PAUL AMIOLEMHEN & ORS V. NIGERIAN GAS COMPANY & ANOR (2012)

PAUL AMIOLEMHEN & ORS V. NIGERIAN GAS COMPANY & ANOR

(2012)LCN/5434(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of June, 2012

CA/B/107/2009

RATIO

JURISDICTION: DEFINITION AND EFFECT OF LACK OF JURISDICTION

Jurisdiction is the right in a court to hear and determine a dispute between parties -AJOMALE V. YADUAT (NO. 1) (1991) 5 SCNJ 172. It has been described as the “life wire of all suits” and no matter how well-conducted the proceedings might be, if the court lacks the competence or jurisdiction to entertain a suit such proceedings are null and void. See FEDERAL GOVERNMENT OF NIGERIA & ANOR. V. ADAMS OSHIOMHOLE & ANOR. (2004) 3 NWLR (Pt. 860) 305 at 319, where this Court, per SALAMI, JCA (as he then was, now PCA) stated thus:
“It is more than settled that the issue of jurisdiction is fundamental pre-requisite in the adjudication of any matter. It has been properly and aptly described as the “life wire of all suits” and where a Court does not have jurisdiction to entertain a suit before it, the proceedings, however, (sic) well conducted will be a nullity.”PER MOORE A.A. ADUMEIN, J.C.A.

JURISDICTION: EFFECT OF A COURT TAKING UP A CASE WHEN IT LACKS JURISDICTION

It is a waste of precious judicial time and an injustice to the parties for a court to embark on adjudication of any suit where the court lacks jurisdiction. See OLOBA V. AKEREJA (1988) 3 NWLR (Pt 84) 508 at 520, where the Supreme Court, per OBASEKI, JSC said:
“If a Court or Tribunal is not competent to entertain a matter or claim, it is a waste of time for the Court to embark on the hearing and determination of the suit, matter or claim … There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, to the Court and to the parties to do so.”PER MOORE A.A. ADUMEIN, J.C.A.

JURISDICTION: JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS

The issue of jurisdiction, being fundamentally and radically important to the adjudication of suits, can be raised at any stage of the proceedings. It can be raised by any of the parties or even suo motu by the court and, once it is raised, the Court cannot gloss over it. The Court must first determine whether it has jurisdiction before proceeding further with the matter; once the question of jurisdiction is raised. See OFIA V. EJEM (2006) 11 NWLR (Pt. 992) 652; OLOBA v. AKEREJA (1988) 3 NWLR (Pt. 84) 508; NUHU V. OGELE (2003) 18 NWLR (Pt. 852) 251 and ENUGWU V. OKEFI (2000) 3 NWLR (Pt. 650) 620.PER MOORE A.A. ADUMEIN, J.C.A.

JURISDICTION: IT IS THE CLAIMANTS CLAIM THAT DETERMINES THE JURISDICTION OF A COURT

It is the claimant’s claim as endorsed in his writ of summons and statement of claim, if already filed, that the court considers in determining whether or not it has jurisdiction before it, See SKENCONSULT V. UKEY (1981) 1 SC 6; ADEYEMI v. OPEYORI (1976) 9 – 10 SC 31, KOTOYE v. SARAKI (1994) 7 NWLR (Pt. 357) 414; TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517; ORTHPAEDIC HOSPITALS MANAGEMENT BOARD V. GARBA (2002) 14 NWLR (Pt. 788) 538 and EGE SHIPPING TRADING INDUSTRY INCO. V. TIGRIS INTERNATIONAL CORPORATION (1999) 14 NWLR (Pt. 637) 70 at 89, where the Supreme Court, per KARIBI-WHYTE, JSC stated as follows:
“As matter of practice, objection on grounds of want of jurisdiction in the Court can be raised even before pleadings have been ordered in the case … It is elementary principle that the jurisdiction of the Court is determined by the claim on the writ of summons of the plaintiff.”PER MOORE A.A. ADUMEIN, J.C.A.

