OLAYEMI & ORS v. FHA (2022)

OLAYEMI & ORS v. FHA

(2022)LCN/5077(SC)

In The Supreme Court

On Friday, March 18, 2022

SC.931/2017

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Between

1. HRM OBA ISAAC OWOLABI OLAYEMI (THE ALAMUWO OF KUJE AMUWO LAND, AMUWO ODOFIN LOCAL GOVERNMENT AREA, FESTAC, LAGOS) 2. ALHAJI (CHIEF) MUSTAPHA AKAANI AKINOLU 3. ALHAJI (CHIEF) TAOHEED AKAANI AMUSA 4. ALHAJI R.A. BALOGUN (THE BASHORUN OF KUJE AMUWO LAND) For Themselves And On Behalf Of the Entire Members Of Kuje Amuwo Odofin Local Government) APPELANT(S)

And

THE FEDERAL HOUSING AUTHORITY RESPONDENT(S)

RATIO:

RAISING A FRESH ISSUE FOR DETERMINATION ON APPEAL

I find support in several decisions of this Court that an Appellant on appeal from the Court below may not take a point which he has not taken or argued in the Court below. This is in accord with the principle that an appeal is an avenue of rehearing of the case in an appellate Court. An Appellant may however challenge the judgment of the Court below on the ground which was not decided by that Court, particularly where it has raised a substantial point of law, more so, on the issue of jurisdiction. See: Our Line Ltd v. SCC (Nig) Ltd &Ors (2009) LPELR 2833 SC. PER ABDU ABOKI, J.S.C.

JURISDICTION OF THE FEDERAL HIGH COURT

The law has been established beyond peradventure that the Federal High Court does not have jurisdiction to entertain land matters. There is nothing in the Respondent’s claim which questions the acquisition of the land acquired by the Government. There is therefore no way the stipulations of Section 251 (1) (p),(q) and (r ) of the 1999 Constitution can come into play so as to vest jurisdiction on the lower Court. Indubitably, the subject matter of the Respondent’s action was not within the jurisdictional competence of the lower Court. The lower Court was wrong when it proceeded to exercise jurisdiction in the matter. The action being a land matter, it is the State High Court that is imbued with jurisdiction. PER ABDU ABOKI, J.S.C.

WHEN A COURT DECLINES JURISDICTION

The Federal High Court Act, which govern the proceedings in the trial Court has given power to a Judge of the Federal High Court, who holds that the Court has no jurisdiction, rather than striking out a case before it for want of jurisdiction, to transfer the case to the appropriate State High Court for determination. In the instant appeal, Section 22(2) of the Federal High Court Act, is most apposite. It provides that:
“No cause or matter shall be struck out the Court merely on the ground that such cause or 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 of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.” Applying the above principle, this Court held in Braithwaite v. Standard Chartered Bank Nig. Ltd (2012) 9 NWLR (Pt. 1305) 304 that:
“Where a Judge of the Federal High Court holds that it has no jurisdiction, he can transfer the matter to the appropriate State High Court or of the Federal Capital Territory, Abuja.”
It is therefore clear that the Court below had no discretion to strike out the matter. The only option open to it was to order a transfer of the matter to the appropriate High Court of the State with jurisdiction. PER ABDU ABOKI, J.S.C.

THE ARGUMENTS IN AN APPEAL MUST FLOW FROM THE GROUND OF APPEAL

It is noteworthy that arguments on an issue in an appeal are circumscribed by the grounds of appeal contained in the Notice of Appeal. Therefore, any argument canvassed on an issue raised in the Brief of Argument which does not find within the confines of any of the grounds of appeal goes to no issue and must be so discountenanced. I rely in this regard on the decision of this Court in the case of Okelola v Boyle (1998) 2 NWLR (pt.539)533 at 546, where it was held that:
“This Court has laid it down in a number of cases that an appeal will only be determined on issues arising out of grounds of appeal before the Court and no arguments on any issue not predicted on such grounds of appeal will be countenanced”
See also: Nsirim v Amadi (2016) 5 NWLR (pt.1504) 42 at 60 and Goke Olaolu v FRN (2016)3 NWLR (pt.1498) 133 at 157.
Flowing from the above, the lower Court was in gross error when it proceeded to countenance the arguments canvassed by the Respondent in respect of the substantive jurisdiction of the trial Court as that issue or point is not covered and/or not within the confines of any of the grounds of appeal before the lower Court.
Hence, the decision of the lower Court on the issue of the trial Court’s substantive jurisdiction being predicated on arguments which cannot find location in any grounds of appeal cannot be legally sustained and renders such decision liable to be set aside. PER MARY UKAEGO PETER-ODILI, J.S.C.

THE MAIN CLAIM IN A SUIT DETERMINES WHETHER A COURT HAS JURISDICTION TO HEAR SAME

It is also well settled that where there is a claim that falls within the jurisdiction of two Courts, the Court with jurisdiction over the main claim is the proper Court to determine the matter – see Tukur V. Govt., Taraba State &Ors (1997) 6 NWLR (Pt. 510) 549 SC, and Gafar V. Govt., Kwara State & Ors (2007) 4 NWLR (Pt. 1024) 375, wherein Mohammed, JSC (as he then was) observed:
Where ancillary or incidental or accessory claim(s) are so inextricably tied to or bound up with the main claims, a Court cannot adjudicate over them where it has no jurisdiction to entertain the main claims, if such incidental or ancillary claims cannot be determined at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims. PER AMINA ADAMU AUGIE, J.S.C.

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal is against the Judgment of the Court of Appeal, holden at Lagos, delivered on the 12th of July, 2017 wherein the Court below allowed in part, the appeal lodged by the Respondent, against the judgment of the trial Federal High Court, Lagos Judicial Division.

The facts leading to the appeal reveal that by a Writ of Summons, and Statement of Claim, dated 7th September 2012, the Appellants, as Plaintiffs approached the trial Court, seeking essentially declaratory reliefs with respect to the administrative actions and decisions of the Respondent, as an agency of the Federal Government, which actions were inimical to the interest of the Appellant. The Appellants claimed against the Respondent, as follows:
1. A Declaration that the exercise of the Defendant’s power in putting the Plaintiffs’ lands into parcels and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the Defendant as required by law, is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.
2. The purported advertisement in the Nigeria Newspapers and particularly on the Guardian Newspaper of Monday April 2nd, 2012 and This day Newspaper of Monday January 31st, 2011, saying that the land belongs to the Defendant and calling for contractors, consultants for the purpose of mobilizing into the Plaintiffs’ and, without same having been first acquired by the acquiring authorities and vested same in the Defendant, is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.
3. That the Defendant is vested only with the land shown in survey plan No. LS/D/BG/63, being the only land acquired by the acquiring authorities and vested same in the Defendant, thereby excluding the Plaintiffs’ land as contained in Survey Plan Number KESH/L/1106 and dated 4th October, 1980, less by 4.107 hectare as declared by the Honourable Minister, Ministry of Lands, Works, and Housing vide their letter to the Plaintiffs’ Reference No. LA/LA/LA/447/Vol. 1/3 dated December 15th, 2010.

The Appellants, who sued in a representative capacity, for themselves and on behalf of the entire members of Kuje Amuwo Land, Amuwo Odofin Local Government Area of Lagos, are contending that the Respondent had gone beyond the land acquired by the Government, for the construction of FESTAC Town.

It is the Appellants story that sometime in 1975/76, the Federal Government of Nigeria acquired parcels of land in Amuwo Odofin Local Government Area of Lagos State for the Festival of Arts and Culture held in 1977. The said acquisition was first documented by the Federal Government in the Official Gazette No. 54, Volume 62 of 6th November 1975 and Official Gazette No. 45, Vol. 63 of 9th September 1976. The Official Gazettes were admitted in evidence as Exhibit B14. The said acquisition was also documented by the Lagos State Government in the Indenture Registered as No. 74 Page 74, Vol. 1878 of 11th May 19881 which was admitted in the trial Court as Exhibit D11. The Appellants admitted during the trial that they were duly informed of the acquisition of the land and were also adequately and promptly compensated. Under the Indenture of 11th May, 10-8B, the Federal Government was granted 2024.60 hectares of land covered by Survey No. LSD/BG/63, inclusive of the 544 Hectares in Official Gazette No. 54 and the5.940 Hectares in Official Gazette No. 45. The Survey Plan No. LSD/BG/63 was also relied on at the trial.

Sequel to the acquisition, the Appellants commissioned a Surveyor to survey the un-acquired portion of their land, which exercise resulted in Survey Plan No. KESH/L/1106. The Appellants stated that they observed that sometime in 2010, the Respondent went beyond the acquired land, and is now encroaching into the portion left for the Appellants. They stated that the Respondent put the Appellants’ family land into parcels and advertised same for sale. The Appellants stated that they took up the issue and lodged a formal complaint through a Human Rights Organization called the Forum the Promotion of Human Right and Justice (FORIGHTS) which Organization lodged a Petition vide a letter dated 13th October, 2010, with the Honourable Minister of Works and Housing which is the Parent Ministry of the Respondent, attaching to the said letter, the Appellants’ survey Plan No KESH/L/1106, and the Respondent’s survey Plan No. LSD/BG/63. The Petition lodged on behalf of the Appellants by FORIGHTS was duly investigated by the Honourable Minister of Lands, Housing and Urban Development vide an Internal Memo dated 3rd June, 2010 and the referred the Survey Plans of both parties to the Federal Unit for Charting. At the conclusion of the Charting exercise, the Appellants were informed by the Honourable Minister, via two letters (Exhibits B5 and B6) dated 19th October 2010 and 15th December, 2010 respectively, that the Appellants’ family land falls substantially outside the Government acquisitions less 0.79% that is, 4,107 Hectares, and they were enjoined by the said letters to deal freely with the un-acquired portions of their land. Notwithstanding the above, the Respondent proceeded, in excess of their powers, to put the Appellants’ family land into parcels and advertised same for sale to members of the public. This prompted the Appellants into approaching the trial Court seeking essentially to nullify the Respondent’s actions.

