S.O. NTUKS & ORS. V. NIGERIAN PORTS AUTHORITY (2011)

S.O. NTUKS & ORS. V. NIGERIAN PORTS AUTHORITY

(2011)LCN/4956(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of December, 2011

CA/L/941M/2009

RATIO

DISCRETION OF COURT: STATUTORY PROVISION EMPOWERING A JUDGE TO EXERCISE ITS DISCRETION TO DETERMINE ANY SUCH QUESTION OF CONSTRUCTION, IF IN HIS OPINION IT OUGHT NOT TO BE DETERMINED ON ORIGINATING SUMMONS

DECLARATORY JUDGMENT: WHETHER A DECLARATORY JUDGMENT CAN BE ENFORCED BY A SUBSEQUENT PROCEEDING

As rightly postulated by Appellants’ counsel at page 5 of his Brief of Argument, a declaratory judgment can be enforced by a subsequent action or proceeding. PER RITA NOSAKHARE PEMU, J.C.A.

CAUSE OF ACTION: WHETHER A CASE MUST BE DECIDED ON THE BASIS OF THE LAW WHEN THE CAUSE OF ACTION AROSE

It is trite that a case must be decided on the basis of the law when the cause of action arose. See: ADESANOYE V. ADEWOLE (2006) 14 NWLR (Pt. 1000) page 242, PRINCE MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt. 58) page 539. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JURISDICTION OF THE FEDERAL HIGH COURT: EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT WITH RESPECT TO ACTIONS IN RESPECT OF THE ADMINISTRATION AND MANAGEMENT OF THE FEDERAL GOVERNMENT OR ANY OF ITS AGENCIES IS A PARTY

…that changed with the 1999 Constitution Section 251(p) & (r) state thus: 251: “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 exclusive of any other Court in civil case and matters. (p) the administration or the management and control of the Federal Government or any of its agencies (r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administration action or decision by the Federal Government or any of its agencies.” There is no doubt that the fresh suit FCH/L/CS/490/08 filed by the Appellants at the Federal High Court after the declaration of their entitlements to their rights and their benefits and gratuities made by Sahid J. was confirmed by the Supreme Court was filed in 2008 when the venue for such an action had been shifted to the Federal High Court. There are a plethora of authorities the locus classicus of which is NEPA V. EDEGBENRO (2002) 12 SC (pt. 2 page 119 wherein judicial interpretation and affirmation had been given to this provision of the Constitution granting exclusive jurisdiction to the Federal High Court where as in this case the cause of action is in respect of the administration and management of the Nigeria Ports Authority which is an agency of the Federal Government. Administration and management has been interpreted to include financial, administrative, master servant relationship and policy decision made by the Federal Government and its agent. The issue of the payment of the gratuities and pensions of the Appellants is squarely within the province of Section 251(p) since it has to do with the policy decision of the Respondent. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

RITA NOSAKARE PEMU Justice of The Court of Appeal of Nigeria

Between

S.O. NTUKS & ORS
For and on behalf of N.P.A.
Retrenched Staff June, 1991 Appellant(s)

