PROFESSOR A. R. ANAO v. THE SUN PUBLISHING LIMITED & ORS.
(2012)LCN/5403(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/B/217/2007
RATIO
JURISDICTION: HOW IS THE QUESTION OF JURISDICTION DETERMINED
In determining the question of Jurisdiction of court the Court will consider only the writ of summon and statement of claim.
see: A. G. FEDERATION Vs GUARDIAN NEWSPAPER (2001) FWLR (PT.32) pg.971)
KOTOYE VS SOVELHI (1994) 7 NWLR (PART 317) 414
The court should consider the writ of summons, statement of claim and facts deposed to an affidavit. The statement of Defence is not one of the relevant materials for that purpose.
See: USMAN VS. BABA (2005) NWLR (PART 917) 113; ADEYEMI Vs OPEYORI (1976) 9 – 10 SC 3. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JURISDICTION: WHAT CONFERS JURISDICTION ON A COURT
There is no doubt that the question of Jurisdiction is very fundamental. Court are creations of statues and it is the statute that created a particular court that will also confer on it its jurisdiction.
See: OKULATE Vs AWOSANYA (2000) 1 SC 107.
Where the Jurisdiction of a court over a suit is challenged the court is entitled under s. 6 of the 1999 constitution to consider the claim before it in order to decide whether it has the Jurisdiction to interfere with such. see: ADELEKE vs OSHA (2006) 16 NWLR (PT.1006) 608 CA.
I agreed with my learned brother Nweze JCA in the case of OLADIPO V. NCSB (2009) 12 NWLR (PT.1156) 563 AT PAGE 585 where he says as follows I quote.
“…Before we return to this question, we must first Return to the implication of the drafting technique in section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High court. In all, that section vested exclusive jurisdiction on the Federal High court in eighteen major items, see, per Tobi JSC. In OLUTOLA v. UNILORIN (2004) 18 NWLR (PT.905) 416, 462. the implication of this technique is that the said court (Federal High court) is actually a court of enumerated Jurisdiction, that is, a court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matters enumerated therein.
In would, therefore, amount to wreaking havoc on the express letters and intendment of the said section 251 to construe it as granting the said court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated ADELEKAN Vs ECULIRE NV (2006) 12 NWLR (PT.993, 33) AT PAGE 52. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JURISDICTION: WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ADJUDICATE ON MATTER BORDERING ON TORT
Having said so much above and having followed the guiding principles as laid down by the authorities it is my honest opinion that the Federal High Court has no jurisdiction to adjudicate Appellant’s claim based on tort. That issue has been established by the Supreme Court in ADELEKAN Vs ECULINE NV (2005) 12 NWLR (PART 993, 33) AT 52. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
FOLAYEMI OYEBISI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
PROFESSOR A. R. ANAO Appellant(s)
AND
1. THE SUN PUBLISHING LIMITED
2. MR. STEVE NWOSU
3. MR. TONY OSAUZO Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Edokpayi J. delivered on 26/10/06 wherein he concluded at Page 38 of Record which read:
“Finally in the circumstance of the foregoing I hereby decline jurisdiction to entertain the matter I hold that the facts of this case showed that the case ought to have been instituted in the Federal High court. This suit is hereby struck out for lack of Jurisdiction.”
It is against this Ruling that the appellant filed a Notice of Appeal as shown at page 38 of the Record which reads –
Part of the decision complained of: whole decision.
Grounds of Appeal:
(1) The learned trial Judge erred in law when he held that:
“the allegations made against the Plaintiff/Appellant were made in his capacity as the Vice Chancellor of the University of Benin involved in the administration or the management and control of the Federal Government Agency i.e University of Benin.
PARTICULARS
(i) The libel complained of was against the Plaintiff/Appellant and not the University.
(ii) The Plaintiff is a separate legal entity from the University.
(iii) The University did not sue for libel.
(iv) The Plaintiff is not a Federal Government Agency.
(2) The learned trial Judge erred in law in declining jurisdiction to entertain a libel matter and holding that only the Federal High Court has exclusive jurisdiction to entertain same pursuant to sec. 251 of the Constitution of the Federal High Court of Nigeria 1999.
PARTICULARS
(i) Sec. 251 of the Constitution of Federal Republic of Nigeria 1999 does not give the Federal High Court jurisdiction to entertain common law actions like libel.