At the trial, the Respondent filed a Notice of Preliminary Objection by which the Respondent contended that the Trial Court lacked the jurisdiction to entertain the suit, on the basis that it is a land matter.

By its ruling, delivered on 1st November, 2013, the trial Court resolved the objection in favour of the Appellants, and held that it had the requisite jurisdiction to, try the case. In continuation of trial, some witnesses were called, one of whom is Mr. O.O. Onabanjo, (who was PW1 for the Appellants and a subpoenaed witness for the Respondent, as DW2). He gave evidence to the effect that although the two letters (Exhibits B5 and B6), stated that the Appellants’ land fell outside of the acquisition of the Federal Government, there is another Charting exercise, conducted by the Surveyor-General of the Federation, with Ref. No. HUD/LA/S5A,VOL.1/42, dated 14th February, 2011, (Exhibit D18), canceling out the earlier Charting Exercise of 11th October, 2010 and affirming that the Appellants’ land was found to fall within the acquisition by about 75%. Mr. O.O. Onabanjo (PW1/DW2) stated further that the Appellants were duly informed of Exhibit D18 and its findings vide a letter dated 5th April 2011, (Exhibit D19), which Mr. O.O. Onabanjo said he wrote himself and signed. The Appellants however contended that Exhibit D19 was not delivered to them.

After plenary trial in the suit, parties duly filed and exchanged final written addresses. In its written address, the Respondent again raised the issue of the trial Court’s jurisdiction to entertain the Appellants’ Suit. The Trial Court in its judgment held that having earlier determined that it had substantive jurisdiction to hear the suit, it would amount to sitting on appeal against its own judgment if it proceeds to determine same a second time. Based on the joinder of issues on the pleadings filed and exchanged by the parties, as well as the oral and documentary evidence adduced the trial Court entered judgment for the Appellants and granted all the reliefs they claimed.

The Respondent was dissatisfied with the judgment of the trial Court, and lodged an appeal at the Court below. In its judgment, the Court below held that the trial Court lacked the jurisdiction to try the case, and the case was struck out.

Aggrieved by this decision, the Appellants appealed to this Court and in their Amended Brief of Argument, the following three issues were raised for determination:
1. (a) Whether the lower Court was right when it failed to consider the main issue in controversy before it on the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any of appeal?
(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief in their principal claim is sustainable in law?
2. Whether the lower court was right to have made a consequential order striking out the Appellant suit?
3. Is the decision of the lower Court in dismissing the Appellants’ preliminary objection to grounds of the Respondent’s appeal, sustainable in law?

The Respondent also distilled three issues in its Respondent’s Brief of Argument. The Issues are:
1. Whether the lower Court’s decision to dismiss the Appellants’ preliminary objection was not right and perfectly sustainable in law?
2. Whether the lower Court was not right when it considered the Respondent’s issue one challenging the substantive jurisdiction of the trial Court and determined the issue in the Respondent’s favour, by holding that the trial Court lacked the substantive jurisdiction to entertain the appeal?
3. Whether the order of the lower Court striking out the Appellants’ suit was not the proper order to make having found that the trial Court lacked the substantive jurisdiction to entertain the suit?

The Respondent equally filed a Motion on Notice dated 20th January, 2020 challenging Grounds 4, 5, 6, 10, 11, 12 and 13 of the Appellants’ Amended Notice of Appeal, and prayed this Court for the following reliefs:
1. An Order of this Honourable Court striking out Grounds 6, 12, and 13 of the Appellants’ Amended Notice of Appeal dated 10th December 2019 and filed on the 12th December, 2019.
2. An Order of this Honourable Court striking out Grounds 4, 5, 10, and 11 of the Appellants’ Amended Notice of Appeal dated 10th December 2019 and filed on the 12th December, 2019
3. An Order of this Honourable Court striking out Issues 1(a) and 1(b) as well as Issue 2 of the Appellants’ Amended Brief of Argument, dated 10th December 2019 and filed on the 12th December, 2019.

The argument of learned Counsel on behalf of the Respondent, simply put, is that Grounds 5, 6, 12 and 13 are grossly incompetent, due to the fact that they represent fresh issues being raised for the first time before this Court, without leave first being sought and obtained. According to learned Respondent’s Counsel, Grounds 4, 5, 10 and 11 and their particulars are highly argumentative. He argued that instead of simply stating its complaints against the part of the judgment appealed against, the Appellants’ have constructed arguments and cited judicial authorities which have no place in the Notice of Appeal.

Learned Counsel for the Respondent maintained that the highlighted grounds of appeal being incompetent, Issues 1(a & b) and 2 distilled from the incompetent grounds of appeal are unsustainable and liable to be struck out.

He cited and relied on a plethora of authorities in aid of his stance and urged this Court to strike out the incompetent grounds of appeal, as well as Issue 1 (a) and (b), and Issue 2.

In response, it is submitted for the Appellant that the attacks of Grounds 6, 12 and 13 of Amended Notice of Appeal do not constitute fresh issues, as they are jurisdictional in nature, and therefore do not require the leave of this Court. A host of authorities were cited in aid.

On the attack that Grounds 4, 5, 10 and 11 are argumentative and therefore incompetent, learned, Senior Counsel for the Appellants submitted that the said grounds are not incompetent for merely referring to case law authorities. He posited that the Respondent has not stated that it was in any way misled by the complaints in the said grounds, relying on the case of Military Administrator of Benue State v. Ulegede (2001) 17 NWLR (Pt.741) 193 @ 312; amongst others.

It is his view that the Issues 1 (a) and (b) and 2 are competent issues, which are not in any way proliferated, and urged this Court to so hold and dismiss the Respondent’s Motion on Notice.

I have carefully examined the Motion on Notice filed on behalf of the Respondent. It appears clear to me that the main point raised in said Motion is the competence of some of the grounds/particulars of the grounds of appeal some issues formulated by the Appellants.
I have had a look at the Grounds 4 5, 10 and 11 of the Amended Notice of Appeal. I have gone through the submissions made in the matter and come to the conclusion that the attack is on the format and not the substance of appeal.
I think I must be guided on this issue by what this Court stated in the case of the Military Administrator of Benue State v. Ulegede (2001) 17 NWLR (Part 741) 193 at page 212-213, per Ayoola, JSC, that:
“Where the parties to an appeal and the Court are not misled by the contents of a ground of appeal, complaints about its form becomes a technicality which does not occasion a miscarriage of justice and is inconsequential.”

On the fact that Grounds 6, 12 and 13 constitute fresh issues for which leave must be sought for and obtained, I go along with the submissions made by learned SAN for the Appellants in his reply, that these grounds constitute jurisdictional issues for which no leave is required. I find support in several decisions of this Court that an Appellant on appeal from the Court below may not take a point which he has not taken or argued in the Court below. This is in accord with the principle that an appeal is an avenue of rehearing of the case in an appellate Court. An Appellant may however challenge the judgment of the Court below on the ground which was not decided by that Court, particularly where it has raised a substantial point of law, more so, on the issue of jurisdiction. See: Our Line Ltd v. SCC (Nig) Ltd &Ors (2009) LPELR 2833 SC.
In the instant appeal, Section 22 of the Federal High Court Act, and Section 15 of the Court of Appeal Act relied on by the Appellants in Ground 13 of the Amended Notice of Appeal, wherein they questioned the powers of the Court below to transfer the case to the appropriate State High Court; are substantial points of law, for which no leave of this Court is required.

Lastly, it was contended on behalf of the Respondent that the Appellants’ Issue 1 is incompetent, having been proliferated and is also a composition of two issues. While I agree with the submissions of learned Counsel for the Respondent that it is unacceptable and inelegant to have sub-issues in a lone issue, I however tow the line of this Court, per Tobi, JSC in Salami & Anor v. Lawal (2008) LPELR 2980), where it was held that:
“… I do not know sub-issue in a Brief. I know issue; not sub-issue. There is no provision in Order 6 of the Supreme Court Rules for sub-issues. I shall therefore take as sub-issues as part of the main Issue.”
Accordingly, Issue 1 (a) & (b) are taken as one whole issue and are therefore not proliferated.

Based on the foregoing, the Respondent’s prayers in its Motion on Notice dated 20th January, 2020 are refused and the Motion on Notice is hereby dismissed.

The Appellant’s three issues are adopted in the resolution of this appeal.

ISSUES ONE AND TWO are taken together
Issue One
1. (a) Whether the lower Court was right when it failed to consider the main issue in controversy before it on the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any ground of appeal?
(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief in their principal claim is sustainable in law?

Issue Two
Whether the lower Court was right to have made a consequential order striking out the Appellants’ suit?

It is submitted for the Appellants that the Court below was in error to hold as it did, that the trial Court lacked the jurisdiction to entertain the case before it. Learned Senior Advocate for the Appellants argued that the Court below failed to consider the central issue upon which the Respondent’s appeal was based, but proceeded to make out another case for the Respondent.

He contended that a careful perusal of the Respondent’s complaint in Ground One of its Notice of Appeal and its Issue one raised therefrom, would reveal that the issue of jurisdiction Court below, are separate and distinct from the grounds upon which the earlier challenge to the jurisdiction of the trial Court was brought.

It is the view of Learned Silk that main issue in controversy before the Court below was not the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit, but against the subsequent decision of the trial Court, that it would amount to sitting on appeal against its own decision, ifit decides again on the issue of its jurisdiction, having done so at the interlocutory stage.

He opined that the Court below was in error to have countenanced the arguments of Counsel on the substantive jurisdiction of the trial Court, as that issue was not covered and/or within the confines of any of the grounds of appeal before the Court below. He called in aid the following cases, amongst others:
Nsirim v. Amadi (2016) 5 NWLR (pt. 1504) 42;
GokeOlaolu v. FRN (2016) 3 NWLR (Pt. 1498) 133;
Okelola v. Boyle (1998) NWLR (Pt. 539) 532

He maintained that the law is settled that an appeal is determined on the basis of issues traceable to the grounds of appeal contained in the Notice of Appeal and any determination of an appeal on arguments and issues outside the grounds of appeal amounts to a nullity citing the case of Comptroller, Nigeria Prisons Services & Ors v. Adekanye (2002) 15 NWLR (Pt. 790) 318.