AND

NIGERIAN PORTS AUTHORITY Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice Okechukwu Okeke of the Federal High Court of Lagos, delivered on the 27th day of July, 2009, wherein he declined jurisdiction, in respect of the Appellants’ claims, on the ground that the proper venue is the Lagos High Court, and not the Federal High Court, consequently referring the suit to the Lagos High Court for further hearing of the matter.
Before now, this matter had experienced a chequered history, as the suit in respect of it was originally commenced in 1992, by Writ of Summons No. LD/1827/92 before Honourable Justice A.R. Sahid of the Lagos High Court, on behalf of the retrenched staff of the Nigerian Ports Authority in June 1991, against the Respondent – Nigerian Ports Authority.
The learned trial Judge on the 12th of July, 1996, entered judgment in favour of the Appellants against the Respondent.
The Respondent appealed the decision, and same was dismissed on the 16th of February, 1998 by the Court of Appeal. The Appellant filed no further appeal to the Supreme Court.
In 1999, the Respondent commenced another suit in LD/1021/99 against the Appellants, and sought to set aside the judgment of A.R. Sahid J., delivered on the 12th of July, 1996 in Suit No. LD/1827/92. The  Appellants raised the issue of Res Judicata, which was upheld by the learned trial judge D. F. Akinsanya J., and the suit was dismissed by him.
The Respondent appealed the decision of D.F. Akinsanya J., to the Court of Appeal, who allowed the Respondents’ appeal, and set aside the judgment of D. F. Akinsanya J. The Appellants appealed to the Supreme Court in Suit No. SC/190/2003.
On the 11th of May, 2007, the Supreme Court allowed the Appellants’ appeal, and affirmed the declaratory judgment of Sahid J., delivered on the 12th of July, 1996.
The Appellants sought to enforce the Judgment given in their favour, and consequently took out Originating Summons to service payment of their pension, gratuity, and redundancy benefit, granted them in the judgment of 12th July, 1996 against the Respondent.
The Respondent, at the Federal High Court before Hon. Justice Okechukwu Okeke, filed an objection to the Appellants’ suit, wherein it challenged the jurisdiction of the Federal High Court, on the ground that the suit ought to be filed at the Lagos High Court, and whether the Appellants Pre-Action NOTICE was valid in law. The learned trial Judge, while upholding the validity of the Appellants’ Pre-Action Notice, declined jurisdiction, because the proper forum for hearing the matter should be the Lagos High Court, and not the Federal High Court.
Dissatisfied with this decision of the 27th of July, 2009, the Appellants, in line with the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 5th of August, 2009 with two Grounds of Appeal, which are that:
GROUND 1 “The Learned trial Judge erred in law when he held that the proper venue for the Appellants suit for the enforcement of the declaratory Judgment is the Lagos High Court and not the Federal High Court”.
GROUND 2 “The Learned trial Judge misdirected himself in law by failing to follow the decision of the Supreme Court in N.E.P.A. VS EDEGBENRO (2002) 12 S.C. Pt.2 Page 119 which settled the issue of jurisdiction of the Federal High Court in matters related to the Agencies of the Federal Government being under the misconception that the claims of the Appellant ought to be adjudicated upon by the State High Court which gave the Original Judgment.”
The Respondent, on the 18th of March, 2011 filed Notice of Cross-Appeal, as Cross-Appellant with a sole Ground of Appeal which is that:
“The Learned trial Judge erred in law by holding that Appellant issued and served a valid Pre-Action Notice prior to the commencement of this suit.”
To argue the appeal, the Appellants filed its Brief of Argument on the 14th of October, 2010. The Respondents’ relevant Brief of Argument, is the one filed on the 20th of December, 2010, but deemed properly filed and served on the 7th of March, 2011, because the Respondent, having been out of time, had in a Motion on Notice filed on the 20th of December, 2010, sought an order enlarging time, within which the Respondent/Applicant shall file his Brief of Argument, which application was granted on the 7th of March, 2011.
The Cross Appellant/Respondent filed its Brief of Argument on the 21st of April, 2011, while the Cross Respondent filed its Brief of Argument on the 23rd of May, 2011.
The Appellant from the two Grounds of Appeal has identified, formulated and argued two issues for consideration and they are:
(a) Whether the Appellants were right to have approached the Federal High Court in Suit No. FHC/L/CS/490/08 for the enforcement of the declaratory Judgment of Sahid J. of the Lagos High Court affirmed by the supreme court on 11th May, 2007 or it should have filed the suit at the Lagos High Court when it was not in dispute that the Respondent is an agency of the Federal Government of Nigeria (Tied to Ground 1)
(b) Whether the learned trial Judge erred in law to have declined jurisdiction to adjudicate on the claims of the Appellants in view of the decision of the Supreme Court in N.E.P.A VS EDEGBENRO (2002) 12 S.C. Pt. 2. Page 119 vis-a-vis the provision of the 1999 Constitution of the Federal Republic of Nigeria.” (Tied to Ground 2)
The Respondent in his Brief of Argument filed on the 20th of December, 2010, but deemed filed on the 7th of March, 2011, has identified, formulated, and argued two issues for determination in this appeal which are:
(a) Did the Court below rightly or wrongly decline jurisdiction to entertain the suit?
(b) Assuming the Court below wrongly declined jurisdiction to entertain the suit, are the Appellants entitled to judgment as per their claims before the Federal High Court?
Appellants’ Brief of Argument was settled by A.M. Makinde Esq. while that of the Respondent was settled by Professor Taiwo Osipitan SAN, and on the 14th of September, 2011, counsel for the respective parties adopted their Briefs of Argument. While A.M. Makinde Esq. urges this Court to allow the Appeal, Professor Taiwo Osipitan SAN, urges Court to dismiss the appeal.
Professor Osipitan submits that he filed a Notice of Cross Appeal dated 15th of March, 2011 but filed on the 18th of March, 2011, with two Grounds of Appeal. In support is a Cross-Appellants Brief filed on the 21st of April, 2011 with two issues for determination. He adopts same, and relies on the argument in his Brief, and urges this Court to allow the Cross-Appeal.
Mr. Makinde submits that the Cross Respondents’ Brief of Argument was filed on the 23rd of May, 2011 and he adopts same and relies on his arguments in support thereof. That at the time the cause of action arose, it was the Federal High Court that had jurisdiction. That is why he is disagreeing that the matter be transferred to the State High Court.
Arguing Issue No. 1, which learned counsel for the Appellant submits is tied to Ground 1 in the Appeal, it is his contention, that the declaratory Judgment entered in favour of the Appellants by the Lagos High Court on 12th July, 1996, is one that merely [in his own words) proclaims the existence of the legal rights of the Appellants, and goes no further in providing consequential reliefs to the Appellants. He concedes that a declaratory judgment can however be enforced by a subsequent action, or proceeding, where the declared rights have been violated for enforcement.