JURISDICTION: THE BASIC PRINCIPLES AS REGARDS JURISDICTION OF A COURT

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. PAUL AMIOLEMHEN
2. MRS. PATRICIA MADU
3. LUCKY OBULA
4. HAPPINESS UDOH AKPAN
5. DORIS AMIOLEMHEN Appellant(s)

AND

1. NIGERIAN GAS COMPANY
2. ABBAS K. KAYODE Respondent(s)

MOORE A.A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): In Suit No. HOR/15/2008 instituted in the High Court of Ondo State, Ore Judicial Division, sitting at Ore the appellants as plaintiffs claimed sundry monetary relief against the respondents who were the defendants.
There were 7 (seven) prayers for damages as a result of the respondents’ alleged negligence. For the sake of brevity only the first prayer is hereby reproduced, since the remaining 6 (six) prayers are almost the same in wording, save for the different sums of money claimed.
“WHEREOF the Plaintiffs claim against the Defendants as follows:
1. The sum of N4, 123,000.00 (four million, one hundred and twenty-three thousand Naira) only being special damages against the Defendants, jointly and/or severally for the cost of building the burnt house of the 1st Plaintiff as a result of the negligence of the Defendants.
OR ALTERNATIVELY
The sum of N4, 123,100.00 (four million, one hundred and twenty three thousand Naira) only being general damages against the Defendants jointly and/or severally for the cost of building the burnt house of the 1st Plaintiff as a result of the negligence of the Defendants.”
By a motion on notice dated the 23rd day of May, 2008 and filed on the 27th day of May, 2008 the respondents urged the lower court to strike out the suit for want of jurisdiction (pages 37 – 39 of the record of appeal). The lower court heard the parties (pages 44 – 50 of the record) and in a reserved ruling delivered on the 24th day of November, 2008 the learned trial judge, Aguda-Taiwo, J. upheld the objection and struck out the suit. The ruling of the lower court is from pages 51 – 66 of the record. The appellants were not satisfied and they filed a notice of appeal containing only one ground which is reproduced hereunder:
The learned trial judge erred when he held as follows:
“A close examination of Section 251 (1) of the Constitution which set out matters under the exclusive jurisdiction of the Federal High Court even though does not show that action for damages for the tort of negligence is included in the sub-section which action could ordinarily have been tried by the State High Court but the fact that the action is against the 1st defendant which is an agency of the Federal Government of Nigeria the action would be tried by the Federal High Court. The State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim before the court.”
PARTICULARS OF ERROR
1. The learned trial judge completely misapplied the principle as stated in the case of NEPA V. ADEGBENRO (2003) FWLR (Pt. 139) 1556.
2. The Supreme Court in the case of ONUORAH V. K.P.R.C. (2005) 6 NWLR (Pt. 921) 393 settled the law that the subject matter is an important consideration in determining whether the Federal High Court has jurisdiction in a matter.
3. The reliefs of the appellant were premised on the common law tort of negligence which does not fall within any of the provisions of Section 251 of the 1999 Constitution.
4. The jurisdiction of the State High Court is unlimited save for those matters expressly mentioned in Section 251 of the 1999 Constitution.”
Briefs of argument were filed and exchanged by the parties. In their brief, settled by Festus Keyamo, Esq.; the appellants formulated one issue thus:
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN SHE HELD THAT FOR THE SOLE REASON THAT THE DEFENDANTS/RESPONDENTS ARE AGENTS OF THE FEDERAL GOVERNMENT THEN THE STATE HIGH COURT LACKS JURISDICTION TO ENTERTAIN THE SUIT.”
The respondents also formulated one issue, which is:
“Whether the Trial Court’s decline of jurisdiction in the suit was proper, having regard to the provisions of Section 251 (1), (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria 1999, with particular regard to matters under the exclusive jurisdiction of the Federal High Court.”
The issue formulated by the respondents aptly captures the appellants’ complaint and the appeal will be determined on the respondents’ issue.