Learned SAN posited that the decision of a Court which is not on the central issues canvassed by the parties before it (as done by the Court below in the instant case), cannot be sustained in law. He placed reliance on the case of Oguebego v. PDP (2016) NWLR (Pt. 1503) 446 at 483.

He noted that the decision of the Court below that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit, was premised on its findings that the Appellants’ Relief three, as sought in Paragraph 36 of their Statement of Claim, is their principal claim, adding that such finding of the Court below, is wrong, unsupportable by the records of appeal and unsustainable in law. He invited the attention of this Court to the Writ of Summons and the Statement of claim of the Appellants, while relying on the case of Aniakor v. Nigeria Police Force (2014) 15 NWLR (Pt. 1429) 155 at 174, amongst others.

Learned Silk posited that by the tenor of the 3rd Relief the Appellants are seeking to give effect to the letters dated 19th October 2010, and 15th December 2010 wherein the Parent Ministry of the Respondent determined the extent of the portions of the Appellants’ land which remained un-acquired and the portions subject to the acquisitions carried out vide Gazette Nos: 54, Vol. 62 of 6th November 1975 and 45, Vol. 63 of 9th September, 1976.

According to Learned SAN, the3rd Relief sought by the Appellant is in no way a declaration of title to land; neither is it a trespass claim, but simply a relief for effect to be given to an administrative decision of a parent ministry of the Respondent, whose administrative and executive action in respect of the Appellants’ land, is the subject of the Appellants’ suit.

He argued that whilst Courts are entitled to consider the reliefs sought by a party for the purpose of determining the principal relief, this Court in Ekagbara & Anor v. Ikpeazu &Ors (2016) 4 NWLR (Pt. 1503) 411, held that in determining a party’s principal relief, due regard must be had to the facts upon which those reliefs are predicated, as contained in the Statement of Claim, as the reliefs do not exist on their own but are a product of the facts giving rise to them.

He submitted that by the facts copiously pleaded in the Appellants’ Statement of Claim, the 3rd Relief sought by the Appellants is not their principal relief, insisting that since Reliefs one and two can gallantly stand on their own and can be determined in the absence of Relief three, then Relief three cannot be the principal relief to divest the trial Court of the jurisdiction to entertain the Appellants’ suit.

Learned Senior Counsel stated that Reliefs one and two, being the principal reliefs sought by the Appellants, the trial Court, by virtue of Section 251(1)(r) of the 1999 Constitution, as amended, had the jurisdiction to entertain same. He drew the attention of this Court to the decision in NPA v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62, where it was held that the administrative acts of an Agency of the Federal Government is within the purview of Section 251(1)(r) of the 1999 Constitution, as amended. He referred also to Sections 4(1)(b) & 10(1) and (2) of the Federal Housing Authority Act, Cap F14, LFN 2004.

It is the opinion of Learned SAN that the cases of Ademola v. Adetayo (2010) LPELR 155; Dosumu v. NNPC (2013) LPELR 20655 and Pan-Ocean v. Mene-Okotie (2015) LPELR 25128, relied on by the Court below in arriving at its conclusion that the trial Court had no jurisdiction to entertain the Appellants’ suit, are all misplaced, and distinguishable from the case at hand, because the facts in those cases are not in my way similar to the issues in thiscase.

In conclusion, he urged this Court to hold that the trial Court had the substantive jurisdiction to entertain the Appellants’ suit, and resolve this issue in favour of the Appellants.

On whether the Court below was right to have made a consequential Order striking out the Appellants’ suit, it is contended for the Appellants that the consequential order was wrong. According to learned Silk, by the provisions of Section 22 of the Federal High Court Act, the Federal High Court is empowered to transfer a case, where it finds that it is without subject matter jurisdiction to hear same, to the appropriate High Court of a State. He relied on the case of Braithwaite v. S.C.B (Nig) Ltd (2012) 9 NWLR (Pt. 1305) 304 at 323.

He urged this Court to hold that the Court below, having held that the trial Court had no jurisdiction to entertain the Appellants’ suit, (which is not conceded), it ought not to have struck out the Appellants’ suit, but transferred same to the appropriate State High Court with the jurisdiction to determine the case.

In its response to the above, it is argued on behalf of the Respondent that all the submissions of the Appellants on the issue that there was no ground of appeal at the Court below, challenging the substantive jurisdiction of the trial Court to entertain the Appellants’ suit, misconceived and not borne out of the Records before the Court

Learned Respondent’s Counsel contended that the issue of jurisdiction can be raised at any time even for the first time on appeal and there must not be a specific ground challenging the jurisdiction of the Court in issue. He maintained that the issue of jurisdiction being so pivotal in the adjudication of cases, can even be raised viva voce Reliance was placed on a host of authorities, including: Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 5 NWLR (Pt. 244) 675, where it was held that jurisdictional issues can be raised at any time, at whatever stage, by any means, even orally in open Court.

He maintained that the central issue of the Appellants’ arguments is whether or not the trial Court had the jurisdiction to entertain the Appellants’ suit and based on all the judicial authorities, the Court below was right to hold that the trial Court had no substantive jurisdiction to entertain the suit of the Appellants.

On the issue that Relief three is not the principal claim, it is the view of learned Counsel for the Respondent that decision of the Court below that the said Relief three is the principal relief is incontrovertible. According to learned Counsel, Relief three is the foundation upon which the other two reliefs are hinged because it is only after the Court has granted Relief three, that the Court can now reach the decision whether the actions of Respondent (covered by Reliefs one and two) are/is illegal, null and/or void. He called the attention of this Court to Paragraphs 4, 17, 18, and 20 of the Appellants’ Statement of Claim and maintained that a detailed look at the averments contained therein all point to the fact that the relief sought by the Appellants is a declaration of entitlement of the land covered by Survey Plan No. KESH/L/1106.

It is his further contention that Reliefs one and two cannot stand on their own, as argued by the Appellants, as the said reliefs can only stand to be considered, after a determination that it is the Appellants, and not the Respondent, who are entitled to the land covered by Survey Plan No. KESH/L/1106 thus the Court below was right to hold, as it did, that the Relief three is the principal relief sought by the Appellants.

Relying on the case of James v. INEC (2015) 12 NWLR (Pt. 1474) 538 at 583-584, learned Respondent’s Counsel concluded by submitting that the Court below took an overview of the Appellants’ case and rightly held that the subject matter before the trial Court, being the Appellants’ entitlement to the land in issue, the trial Court lacked the jurisdiction to adjudicate over the Appellants’ case.

He therefore urged this Court to so hold, and resolve this issue against the Appellants,

In reply, learned SAN for the Appellants posited that though the issue of jurisdiction can be raised at any time and that there is no law known in the Nigerian legal system that delimits when and how jurisdictional issues can be raised by a party there have been numerous decisions of this Court to the effect that the fact that the issue of jurisdiction can be raised at any time, does not mean that the rules of Court and procedure would be dispensed with once the issue of jurisdiction is raised. He placed reliance on these cases:
Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42 at 60-61;
Oshatoba v. Olujitan (2000) NWLR (Pt. 655) 159 at172
He again urged this Court to allow the appeal.

The case of the Appellants herein, in a nutshell, is that the Court below was wrong to hold that the trial Court (i.e. the Federal High Court) lacked the jurisdiction to entertain, the Appellants’ suit. The Respondent, argued otherwise, contending that the principal relief sought by the Appellants fall within the jurisdiction of the State High Courts, and the Court below was on firm ground to have so held.

The arguments for and against this issue boils down to whether the Relief three of the Appellants’ claims at the trial Court, is the principal relief, to vest jurisdiction on the Federal High Court.

There is no doubt that Section 251 of the 1999 Constitution as amended, vests jurisdiction on the Federal High Court to determine cases where the agency of the Federal Government is made a party to the suit. However, the principal claims must be against such an Agency of the Federal Government, before the Federal High Court can assume jurisdiction. That in my view means that the Court has a duty to ascertain that it is the principal reliefs in the matter that is against the Federal Government or any of its agencies and not the ancillary reliefs. This, therefore, means that each case must be considered upon its peculiar facts and circumstances to determine whether a relief thereof is principal or ancillary. This Court has, in a multiplicity of its decisions, held that the fact that an action is against the Federal Government or its Agencies, does not ipso facto bring the case within the jurisdiction of the Federal High Court. The subject matter of the action must fall squarely within the jurisdiction of the Federal High Court before that Court can assume jurisdiction”
In Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 at 236 – 237, this Court held that:
“…The fact that the action was against the Respondents does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless and until other requirements of the law touching on the subject matter of the claims, is also satisfied. In other words, the subject matter of the action must fall squarely within the jurisdiction of the Federal High Court, before the Court can assume jurisdiction in a case against the Federal Government or any of its agencies.”
Similarly, in Rahman Brothers v. NPA (2019) LPELR 46415 SC, this Court posited that:
“It is settled law that the question of jurisdiction is fundamental and crucial to adjudication and that the very fact of its absence automatically results in a nullity of proceedings no matter how well conducted. It is for the above reason that it is further settled law that when raised in a proceeding, it must be specifically dealt with and resolved. There is no doubt that respondent/cross-appellant is a Federal Government Agency but it is the contention of learned senior counsel for respondent/cross-appellant that the status of the said respondent/cross-appellant as a Federal Government Agency, without more, does not confer the requisite jurisdiction on the Federal High Court to hear and determine the action as constituted particularly as the cause of action as before the trial Court is grounded on negligence and landlord and tenant relationship… Once again I have to repeat that thought… the Respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court, exercise its jurisdiction unhindered”