He further argues that by the concurrence of the parties, the status of the Respondent is that of an Agency of the Federal Government. Therefore the Federal High Court was the proper venue for the suit, and not the Lagos High Court.
Learned counsel had argued, that the basis for Suit No. FHC/L/CS/490/08, now on appeal is the violation of the declared rights of the Appellants by the Respondent, despite the subsisting declaration.
Arguing Issue No 2 which he ties to Ground 2, learned counsel for the Appellants had argued, that the learned trial Judge of the Federal High Court had erred in law to have declined jurisdiction to adjudicate on the claim of the Appellant, in view of the decision of the Supreme Court in N.E.P.A. VS. EDEGBENRO (2002) 12 S.C Pt. 2 Page 119 vis-a-vis the Provisions of the 1999 Constitution of the Federal Republic of Nigeria.
He argues that the learned trial Judge, in his ruling of the 27th of July, 2009, pronounced on the validity of the Pre-Action Notice served on the Respondent by the Appellant, by holding that the Appellants Pre-Action Notice was valid in law, and in consequence, the action is not time barred, thereby dismissing the Preliminary Objection legs (III) and (IV) in favour of the Appellants.
Learned counsel submits that claims of the Appellants at the lower court for payment of pension, gratuity and redundancy benefit, pursuant to the declaratory Judgment, arose out of the administrative action or decision of the Respondent. Therefore he contends, that brings the matter within the exclusive jurisdiction of the Federal High Court for determination.
It is the contention of learned counsel that the learned trial judge, having made a pronouncement on the validity of the pre-action notice, had assumed jurisdiction in the matter. He was wrong (he argued), to have also declined jurisdiction, and transferring the suit to the Lagos High Court.
Learned counsel has urged this Honourable Court citing INAKOJU VS. ADELEKE (2007) 1 S.C. Pt. 1, Page 1 to, because of the chequered history of this case, exercise its powers, pursuant to section 16 of the Court of Appeal Act, and to determine the Originating Summons and Preliminary Objection as it pertains to jurisdiction. This is because, learned counsel for the respective parties had filed their respective arguments in support of, and against the Originating Summons and Preliminary Objection – referring to pages 279-286 and 295-305 of the Record of Appeal.
He submits that all the relevant exhibits are in the Court below, and learned counsel for both parties had filed their respective addresses to both the Originating Summons and the Preliminary Objection, filed by the parties. These materials are before this Honourable Court, he submits.
He submits that this suit which was commenced in 1992 as Suit No. LD/1827/92, went to the Court of Appeal as CA/L/425/97. It later metamorphosed into Suit No. LD/1021/99, which sought to set aside the judgment in LD/1827/92, delivered in 1996. The Respondent who initiated Suit No. LD/1021/1999, appealed the decision dismissing the suit on the ground of Res judicata in Suit No. CA/L/99/2002, which set aside the judgment entered in favour of the Appellants. The Appellants’ appeal to the Supreme Court was allowed on 11th May, 2007, which affirmed the declaratory judgment in favour of the Appellants. Despite that judgment which affirmed that the Appellants are entitled to pension, gratuity and redundancy benefits, the Respondent had failed to pay the Appellants their dues.
Learned counsel urges this Honourable Court to exercise its discretion, as well as to wield its powers given it by Section 16 of the Court of Appeal Act, and not remit this case back to the trial court, after determining the question of jurisdiction, as this would bring untold hardship and suffering to the Appellants.
Learned counsel for the Respondent, Professor Taiwo Osipitan SAN, concedes that the suit, the subject matter of this Appeal, was in the judgment in question transferred to the High Court of Lagos State from the Federal High Court who declined jurisdiction. The learned trial judge of the Federal High Court had in the same ruling, held that there was a valid pre-action notice issued and served by the Appellant on the Respondent, prior to the commencement of this suit. And that the Court made this finding, despite its declining jurisdiction to entertain the action.
The Respondent had proffered two issues for determination and they are:
(1) Did the Court below rightly or wrongly decline jurisdiction to entertain this suit?
(2) Assuming the Court below wrongly declined jurisdiction to entertain the suit, are the Appellants entitled to judgment as per their claims before the Federal High Court?
Learned silk had argued that the judgment of the High Court of Lagos State, is not merely declaratory but executory as, apart from declaring the rights of the Appellants, the judgment also contains a mandatory order which is capable of being enforced. He cites the cases of OKOYA VS. SANTILLI (1990) 2 NWLR (Part 131) Page 172 at 196 Paragraph G per Agbaje JSC, and CARRENA VS. AKINLASE (2008) 14 NWLR. Pt.1107) Page 262 at 291 Paragraph b – g.
He alludes to the fact that in view of the executory nature of the judgment under consideration, the proper forum to enforce the judgment is the High Court of Lagos State, being the Court which delivered the judgment. He submits in the alternative that, assuming the judgment of the High Court of Lagos State is purely declaratory, the Federal High Court would still have lacked the jurisdiction to entertain the suit dealing with enforcement of the judgment of the High Court in Suit No. LD /1827/92.
He argues that the judgment sought to be enforced through the action commenced by the Appellant in the Federal High Court, is not the judgment of the Federal High Court but that of the High Court of Lagos State.
He further argues that the proper forum to enforce a judgment is the Court whose judgment is the subject of enforcement. Citing OKOLI VS. UDEH (2008) 10. NWLR Pt. 1095 Paragraph 213 at 276 Paragraph 1; AGHENGHEN & ORS VS. WAGHOREGHOR & ORS 1974 1 ALL NLR Pt. 1 page 81 at 85; UDO-IDION EKERETE VS. UDO ENWE EKE 1925. 6 NWLR 118, he argues that an order made by a Court of concurrent jurisdiction with another Court, cannot be made to have the effect of sitting on appeal on the earlier valid and subsisting order of the other Court.
Learned silk had argued that the suit before the Court below was about how to give effect to the judgment of the Lagos High Court in Suit No. LD/1827/92. It was therefore outside the scope of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria.
He contends that the Appellants relied on the judgment of the High Court of Lagos State, as the foundation of her claim before the Federal High Court. If that judgment is removed from the claim, he argues, the Appellant would have had no reasonable cause of action before the Federal High Court.
