U.P.S. NIG. LTD. v. ANIMASHAUN
(2020)LCN/15609(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 21, 2020
CA/L/515/2009
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
UNITED PARCEL SERVICE NIG. LTD. APPELANT(S)
And
MRS. BOLANLE ANIMASHAUN RESPONDENT(S)
RATIO:
THE JURISDICTION OF THE FEDERAL HIGH COURT
It is settled law that cases of simple contract fall within the jurisdiction of the High Court of a state. The Supreme Court in SPDC (NIG) LTD ORS v NWAWKA (2003) LPELR 3206 (SC) held thus;
“Although Section 7 (1) (b) of the Federal High Court Act (as amended of Decree No. 1991 No. 60) gave exclusive original jurisdiction to the Federal High Court to try civil cases and matters connected with provision pertaining to the operation of the Companies Act, Federal enactment and any other common law action regulating the operation of companies or the promotion of Nigerian enterprise, an action founded on a contractual employment relationship between a company and its employee is not a matter connected with or pertaining to the operation of a company incorporated under the Companies Act.” ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
THE JURISDICTION OF THE COURT IS DETERMINED BY THE CLAIMANT’S CLAIM
It is settled law that jurisdiction of a Court is determined by the claimant’s claim as endorsed in the writ of summons and statement of claim vide the cases (supra) cited on the issue by the appellant and the respondent in their respective briefs of argument. See also Adeyemi v. Opeyori (1976) 9 – 10 SC 31, Hon., Justice Raliat Elelu-Habeeb v. A.G. Federation (2012) 2 SC (pt. 11) JOSEPH SHAGBAOR IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal challenges the decision of the High Court of Lagos State (the Court below) by which it overruled the preliminary objection to its jurisdiction to entertain the action of the respondent.
Shorn of details, the respondent’s case at the Court below for its claim on writ of summons and statement of claim was for the sum of N2,960,000 (two million nine hundred and sixty thousand naira) as special damages occasioned by the appellant’s breach of its contract with the respondent as well as the sum of N2,500,000 (two million, five hundred thousand naira) as general damages for breach of contract and costs of the action.
According to the respondent’s statement of claim, the appellant who is a limited liability company incorporated in Nigeria at all material times carried on amongst others, the business of courier service both locally and internationally; that on or about 20/03/06, the respondent delivered to the appellant’s office in Lagos three (3) parcels containing beads and bracelets valued at N250,000.00 (two hundred and fifty thousand naira) for delivery to one of the respondent’s customer, Mr. Queen Alomaja at No. 6 Hollands Rhebon Manor, Athy County, Kilbare, Dublin in the Republic of Ireland latest by Wednesday, the 22nd of March, 2006 as the consignee was to use the contents of the parcel for an occasion on 25/03/06 and that the parcel reached Dublin as at 22/03/06, but was never delivered to the consignee.
It was on the facts averred in the statement of claim as summarised (supra) that the appellant raised and argued preliminary objection to the jurisdiction of the Court below stressing that only the Federal High Court has original jurisdiction to entertain the action. The respondent contended contrariwise at the Court below. Ruling on the preliminary objection, the Court below observed and held, agreeing with the respondent, that it has original jurisdiction to entertain the action as constituted.
Not unnaturally, the appellant was dissatisfied with the decision of the Court below and challenged it with a notice of appeal containing one ground of appeal filed with the leave of the Court granted on 21/05/09 vide pages 60-62 of the record of appeal (the record).