The learned Justices of the Court below examined Reliefs 1, 2, and 3 of the Appellants, and concluded as follows:
“The parties are agreed on the hornbook legal position that jurisdiction is determined by the claim endorsed on the writ of summons and statement of claim. in ONUORAH vs. KPRC LTD (2005) LPELR (2707) at 15, Tobi, JSC stated: The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.” In order to ascertain if the lower Court had jurisdiction to entertain the reliefs claimed by the Respondents, I will hereunder reproduce again the reliefs claimed to seeif they can be pitchforked into enumerated jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution. The Respondents claim the following reliefs:
1) The exercise of the defendant’s power in putting the Plaintiff’s lands into parcels and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the defendant as required by law is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.
2) The purported advertisement in the Nigeria Newspapers and particularly on the Guardian Newspaper of Monday April 2nd, 2012 and Thisday Newspaper of Monday January 31st, 2011 saying that the land belongs to the defendant and calling for contractors, consultants for the purpose of mobilizing into the plaintiffs land, without same having been first acquired by the acquiring authorities and vested same in the defendant is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.
3) That the defendant is vested only with the land shown in survey plan No. LS/D/BG/63 being the only land acquired by the acquiringauthorities and vested same in the defendant, thereby excluding the Plaintiff’s land as contained in survey plan number KESH/L/1106 and dated 4th October, 1980, less by 4.107 hectares as declared by the Honourable Minister, Ministry of Lands, Works, and Housing vide their letter to the Plaintiffs reference No. LA/LA/LA/447/Vol. 1/3 dated December 15th, 2010. Once again, I restate that the Respondents do not challenge the acquisition of the land by the Government. Furthermore, I iterate that the principal relief claimed is the third relief. I say so because it is upon the declaration sought therein having made in favour of the Respondents that the action of the Appellant can be held to be in respect of land which had not been acquired. Doubtless, the Respondents have elegantly and carefully worded and couched the reliefs they claim, but the paramount consideration is not in the verbiage employed but true purport and effect of the relief. This is what constitutes the actual relief claimed. At the risk of being prolix, it is effulgent that from the totality of the averments in the Statement of Claim, the Respondents do not complain about the acquisition of their land by the Government. Their case is that the land on which the Appellant is plotting out and attempting to sell is not part of the land that was acquired. So in their carefully worded relief, they claim a declaration that the said land is not part of what was acquired. Ingenious no doubt, but it has a halo that is not ingenous. The Respondent’s case is that from time immemorial and in accordance with Yoruba Customary Law of inheritance, they are the original owners of the land acquired for purposes of building Festival Village (FESTAC Town) and the land behind it, which was not subject of the acquisition. They claim that the Appellant has been encroaching on part of their land which was not acquired by Government and seeking the declaration that, that said land is not part of what was acquired. In simple and plain language the relief number three is a declaration that the disputed land is not part of what was acquired by the Government and that it remains the land owned by the Respondents from time immemorial. In spite of the dexterity in wording the relief to mask the true purport of the relief claimed, the action, in pauciloquent terms, is a land matter.

After a thorough reading of the Appellants’ reliefs in their Amended Statement of Claim, I align myself with the position taken by the Court below that the principal claim/relief of the Appellants herein, is their Relief three, which is that the Respondent has been encroaching on part of their land which was not acquired by Government and seeking the declaration that, that said land is not part of what was acquired. I agree with the learned Justices of the Court below that the Relief number three is a declaration that the disputed land is not part of what was acquired by the Government and that it remains the land owned by the Respondents from time immemorial, making the case of the Appellants, in simple terms, a land matter.
Having stated that it is the magnitude of a relief that would determine whether such a relief ought to be classified as principal or ancillary and in addition, I agree also with the submissions put forward by the Respondent herein, that Relief three, is the most important relief sought by the Appellants, being the foundation upon which the other two reliefs are built. It is after a determination by the Court, of whether the Respondent is vested with the land shown in Survey Plan Number KESH/L/1106, that the Court can reach the decision whether or not the actions of the Respondent, in putting the said lands into plots and selling it off, was/is illegal, null and void.
I therefore find and hold that Reliefs 1 and 2 of the Appellants’ Amended Statement of Claim are ancillary reliefs, while Relief 3, is the principal relief and therefore outside the jurisdiction of the trial Court by virtue of Section 251 (1) (p), (q) and (r) of the 1999 Constitution, as amended.
The Court below was therefore right when it held that the Trial Court lacked jurisdiction to grant the Reliefs claimed by the Appellants.

The next hurdle before this Court is to determine whether the Court below was right to have made a consequential order striking out the Appellants’ suit?

Generally, where a Court rules that it lacks jurisdiction to adjudicate on a matter, the order for it to make is to strike out the suit. However, where rules of Court provide for a transfer of such a matter, the Court should not strike out the suit but should transfer it to Act.”
the appropriate Court.

The Federal High Court Act, which govern the proceedings in the trial Court has given power to a Judge of the Federal High Court, who holds that the Court has no jurisdiction, rather than striking out a case before it for want of jurisdiction, to transfer the case to the appropriate State High Court for determination. In the instant appeal, Section 22(2) of the Federal High Court Act, is most apposite. It provides that:
“No cause or matter shall be struck out the Court merely on the ground that such cause or 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 of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act Applying the above principle, this Court held in Braithwaite v. Standard Chartered Bank Nig. Ltd (2012) 9 NWLR (Pt. 1305) 304 that:
“Where a Judge of the Federal High Court holds that it has no jurisdiction, he can transfer the matter to the appropriate State High Court or of the Federal Capital Territory, Abuja.”
It is therefore clear that the Court below had no discretion to strike out the matter. The only option open to it was to order a transfer of the matter to the appropriate High Court of the State with jurisdiction.

Accordingly, I hold that this appeal succeeds in part, and it is therefore allowed in part.

In the circumstance, I hereby order that the casefile be transferred to the Chief Judge of the Lagos State High Court to be assigned to any Judge in the Lagos State High Court for accelerated hearing.
I make no order as to Cost.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother; Abdu Aboki, JSC and to register the support in the reasonings from which the decision I shall make some comments,

This appeal is against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Tijjani Abubakar JCA (as he then was), Yargata Byenchit Nimpar, Ugochukwu Anthony Ogakwu JICA, delivered on the 12th day of July, 2017. By the said judgment, the Court below allowed in part the appeal lodged by the respondent against the decision contained in the judgment of O.E. Abang J. of the Federal High Court, Lagos delivered on 29th February, 2016, with the lower Court holding that the trial Court lacked the jurisdiction to entertain the appellant’s suit and consequently setting the decision of the trial Court and replaced some with an order striking out the suit filed by the appellant,

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The background facts leading to this appeal are well set out in the lead judgment and no useful purpose would be derived repeating them except when circumstances warrant a reference to any part thereof.

On the 10/1/2022 date of hearing, learned counsel for the appellants, Chukwudi Enebeli Esq adopted the Amended brief of argument filed on 12/12/2019 and a Reply brief filed on 27/2/2020. He raised three issues for determination, viz:
1. (a) Whether the lower Court was right when it failed to consider the main issue I controversy before it on the effect of the trial Court’s ruling of 1st November, 2013 on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any ground of appeal challenging same?
(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief is their principal claim is sustainable in law?
2. Whether the lower Court was right to have made a consequential order striking out the Appellants’ suit? (Ground 13 of the amended notice of appeal dated 10th December, 2019)
3. Is the decision of the lower Court in dismissing the Appellants’ preliminary objection to grounds of the Respondent’s appeal sustainable in law?
(Grounds 1, 2, 3 and 4 of the amended notice of appeal dated 10th December; 2019,

Learned counsel for the respondent, Ademola Adesina Esq adopted the brief of argument filed on 21/1/2020 and distilled three issues for determination as follows:
1. Whether the lower Court’s decision to dismiss the appellants’ preliminary objection was not right and perfectly sustainable in law (Grounds 1, 2, 3 and 4 of the appellants’ Notice of Appeal)
2. Whether the lower Court was not right when it considered the respondent’s issue one challenging the substantive jurisdiction of the trial Court and determined the issue in the respondent’s favour by holding that the trial Court’s lacked the substantive jurisdiction to entertain the suit? (Grounds 5, 6, 7, 8, 9, 10, 11, 12 and 14 of the Appellants’ Notice of Appeal),
3. Whether the order of the lower Court striking out the Appellants’ suit wasnot the proper order to make having found that the trial Court lacked the substantive jurisdiction to entertain the suit (Grounds 13 of the Appellants’ Notice of Appeal).

I shall make use of Issues 2 and 3 of the Appellants as they cover the grounds in contention in this appeal.

ISSUES 2 & 3
2. Whether the lower Court was right to have made a consequential order striking out the appellants’ suit.
3. Is the decision of the lower Court in dismissing the appellants’ preliminary objection to grounds of the respondent’s appeal sustainable in law.

Learned counsel for the Appellants approached their position along the lines below captured in bullet point forms as follows:-
a. The lower Court, failed to take into cognisance the subsisting ruling of the trial Court on the 1st of November, 2013 that it has substantive jurisdiction to determine the Appellants’ suit and its binding effect on the Respondent
b. The lower Court failed to consider the specific complaint of the Respondent but made out a case for the Respondent by proceeding to determine the issue of the substantive jurisdiction of the trial Court when there wasno ground of appeal challenging same,
c. The Appellants’ reliefs 1 (one) and 2 (two) in their Statement of Claim can be determined without any recourse to relief 3 (three) sought by the Appellants.
d. By virtue of Section 251(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the trial Court had substantive jurisdiction to determine the Appellants’ suit being a claim for declaration affecting the administrative and executive decision and action of the Respondent which is a Federal Government Agency.
e. The Appellants’ claim is not a land matter but is in pauciloquent term a challenge of administrative and executive action of the Respondent.
f. The decision in the cases of Ademola v Adetayo (supra), Dosumu v NNPC (supra) and PAN-Ocean v Mene Okotie (supra) relied on by the lower Court are inapplicable to the facts of this case.
g. By virtue of Section 22 of the Federal High Court Act, Cap. F14, Laws of the Federation of Nigeria, 2004 the lower Court ought to have transferred the Appellants’ suit to the Lagos State High Court rather than its consequential order striking out the Appellants’ suit
h.Grounds 1, 2, 12, 14, 15 and 18 of the Respondent’s Notice of Appeal at the lower Court being based on non-existent and false premise are incompetent and liable to be struck out.
i. The particulars of grounds 4, 5, 6, 11 and 115 of the Respondent’s Notice of Appeal at the lower Court are patently disconnected from and do not flow from the said grounds by reason of which the grounds have been rendered incompetent.
j. Ground 13 of the Respondent’s Notice of Appeal at the lower Court being argumentative and consisting legal conclusions is incompetent.