He further contends that the cause of action in this suit, is outside the scope of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. In order for the Federal High Court to have jurisdiction, not only should the Respondent be an agent of the Federal Government, the cause of action must fall within the scope of Section 251 of the 1999 Constitution citing N.LM.R. VS. AKIN-OLUGBADE (2008) 5 NWLR Pt. 1039 at page 95. Paragraph. He argues that it is obvious that the Respondents’ non-payment of pensions and gratuities adjudged as due to the Appellant by the High Court of Lagos State in Suit No. LD/1827/92, is the reason for the action commenced by the Appellant at the Lagos High Court. In other words, that the Appellant relied on the judgment of the High Court of Lagos State, as the foundation of her claim before the Federal High Court, and if that judgment is removed from the claim, the Appellant would have had no reasonable cause of action before the Federal High Court.
He contends, and reiterates that enforcement of judgment of State High Court and indeed of any other Court or Agency of the Federal Government is not one of the issues in respect of which jurisdiction has been conferred on the Federal High Court under Section 251(1) of the 1999 Constitution of the  Federal Republic of Nigeria.
He argues that the circumstances for the Court of Appeal invoking Section 16 of the Court of Appeal Act do not exist in this case citing N.C.C VS. MTN (NIG.) COMMUNICATION LTD (2008) 7 NWLR (Pt 1086) page 229-270 paragraph A-C.
That in view of the affidavits before the lower Court, if it had assumed jurisdiction, it would have ordered the filing of pleadings and or adduces oral evidence from the parties. Therefore, he argues, it would be inappropriate for this Honourable Court to exercise the power which the lower court could not have exercised on the basis of Section 16 of the Court of Appeal Act.
For purposes of clarity, and at the expense of repetition, I deem it pertinent to reproduce the two Grounds of Appeal before this Court in respect of this matter, shorn of its particulars.
Ground 1 “The learned trial Judge erred in law when he held that the proper venue for the Appellants suit for the enforcement of the declaratory Judgment is the Lagos High Court and not the Federal High Court.”
Ground 2 “The learned trial Judge misdirected himself in law by failing to follow the decision of the Supreme Court in N.E.P.A. VS. EDEGBENRO (2002) 12. S.C. Pt. 2 at Page 119 which settled the issue of jurisdiction of the Federal High court in matters related to the Agencies of the Federal Government being under the misconception that the claims of the Appellants ought to be adjudicated upon by the State High Court which gave the original judgment,”
It would be right, in my view, to postulate that the main issue for determination can be aptly put thus:-
1. Whether the learned trial judge was right to have held that the proper venue for the Appellants’ suit is the Lagos High Court and not the Federal High Court, thereby transferring same to the Lagos High Court. I shall decide this appeal solely upon this Issue.
As earlier observed, the suit commenced by Writ of Summons as Suit No. LD/1827/92 was before Honourable justice A.R. Sahid of the Lagos State High Court in 1992, who on the 12th of July, 1996 entered judgment in favour of the Appellant.
The Respondent filed an appeal against the said judgment, and same was dismissed on 16th February, 1998. There was no further appeal to the Supreme Court in respect of the matter by the Respondent.
In 1999, the Respondent sought to set aside the said judgment, which application was dismissed on grounds of Res Judicata.
The Respondent appealed that decision by Honourable Justice D.F. Akinsanya [Rtd.) to the Court of Appeal who allowed the Appeal, thereby setting aside the judgment. The Appellant appealed to the Supreme Court who allowed the Appellants’ appeal and affirmed the declaratory judgment of Sahid. J. delivered on 12th July, 1996.
The Originating Summons filed on the 5th of May, 2008 was taken out by the Appellants to secure payment of their pension, gratuity and redundancy benefit as granted in the judgment of 12th July, 1996 against the Respondent in the present suit.
Notably is that the said Originating Summons reflected at pages 1-6 of the Record was taken out at the Federal High Court Lagos by the Plaintiffs (Appellants in this present Appeal). It was to enforce the judgment of the High Court of Lagos, dated 12th July, 1996 in Suit No. LD/1827/92 delivered by Honourable Justice Sahid, and affirmed by the Supreme Court.
By Notice of Preliminary Objection filed on the 20th of June, 2008, the Defendant/Applicant (Appellant in this present suit) had, based on four grounds challenged the jurisdiction of the Federal High Court to wit:
(i)  The Plaintiffs’ case of action to wit: the enforcement of the High Court of Lagos judgment dated 12th July, 1996 in Suit No. LD/1827/92 as confirmed by the Court of Appeal in its Judgment of 16/2/1998 in Appeal No. CA/L/425/97 is not cognizable at the Federal High Court.
(ii) The substance of the Plaintiffs action which relates to condition of employment, entitlement and/or emoluments of the Plaintiffs who were formally in the employment of the Defendant, is outside the scope of the jurisdiction of the Federal High Court.
(iii) The Plaintiffs failed to give proper statutory/pre-action notice to the Defendant prior to the commencement of the suit.
(iv) The Plaintiffs suit is time banned, same not having been commenced within the limitation period specified for the Plaintiffs cause of action.
In his ruling of the 27th of July, 2009, which is being challenged in this Appeal, he had this to say inter alia at page 7 of the Ruling [reflected at page 317 of the Record of Appeal).
“There is nothing before the Court as to why the Lagos State High Court, the source of the suit that culminated in the Judgment of the Supreme Court cannot enforce the said Judgment. It is my view that the Lagos State High Court is in a better position than the Federal High Court to enforce the said judgment”.
Learned counsel for the Respondent had distinguished between Executory judgment, and Declaratory judgment, and submits that the judgment under consideration, has an executory nature, and the proper forum to enforce the judgment is the High Court of Lagos, being the Court which delivered the Judgment, as the judgment sought to be enforced in the Federal High Court is not the judgment of the Federal High Court, but that of the High Court.
He queries if a Court, can enforce the judgment of another Court of coordinate jurisdiction, as the Federal High Court is of coordinate jurisdiction with the High Court of a State.
Learned silk also queries, if enforcement of judgment of a State High Court and indeed of any other Court against an Agency of the Federal Government, is one of the issues in respect of which jurisdiction has been conferred on the Federal High Court under Section 251(1) of the 1999 Constitution.
Learned counsel for the Appellant has urged this Court to exercise its powers under Section 16 of the Court of Appeal Act.
Learned counsel for the Respondent has argued, that the Federal High Court do not entertain Originating Summons in the first place. I with respect do no share this view.
I am however of the view that the Federal High Court is by Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009, seized of jurisdiction to entertain proceedings begun by Originating Summons. For purposes of clarity, I deem it pertinent to reproduce these Rules of the Federal High Court.
Order 3 Rule 6  “Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.” order 3 Rule 7 Order 3 Rule 7    “Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed.”
The Originating Summons, which is the subject of this appeal can apply be reproduced thus:

“IN THE FEDERAL HIGH COURT
HOLDEN AT LAGOS

SUIT NO: FHC/L/CS/L/90/08

BETWEEN:
1. S.O. NTUKS & ORS.
2. CLI. NWORGU
3. C. OKOCHA
4. A. ADUBE
5. A. ASHERI
6. C. AFUKAM APPELLANTS
7. J. ONI
8. IKUJORE
9. C.C. OFOHA
10. S. ABA
For and on behalf of N.P.A. Retrenched Staff June, 1991

AND
NIGERIAN PORTS AUTHORITY DEFENDANT

ORIGINATING SIIMMONS

Let Nigerian Ports Authority of 26/28, Marina, Lagos within 8 (eight) days after service of this summons on her, inclusive of the day such service cause an appearance to be entered for him to this summons which issued on the application of S.O. Ntuks & Ors of c/o their Solicitors who claim:
1. An order directing the Defendant to comply with the terms of the Judgment of Hon, Justice Sahid delivered on 12th July, 1996 in Suit No.: LD/1827/92 and affirmed by the Supreme Court judgment of 11th May, 2007 in Suit No.: SC/190/2003 for payment of pension, gratuity and redundancy benefit to the Plaintiffs.
2. An Order for payment of the sum of N=19,183,064.00 (Nineteen Million, One Hundred and Eighty Six Thousand and Sixty Four Naira) being unpaid gratuity of Plaintiff listed as Nos. 1-1112 on Exhibit Dm4.
3. An Order for payment of redundancy benefit in the sum of =N=100,000.00 (One Hundred Thousand Naira) each to the 2110 Plaintiffs total being N=211,000.00 (Two Hundred and Eleven Million Naira) only. 4. An Order for payment of pension at N=4,000.00 (Four Thousand Naira) per month from 1st July, 1991 – 28th February, 1999 a period of 92 months to the 1931 Plaintiffs entitled to pension total sum being -N=710,608,000.00 (Seven Hundred and Ten Million, Six Hundred and Eight Thousand Naira) only.
5. An Order for the payment of the sum of N=1,528,835,310.73 (One Billion, Five Hundred and Twenty Eight Million, Eight Hundred and Thirty Five Thousand, Three Hundred and Ten Naira and Seventy Three Kobo) being pension entitlement of plaintiffs as shown on Exhibit DM7,
6. An Order for the payment of the sum of N=3,241,924.00 (Three Million, Two Hundred and Forty One Thousand, Nine Hundred and Twenty Four Naira) being gratuity of the 179 plaintiffs as shown on Exhibit DMK,
7. An order for payment of all the monies to the plaintiffs Solicitors Messrs Dokun Makinde & Co.
8. An order for the payment of interest of 5% p.a on the said sums,
9. An order for payment of the cost of this action.
For the determination of the following question:-
7. Whether the Defendant has complied with the judgment of Sahid J. Affirmed by the Supreme Court decision of 11th May, 2007 by mere publication of some names of the Plaintiffs after the verification exercise?
2. Whether the Plaintiffs are entitled to the sums claimed as redundancy benefit and interest?
3. Whether Plaintiffs listed as Nos. 1-1112 on Exhibit DM4 are entitled to unpaid gratuity computed by the Defendant?
4. Whether the Plaintiffs are entitled to the sums claimed in Exhibit DM7 based on Exhibit DM5?
5. Whether the Plaintiffs on Exhibit DMK are entitled to the gratuity claimed?
Dated this 5th day of May, 2008