(ii) None of the subsections of Sec. 251 of the Constitution of the Federal Republic of Nigeria 1999 confers exclusive jurisdiction on the Federal High Court in matters relating to libel or defamation.
(iii) Sec. 251 of the Constitution of the Federal Republic of Nigeria Confers exclusive jurisdiction on the Federal High Court regardless of the subject matter.
(3) The learned trial Judge erred in law in failing to assume jurisdiction to entertain the Plaintiff’s claim based on libel only.
PARTICULARS
(i) Sec.251 of the Constitution of the Federal Republic of Nigeria 1999 did not give exclusive jurisdiction to the Federal High Court to entertain libel matters.
(ii) Only selected matters are made the exclusive perverse of the Federal High Court.
The facts of this suit are that –
The Appellant instituted this action on the 15th day of October, 2004 at the High Court of Justice,
Benin City claiming N500,000,000 (Five Hundred Million Naira) as damages against the Respondents for libel in respect of the Article headed ‘N2 billion fraud rocks Uniben as ASUU ICPC” was published by the Respondents, in the issue, of the Saturday SUN Newspapers dated 18th September, 2004.
The Writ of Summons is at pages 1-2 of the Record of Appeal to wit:
“INDORSEMENT
The Plaintiff’s claim against the defendants are as follows:-
At page 30 of all editions of the issue of SATURDAY SUN NEWPAPERS of September 18th 2004, the 1st Defendant Published and the 2nd and 3rd Defendants caused to be published the following words and caption which are defamatory of the plaintiff and was widely read in Benin city within the jurisdiction of the Honourable court, by diverse persons including Alhaji R. O. v. Giwa-Osagie and Dr. Sunny Okojie”.
“N2bn FRAUD ROCKS UNIBEN AS ASUU ALRERTS ICPC” from TONY OSAUZO, Benin
An allegation of fraud and mismanagement of funds in excess of N2 billion has been raised against the former Vice chancellor of the University of Benin. Prof. Abhulimen Anao and the governing council of the Institution in a joint petition to president Olusegun Obasanjo and Chairman of the Independent corrupt Practices and other Related offences commission (ICPC), Justice, Mustapha Akanbi, Non academic staff Union, Academic staff Union and Pensioner Association of the University of Benin alleged that over N1 billion collected by the university has been mismanaged. According to the petition signed by Prof. Omatseye for ASUU, Dr. C. Okafor for Non-Academics staff Union and Mr. C. A. O. Abu for Pensioners Association, only one generator was provided, while fake vouchers were allegedly sent to Abuja to exhaust over N1 billion allegedly menat (sic) for the project. The petitioners alleged that the sum of N200 million released for computerization of the University was mismanaged as only N25 million was allegedly spent on the project. “As at today, many departments are still producing their result in Business center”, the petitioners claimed. In addition, they told President Obasanjo and the ICPC chairman, Justice Akanbi that a contract awarded to Aqua Link for the provision of borehole at students hostel at the cost of N20.7 million in March this year was abandoned after N15.5 million was paid in three installments to the contractors. The petitions also alleged that inspite of the monetization policy of the Federal Government; the former Vice chancellor few weeks to the end of his tenure, the former Vice Chancellor purchased 23 new Peugeot cars at a cost of over N50 million, even as they claim that he did not pay retired staff their gratuity throughout his tenure with the results that the University was now owing retired staff over N5000 million…”
WHEREOF the Plaintiff claims:
(i) N500,000,000.00 (Five Hundred Million Naira) as Damages including aggravated and/or exemplary for libel in respect of the Article headed “N2bn fraud rocks UNIBEN as ASUN alerts ICPC” which the 1st Defendant published and the 2nd and 3rd Defendants caused to be published in the issue of the Saturday Sun Newspaper dated 18th September, 2004 under caption “N2bn fraud rocks UNIBEN as ASUU alerts ICPC”
(ii) An injunction restraining the defendants either jointly or individually from further publishing the same or similar libel of the Plaintiff or any words to the like effect…”
The suit was filed on the 22nd day of November, 2004. The Appellant was the Vice-Chancellor, University of Benin from February 10th 1999 to February 9th 2004. The Appellant was no longer the Vice-Chancellor of the University of Benin when this suit was filed at the lower court. See paragraph 1 of the Statement of Claim at pages 3 and 5 of the Record of Appeal.