Many judicial authorities were cited in support of those views.

The contrary position of the Respondent are captured hereunder, thus:-
i. The Appellants’ Grounds 4, 6, 10, 11, 12 and 13 of the Appellants; Notice of Appeal, as well as urging this Honourable Court to strike out Issues 1(a) and (b) are incompetent and liable to be struck out.
ii. The lower Court was right to strike out the Appellants’ preliminary objection to the Respondent’s appeal.
iii. The question of whether the issue of jurisdiction raised in the final address was the same as the issue of jurisdictionmade during proceedings which lead to the ruling of 1st November 2013 was/is irrelevant to the determination of the question of whether the trial Court possessed the requisite jurisdiction to entertain the suit.
iv. The lower Court rightly held that the Court locked the substantive jurisdiction to entertain the suit, as the subject matter, was predicated on land and the entitlement of the Appellants thereto.
v. The order of the lower Court striking out the suit was/is the proper order to make, having held that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit and give the judgment on appeal.

Numerous judicial authorities were cited by counsel for the respondent, which would be brought to light later.
1. Ugwu v State (2013) 14 NWLR (pt. 1374) 257 at 281
2. Ameen v Amao (2013) 9 NWLR (pt. 1358) 159 at 170-171.
3. Ngere v Okuruket (xiv)(2014) 11 NWLR (pt. 1417) 147 at 177.
4. Leeds Presidential Motel v. B.O.N. Ltd (1998) 10 NWLR (pt.570) 353 at 390-391.
5. Ohakim v. Agbaso (2010) 19 NWLR (pt.1226) 172 at 236-237.
6. James v INEC (2015) 12 NWLR (pt.1474) 538 at 583-584<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

7. Obi v INEC (2007) 11 NWLR (pt. 1046) 565 at 629

RESOLUTION
The grouse of the Appellants against the decision of the Court below when it held that the trial Court lacked substantive jurisdiction to entertain and determine the Appellants’ suit as the lower Court proceeded on its own tangent to determine an issue not borne out from any direct distilled from the grounds before it and left unattended the main issue before it.

Indeed, a careful look at the Respondents’ complaint in Ground one of its Notice of Appeal at the Court below in relation to the substantive jurisdiction of the trial Court reveals that the Respondent’s grievance against the decision of the Court of first instance is that it failed to resolve the issue of the trial Court’s substantive jurisdiction raised in issue 1 of its final written address on the basis that it had earlier determined the issue in an earlier objection filed by the Respondent.

For a fact, the failure of the lower Court to determine the issue to whether it was the same objection earlier decided by the trial Court that was subsequently raised by the Respondent in itself is fatal to the judgment of the Court below because it ignored the principle well laid out that:
(i) A decision of a Court on an issue is subsisting and binding on the parties until it is set aside,
(ii) Argument on an issue in an appeal is circumscribed by the grounds of appeal, and
(ii) A Court is duty bound to consider all issues validly raised before it

It is now trite in law that a decision of a Court of law on an issue is binding on the parties before the Court unless it is set aside. See the cases of APGA v Anyanwu &Ors (2014) 4 SCM 126 at 149 and Kubor&Ors. V Dickson &Ors (2012) LPELR-9817(SC). To say it in loose terms, with the greatest deference to the learned Justices of the lower Court, what the lower Court simply did was to revivify the decision of the trial Court, same which is subject of an abandoned appeal (and not subject of the appeal before the lower Court) and which the trial Court had rightly held is a chip of the block and an issue brought against by the Respondent of the final address state.

The trial Court had by a ruling delivered on the 1st of November, 2013 determined that it had substantive jurisdiction to entertain theAppellants’ suit. The appeal of the Respondent at the lower Court was not against the subsequent decision of the trial Court in the final judgment that it had earlier determined the issue of its own decision (on an issue already determined by it) if it proceeds to adjudicate on the issue again,

Without considering the exact purport of the complaint of the Respondent against the final judgment of the trial Court and without any regard for the subsistence of the ruling of the trial Court on 1st November, 2013 which was not the appeal before the lower Court, the lower Court jumped the gun and proceeded to determine that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit and unwittingly set aside and overruled a decision not on appeal before it. Clearly, a miscarriage of justice ensued thereby.

There is a bounden duty on a Court of law to considerall issues validly raised before it and a failure to so consider any of such issues constitutes in itself a breach of fair hearing. See the cases of F.M.H. v. C.S.A Ltd (2009) 9 NWLR (pt.1145)193 at 220-221, and Garba v Mohammed (2016) 16 NWLR (pta1537) 114 at 162,

In the instant appeal, the bone of contention between the parties with respect to substantive jurisdiction was whether it was the same issue of substantive jurisdiction which had been determined by the trial Court that was raised again by the Respondent in its Final Written Address as to prevent the trial Court from determining the issue, again. Rather than decide upon this issue which was validly raised and in contest between the parties, the lower Count discountenanced same as being irrelevant when that was in fact the main issue in contest.

The failure of the lower Court to determine the issue in contest has prejudiced that stand of the Appellants on the issue as they consider the Respondent bound by the earlier decision of the trial Court that it had substantive jurisdiction to entertain the Appellants’ suit, to the extent that the Appellants have been prejudiced by the failure ofthe lower Court to determine the main issue in contest between the parties.

A decision of a Court of law which is not on the central issues canvassed by the parties before the Court as was in the case in the instant appeal cannot be sustained in law. See the case of Oguebego v PDP (2016)4 NWLR (pt.1503) 446 at 483-483, where it was held that:
“The Court below, however, veered from the course set by the trial Court and took the matter to another level which clearly failed to take into consideration the main issue before the trial Court… Therefore, the Court below having left the main issue in controversy and be persuaded to dwell on the issue as to which organ of PDP has power to conduct primary, went on a frolic and cannot be allowed to stand.”

It needs be said for emphasis that it is settled in law that an appeal is determined on the basis of issue traceable to the grounds of appeal contained in the Notice of Appeal and so any determination of an appeal on arguments and issued outside the grounds of appeal amount to a nullity and cannot be allowed to stand. I place reliance on the cases of Comptroller, Nigeria Prisons Service &Ors v Adekanye (2002) 15 NWLR (pt.790) 318; Okoro v Okoro (2010)2 NWLR (pt. 1177)198 at 209.

Again of note is that since it is a jurisdictional issue that is being considered, recourse must only be had to the Writ of summons and Statement of Claim of the Appellants and nothing else. See Aniakor v Nigeria Police Force (2014)15 NWLR (pt.1429)155 at 174; Sun Ins (Nig) Plc v U.E. C.C Ltd (2015)11 NWLR (pt.1471) 576 at 598; James v INEC (2015)12 NWLR (pt.1474)538 at 584. That said, the third relief sought by the Appellants at the trial Court is reproduced as follows:
“That the defendant is vested only with the land shown in survey plan No: LS/D/BG/63 being the only land acquired by the acquiring authorities and vested same in the defendant, thereby excluding the plaintiffs’ land as contained in survey plan No: KESH/L/1106, and dated 4th October 1980, less by 4.107 hectares as declared by the Honourable Minister, Ministry of Lands, Works and Housing vide their letter to the plaintiffs’ reference No: LA/LA/LA/447 VoL1/3 dated December 15th, 2010.”

I agree with learned counsel for the appellants that by the tenor of the third relief of the Appellants reproduced above, the Appellants are seeking to give effect to the letters dated 19th October, 2010 and 15th December, 2010 wherein the parent ministry of the Respondent (i.e Honourable Minister, Ministry of Lands, Works and Housing) determined the extent of the portions of the Appellants land remain un-acquired and the portions subject of the acquisitions carried out vide Gazette Nos: 54 Vol. 62 of 6th November 1975 and 45, vol. 63 of 9th September 1976.

The third relief sought by the Appellants is not by any colouration a declaration of title to land neither is it a trespass claim but simply a relief for effect to be given to an administrative decision of the parent ministry of the Respondent whose administrative and executive action in respect of the Appellants’ land is the subject of the Appellants’ suit.

It is correct that the lower Court is entitled by settled law to consider the reliefs sought by a party for the purpose of determining what the principal relief of the party is (see the case of Cotecna Int’l Ltd. V. Ivory Merchant Bank Ltd. (2006) ALL FWLR (Pt.315) 26 at 38: Tukur v. Government of Gongola State (No.2) 1989 4(NWLR) (pt.117)517, I must however quickly add that in considering the reliefs of a party for the purpose of determine the party’s principal relief, due regard must be had to the facts upon which those reliefs are predicated as contained in the Statement of Claim as the reliefs do not exist on their own but are a product on the facts giving rise to them.
This approach was adopted by this Court in the case of Ekagbara Anor v Ikpeazu &Ors. (2016) 4 NWLR (pt.1503) 411 where in determining what the principal relief of the Appellant was in that case for the purpose of ascertaining the trial Court (i.e the Federal High Court) had jurisdiction to entertain same, this Court examined the facts upon which all the reliefs in that case were sought and came to the conclusion that the Federal High Court had jurisdiction to entertain same.

Clearly in the case at hand, the lower Court in arriving at its decision that the trial Court lacked substantive jurisdiction to entertain the Appellants’ suit did not take into cognisance the facts pleaded in the Appellants’ statement claim. This is because the facts copiously pleaded in that statement of claim in the third relief above quoted, is not the principal relief but was a relief sought to give effect in what the parent ministry of the Respondent had already determined to be the position of the parties with regard to the appellants’ land.