Signed
A.M. Makinde Esq,
DOKUN MAKINDE & CO.
Plaintiffs’ Solicitors
6, Catholic Mission Street,
Lagos… ……”

Let me quickly observe here that the Provisions of Order 3 Rules 6 and 7, of the Federal High Court (Civil Procedure) Rules 2009, are in pari material with the Provisions of Order 3, Rules 5 and 6 of the High Court of Lagos State (Civil Procedure) Rules 2004.
Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009 and Order 3 Rule 7 of the High Court (Civil Procedure) Rules 2004, of Lagos State, both give a Judge a discretion to determine any such question of construction, if in his opinion it ought not to be determined on Originating Summons, but may make any such orders as he deems fit. Now, from records, Suit No. LD /1827/92 was instituted in 1992, before the coming into place of the 1999 Constitution, a fortiori, the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999.
The Reliefs sought in that suit were declaratory in nature.
By Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria, it has this to say:
“Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person,’
Section 251(p) and (r) has this to say:
251: “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.
(p) the administration or the management and control of 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,
The suit at the High Court had to do with the non-payment of gratuity and redundancy benefits to the Appellants, who were staff of the Respondent.
This constituted in clear terms an issue of administration and management of a Federal Government agency, here the Nigerian Ports Authority.
For purposes of elucidation, I deem it pertinent to reproduce the said reliefs as gleaned from page 7 of the Record of Appeal. It is for:
1. “A declaration that all the staff particularly those Plaintiffs who put in a service period of between 5 to 9 1/2 years with the Defendant Corporation are entitled to gratuity.
2. “A declaration that those Plaintiffs who have served the Defendant for a period of 10 to 14 1/2 years qualify for pension and redundancy benefits under the Pensions Act 1990 as amended by circular Ref. No. B63216/51/X/618 of 13th September, 1991 and the Plaintiffs condition of service,
3. “A declaration that each of the staff is entitled to productivity bonus which was approved when the Plaintiffs were in service.
4. “A declaration that all the Plaintiffs are each entitled to 28 loads as contained in their condition of service.
5. “An order compelling Defendant to comply with this circular.
These reliefs would have been handled by the High Court at that time, as it did, but after the 1999 Constitution came in place, and by virtue of Section 251(1)(r), thereof, the reliefs being declaratory, are ones that fell clearly within the ambit and competence of the Federal High court.
Now, the Originating Summons instituted at the Federal High Court reflected at pages 1 and 2 of the Record of Appeal, seeks inter alia, an order directing the Defendant to comply with the terms of the judgment of Hon. Justice Sahid delivered on the 12th of July, 1996 in Suit No. LD/1827/92 and affirmed by the Supreme Court judgment of 11th May, 2007 in Suit No. SC/190/2003 for payment of pensions, gratuity and redundancy benefit to the Plaintiffs.
The claim on the originating Summons has to do with the Suit at the High Court in 1992. It is not a different suit, neither is it a different subject matter. Indeed the parties are the same. The reliefs sought in the Originating summons flow from the suit in the High Court in 1992.
As at the time the Originating Summons was filed, it is only the Federal High Court that was seized with the jurisdiction to entertain it, as the regular State High Courts were then constitutionally divested of jurisdiction to entertain matters as reflected in paragraph 251 of the Constitution of the Federal Republic of Nigeria 1999.
In her judgment of 27th July, 2009, the learned trial Judge at page 317 of the Record of Appeal had this to say:
“Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999 provides that the decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and powers, and by Courts with subordinate jurisdiction to that of the Supreme Court affirming the decisions of the Court of Appeal and the Lagos State High Court. There is nothing before the Court as to why the Lagos State High Court, the source of the suit that culminated in the Judgment of the Supreme Court cannot enforce the said judgment. It is my view that the Lagos State High Court is in a better position than the Federal High Court to enforce the said Judgment. In view of the above, jurisdiction is declined and the suit is transferred to the High Court of Justice, Lagos State for hearing and determination.”
With respect, I do not agree with this conclusion, as it negates the very purport and spirit of the Constitution of the Federal Republic of Nigeria 1999. (Section 251 thereof to be precise).
As rightly postulated by Appellants’ counsel at page 5 of his Brief of Argument, a declaratory judgment can be enforced by a subsequent action or proceeding. Moreso in this matter, parties are agreed that the Respondent is an agency of the Federal Government.
The case of NEPA vs. ADEGBENRO 2002 12 S.C. Pt. 2 Pg. 119 relied on by the Appellants is apt. It confirms that the intention of the law makers 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.
The argument by learned counsel for the Appellant that the claims of the Appellant for payment of pensions, gratuity and redundancy benefits pursuant to the declaratory Judgment arose out of the administrative action or decision of the Respondent, thereby bringing this suit within the exclusive jurisdiction of the Federal High Court to adjudicate cannot be faulted.
The consequence is that Issue No. 1 of the Appellants Brief of Argument must necessarily be answered in the affirmative. Same is resolved in favour of the Appellants.
Issue No. 2 is a fall out from Issue No. 1, as in my view the question posed there is more or less the same posed in Issue No. 1. There is therefore no need to expend energy on it as it would be unnecessary, but to say unequivocally that Issue No. 2 must also be answered in the affirmative. Same is resolved in favour of the Appellants.
Indeed I dare say that the issues formulated by the Respondent are akin to that of the Appellants, and it revolves round the main issue of whether the learned trial Judge was right to have declined jurisdiction to entertain the matter as he did. The answer is no.
Learned counsel had in the alternative, invoked the general powers of the Court of Appeal under Section 16 of the Court of Appeal Act which is now reflected in Section 15 of the Court of Appeal Act 2004.
Referring to INAKOJU vs. ADELEKE 2007 1 S.C. Page 1, he submits that the conditionalities to be met for the exercise of the powers of the Court of Appeal under Section 16 of the Act are:
(i) Availability of the necessary materials to consider and adjudicate in the matter.
(ii) The length of time between the disposal of the action at the trial court and the hearing of the Appeal and
(iii) The interest of Justice by eliminating further delay that would arise in the event of remitting the case back to trial court for hearing and hardship such an order would cause on either or both parties to this case.
Learned counsel for the Respondent is ad-idem with Appellants counsel on this.
The provisions of Section 15 of the Court of Appeal Act is discretionary and the Court of Appeal in wielding its discretionary power has to look into the circumstances of the matter before it, as one case cannot be exactly like the other, and the Court must decide matters according to the peculiar nature of each matter before it. This is not one of those cases where this Court should exercise its discretion in applying Section 15 of the Court of Appeal Act. This is because the reliefs sought in the Originating Summons are simply executory. It is to enforce what has already been determined by the Court. The invitation to wield the Provisions of Section 15 of the Court of Appeal Act is therefore refused.