The appellants’ argued that it was wrong for the lower court to have declined jurisdiction on the authority of NEPA V. EDEGBERO (2002) 18 NWLR (Pt. 798) 79 for the singular reason that the respondents “are agents of the Federal Government”. The appellants reproduced a substantial part of the leading judgment of OGUNDARE, JSC in NEPA V. EDEGBERO (supra) and contended that “the Supreme Court in that case never intended that the parties alone should determine jurisdiction in a case involving the Federal Government or any of its agencies”. The appellants submitted that the lower court misapplied the principle of law stated in NEPA V. EDEGBERO (supra) because the Supreme Court carefully looked at the plaintiff’s claim before stating the position of the law. In any case, the appellants contended that the Supreme Court had clarified its position in the later cases of ONUORAH V. K.R.P.C. LTD. (2005) 6 NWLR (Pt. 921) 393 and ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (Pt. 993) 33.
While urging the Court to allow the appeal, the appellants finally argued as follows:
“In this case, since the reliefs of the Appellants were based on the common law tort of negligence, the claims do not fall within any of the provisions of Section 251 the 1999 Constitution. We submit that the jurisdiction of the State High Court is unlimited save for those matters mentioned in Section 251 of the 1999 Constitution.”
The respondents, however, vehemently disagreed with the appellants by arguing that the lower court rightly applied the principle of law stated in the case of NEPA V. EDEGBERO (supra) and which position of the Supreme Court was applied and followed in the cases of MINISTRY OF INTERNAL AFFAIRS V. ALIYU (2005) 3 NWLR (Pt. 911) 30; C.B.N. v. S.A.P (NIG.) LTD. (2005) 3 NWLR (Pt. 911) 152; N.P.A. v. EYAMBA (2005) 12 NWLR (Pt. 939) 409; ADEBILEJE V. NEPA (1998) 12 NWLR (Pt. 577) 219; W.R.P.C. LTD. V. AGBUJE (2005) 5 NWLR (Pt. 917) 63; F.H.A. v. JOHN SHOY INT’L LTD. (2005) 1 NWLR (Pt. 908) 637; UNIVERSITY OF ILORIN TEACHING HOSPITAL V. AKILO (2000) FWLR (Pt. 28) 2286 and AYENI V. UNIVERSITY OF ILORIN (2000) 2 NWLR (Pt. 644) 290. It was contended on behalf of the respondents by K.K. Iheme, Esg., who settled the respondents’ brief, that “the proviso to paragraphs (q), (p) and (r) of Section 251 (1) of the 1999 Constitution expounded and expanded the jurisdiction of the Federal High Court to include actions against the Federal Government or any of its agencies for damages, injunction or specific performance.” In support of their argument, the respondents referred to and relied on the cases of NEPA V. EDEGBERO (supra); C.B.N. V. S.A.P (NIG.) LTD (supra) and UNIVERISITY OF AGRIC, MAKURDI V. JACK (2000) 11 NWLR (Pt. 679) 658.
The respondents argued that the cases of ONUORAH V. K.R.P.C. LTD. (supra) and ADELEKAN V. ECU-LINE NV (supra) relied on by the appellants were not relevant to this case because those cases were “founded on simple contract, unlike the instant case which involves the management or business of the 1st Respondent, an agency of the Federal Government.”
In its ruling, the lower court held at page 65 of the record of appeal, inter alia, as follows:
“A close examination of Section 251 (1) of the Constitution which set out matters under the exclusive jurisdiction of the Federal High Court even though does not show that action for damages for the tort of negligence is included in the subsection which action could ordinarily have been tried by the State High Court) (sic) but the fact that the action is against the 1st defendant which is an agency of the Federal Government of Nigeria the action would be tried by the Federal High Court. The State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim before the court”
The respondents specifically relied on Section 251 (1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 which together with the proviso thereto are hereby reproduced: –
“(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
…
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s)…
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
Jurisdiction is the right in a court to hear and determine a dispute between parties -AJOMALE V. YADUAT (NO. 1) (1991) 5 SCNJ 172. It has been described as the “life wire of all suits” and no matter how well-conducted the proceedings might be, if the court lacks the competence or jurisdiction to entertain a suit such proceedings are null and void. See FEDERAL GOVERNMENT OF NIGERIA & ANOR. V. ADAMS OSHIOMHOLE & ANOR. (2004) 3 NWLR (Pt. 860) 305 at 319, where this Court, per SALAMI, JCA (as he then was, now PCA) stated thus:
“It is more than settled that the issue of jurisdiction is fundamental pre-requisite in the adjudication of any matter. It has been properly and aptly described as the “life wire of all suits” and where a Court does not have jurisdiction to entertain a suit before it, the proceedings, however, (sic) well conducted will be a nullity.”