A calm and careful perusal of paragraphs 20 to 36 of the Appellants’ Statement of Claim shows that the basic aim of the Appellants’ suit is to challenge the administrative action of (the Respondent as the agency of the Federal Government charged with the responsibility of providing housing and custodian of the compulsorily acquired portions of the Appellants’ land in appropriate the Appellants’ land which has not been acquired or did not form part of the acquisitions carried out vide Gazette Nos: 54, Vol.62 of 6th November, 1975 and 45, vol.63 of 9th September 1976.

Contrary to the conclusion reached by the lower Court that the Appellants sought a declaration of title to land as against the Respondent and/or trespass, albeit erroneously, the Appellants’ claim was basically that the Respondent did not possess the power to appropriate their land without any valid acquisition of same by the competent authority entitled by lawto do so. Hence the Appellants sought in reliefs 1 and 2 of their Statement of Claim as follows:
a. The exercise of the defendant’s power in putting the plaintiffs’ lands into parcels, and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the defendant as required by law is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.
b. The purported advertisement in Nigeria Newspapers and particularly on Guardian Newspapers of Monday April 2nd, 2012 and Thisday Newspaper of Monday 31st, 2011, saying that the land belongs to the defendant and calling for contractors and consultants for the purpose of mobilising into the plaintiffs’ land, without same having been first acquired by the acquiring authorities and vested same in the defendant is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.

The relevant question that therefore comes to mind here is whether reliefs one and two in the light of the facts pleaded in the Statement of can be determined in the absence of relief three. My answer to the question isin the affirmative and therefore that reliefs one and two can definitely stand firmly on their own as the facts presented in the Statement of Claim support the premise upon which those reliefs were based,

It follows that within the framework and parameter of the entire facts pleaded in the Appellants’ Statement of Claim, relief one and two sought by the Appellants can be determined without any recourse to the determination of relief three which from the facts pleaded in the Statement of Claim had been determined. At best, relief three was at best sought at the trial Court as a surplusage and cannot therefore be rightly said to be the principal relief as to divest the trial Court of the jurisdiction to entertain the Appellants’ suit.

Learned counsel for the Appellants contended that reliefs one and two of the Appellants can stand on their own and this trial Court with substantive jurisdiction to entertain as Section 25(1)(p),(q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) applicable, to vest the Federal High Court with jurisdiction.

It seems to me at this point that it is necessary to have seek help to the facts leading to where we are now in order to bring to light, whether or not the Federal High Court or the trial Court has the jurisdiction in the case at hand.

Sometime in 1975 and 1976, the Federal Government acquired parcels of land in the Amuwo Odofin Local Government Area of Lagos State for the Festival of Arts and Culture held in 1977. The said acquisition was first documented by the Federal Government in the Official Gazette No.54, Volume 62 of 6 November, 1975 and Official Gazette No.45, Vol.63 of 9th September, 1976. The Official Gazettes were admitted in evidence as Exhibit B14. The said acquisition was also documented-by Lagos State in the Indenture Registered as No.74 page 74 Vol.1878 of 11th May 1988, which was admitted in evidence as Exhibit D11. The Appellants admitted during the trial that they were duly informed of the acquisition of the land and were also adequately and promptly compensated. Under the Indenture of 11th May 1988, the Federal Government was granted 2024.60 hectares of land, covered by Survey No: LS/D/BG/63, inclusive of the 544 Hectares in Official Gazette No.54 and the 5.940 Hectares in the Official Gazette No.45. The survey plan no LS/D/BG/63 (was also copiously pleaded and relied on by the Appellants as Plaintiffs before the trial Court.

Further to the acquisition, the Federal Government through the Federal Ministry of Lands, Housing and Urban Development took possession of the entire land area covered in the survey plan and the ministry has been in possession of same since then. After the completion of the festival the ministry handed over the land in question to the Appellants to manage. It is important to repeat that the Appellant have been in possession and control of the land in question since the acquisition, without interference; let or hindrance from anyone

Sometime in 2010, the Appellants engaged the services of an entity called the Forum FOR THE Promotion of Human Rights and Justice to secure the release of some portions of the unused land under the control of the Respondent. As a result of the instructions of the Appellants, the said Forum wrote a letter dated 13th April, 2010, titled “Application for the Release of Unused Land Measuring 508-152 hectares at FESTAC Town.” The said letter was admitted in evidence as Exhibit B9. The letter was received by one Mr. O.O. Onabanjo, a Director of Lands in the Federal Ministry of lands, housing and Urban Development- (who gave evidence as PW1 on behalf of the Appellants, and then as a subpoenaed witness for the Respondent as DW2). The said Mr. O.O. Onabanjo also gave evidence that further to a charting exercise which was conducted by the Surveyor General of the Federation and conveyed to his department in a letter with Ref: No. HUD/LA/S5A/VOL.1.22 dated 11th October, 2010, the issued letters dated 19th October, ‘2010 and 15th December, 2010, to the Forum, stating that by Survey Plan Kesh/L/1106 dated 4th October, 1980 (Exhibit B13), the Appellants’ land falls outside of the portion acquitted by, the Federal Government. Those letters of 19th October, 2010 and 15th December, 2010 which were entered into evidence as Exhibits B5 and respectively, are the foundation upon which the Appellants have situated their case that the land being claimed falls outside of the acquisition and their claim to the declaratory reliefs sought.

The Respondent as Defendant before the trial Court opened its case call two (2) witnesses, i.e. Mr. James B. Odegbero (DW1), and applied that a Subpoenabe issued against the earlier mentioned Mr. O.O. Onabanjo further to which he gave evidence as DW2 and deposed to a witness statement on oath on 18th November, 2014, Mr. O.O. Onabanjo (PW1/DW2) gave evidence that although the two letters, that is Exhibits B5 and B6, stated that the Respondent’s land fell outside of the acquisition of the Federal Government, there is another (and indeed latter in time) charting exercise conducted by the Surveyor General of the Federation, with Ref No: HUD/LA/S5A/VOL.1/42 dated 14th February, 2011 well before the institution of the case, cancelling the earlier charting exercise of 11th October, 2010, and affirming that the Appellants’ land was found to fail within the acquisition by about 75%. The charting of 14th February 2011 referred to above was entered into evidence as Exhibit D18. The said PW1/DW2 further stated that the Appellants were duly informed of Exhibit D18 and its findings, vide a letter dated 5th April 2011, which was duly entered into evidence as Exhibit D19, which he said he himself wrote and signed.

DW1 gave evidence to the effect that the land fell substantially within the acquisition and tendered documents onbehalf of the Appellant, particularly Exhibits D17, D18 and D19. Also, it is worth mentioning at this juncture that throughout the trial, the Appellants never objected to the subpoena issued on Mr. O.O. Onabanjo neither did they object to his giving evidence on behalf of the Respondent. Furthermore, the authenticity and/or truthfulness of his evidence was never impugned by the Appellants, neither did they object to or challenge the veracity of any of the documents tendered by DW1. The Appellants’ only contention at trial was that Exhibit D19 was not delivered to them.

In its final address before the trial Court, the Respondent, raised the issue of the trial Court’s jurisdiction to entertain the Appellants’ suit. For ease of reference, the said issue is reproduced below:
“Whether in view of the pleadings of the parties, testimonies of the witnesses and the exhibits tendered at trial, this Honourable Court has jurisdiction to hear and determine this suit.”

The Respondent went to argue that the trial Court lacked the substantive/subject matter jurisdiction to entertain the Appellants’ suit. In its judgment the trial Court held that theRespondent’s issue on substantive jurisdiction was abuse of Court process and thus incompetent/not properly raised in accordance with due process. The. trial Court eventually resolved all the jurisdiction issues raised by the Respondent against the Respondent, and held that:
“I have jurisdiction to entertain this suit”

The trial Court also made several findings in the substantive suit on its journey to giving judgment in favour of the Appellants herein. Being dissatisfied with the said judgment, the Respondent filed Notice of Appeal dated 29th April, 2016 raising 19 grounds of appeal.

As Appellant before the lower Court, the Respondent filed its brief of argument wherein the issue of the trial Court’s substantive jurisdiction was again raised and argued as predicated on Grounds 1, 2, 3, 4, 5, 6, 7 and 9 of the of the Notice of Appeal Court. The Respondent also raised 3 other issues wherein it challenged the substantive findings and resolutions of the trial Court.. The lower Court delivered its judgment on 12th July, 2017 and wherein it resolved the point of the trial Court’s substantive jurisdiction under issue 1 against the Appellants hereinand struck out the case. It is against that part of the judgment of the lower Court that the Appellants have now appealed to the Supreme Courts

The Appellants contend forcefully that the lower Court was wrong in holding that the trial Federal High Court lacked jurisdiction to try and determine the matter. The Respondents disagreeing hold the view that the reliefs sought are within the State High Court and not within the jurisdictional domain of the Federal High Court.

I shall quote the lower Court thus:
“indubitably, the subject matter of the Respondent’s action was not within the jurisdictional competence of the lower Court. The lower Court was wrong when it proceeded to exercise jurisdiction in the matter. The action being a land matter, it is the State High Court that is imbued with jurisdiction. Where like in this instance a Court proceeds to exercise jurisdiction when it has no jurisdiction, the entire proceedings are a nullity as the want of jurisdiction is extrinsic to the adjudication. Where a Court does not have jurisdiction the proper order to make is an order striking out the case. See Adesokan v. Adetunji (1994) 6 SCNJ 123 andAdelekan v. Ecu-line NV (2006) 5 SC (Pt.II) 32. This prong of the attack on the competence of the action, a fortiori the jurisdiction of the lower Court is upheld. The subject matter of the action is not within the jurisdiction of the Federal High Court. The Respondents’ action Suit No: FHC/L/CS/1065/2012 is hereby struck out for want of jurisdiction.”