THE CROSS-APPEAL
The Notice of Cross Appeal filed by Professor Taiwo Osipitan SAN on the 18/3/2011 has two grounds of Appeal. Shorn of the particulars, I hereby reproduce them verbatim.
Ground I “The learned trial Judge erred in law by holding that Appellant issued and served a valid pre-action notice pursuant to the commencement of this suit.
Ground II “The learned trial Judge erred in law by ordering the transfer of the suit to the Lagos State High Court.
He had formulated two issues for determination which are:
1. Whether or not having declined jurisdiction to entertain the Plaintiffs’ suit, the learned trial Judge has or lacks the power to determine and pronounce on the validity of the issue of pre-action Notice by the Appellant/Cross Respondent.
2. Whether the learned trial Judge having held that he lacked jurisdiction to entertain the suit has the constitutional/Judicial power to impose duties to adjudicate over the suit on the High court of Lagos state through an order of transfer of the suit to the High Court of Lagos State.
Learned silk, Professor Taiwo Osipitan SAN has urged this Court to set aside the decision of the Court below, to the effect that Appellants issued and served a valid pre-action notice, and setting aside the lower Courts order transferring the suit to the High Court of Lagos State, and in its place an order striking out the suit.
The Cross-Respondent filed its Brief on the 23rd of May, 2011, settled by A.M. Makinde Esq. He formulated and articulated two issues for determination which are:
1. Whether the pronouncement of the learned trial Judge on the validity of the pre-action Notice by the Appellants/cross-Respondent is sustainable where this court finds that his refusal to assume jurisdiction was erroneous to enable this court exercise its powers in order 4 Rules 1 & 3 of the court of Appeal Rules 2011 to sustain the decision? (Tied to Ground 1)
2. Whether the position of the Cross-Appellant that the learned trial Judge lacked jurisdiction to transfer the suit to the Lagos High Court makes her guilty of approbating and reprobating and constitutes an attempt at depriving the Cross-Respondents justice? (Tied to Ground 2).
Without belabouring these issues, I have held that the learned trial judge had jurisdiction to entertain the matter. Ipso facto, he had the competence to pronounce on the issuance and service of a valid pre-action Notice by the Appellants.
The answer to Issue No. 1 is in the negative and is resolved in favour of the Appellants, because the learned trial Judge ought not to have declined jurisdiction.
Issue No. 2 can be safely said to flow from issue No. 1 and should be answered in the negative. Same is also resolved in favour of the Appellants.
In all, I am of the view that this Appeal is one that ought to succeed as I same find meritorious.
I shall allow the Appeal and same is hereby allowed. The Cross-Appeal on the other hand is devoid of merit and same is hereby dismissed.
The case shall be remitted back to the Federal High Court Lagos for the determination of the Originating Summons. I make no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned sister RITA NOSAKARE PEMU, JCA and I am in complete agreement with her reasoning and conclusions that the appeal is meritorious and should be allowed. I also agree that the cross appeal should be dismissed being without any merit.
I will add a few words. There is no doubt that the first suit in respect of the parties and the subject matter was filed by writ of summons No. LD/1827/92 in the year 1992. At that time the cause of action – that is the declarations sought could only be heard by the Lagos State High Court which had unlimited jurisdiction’ In 1993, the military junta enacted a variety of Decrees which reduced the jurisdiction of the State High Courts in respect of matters within the exclusive legislative list. These provisions were further entrenched into the 1999 Constitution by Section 251 thereof which made that provision superior to the provisions of Section 272 (1) of the 1999.
The law in 1992 was that the State High Court had unlimited jurisdiction over any civil or Criminal proceedings.
It is trite that a case must be decided on the basis of the law when the cause of action arose. See: ADESANOYE V. ADEWOLE (2006) 14 NWLR (Pt. 1000) page 242, PRINCE MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt. 58) page 539. However, that changed with the 1999 Constitution Section 251(p) & (r) state thus:
251: “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 exclusive of any other Court in civil case and matters.
(p) the administration or the management and control of the Federal Government or any of its agencies
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administration action or decision by the Federal Government or any of its agencies.”
There is no doubt that the fresh suit FCH/L/CS/490/08 filed by the Appellants at the Federal High Court after the declaration of their entitlements to their rights and their benefits and gratuities made by Sahid J. was confirmed by the Supreme Court was filed in 2008 when the venue for such an action had been shifted to the Federal High Court. There are a plethora of authorities the locus classicus of which is NEPA V. EDEGBENRO (2002) 12 SC (pt. 2 page 119 wherein judicial interpretation and affirmation had been given to this provision of the Constitution granting exclusive jurisdiction to the Federal High Court where as in this case the cause of action is in respect of the administration and management of the Nigeria Ports Authority which is an agency of the Federal Government. Administration and management has been interpreted to include financial, administrative, master servant relationship and policy decision made by the Federal Government and its agent. The issue of the payment of the gratuities and pensions of the Appellants is squarely within the province of Section 251(p) since it has to do with the policy decision of the Respondent.
There is no doubt that the original suit LD/1827/92 was merely for declaratory reliefs and not executory.
The argument by learned Senior Counsel for the Respondent in support of the preliminary objection and in defence of the orders of the trial court is without merit’ Senior Counsel proferred the argument that the suit before the Federal High Court, subject of this appeal, is for the enforcement of the declaratory judgment of the Lagos High Court. The matter is not as simple as that. The fresh action was an executory action to assert crystallized financial benefits that are a product of the hitherto declared rights of the Appellants. That argument would have been tenable if on the other hand, the Appellants were simply trying to enforce for example a declaration that they were unlawfully dismissed or/and an order that they be re-instated, in which case they would have had to file contempt proceedings against the Respondent. That would have been the only way to enforce such declared rights against the Respondents and the venue would be the State High Court which made the declarations.
However, in this case, the declarations had crystallized into specific financial benefits and a new cause of action which they can now only enforce at the Federal High Court. There is a world of difference between enforcement of judgment per se and the facts and circumstances of the suit filed at the trial court.
For fuller reasons given by my learned sister, I allow the appeal and abide by the order as to costs.