The Respondents filed their statement of Defence on the 18th day of January, 2005 at the lower court. Subsequently, the Respondents brought a Motion on notice dated 13th day of June 2006 challenging the jurisdiction of the Honourable Court to determine the suit. The Statement of Defence and the Motion of the Respondents are at pages 19-22 and 28-29 of the Record of Appeal.
The Respondents’ Motion dated 13th June, 2006 was argued by the parties on the 27th day of June, 2006. The Lower Court delivered its Ruling on the 26th day of October, 2006 declining jurisdiction to hear the matter on the ground that it was the Federal High Court, Benin Division that that exclusive jurisdiction to hear and determine the matter.
The Ruling is at pages 30-37 of the Record of appeal.
When the appeal came up for hearing on 20/2/12 IGHODALO IMADEGBELO SAN leading other counsel for the appellant adopted his brief as dated and filed on 16/10/09. He relied on it and urged the court to allow the appeal. MR. EDOSA holding the brief of J.H.C. NWOKOLO for the Respondent adopted and relied on the Respondent brief dated 12/11/09 and filed on 13/11/09. Urging this court to dismiss the Appeal.
The Appellant in his brief formulated one issue from the Grounds of Appeal.
The issue as formulated reads as follows:
ISSUE FOR DETERMINATION
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE FEDERAL HIGH COURT HAD EXCLUSIVE JURISDICTION TO DETERMINE THE APPELLANT’S CLAIM OF LIBEL AGAINST THE RESPONDENTS BY VIRTUE OF SECTION 251 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 SEE: (GROUNDS 1, 2 AND 3)
He argued that the issue of Jurisdiction is determined by the plaintiff’s claim and that it is the nature of Plaintiffs claim as disclosed in the Writ of Summons and Statement of Claim. Referred to.
(1) TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 117) 2 (PAGE 517).
(2) ONURAH Vs V. K.R.P.C. LTD (2005) 16 NWLR (PART 921) (PAGE 393).
He argued that there is no doubt that the appellants’ case is predicated on Libel where the trial judge acknowledged same at Pages 34 – 35 of the Record where he said
”This is because the claim of the plaintiff/Respondent is founded on the Tort of defamation being one of Libel”.
He argued that the learned trial Judge finding is erroneous. He argued that appellant and University of Benin are separate persons. He referred to
ATUGBA & CO. Vs GINS NIG. LTD (2005) 8 NWLR (PT.927, 429
AGBONMGBE BANK LTD VS G.M.G.B OCLIVANT LTD & ANOR 1 ALL NLR 116.
He cited section 251 (1) of the constitution.
He said in the present of appeal the appellant is not a Federal Government Agency and the subject matter does not fall within matters covered by Section 251 of the Constitution. He argued that a Libelous allegation against a Former Vice Chancellor does not cloth the Federal High Court exclusive Jurisdiction over the matter. The tort of Libel is not one of the enumerated items S.251(1) and therefore outside the Jurisdiction of the Federal High court. He cited the case of
OLADIPO Vs. N.C.S.B. (2009) 12 NWLR (PT.1156) page 563 at page 585
He concluded that the Federal High Court has no Jurisdiction in a simple case of Libel between the Appellant and the Respondent.
The Respondent on the other hand in his brief argued that in the determination of issue of Jurisdiction it is the Statement of Claim that matters. He submitted that the learned trial Judge was right in his decision.
He argued that there is no way where the appellant will prove his claim without touching on the administration of the University of Benin. He further argued that the claim is libel in his acts of control; management and administration of the University of Benin. He then concluded that the proper order to be made where a court has no Jurisdiction is to strike out the action as having no locus. He relied on the cases of
NIG. LEATHER WORKS LTD Vs VOES UMTAUFT LTD & ANOR 1977 NCAR 428.
OLARINDE & ORS Vs OYEBI & ORS (1984) 5 SC 1.
He then urged this court to dismiss the appeal without cost.
S.251(1) of the Constitution of the Federal Republic of Nigeria as Amended reads as follows, for emphasis I quote.
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be Conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters –
(a) relating to the revenue of the Government of the Federation is in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation.
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs duties and excise duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act:
(f) any Federal enactment relating to copyright, patent designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards:
(g) any admiralty jurisdiction including shipping and navigation on the River Niger or River Benue and their effluents and on such other inland waterway, as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas.