The stance of the Respondent is that the arguments of the Appellants on the principal claim has nothing to do with the resolution of whether the trial Federal High Court has jurisdiction or not. The point on the jurisdictional status of the suit would be fully examined. In the case of Cotecna Int’l Ltd v: IMB Ltd (2006) 9 NWLR (Pt.985) 275 at 291, this Court, per Niki Tobi, JSC while trying to discern which relief was principal and which was ancillary, held that:
“In matters such as this, the Court must be involved in measuring the reliefs with a view to finding out where the pendulum tilts. Measuring from the baseline to where the pendulum tilts, will give a rough arithmetical answer to the Court in terms of whether the relief is principal or ancillary.”

Now the Black’s Law Dictionarydefinition of the word ‘principal’ in the context of the description of a relief as being the “Chief”, “Primary” and/or the “Most Important” relief. The Status of such a relief depicts that it is the relief upon which all other ancillary and consequential reliefs are claimed. The above is the basis for the trite principle of law that where a principal/most important reliefs fails, all reliefs ancillary thereto must fail. See Alao v. Akano (1988) 1 NWLR (Pt.71) 431. It therefore follows that where a Court lacks the jurisdiction to grant a principal relief, that Court will also lack the jurisdiction to entertain and/or grant any ancillary reliefs.
Applying the above to this present case, it can be seen that the lower Court’s pronouncement that relief 3 is the principal relief is incontrovertible and unassailable. This is because relief is the most important relief sought by the Appellants herein, it is the foundation upon which the Appellants’ other two reliefs are built. The law is trite that you cannot put something on nothing and expect it to stand. See Sken Consult v. Ukey (1981) 1 SC 6 at 27 and Macfoy v. UAC (1962) AC 152. Inthis instance, even if the Appellants’ arguments that relief 1 and 2 seek to quash/nullify the so called ‘administrative actions of the Respondent as a federal government agency’ are right those two reliefs can only be granted by the trial Court, the lower Court or this Court after a determination and in fact a grant of relief 3 which is to the effect that:
“That the defendant is vested only with the land shown in survey plan No: LS/D/BG/63 being the only land acquired by the acquiring authorities and as contained in survey plan No: KESH/L/1106, and dated 4th October, 1980 less by 4.107 hectares as declared by the Honograble Minister, Ministry of Lands, Works and Housing vide their letter to the plaintiffs’ reference NG.LA/LA/LA/447 Vol.1/3 dated December 15th, 2010.

It is only after the Court has granted this relief, declaring that the Respondent is not entitled to the land covered by the KESH/L/1106, that the Court can reach the decision that the actions of the Respondent in putting the said land into plots and selling them off was/is illegal, null and void. It is on this basis that I posit that the Appellants’ arguments under paragraphs4.34-4.43 are baseless and ought to be discountenanced. What seems glaringly is that the principal relief which must be granted before a Court can determine that actions taken in respect of land are illegal, null and void, is a declaration of entitlement to that land.

By that contention of the Respondent relief 3 is merely formality as the basic aim of the action is to “challenge the administrative action of the Respondent as the agency of the Federal Government charged with the responsibility of proving housing and custodian of the compulsorily acquired portions of the Appellants’ land in appropriating the Appellants’ land which has not been acquired or did not form part of the acquisitions carried out. In response to this assertion, I have the view that there will be no basis for a decision that the Respondent’s actions in respect of the subject land were null and void without first making a pronouncement that the entitlement to the land belongs the Appellants. The decision of the trial Court that the Respondent acted ultra vires in respect of the subject land must be predicted on a finding that the land belongs to the Appellants. As such, there is noportion of the trial Court’s constitutionally prescribed jurisdiction under Section 251(1) of the 1999 Constitution (as amended) that enables the trial Court to make such a finding that he Appellants are entitled to the land in question or that the boundaries of the land fall either within or outside the land acquired by the Federal Government. The lower Court was right when it held that the trial Court lacked jurisdiction to grant the principal relief which was/is that the Respondent is only entitled to the land acquired by the Federal Government (effectively asserting the Appellants are entitled to the portion of the land not so acquired). Based on the decisions in Awoniyi v. Reg. Trustees of AMORC (supra) and Alao v. Akano (supra), it is my humble view that the trial Court lacked the jurisdiction to entertain the Appellants’ suit and the lower Court was right when it reached that decision.

The questions made in paragraph 4.43 of the Appellants’ brief of argument must be answered in the negative as the said reliefs (i) and (ii) can only stand to be considered after a determination that it is the Appellants and not the Respondent who is entitled to theland covered by KESH/L/1106. The two reliefs cannot “stand gallantly on their own/’ as principal reliefs.

On whether the lower Court was right to answer the question of the trial Court’s substantive jurisdiction on the merit which the trial Court failed to do, I refer to the case of Owners Mr. Arabella v NAIC (2008) 11 NWLR (pt.1097) 182 at 217 per Ogbuagu JSC, thus:-
“I will therefore, opt to deal with the issue of the action being statute barred raised by the Cross-Appellant more so, as there are arguments in respect thereof in the said briefs of the parties. I have the support in my decision in the case of Global Transport Oceanico v. Free Enterprises Ltd (2001) 5 NWLR (Pt.706) 452 at 429.”
In this instant suit, it is not in dispute that the Respondent raised the issue of the trial Court’s substantive jurisdiction before the trial Court. It is also not in dispute that the trial Court failed to resolve the issue on the merit and instead held that the issue was not properly raised. The Respondent raised a ground of appeal on the said issue and formulated an issue for determination thereon. Both parties proffered arguments in theirbriefs of arguments on the issue of the trial Court’s substantive jurisdiction. In view of this, as well as the decision in M.V. Arabella (supra) the lower Court was perfectly right to determine the issue of the trial Court’s substantive jurisdiction, particularly in view of the fact that the trial Court failed to resolve the issue on the merit.

In paragraph 4.12 of their brief, the Appellants submitted that they inadvertently introduced arguments on the issue of substantive jurisdiction, yet, in paragraphs 4.47 – 4.73 of the same brief, they made the same arguments on the substantive jurisdiction of the trial Court, to the effect that the Appellants’ suit falls within Section 251(1)(R ) of the 1999 Constitution (as amended). In response to the said arguments, it would be of assistance to refer to the case of Nabore properties Ltd v. Peace-Cover Nig. Ltd. (2015) 2 NWLR (Pt.1443) 286 at 315 cited before the lower Court, where it held that:
“Suffice it to say that one of the principal attributes of jurisdiction as laid down by the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 is that the subject matter of the case must be within thejurisdiction of the Court. Thus, the fact that an action is against the Federal Government or an Agency of the Federal Government does not ipso facto bring the case within the jurisdiction of the Federal High Court, Section 251(1) of the 1999 Constitution (as amended) does not contain a Blanket provision that any suit against the Federal Government or any of her agencies must be heard only by the Federal High Court regardless of the subject matter.”
See also Adetayo v Ademola (2010) 14 NWLR (pt.1215) 169 at 191-192 where it was held as follows:
“The executive and administrative action or decision of the Federal Government and its agency, the Ministry of Works, Housing to compulsorily acquire the parcels of land… is not at all the subject of the action. Thus, as the executive action of the Federal Government in compulsorily acquiring the land in dispute is not being challenged by the Plaintiffs/Appellants in their instant action, there is no opening whatsoever for the Federal High Court to come into the matter in exercise of its original jurisdiction under Section 251(1) (r) of the 1999 Constitution.”
See also thedecision of this Court in Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 at 236-237 where Mohammed (as he then was) held that:-
“…The fact that the action was against the respondents does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless and until the other requirements of the law touching on the subject matter of the claims, is also satisfied. In other words, the subject matter of the action must also fall squarely within the jurisdiction of the Federal High Court before the Court can assume jurisdiction in a case against the Federal Government or any of its agencies.”
More recently, this Court held in Ports & Cargo Handling Services Company Ltd. v. Migfo (2012) 18 NWLR (Pt.1333) 555 at 591 where a very issue came up and the Court was faced with the same arguments proffered by the Appellants herein. Just like this case, the party therein sought to argue that the action fell within the maritime and Admiralty jurisdiction of the trial Court. However, this Court insisted on paying close attention to the subject matter of suit and held that:
“In Onuorah v. Kaduna Refining & Petrochemical Company (supra), the provision of Section 239(1) of the 1979 Constitution (as amended), impari material with Section 254(1) (g) of the 1999 Constitution which vests exclusion jurisdiction on the Federal High Court on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies was considered. Nonetheless, the subsection quoted above has not conferred jurisdiction on the Court where the plaintiff’s claim is founded on contract.”

The facts of this case are not disputed by the parties. The decision of this Court is clear cut and unambiguous. It held that trial Court lacked jurisdiction to entertain the Appellants’ suit, because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The lower Court sought to distinguish Onuorah’s case from the instant case on the ground that the provision of Section 239(1)(g) of the 1999 Constitution.