The appellant filed a brief of argument on 08/04/10 which was deemed as properly filed on 18/01/19. Relying on the cases of B.G.D.C. and DC v. Nzekwu (1957) S.C.N.L.R. (no pagination), Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (pt.497) (no pagination), Kabo Air Ltd. v. Oladipo (1999) NWLR (pt.623) 517, Egypt Air v. Abdullahi (1997) 11 NWLR (pt.528) 179, Sudan Airways Co. Ltd. v. Abdullahi (1998) 1 NWLR (pt.532) 156, Satyan 1 v. IMB Ltd. (2002) 5 NWLR (pt.606) 401, and Articles 1, 2 and 5 of the Warsaw Convention for The Unification of Certain Rules Relating to International Carriage By Air of 12/10/29 made applicable to Nigeria by Her British Majesty’s Order No. 1206 of 1953 and cited today as the Carriage of Air (Colonies, Protectorates and Trust Territories) Order No. 1206 Of 1953, the Amended Warsaw Convention (i.e., Hague Protocol of September 28 1955), the Convention Supplementary To The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage By Air Performed by a person other than the Contracting Carrier signed in Guadalajara on 18/09/61 and ratified by Nigeria on 02/10/69 but yet to be incorporated as part of the Laws of the Federation, the Carriage of Air (Colonies, Protectorates and Trust Territories) Order No. 1206 of 1953 as well as Section 251 (l), (k) of the Constitution of the Federal Republic of Nigeria 1999, as altered (1999 Constitution) and Section 7(l), (k) of the Federal High Court Act, the appellant contended that the intention of the respondent and the appellant as gathered from the agreement was for a contract for the carriage of goods by air contemplated by the Warsaw Convention and the Carriage of Air (Colonies, Protectorates and Trust Territories) Order 1953 which is within the exclusive jurisdiction of the Federal High Court, therefore the Court below lacks the jurisdiction to entertain the action and that the Court below should have upheld the notice of preliminary objection and struck out the case; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the action be struck out.
The respondent filed its brief on 27/12/18, but deemed as duly filed on 18/01/19. The respondent contended in the brief that going by the statement of claim the action sounds in simple contract for courier service within the jurisdiction of the Court below and outside the jurisdiction of the Federal High Court, therefore the Court below properly assumed jurisdiction over the action citing in support of the contention (supra) the cases of Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (pt.399) 39 at 56, Jombo v. P.E.F. (Mgt. Board) (2005) 7 SC (pt. 11) 30 at 48, Oduko v. Government of Ebonyi State and Ors. (2009) 3 — 4 SC 154 at 169-170, Goldmark Nig. Ltd. v. Ibafon Co. Ltd. and Ors. (2012) 3 SC (pt. 111) 72 at 114, Osumah v. Edo Broadcasting Service (2004) 17 NWLR (pt.902) 332 at 351, Hamidu v. Sahar Ventures Ltd. (2004) 7 NWLR (pt.873) 618 at 646 – 647., Macaulay v. NAL Merchant Bank Ltd.(1990) 4 NWLR (pt.144) 283, A.-G., Lagos State v. A.-G., Federation (2004) 18 NWLR (pt.904) at 89, Adelekan v. Ecu-line NV (2006) 12 NWLR (pt.993) 33 at 52, United Parcel Services v. Adeyosoye (2011) 5 NWLR (pt. 1240) 314 and Part IX of the Nigerian Postal Service Department Act Cap. 322 Laws of the Federation 1990, Civil Aviation Act Cap.51 Laws of the Federation 2004 particularly Sections 4 and 5 thereof, Sections 128 and 131 of the Evidence Act and Civil Procedure in Nigeria (2000, 2nd Edition University of Lagos Press) by Fidelis Nwadialo.
Accordingly, the respondent urged that the appeal be dismissed for lacking in merit.
It is settled law that jurisdiction of a Court is determined by the claimant’s claim as endorsed in the writ of summons and statement of claim vide the cases (supra) cited on the issue by the appellant and the respondent in their respective briefs of argument. See also Adeyemi v. Opeyori (1976) 9 – 10 SC 31, Hon., Justice Raliat Elelu-Habeeb v. A.G. Federation (2012) 2 SC (pt. 11) 1.
Since the jurisdiction of the Court is determined by the statement of claim, I find it apposite to reproduce the statement of claim contained in pages 3-6 of the record below:
STATEMENT OF CLAIM
1. The claimant is a businesswoman and resides at No.2 Makurdi Street Ebute Metta, Lagos State.
2.The Defendant is a limited liability company incorporated under the laws of Nigeria with offices in various part of the country and carries on amongst others, the business of courier service both locally and internationally.
3. The Claimant avers that on or about the 20th of March 2006, the Claimant delivered to the Yaba, Lagos office of the Defendant three (3) parcels containing beads and bracelets valued at N250,000.00 (Two hundred and fifty thousand naira) for delivery to one of the Claimant’s customers in Dublin, Republic of Ireland.