The principle of law on the competence, and the effect of lack of jurisdiction, of a court to hear and determine a case or matter has long been settled in the case of MADUKOLU V. NKEMDILIM (1961) NSCC (Vol. 2) 374 at 379 where BAIRAMIAN, F.J. stated as follows:
“Put briefly, a court is competent when –
1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not a nullity.”
See also the cases TUKUR V. TARABA STATE (1997) 6 SCNJ 81; AKINGBEHIN V. THOMPSON (2008) 6 NWLR (Pt. 1083) 270 and OKEREKE V. YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95.
In the instant case is there any feature which prevented the lower Court from assuming jurisdiction? The respondents referred to Section 251 (1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 and contended that the Federal High Court has exclusive jurisdiction where the Federal Government or any of its agencies is a party, notwithstanding the proviso thereto. They relied on NEPA V. EDEGBERO (supra) among others in support of their argument.
The provisions of Section 251 (1) (p), (q) and (r) of the Constitution of the Federal republic of Nigeria, 1999 are in pari materia with those of Section 230 (1) (q), (r) and (s) of the 1979 Constitution, as amended by the Constitution (Suspension and Modification) Decree 107 of 1993 judicially interpreted in the case of NATIONAL ELECTRIC POWER AUTHORITY V. MR. B. EDEGBERO & ORS. (supra) at 95, paras B – G where the Supreme Court, per OGUNDARE, JSC, of blessed memory, stated as follows:
“It is not in dispute that the defendant – NEPA – is a Federal Government Agency, the two courts below made a finding of fact to this effect and this has not been challenged by the plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant termination the appointments of the plaintiffs and others. In the light of all these, therefore, that action on hand came squarely within the provision of Section 230 (1) (s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have myself read the proviso to paragraphs (q), (r) and (s) of sub-section (1) of Section 230 all over again; I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraphs (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial Judge, with profound respect appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso.” (Underlining mine for emphasis)
The decision of the Supreme Court in NATIONAL ELECTRIC POWER AUTHORITY V. MR. B. EDEGBERO (supra) has been applied and followed by this Court in a number of cases, including FEDERAL REPUBLIC OF NIGERIA V. ADAMS OSHIOMHOLE (supra). A careful examination of the judgment of OGUNDARE, JSC reproduced above seems to show or reveal that the Courts should not “read into” Section 251 of the Constitution what is therein not provided.
In paragraph 40 of their statement of claim, at page 6 of the record, the appellants averred that the 2nd respondent is an employee of the 1st respondent and in paragraph 40 thereof they averred:
“The 1st Defendant is a Limited Liability Company incorporated under the Companies and Allied Matters Act (CAMA) and is also a subsidiary of the Nigerian National Petroleum Corporation (NNPC).’
The question here is whether a company duly incorporated under the Companies and Allied Matters Act and which is a subsidiary of a Federal Government Corporation qualifies as an agency of the Federal Government under Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
This issue came up in the case of FELIX ONUORAH V. KADUNA REFINING & PETROCHEMICAL CO. LTD. (2005) 6 NWLR (Pt. 921) 393 where the respondent, a subsidiary of Nigerian National Petroleum Corporation, objected to the jurisdiction of the Federal High Court to entertain the appellant’s claim for a declaration, specific performance and damages based on a breach of contract. The Supreme Court upheld the decision of the Court of Appeal that the Federal High Court had no jurisdiction to entertain the appellant’s claim. The Supreme Court held that it is the plaintiff’s claim that should determine the jurisdiction of the Federal High Court. At pages 404 – 405 of the law report, the Supreme Court, per AKINTAN, JSC, stated as follows:
