ZEROCK CONSTRUCTION (NIG) LTD v. FAPLIN (NIG) LTD (2022)

ZEROCK CONSTRUCTION (NIG) LTD v. FAPLIN (NIG) LTD

(2022)LCN/16669(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 23, 2022

CA/A/1156/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

ZEROCK CONSTRUCTION NIGERIA LTD APPELANT(S)

And

FAPLIN (NIG) LTD RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

’My lords, in law, jurisdiction is epicenter of the adjudication process and therefore, it determines the powers of a Court to either hear or determine a cause or matter or to decline to do so where it has not, the jurisdiction so to do. Jurisdiction is statutorily conferred. Thus, where none is conferred neither the Court nor the parties can confer jurisdiction on the Court. A Court, it has been said over and over again is competent only when it is properly constituted as regards numbers and qualifications of the members, no member is disqualified for one reason or another; the subject matter of the case is within its jurisdiction; there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case before the Court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu & Ors V. Nkemdilim (1962) 2 NSCC 374. See Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310. PER GEORGEWLLL, J.C.A.

THE POSITION OF LAW WHERE A COURT LACKS JURISIDICTION TO DETERMINE A MATTER

Now, let me gravitate to the Apex Court, the decisions of the Supreme Court of the land. In Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 AT p. 525, where the Supreme Court had per Tobi JSC, (God bless His Soul), reiterated inter alia thus:
“Once a Court lacks jurisdiction… The matter ends there and the only procedural duty of the Court is to strike it out.
No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a Court of competent jurisdiction”.
Interestingly, the Supreme Court had offered some guide in the interpretation of the equivalent provision of Section 22 (2) of the Federal High Court Act, which provides inter alia thus:
“…The Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.” PER GEORGEWLLL, J.C.A.

THE POSITION OF LAW ON A PERVERSE DECISION OF THE COURT

Indeed, the Court below had no such power of resurrection! In law therefore, such an Order of Transfer, in the absence of jurisdiction, was perverse and is thus, liable to be set aside. See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors. (2018) LPELR-46678(CA), where this Court had per Georgewill JCA, stated inter alia thus:
“In law, when it is said that a decision is perverse it means persistent in error, different from what is reasonable or required and against the weight of evidence…A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence led before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties.”
See also CSS Book Shop Ltd. v The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310; Ogunde V. Abdulsalam (2017) LPELR-41875 (CA) per Georgewill JCA., AT pp. 34-35; Michael V. Access Bank Plc (2017) LPELR-41981 (CA) per Georgewill JCA., AT pp. 38-39. PER GEORGEWLLL, J.C.A.

THE POSITION OF LAW ON AN ACADEMIC ISSUE FOR DETERMINATION

So, when in law can it be said that an issue or case has become spent and thereby rendered merely academic? In law, once it becomes obvious that an issue even if determined on the merit would serve no useful purpose, being no longer of any utilitarian value to any of the parties, or of any effect whatsoever on the decision one way or the other in the matter, then such an issue ceases to be a live issue. It has become merely academic or at best hypothetical! Thus, to proceed to consider such an issue would amount to a mere academic exercise and a waste of the scarce and very precious judicial time of the Court. There is no duty on a Court of law to consider issues which have become or are rendered merely academic as such an exercise would not only end in futility but also drain the Court of its much – needed energy meant to be conserved and expended on matters, which remain live before it. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 AT pp. 254-255; Mbachu V. Anambra-Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497. PER GEORGEWLLL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Federal Capital Territory, Abuja, Coram: Jude O. Okeke J., in Suit No. FCT/HC/CV/1715/2016: Faplin Nig. Ltd V. Zerock Construction Nigeria Ltd delivered on 10/12/2018, in which the Application by the Appellant challenging the competence of the Respondent’s suit was upheld in part for lack of jurisdiction but the prayer seeking to strike out the Respondent’s suit against the Appellant was refused and the said suit was transferred to the High Court of Rivers State.