4. The Claimant also avers that she expressly made it known to the Defendant’s staff on duty that the parcels must be delivered to the consignee, Mrs. Queen Alomaja at No. 6 Hollands Avenue, Rhebon Manor, Athy County, Kilbare, Dublin latest by Wednesday the 22nd of March 2006 as the consignee was to use the contents for an occasion on Saturday the 25th of March 2006 and to show same to her friends who had already expressed interest in purchasing similar products from the Claimant in order for them to decide on their preferred design.
5. The Claimant shall contend at the trial of this action that the Defendant’s staff assured the Claimant that the parcels would be delivered within the time frame required on the condition that the Claimant pay the sum of N10,000.00 (Ten Thousand Naira) which the Claimant paid notwithstanding the fact that there were other courier companies whose services were far cheaper but said they could not guarantee delivery within the required time frame. The Claimant shall found and rely on the receipt and waybill issued to her upon payment to the Defendant herein at the trial of this action.
6. The Claimant avers that she was made to supply not only the address but also the telephone number of the consignee to enable the Defendant get in touch with the consignee if necessary.
7. The Claimant also avers that notwithstanding the facts stated in paragraphs 3 to 7 above, the Defendant refused or neglected to deliver the parcels to the consignee as agreed between the parties herein despite the fact that the consignee herself made several telephone calls to the Dublin office of the Defendant and she was promised on each occasion that the parcels would be delivered to her.
8. The Claimant avers that from the 23rd of March 2006 when she was informed by the consignee that the parcels had not been delivered, she made daily visits to the Defendant’s Yaba office and made several calls to the Defendant’s Dublin office so as to get information as to the position of the parcels but she was given conflicting reports by the Defendant until the 12th of April 2006 when she was able to download from the defendant’s website the tracking record of the parcels showing that they had reached Dublin as at the 22nd of March 2006. The Claimant shall found and rely on a copy of the said tracking record at the trial of this case.
9. The Claimant avers that although she was in the Defendant’s Yaba office as at 11th April and was informed that the parcels would be delivered to the consignee on that day, a letter marked ‘advice notice’ and dated 7th April 2006, was delivered to her residence on the 12th of April 2006 with conflicting information in relation to the position of the parcels. The Claimant shall found and rely on the said advice notice at the trial of this action.
10. The Claimant also avers that till date the parcels have not been delivered to the consignee neither have they been returned to the Claimant with the result that the Claimant had to pay the cost of procuring alternative sets of jewellery to the consignee in addition to several international telephone calls.
11. As a result of the unlawful acts of the Defendant, the Claimant was thrown into confusion with serious emotional stress and mental torture in addition to financial loss incurred by her.
Particulars
(a)N250, 000 being the value of the parcels.
(b) N10,000.00 being the amount paid to the defendant for the delivery of the parcels.
(c) N175,000 paid by the Claimant for the alternative beads and bracelets for the use of the consignee.
(d) N25,000 being the cost of international calls made by the Claimant.
(e) N2,500,000 being the value of sales that would have been made to other customers through the consignee.
The Claimant shall rely on all correspondences, notices and other relevant documents referred to in this statement of claim and hereby gives notice to the Defendant to produce the original of such documents as may be in its custody at the trial of this action.
WHEREOF the Claimant claims against the defendant as follows:
i. The sum of N2,960,000 (Two million, nine hundred and sixty thousand naira) as special damages occasioned by the Defendant’s breach of its contract with the Claimant.
ii. The sum of N2,500,000 (two million, five hundred thousand naira) as general damages for breach of contract.
iii. Cost of this action”.
A community reading of the statement of claim (supra) discloses that the action is founded on alleged breach of simple contract of courier service not involving/affecting the carrier of the parcel which was not even made a party to the transaction. Instructively, the cases (supra) cited by the appellant dealt with a dispute between the carrier of the cargo as defendant. The said cases and the statutory instruments and protocols (supra) cited by the appellant therefore having no bearing on or relevance to the present case, thus distinguishing the present case from the scenario in the said case.