“Thus in this case, the appellant’s claim, already set out above, is the one that should be the focus of attention in determining whether the trial court had jurisdiction to entertain the suit. It is clearly not the rules of Court that vest jurisdiction in the Court but rather the statute creating the court. Thus, in the instant case, in determining the jurisdiction of the Federal High Court and the State High Court, it is the relevant provisions of the 1979 Constitution of the Federal Republic, as amended by Decree No. 107 of 1993 that would be applicable since the appellant’s action was commenced and in fact judgment was delivered before the 1999 constitution came into force, Section 230 (1) (q), (r) and (s) of Decree No, 107 of 1993 which extended the jurisdiction of the Federal High Court also sets out a proviso after subsection (s). It is that: “nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230 (1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said Section 230 (1) can only, be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the appellant’s claim. The lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim. See SEVEN-UP BOTTLING CO. LTD. V. ABIOLA & SONS BOTTLING CO. LTD. (2001) 13 NWLR (pt. 730) 469; and TRADE BANK PLC. v. BENILUX (NIG.) LTD. (2003) 9 NWLR (Pt. 825) 416 at 430 & 431.” (Underlining mine)
In his contribution, TOBI, JSC, stated at pages 408 – 409 thus:
“As can be seen from the above, the claim is for a declaration, specific performance and damages, all based on a breach of contract between the parties. A careful perusal of sub-section 230 (1) of the 1979 Constitution as amended by Decree No. 107 of 1993 which set out matters under the exclusive jurisdiction of the Federal High Court show clearly that action for the breach of contract, simpliciter, such as the plaintiff-appellant’s claim is not included in the sub-section rather, it falls within the residual jurisdiction of the State High Court pursuant to Section 230 (1) of the 1979 Constitution which was the Law in force when the cause of action arose: See 7-Up Bottling Co. V. Abiola & Sons (2001) 13 NWLR (Pt. 730) 469 at 508, Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt. 825) 416 at 430. By sub-Section 230 (1) (q) of the 1979 Constitution as amended, now Section 251 (1) (p) of the 1999 Constitution, the Federal High Court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. The plaintiff/appellant’s claim does not fall within the ambit of this sub-section and therefore all the submissions of counsel with respect to whether the defendant/respondent is a subsidiary or an agent of N.N.P.C. are irrelevant.” (Underlining mine)
In ONUORAH’s case, the Supreme Court examined the jurisdiction the Federal High Court vis-Ã -vis the plaintiff’s claim. Just as in ONUORAH’s case, where the defendant in the Federal High Court was a subsidiary of NNPC, the 1st respondent here is also a subsidiary of NNPC. It was held in ONUORAH’s case that the issue of whether the defendant/respondent was a subsidiary of a Federal Government Agency was irrelevant in determining the jurisdiction of the Federal High Court.
Therefore, it is the appellants’ claim, which has been partially reproduced in this judgment that would determine whether or not the lower court had jurisdiction to entertain the suit.
The appellants’ sundry monetary claims are all based on the tort of negligence allegedly committed by the respondents. The appellants’ claims do not relate to “the administration or the management and control of the Federal Government or any of its agencies”, or the operation and interpretation of the Constitution as it affects the Federal Government or any of its agencies, or a declaration or injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.
In this case neither the Federal Government nor any of its agencies is a party to the suit filed in the High Court of Ondo State. That the 1st respondent is a subsidiary of Nigerian National Petroleum Corporation does not de jure or de facto make it an “agency” of the Federal Government. The 1st respondent is a body corporate having been registered as a limited liability company under the Companies and Allied Matters Act. It, therefore, has an identity quite different for the Nigerian National Petroleum Corporation, which is a Federal Government “agency”. A subsidiary of a Federal Government agency is not included in section 251 (1) (p), (q) and (r) of the 1999 Constitution and it would be wrong for the Court to “read into” those provisions what is not included therein. A company incorporated as a limited liability company under the Companies and Allied Matters Act has “all the powers of a natural person of full capacity”-section 38 (1) of the Companies and Allied Matters Act. See also Section 37 thereof.