The Appellant was peeved by the said ruling and had appealed against it vide its Notice of Appeal filed on 13/12/2018 on four grounds of appeal. See pages 121-124 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 21/12/2018 but however, it was deemed as properly compiled and transmitted on 9/2/2022. With the leave of this Court the Appellant filed an Amended Notice of Appeal on five grounds of appeal on 17/6/2020. Subsequently, an Additional Record of Appeal was compiled and transmitted to this Court on 6/10/2021 but was deemed as properly compiled and transmitted on 9/2/2022. On 20/12/2021, the Respondent filed its Notice of Cross-Appeal on one ground of appeal. See pages 48-51 of the Additional Record of Appeal. The Appellant’s brief was filed on 17/6/2020 but was deemed as properly filed on 9/2/2022. The Respondent/Cross-Appellant’s brief was filed on 6/10/2021 but was deemed as properly filed on 9/2/2022. The Appellant’s Reply/Cross-Respondent’s brief was filed on 25/11/2021 but was deemed as properly filed on 9/2/2022.

At the hearing of the appeal on 9/2/2022, Emmanuel Akuma Esq., learned counsel for the Appellant adopted the Appellant’s brief and the Appellant’s Reply brief as his arguments in support of the appeal and urged the Court to allow the appeal. On their part, Felix D. Esume Esq., learned counsel for the Respondent, appearing with B. C. Ukunebe Esq, adopted the Respondent’s brief as their arguments in opposition to the appeal and urged the Court to dismiss the appeal.

By a Writ of Summons filed on 1/6/2016 and Statement of Claim filed on 13/5/2016 before the Court below, the Respondent as Claimant claimed against the Appellant as Defendant, the following reliefs, to wit:
1. A Declaration that the acts and actions of the Defendant by not performing its own obligations as embedded in the Agreement dated the 1st day of July, 2010 and the Board Resolution of the Defendant Company dated the 1st day of July, 2010 constitute a breach of the Agreement between the Plaintiff and the Defendant.
2. An Order of Specific performance compelling the Defendant to pay to the Plaintiff the sum of Seven Hundred and Eighty Million Naira (N780,000,000.00) being the outstanding agreed consultancy services fee.
3. An Order mandating the Defendant to pay to the Plaintiff the sum of N78,000,000.00 representing 10% interest on the outstanding consultancy fee of N780,000,000.00 in line with the agreement dated 1/7/2010 between the Plaintiff and the Defendant.
4. An Order mandating the Defendant to pay to the Plaintiff the sum of N50,000,000. 00 as damages for the afore-mentioned breach of the agreement.
5. An Order mandating the Defendant to pay to the Plaintiff the sum of N5,000,000.00 only as cost for the institution and prosecution of this matter as a result of the Defendant’s breach of the agreement.
6. 10% Interest on the judgment sum until final liquidation of same. See pages 1-29 of the Record of Appeal.

By its original Statement of Defence and Counter-Claim filed on 4/7/2018, the Appellant counter-claimed against the Appellant for some reliefs but upon the amendment of its pleadings, the Appellant abandoned the Counter-Claim against the Respondent. See pages 30-36 of the Record of Appeal. See also pages 1-7 of the Additional Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent as Claimant before the Court below leading to this appeal as can be gleaned from the facts and circumstances in the Record of Appeal was that the Appellant had approached and retained the services of the Respondents consultants in a bidding of contract published by the Central Bank of Nigeria, Abuja for the building of CBN Branch Office in Abakiliki, Ebonyi State. To formalize the contract, the parties entered into a contract in Abuja at the Respondent’s Office on 1/7/2010. In line with the agreement, the Respondent did bid, prepare all the documents and submitted to the Procurement Section of the Central Bank of Nigeria Headquarters, Abuja. Following the successful bidding, a Letter of Award of Contract was issued to the Appellant at a contract sum of N7,301,852,927.22, out of which by the terms of the Agreement between the parties, the Respondent was to be paid the sum of N840,000,000.00 representing 12% of the contract sum as consultancy fee. However, out of this amount, the Appellant has only paid the sum of N60,000,000.00 despite repeated demands for the full payment. The Appellant admitted by averments in its Statement of Defence/Counter-Claim filed on 4/7/2016 in paragraph 23 thereof, that the Agreement between the parties was made in Abuja and therefore, clearly the cause of action arose in Abuja. See pages 16-17 and 18-21 of the Record of Appeal. See also pages 1-18 of the Additional Record of Appeal.

