ of summons and statement of claim without more. See ADEKOYA VS FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT 1099) 539 and NDUKA VS OGBONNA (2010) LPELR (4587) CA where this court per SANUSI JCA (as he was then) held that:-
Being an issue of jurisdiction therefore, a court of law confronted with such question on whether an action is statute barred or not, is duty bound to determine such issue first and if it finds out that it is statute barred, it should merely dismiss the suit, since no amount of resort to its merit could resuscitate it.
In this regard I readily agree with the submission of Learned Senior Counsel for the Appellant that the Learned Trial Judge erred in holding that the issue of the Suit being statute barred should better be suited for examination and evaluation at plenary trial together with the issue of non-joinder of parties.
However, on the issue of non-joinder, authorities are numerous to the effect that failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the court to adjudicate on the matter before it, though in some circumstances will be set-aside on appeal on grounds of unfairness to the party concerned. But the position of the law is that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the right and interest of the parties actually before it. See OKOYE VS NIGERIAN CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (PT 1991) 501; BELLO VS INEC (2010) 8 NWLR (PT 1196) 342 SC; PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL (1982) 12 SC Page 1; SAPO VS SUNMONU (2010) 11 NWLR (PT 1205) 374.
In the circumstance, I cannot fault the view of the Learned Trial Judge on the issue of mis-joinder or non-joinder.
This issue is therefore partly resolved in favour of the Appellant and the Respondent respectively.
In the final result, I hold that this appeal is meritorious and it is accordingly allowed. The Ruling of the Lagos State High Court delivered by Justice S.B.A. CANDIDE JOHNSON on the 27th day of October 2014 is hereby set aside.
By virtue of the powers conferred on this court by Section 15 of the Court Act and acting inconsonance with Section 22(3) of the Federal High Court Act 2005 (as amended). It is ordered that this suit presently pending in the Lagos State High Court be transferred to the Federal High court Lagos Division, for assignment by the Chief Judge of the Federal High Court for accelerated hearing and determination.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.:
I had the privilege of reading in draft form the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA.
I agree with his reasoning and final conclusions. However, I wish to add that
By virtue of paragraphs(q), (r), (s) of sub-section (1) of Section 230 of the 1979 Constitution. Also section 250(1), (q), (r) and (s) of the 1999 Constitution, the Federal High Court shall have and exercise exclusive jurisdiction in matters in which the Federal Government or any of its Agencies is a party. Consequently, a State High Court would no longer have jurisdiction in such matters, nothwithstandign the nature of the claim in the action. See J.U.T.H v. Aje (2007) 1 NWLR (Pt.1016) page 490, Onuoha v. KRPC. (2005) 6 NWLR (Pt.921) page 393, Ministry of Internal Affairs v. Aliyu (2005) 3 NWLR (Pt.911) page 30, NEPA v. Edegbero (2002) 18 NWLR (Pt.798) page 79
However, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its Agencies. The matter must arise from the operation and interpretation of the Constitution. Finally the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, or any of its Agencies. JUTH v. Ajeh (supra) Onuorah v. KRPC (supra), NEPA v. Edegbero (supra) UNILORIN v. Olutola (1998) 12 NWLR (Pt.576) page 72.
My learned brother has exhaustively discussed the issue in this lead judgment and nothing more can be said. This appeal is allowed. I abide by all the other consequential orders contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.:
I had the benefit of reading in draft the judgment written by my learned brother, Samuel Chukwuduembi Oseji, J.C.A., with which I agree with nothing extra to add.
Appearances
Emeka Ngige (SAN) with him, A.O Egwuatu, Esq.For Appellant
AND
I. A. Onyebuchi with him, A.O Coker (Miss), J. O. Wewe (Miss), N. C. Ezeanochie and A. Olarenwaju for 1st and 2nd Respondents.
Chief O. E. Nwagbara with him, R.U Iwuala and A. O. Eniayeye for 3rd to 5th Respondents.For Respondent