It has to be appreciated from the outset that the jurisdiction of a superior Court can only be ousted by express words of the constitution and/or statute. It cannot be implied on the footing that no cause of action is deemed to be beyond the jurisdiction of a superior Court unless specifically expressed vide the cases of Musaconi Ltd. v. Aspinall (2013) 14 NWLR (pt. 1375) 435, Anakwenze v. Aneke (1985) 6 SC 41, African Newspapers of Nigeria Ltd. v. F.R.N. (1985) 2 NWLR (pt. 6) 137 and A-G., Lagos State v. A-G., Federation (supra) cited by the respondent.
There is the decision of the Court in the case of United Parcel Services Nigeria Limited v. Mr. Larry Umukoro (2016) 5 NWLR (pt. 1664) 178 (though not cited by the parties) supporting the appellant’s contention that only the Federal High Court has jurisdiction over an action for non-delivery of parcels by a courier.
There is also the fairly recent decision of the Court (Shoremi, Gurnel and Nwosu-Iheme, JJ.C.A.) in the case of United Parcel Service v. Kosoko Adeyosoye (supra) particularly the lead judgment prepared by Shoremi, J.C.A., at pages 328 — 329 of the law report where His Lordship held inter-alia to the contrary that-
“On the other hand, he submitted that the matter is a case of carriage of goods by air therefore, the Convention of Carriage of Goods by Air applies to it. I disagree with the appellant on this issue. The claim is simply an issue of contract between the appellant and respondent.
It is the obligation of the respondent to deliver the letter handed over to him at a particular destination. The manner of transportation of the letter is not the business of the respondent.
The respondent has no contract with any Airline nor is he privy to the manner of transportation. The subject matter of the claim is a ‘letter’ which can not be classified as baggage or cargo.
The Federal High Court has exclusive jurisdiction in matters listed in Section 251(1) of the Constitution of Nigeria 1999. All other items not set out in the section is outside the jurisdiction of the Federal High Court. It will be within the competence of the State High Court.
In other words, simple contract is not one of the matters placed exclusively within the jurisdiction of the Federal High Court.”
The earlier decision of the Court in the case of United Parcel Service v. Kosoko-Adeyosoye (supra) cited by the respondent was not considered and or overruled/departed from by the Court in the subsequent case of United Parcel Services Nigeria Ltd. v. Mr. Larry Umukoro (supra).
I have perused the judgments of the Court in the two cases and discern therefrom that the earlier case of U.P.S. (Nig) Ltd. v. Kosoko Adeyosoye (supra) considered not only Section 251 (1) of the 1999 Constitution but some other statutory instruments on the matter and has more bearing on the facts pleaded in the statement of claim (supra) than the facts in the later case as disclosed in the judgment and is thus distinguishable on the facts from the decision in the later case of U.P.S. (Nig.) Ltd. v. Umukoro (supra).
Consequently, I most respectfully follow the earlier decision of the Court in the case of U.P.S. (Nig.) Ltd. v. Kosoko Adeyosoye (supra)vide the cases of Thor Ltd. v. F.C.M.B. Ltd. (1997) NWLR (pt. 479) 35, N.E.P.A. v. Onah (1997) NWLR (pt. 484) 680, and Comptel International SPA v. Dexton Ltd. (1996) 7 NWLR (pt.459) 170 to the effect that even when decisions of the Court on an issue are in conflict, the Court is entitled under the doctrine of stare decisis or precedent to decide which of the two conflicting decisions or lines of decisions of its own to follow.
It is a different spin if there are conflicting decisions of the Supreme Court in which case the lower Court is bound to follow the latest decision and disregard the earlier decision(s) vide the cases of Osakue v. Federal College of Education Asaba (2010) NWLR (pt. 1201) 1 at 37, Donald v. Saleh (2015) NWLR (pt. 1444) 529, C.B.N. v. Okojie (2015) 14 NWLR (pt. 1479) 231 at 263.
Still on jurisdiction, the Supreme Court held in the case of Adelekan v. Ecu-Line NV (supra) that the Federal High Court does not have jurisdiction in any case of simple contract. See also by analogy the case of TSKJ Nigeria Ltd. v. Otochem Nigeria Ltd. (2018) 11 NWLR (pt.1630) 330 per the lead judgment of the great jurist, His Lordship, Muhammad, J.S.C., (now CJN) following the cases of Texaco Overseas (Nig.) Petroleum Co. Ltd. v. Pedmar (Nig.) Ltd. (2002) 13 NWLR (pt. 785) 526, Rahman Brothers Ltd. v. N.P.A. (2019) 6 NWLR (pt. 1667) 126, A.I.I. and Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC 81 to the effect that a case of simple contract is within the civil jurisdiction of the High Court of a State.