The gist of the case of the Appellant as Defendant before the Court below leading to this appeal as can be gleaned from the facts and circumstances in the Record of Appeal was that the Respondent claimed that the Appellant approached it on referral to aid it in the facilitation of a Central Bank of Nigeria contract to which the Respondent undertook vide a written agreement dated 1/7/2010 and that thereafter the Appellant was awarded the Central Bank of Nigeria contract for the construction of the CBN office in Abakaliki, Ebonyi State. The Appellant denied these allegations and claims of the Respondent and in addition to its pleadings, it also filed on 7/3/2018, a Motion on Notice challenging the competence of the Respondent’s suit on the following grounds, namely:
1. The Plaintiff’s role of facilitating the award of the contract by Central Bank of Nigeria to the Defendant and the Agreement of 1st July, 2010 entered between the Plaintiff and Defendant constitute an infraction of Section 58 (4) (b) and (c) of the Public Procurement Act, 2007 which renders the contract illegal and unenforceable.
2. The Agreement of 1/7/2010 was entered in Port Harcourt, Rivers State where the Defendant has her office and carries on business while the Central Bank of Nigeria contract was executed in Abakaliki, Ebonyi State outside the jurisdiction of the Court. See pages 30-36 and 44-50 of the Record of Appeal.

The parties filed and exchanged pleadings but before the matter could proceed to trial, the Appellant filed a Motion on Notice on 7/3/2018 seeking to strike out the Respondent’s suit for being incompetent by reason of it being instituted to enforce an illegal contract as well as outside the territorial jurisdiction of the Court below. The parties field and exchanged both affidavit and counter-affidavit as well as written addresses and on 30/10/2018, the application was duly heard by the Court below. On 10/12/2018, the Court below delivered its ruling in which it held that the issues of whether or not the Respondent’s suit was instituted to enforce and ex-facie illegal controlled is one which can only be determined after evidence has been led by the parties and further that since the cause of action of the Respondent arose in Port Harcourt outside the territorial jurisdiction of the Court below, it robs the Court below of its jurisdiction but proceeded to Order a transfer of the Respondent’s suit to the High Court of Rivers State, hence the appeal. See pages 102-120 and 121-124 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether the Court below was wrong when he failed to strike out the Respondent’s suit and rather acted without jurisdiction to transfer the matter from High Court of the Federal Capital Territory to the High Court of Rivers State? (Distilled from Grounds 2, 3 and 4)
2. Whether by the state of pleadings and Exhibit 1A, the Court below was right when it held that evidence need to be led to determine the illegality and/or infraction of the Public Procurement Act 2007? (Distilled from Grounds 1 and 5)

In the Respondent’s brief, two issues were distilled as arising for determination in this appeal and one issue for determination in the Cross-Appeal, namely:
1. Whether or not the Court below was not right when it held that the issue of ‘illegality’ of the contract as used by the Appellant is a matter of evidence and as such cannot be determined at the interlocutory stage? (Distilled from Ground 1)
2. Whether or not the Court below was right when it held that the High Court of Rivers State has the territorial jurisdiction to hear and determine the instant suit notwithstanding the fact that the contract of Bidding was entered in and performed in Abuja? (Distilled Ground 1 of the Cross-Appeal)
3. Assuming without conceding that the Court below was right in holding that the High Court of Rivers State has the territorial jurisdiction over the matter, whether or not it was right to have transferred the matter to the High Court of Rivers State? (Distilled from Grounds 3 and 4)