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft;
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures;
(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 any executive or administrative action or decision by the Federal Government or any of its agencies, and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly:
I have considered the issue raised in this case I believe the matter in this appeal is not novel as there are more than enough authorities to guide the courts in the determination of issue on jurisdiction.
In determining the question of Jurisdiction of court the Court will consider only the writ of summon and statement of claim.
see: A. G. FEDERATION Vs GUARDIAN NEWSPAPER (2001) FWLR (PT.32) pg.971)
KOTOYE VS SOVELHI (1994) 7 NWLR (PART 317) 414
The court should consider the writ of summons, statement of claim and facts deposed to an affidavit. The statement of Defence is not one of the relevant materials for that purpose.
See: USMAN VS. BABA (2005) NWLR (PART 917) 113; ADEYEMI Vs OPEYORI (1976) 9 – 10 SC 3.
There is no doubt that the question of Jurisdiction is very fundamental. Court are creations of statues and it is the statute that created a particular court that will also confer on it its jurisdiction.
See: OKULATE Vs AWOSANYA (2000) 1 SC 107.
Where the Jurisdiction of a court over a suit is challenged the court is entitled under s. 6 of the 1999 constitution to consider the claim before it in order to decide whether it has the Jurisdiction to interfere with such. see: ADELEKE vs OSHA (2006) 16 NWLR (PT.1006) 608 CA.
I agreed with my learned brother Nweze JCA in the case of OLADIPO V. NCSB (2009) 12 NWLR (PT.1156) 563 AT PAGE 585 where he says as follows I quote.
“…Before we return to this question, we must first Return to the implication of the drafting technique in section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High court. In all, that section vested exclusive jurisdiction on the Federal High court in eighteen major items, see, per Tobi JSC. In OLUTOLA v. UNILORIN (2004) 18 NWLR (PT.905) 416, 462.
the implication of this technique is that the said court (Federal High court) is actually a court of enumerated Jurisdiction, that is, a court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matters enumerated therein.
In would, therefore, amount to wreaking havoc on the express letters and intendment of the said section 251 to construe it as granting the said court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated ADELEKAN Vs ECULIRE NV (2006) 12 NWLR (PT.993, 33) AT PAGE 52.
The effect of the circumscription of the jurisdiction of the court to those eighteen major items is that whenever the question of jurisdiction of the court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that court is not the proper forum for the ventilation of the action …”.
Having said so much above and having followed the guiding principles as laid down by the authorities it is my honest opinion that the Federal High Court has no jurisdiction to adjudicate Appellant’s claim based on tort. That issue has been established by the Supreme Court in ADELEKAN Vs ECULINE NV (2005) 12 NWLR (PART 993, 33) AT 52.
Since the case under consideration is founded on Libel the Federal High Court has no Jurisdiction to entertain the appellant’s claim. He has therefore initiated his case in a proper court, i.e the High Court of Edo State notwithstanding that the appellant was the Vice Chancellor of the Federal University. The decision of the learned trial Judge was erroneous. The appellant is a separate entity from the University of Benin.
The Ruling of the learned trial Judge delivered pm 26/10/06 is set aside and the case is remitted to the Chief Judge of Edo State for determination by another judge of the High Court of Edo State.
The appeal therefore succeeds and I award a cost N30,000.00 in favour of the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I read before now the leading judgment just delivered by my learned brother, Shoremi, JCA. I agree with his line of reasoning and conclusion that this appeal is meritorious. It is hereby allowed by me. I equally abide by the consequential orders, including that of costs, made in the said leading judgment.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I have read before now the lead Judgment just delivered by my learned brother SHOREMI JCA. I agree that there is merit in the appeal enough to warrant this court interfere with the Ruling of the court below.
The decision of the learned trial Judge was erroneous. The Appellant is a separate entity from the University of Benin. The Ruling of the learned trial Judge delivered on the 26th of October 2006 is set aside. The case is remitted to the Chief Judge of Edo State for determination by another Judge of the High Court on the merits. I abide by the order as to costs.
Appearances
Ighodalor lmadegbelo (SAN), F. Imade Esq., U. Egbopre Esq., D. Oghor (Miss), U. OsaraFor Appellant
AND
C. O Edosa holding the brief of J.H.C. NwokoloFor Respondent