The Constitution itself has not defined what a Federal Government agency means. However, Black’s Law Dictionary, 8th Edition, page 68 defines “Federal agency” as A department or other instrumentality of the executive branch of the federal government, including a government corporation and the Government Printing Office. The case law on this definition focuses on authority: generally, an entity is an agency if it has authority to take binding action. Other federal statues define agency to include any executive department, government corporation, government-controlled corporation, or other establishment in the executive branch, or federal regulatory board.” See also Encarta World Dictionary, page 31 where the word “agency” is explained as meaning.” 1… 2. POL GOVERNMENT ORGANIZATION a division of a government or international organization that carries out administrative duties, a United Nations agency. 3. SEPARATE PART OF UK CIVIL SERVICE a part of the civil service in the United Kingdom that has some autonomy to deal with a particular aspect of administration such as issuing passports or benefits, the Child Support Agency.”
It is quite clear, therefore, that a limited liability company incorporated under the Companies and Allied Matters Act by a Federal Government Corporation would not qualify as a Federal Government agency within the meaning of Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999. There is no evidence that the respondents have the authority of the Federal Government of Nigeria to take binding actions or decisions on her behalf.
In determining whether an organization is a Federal Government agency, this Court held in NIGERIAN REINSURANCE CORPORATION V. CUDJOE (2008) 10 NWLR (Pt. 1095) 329 that the following two factors should be considered:
(i) Whether the Federal Government has control over it; and
(ii) Whether the functions of such organization are aimed at effecting the policies of the Federal Government.
In the instant case, the appellants claimed that the 1st respondent contracted the services of one limited liability company – Prolific Services Limited from Onipeteshi Pipeline to Warri and that on the 14th day of March, 2007 a tanker carrying condensate (a highly combustible material) and escorted by the 2nd respondent parked in front of the 1st appellant’s house. The tanker later exploded and completely burnt down the 1st appellant’s house and destroyed all the properties therein. The act of loading and transporting condensate or any product by the 1st respondent from one location to another in Nigeria cannot by any stretch of imagination qualify as a matter relating to the administration or management and control of the Federal Government or any its agencies. It is merely a routine duty of a company duly incorporated as a limited liability company under the Companies and Allied Matters Act. The point being made here was better put by my learned brother, AUGIE, JCA in ODUTOLA V. N.I.T.E.L. (2006) All FWLR (Pt. 335) 73 at 91 where His Lordship stated as follows:
“In this case, it is not enough for the appellant to say he is asking for a declaration or injunction, so his matter must go to the Federal High Court. No, not at all; the act complained of, or for which he is seeking a declaration or injunction must be one relating to the executive or administrative actions or decisions of the respondent…. The question may well be asked and I will ask it – can the acts of debiting the appellant’s bill, tossing the appellant’s telephone line; making available a breakdown of appellant’s call schedule, be described as acts made in a management capacity? Do they flow from an executive action or decision by the respondent? The answer is an emphatic no!.., They are the usual functions, the day to day, nitty gritty work in a telecommunications business, which may be described as technical, but certainly not executive or administrative acts.”
In conclusion, I hold that this appeal has merit and it is hereby allowed. The ruling of the lower court, whereby the appellants’ suit was struck out for want of jurisdiction, delivered on the 24th day of November, 2008 is hereby set aside. Suit No.HOR/15/2008 is hereby remitted to the High Court of Ondo State, Ore Judicial Division, to be expeditiously heard and determined by a Judge of the High Court of Ondo State other than Aguda-Taiwo, J.
The sum of N70, 000.00 is hereby awarded as costs in favour of the appellants against the respondents.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the judgment of my learned brother, Adumein, JCA just delivered. His Lordship has comprehensively considered and ably resolved the sole issue for determination in this appeal. I agree with his reasoning and conclusion that the High Court of Ondo State has jurisdiction to entertain the respondents’ claim, as the act of alleged negligence complained of had nothing to do with executive or administrative decisions or actions of the Federal Government or any of its agencies.
I also allow the appeal. I abide by all the consequential orders contained in the lead judgment, including the order for costs.

CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Moore A.A. Adumein JCA. I agree with his reasoning and conclusions. He has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal has merit and should be allowed. I too hereby allow the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

NELSON OKEDINACHI, ESQFor Appellant

AND

J.O. AKPOCHAFO, ESQFor Respondent