JOHN INYANG OKORO, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, Pemu, JCA just delivered. I agree with her reasoning and conclusion that this appeal is meritorious and ought to be allowed while the Cross appeal lacks merit and should be dismissed. I shall add a few words in support of the judgment.
By Section 251(p) and (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Federal High Court is conferred with exclusive jurisdiction on matters concerning the administration or management and Control of the Federal Government or any of its agencies. Precisely, the Section states:
251. 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 –
(b) the administration or the management and control of 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.”
There is no doubt that the Respondent herein, the Nigerian Ports Authority is an agency of the Federal Government and as was clearly stated by the Apex Court in NEPA Vs Adegbero (2002) 12 SC (Pt. 2) 119, the intention of the Legislature by the above Constitutional provision is to take away from the State High Courts to the Federal High Court jurisdiction on matters which the Federal Government or any of its agencies is a party.
This is a matter which was filed at the Federal High Court after the coming into force of the 1999 Constitution of the of the Federal Republic of Nigeria and I am surprised that the Federal High Court refused to assume jurisdiction in the matter. This is an action to enforce a declarative judgment of the State high Court which was affirmed by the Supreme Court. Certainly, this is new action and not a continuation of the matter which had since been concluded and determined at the State High Court. In view of the fact that the cause of action arose after the 1999 Constitution had come into effect, I agree that the matter was rightly filed at the Federal High Court.
I am rather disturbed that this simple matter is still being fought in court about 20 years after it was filed. This matter had travelled to the Supreme Court and back but the Respondent is still not willing to let the Appellants enjoy the fruit of the judgment they won even if they cannot enjoy the fruit of the years they spent serving the Respondent. I implore counsel to remember that we are serving not only humanity but also the Almighty God as we are all Ministers in the temple of justice. A situation where this matter lingers in Court for about two decades now leaves much to be desired. There must be an end to litigation. It is my view that the Federal High Court where this matter was filed should give accelerated hearing in the matter so that members of the public can retain confidence in the judicial Process. I need not say more on this.
On the whole, I agree with my learned brother, Pemu, JCA that this appeal is meritorious and I also allow it. On the reasons given in the lead judgment, I also dismiss the cross-appeal. I also make no order as to costs.

Appearances

A.M. Makinde;
I.I. Ugbowie,
C.N. Obasi and
E.A. Udeolisa (Miss)For Appellant

AND

Professor Taiwo Osipitan (SAN),
Chrys Ahmadu Esq., and
Ayodeji Awobiyide Esq.For Respondent