Applying those guiding principles to the case in hand, what erupts is that the subject matter of the suit is land and for the entitlement thereto, which is the very basis for the lower Courtholding that relief (iii) is the principal relief and without it, reliefs (i) and (ii) cannot be granted.
On what should take place thereafter, I shall refer to the case of Rahman Brother v NPA (2019) LPELR-46415, 1 at 12-14 thus:-
“Once again, I have to repeat that though the Respondent is an agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court exercise its jurisdiction unhindered. The jurisdiction of the Federal High Court is therefore exercisable over the parties and the subject matter of the suit.”
What I see before the Court is that the lower Court was right when it held that the trial Court lacked jurisdiction to entertain the suit before it. While the Federal High Court may have jurisdiction over the Respondent as an agency of the Federal Government, the subject matter of the suit, which was/is land which the Appellants are laying claim to its entitlement, is far beyond the jurisdiction of the Court.
I shall have recourse in the decision of this Court in James v. INEC (2015) 12 NWLR (PtE1474) 538 at 583-584 where Keere-Ekun, JSC held that:
“From the authorities referred to earlier, it is clear that where a Court lacks jurisdiction to entertain a cause or matter, it lacks jurisdiction to determine any issue arising within that cause or matter. To attempt to do so would amount to delving into the merit of the case, which would amount to a nullity in the event that the Court lacks jurisdiction to determine the suit. It is a correct statement of law that in order to determine whether or not the Court has jurisdiction to entertain a cause or matter it is the claim of the plaintiff that would be considered… The Court must take an overview of the entire case brought before it to determine whether it has jurisdiction or not.
It is my humble view that the lower Court took the prescribed overview of the Appellants’ case and rightly held that the subject matter before the trial Court was land and the Appellants’ entitlement thereto over which the trial Court lacked the jurisdiction to adjudicate, and as such the trial Court also lacked the jurisdiction to adjudicate over all the auxiliary matters arising therefrom as captured in the Appellants’ reliefs (i) that the Court lacked jurisdiction, was required to look beyond “the ingenious manner in which the question for determination and the reliefs sought were couched” and indeed looked directly at the purpose of the entire suit which did not fail within the prescribed substantive jurisdiction of the trial Court.

From the foregoing, it is clear that the Federal High Court lacked jurisdiction to try the suit and this was the finding of the Court below upon which it ordered a striking out of the suits. On whether the order striking out is correct. I make reference to Section 15 of the Court of Appeal Act, Cap. C.37, Laws of the Federation of Nigeria, 2004 to the effect that:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certifyits findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of that instance may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.”
(Underlining supplied for emphasis)
Therefore, having regard to the above provision, the lower Court is by law entitled to take such steps as the trial Court would have taken as though the suit was instituted before it as Court of first instance as appeals by settled position the law are by way ofre-hearing and a continuation of the original suit. See the case of:Odedo v Oguebego (2015) 13 NWLR (pt.1476) 229.

In the instant case, the trial Court before whom the Appellants’ suit was instituted, by virtue of Section 22 of the Federal High Court Act, is by law empowered to transfer a case once it finds that it is without subject matter jurisdiction to hear same to the appropriate High Court of a State with jurisdiction to hear the case. Section 22 of the Federal High Court Act provides in this regard as follows:-
“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 accordance with Rules of Court to be made under Section 44 this Act.”
Interpreting the said provision, it was held in the case of Braithwaite v. S.C.B (Nig.) Ltd (2012) 9 NWLR(pt.1305) 304 at 323, as follows:
“…where a Judge of the Federal High Court holds that it has no jurisdiction, he can transfer the matter the appropriate State High Court or of the Federal Capital Territory, Abuja.”
See also: Fasakin Foods (Nig.) Ltd. v. Shosanya (2006) 10 NWLR (pt.987) 126 at 147-448 and Aluminium Manufacturing Co. (Nig.) Ltd v N.P.A (1987) 1 NWLR (pt.51) 475.
The jurisdiction issue determined by the lower Court against the Appellants is to the effect that the Appellants’ suit does not fall within one of those matters that can be considered under Section 251 (1) of the 1999 Constitution (as amended) which spells out the matters which the trial Court has jurisdiction to determine. In order words, that it is the State, High Court that could determine same.
As earlier stated, since appeals are by way of re-hearing, the lower Court was in same position as the trial Court to activate the provision of Section 22 of the Federal High Court Act.

Consequently, having regard to the provision of Section 22 of the Federal High Court Act, the Appellants’ suit ought not to have been struck out as was thepractice in the past but should have been transferred to the appropriate State High Court with the jurisdiction to determine the same. The Court below was therefore wrong when it struck out the appellants’ suit.

From the foregoing, the appeal is allowed in part. That is to say, the Court below was right in holding that the trial Federal High Court lacked jurisdiction to adjudicate on the suit but was wrong in striking out.

The matter should have been remitted to the State High Court for trial and determination.
I abide by the consequential order made.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading before now, a draft of the lead judgment just delivered by my learned brother, Abdu Aboki, JSC and I totally agree with his reasons and conclusion reached therein.

This appeal is hinged on the issue whether the Federal High Court had the jurisdiction to entertain the Appellant’s case which centers on vested interest in land and whether the Court below made a right decision striking out the matter instead of transferring it to the High Court of the State.
First of all, the Land Use Act, 1978vide the provision of Section 39(1) thereof donates exclusive original jurisdiction in proceedings with respect to interests in land to the High Court of the State. This is further clarified by looking at the meaning of High Court in Section 51(1) of the Act which states:
“High Court” means the High Court of the State concerned”.

That being said, this Court has held in a myriad of decided cases that when it comes to instituting matters at the Federal High Court, it is not enough only to have an agency of the Federal Government as a party for the Federal High Court to have jurisdiction. The subject matter of the litigation must come under the provisions of Section 251 of the 1999 Constitution. See Enterprise Bank Limited Vs. Aroso (2014)3 NWLR (Pt.1394); Onuorah Vs. Kaduna Refining and Petrochemical Company Limited (2005) 6 NWLR (Pt. 921) 393.
The case at hand being a land matter therefore, it is clearly outside the purview of Section 251 of the 1999 Constitution, thus the learned trial Judge had no jurisdiction to entertain the matter. It is clearly within the exclusive jurisdiction of the High Court of Lagos State.

Secondly, the law is trite that where a Court finds that it has no jurisdiction to entertain a matter, it can transfer the matter to the appropriate Court for determination. See Braithwaite Vs. Standard Chartered Bank Nigeria Limited(2012)9 NWLR (Pt.1305)304. Where the Court erroneously assumes jurisdiction and the matter comes up on appeal, the Court of Appeal is empowered to exercise the powers of the trial Court and make such orders or give directions as the trial Court would make as if the proceedings had been instituted in the Court of Appeal as Court of first instance.
Section 22 (2) of the Federal High Court Act provides for the power to transfer cases erroneously commenced at the Federal High Court which jurisdiction to entertain same lies with the High Court of a State or of the Federal Capital Territory, Abuja. If follows that where the Federal High Court had failed to transfer the matter to the appropriate Court for determination, the Court below had the power to make that order rather than striking out the suit.

For the above remarks and more elaborate reasons adumbrated in the lead judgment. I also find merit in the appeal and allow same in part. I abide by all the consequential orders made therein, including orders on costs.
Appeal allowed in part.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Aboki, JSC, and I agree with his reasoning and conclusion, which I adopt as mine.

To start with, jurisdiction plays such an important role in adjudication that the issue can be raised, even without leave – see Esabunor& Anor V. Faweya&Ors (2019) LPELR-46961(SC), wherein this Court per Nweze, JSC, stated:
The issue of jurisdiction constitutes an exception to the general principle for it could be raised for the first time… with or without leave. Due to its fundamental nature, it is exempted from the disabilities and restrictions, which hamper other legal points from being canvassed or agitated for the first time on appeal. Such an issue could always be raised without leave, it can never be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration.

It is also well settled that where there is a claim that falls within the jurisdiction of two Courts, the Court with jurisdiction over the main claim is the proper Court to determine the matter – see Tukur V. Govt., Taraba State &Ors (1997) 6 NWLR (Pt. 510) 549 SC, and Gafar V. Govt., Kwara State &Ors (2007) 4 NWLR (Pt. 1024) 375, wherein Mohammed, JSC (as he then was) observed:
Where ancillary or incidental or accessory claim(s) are so inextricably tied to or bound up with the main claims, a Court cannot adjudicate over them where it has no jurisdiction to entertain the main claims, if such incidental or ancillary claims cannot be determined at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims.

In this case, the Appellants merely wanted an ordinary land dispute that falls within the jurisdiction of Lagos State High Court, to look as if it were a dispute over acquisition of land by the Federal Government, which would bring it within the exclusive jurisdiction of the Federal High Court. The Court of Appeal was, therefore, right to hold that the trial Court had nojurisdiction over this matter.

However, it should have struck out the suit and transferred the matter to the Lagos State High Court. It is for this and the other eloquent reasons in the lead judgment that I also allow this appeal in part. I also abide by the Orders made by my learned brother in the lead judgment, including no order on costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Unhesitatingly, I express my concurrence with the reasoning eloquently postulated in the judgment just delivered by my learned brother, the Hon. Justice Abdu Aboki, JSC, to the conclusive effect that the instant appeal succeeds and ought to be allowed in part. The Court below aptly held that Reliefs 1 and 2 of the Appellants’ Amended statement of claim were ancillary reliefs, and that the principal Relief 3 is outside the jurisdiction of the trial Court. (by virtue of the provisions of Section 251 (1), (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, the Court below was right in its finding, to the effect that the trial Court was devoid of jurisdiction to grant the reliefs sought by theAppellants vide the Amended statement of claim thereof.
However, the Court below was in error in its decision where in it made a consequential order striking out the Appellants’ suit on ground of the trial Court lacking jurisdiction to try the case. Undoubtedly, the Court below ought to have been rightly guided by the unequivocal provisions of Section 22 (2) of the Federal High Court:
(2) 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 a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court below 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 of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act. …
(2) or (3) of this Section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal.
Fundamentally, the provision of Section 22 (2) & (4) of the Federal High Court Act (supra) is to the unequivocal effect, that where the Federal High Court holds that it has no jurisdiction in any matter before it, the Court shall transfer the matter to the appropriate State High Court or the FCT High Court, as the case may be. See BRAITH WAITE VS. STANDARD CHARTERED BANK NIG. LTD (2012) 9 NWLR (pt.1305) 304.

Hence, having concurred with the reasoning and conclusion reached in the said leading judgment, I too hereby allow the appeal in part and abide by the consequential order thereby transferring the case file to the Chief Judge of the Lagos State High Court to be assigned to any Judge of the State High Court for acceleration of hearing thereof.
There shall no order regarding costs.

Appearances:

Chukwudi Enebeli, Esq. with him, Mohammed Adedeji, Esq. and Eseoghene Okpewho, Esq. For Appellant(s)

Ademola Adesina, Esq.For Respondent(s)