In light of the fact that the cause of action which is couched in simple contract of courier service is not within the ambit of Section 251 of the 1999 Constitution, Section 272(1) thereof would come into play to vest the Court below with the jurisdiction to entertain the action and for clearness, Section 272(1) of the 1999 Constitution provides-
“Subject to the provision 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.”
See the case of Ugo-Ngadi v. F.R.N. (2018) 8 NWLR (pt. 1620) 29 at 49-50.
Besides, by paragraphs 9 and 11 of the statement of claim (supra), the parcels had reached Dublin on 22/03/06 and were reasonably not to be on board the carrier which had reached its point of destination and was expected to discharge the cargo showing the journey of carriage by air of the parcels by the carrier had come to an end and the matter was no longer carriage by air or sea/ocean controversy. See by analogy the cases of Petro Jessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) 675, Aluminium Manufacturing Co. Ltd. v. N.P.A. (1987) 1 NWLR (pt. 51) 475 followed in the cases of Ugo-Ngadi v. F.R.N (supra), Pacers Multi-Dynamics Ltd. v. The M.V. Dancing Sister and Anor. (2012) 4 NWLR (pt. 1289) 169 at 206 at page 60 to the effect that once the goods are discharged at the point of destination the responsibility of the carrier ends as well as the jurisdiction of the Federal High Court.
I follow these cases and Section 272(1) of the 1999 Constitution, as altered, hook-line- and-sinker to hold that the Court below was right in overruling the preliminary objection and assuming jurisdiction in the case.
In the result, I find no merit in the appeal and hereby dismiss it and affirm the ruling of the Court below (Adebiyi, J.) overruling the preliminary objection to its jurisdiction and assuming jurisdiction in the case. The appellant shall pay N500,000 costs to the respondent.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading judgment delivered by my learned brother: Joseph Shagbaor Ikyegh, JCA. I am in full agreement with the reasoning and conclusion in the well-articulated judgment. I too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have been afforded the opportunity of reading in the draft the judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA and I am in agreement with the reasoning and conclusion therein, I will only add a few words for emphasis sake.
It is settled law that cases of simple contract fall within the jurisdiction of the High Court of a state. The Supreme Court in SPDC (NIG) LTD ORS v NWAWKA (2003) LPELR 3206 (SC) held thus;
“Although Section 7 (1) (b) of the Federal High Court Act (as amended of Decree No. 1991 No. 60) gave exclusive original jurisdiction to the Federal High Court to try civil cases and matters connected with provision pertaining to the operation of the Companies Act, Federal enactment and any other common law action regulating the operation of companies or the promotion of Nigerian enterprise, an action founded on a contractual employment relationship between a company and its employee is not a matter connected with or pertaining to the operation of a company incorporated under the Companies Act.”
per AYOOLA, JSC (P. 11, PARAS. B – E)
Also, ONUORAH v. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) LPELR-2707 (SC), per AKINTAH, JSC (P. 11, PARAS E-G);”… 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) 468, Trade Bank Plc v Benilux (Nig) Ltd. (2003) 9 NWLR (Pt. 825) 416 at 430 & 431.”
See also; MAERSK NIGERIA LTD V. UMA INVESTMENT COMPANY LTD (2013) LPELR-21247 (CA); SOCIETE INTERNATIONALE DE TELECOMMUNICATION v AERONAUTIQUES & ANOR v. MAEVIS LTD (2014) LPELR-24157 (CA); Sections 251 & 272 (1) of the 1999 Constitution.
The facts of this appeal pinpoints that the cause of action falls within the ambit of a simple breach of contractual terms, which is the jurisdiction of the High Court of a state.
Flowing from the above and the reasoning in the lead judgment, I also hold that the appeal lacks merit and is hereby dismissed. I join my learned brother in affirming the ruling of the lower Court. I also abide by all consequential orders.
Appearances:
A. Momodu Esq. For Appellant(s)
O. O. Olaniyan Esq. For Respondent(s)