I have taken time to consider the averments in the pleadings and the affidavit and counter-affidavit of the parties in the Motion on Notice filed by the Appellant on 7/3/2018 seeking the striking out of the Respondent’s suit for being incompetent, as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the ruling of the Court below and I am of the view that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of issues one and three as distilled in the Respondent’s brief. However, I shall in the main appeal consider Appellant’s issue one along with the Respondent’s issue three and resolve both together. I shall then consider Appellant’s issue two along with Respondent’s issue one. Thereafter, I shall proceed to the Cross-Appeal and consider the Cross-Appellant’s issue two, as the sole issue for determination and determine the Cross-Appeal.

ISSUE ONE
Whether the Learned trial Judge was wrong when he failed to strike out the suit and rather acted without jurisdiction to transfer the matter from High Court of the Federal Capital Territory to High Court of Rivers State?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one learned counsel for the Appellant had submitted that in law jurisdiction is the life wire of any Court and it is statutorily conferred and therefore, no jurisdiction must be sought outside of the statute conferring same and contended that a Court is competent when it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another, the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, the case before the Court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction and urged the Court to hold that the Court below was right when it held that it has no jurisdiction over the Respondent’s suit, whose cause of action arose in Port Harcourt, outside the territorial jurisdiction of the Federal Capital Territory High Court, Abuja. Counsel referred to Section 257 and 272 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and relied on Madukolu & Ors v Nkemdilim (1962) 2 NSCC 374; Dalhatu v Turaki (2003) 15 NWLR (Pt. 843) 310.

It was also submitted that the Court below having correctly found that it lacked the territorial jurisdiction to entertain the Respondent’s suit erred gravely in law when it without requisite jurisdiction proceeded to transfer the Respondent’s suit to the High Court of Rivers State rather than simply striking it out as required of it by law and contended that in law that it is not the Rules of Court that vest jurisdiction in the Court and urged the Court to hold that in the absence of any statutory provision to that effect the Court below lacked the power to transfer the Respondent’s suit from the High Court of the Federal Capital Territory, Abuja to the High Court of Rivers State and to allow the appeal, set aside the perverse Order of Transfer of the Court below and strike out the Respondent’s suit for being incompetent. Counsel referred to Order 41 Rule 6 of the High Court of FCT (Civil Procedure) Rules 2018 and relied on Dalhatu v Turaki (2003) 15 NWLR (Pt. 843) 310; Garba V. Mohammed (2016) 16 NWLR (Pt. 1537) 114 AT p. 155; Mudiaga-Odje V. YPS (Nig) Ltd (2014) 5 NWLR (Pt. 1400) 412; Patil V. FRN (2016) 8 NWLR (Pt. 1515) 483 AT p. 508; See Njoku V. UBN Plc (2015) 10 NWLR (Pt. 1468) 552 AT p. 577; Mokelu V. Federal Commissioner for Works and Housing (1976) 1 NMLR 239; Roda V. FRN (2015) 10 NWLR (Pt. 1468) 427 AT p. 481.

It was further submitted that the Court below erred in law when it relied on the provisions of Order 41 Rule 6 of the High Court of FCT Rules 2018 on the face of the provisions of Section 257 of the Constitution of Nigeria 1999 (as amended) which confers on the Court below its jurisdiction and contended that in law all that the Court below ought and should have done was simply to strike out the Respondent’s suit when it found correctly that it lacked jurisdiction to the Respondent’s suit and that it is the High Court of Rivers State that has the competence to do so and urged the Court to so hold and to allow the appeal, set aside the perverse Order of Transfer and strike out the Respondent’s suit for being incompetent before the Court below. Counsel relied on Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 AT p. 525; UTB Nig Ltd V. Ukpabia (2000) 8 NWLR (Pt.670) 570 AT p. 580; Onyema V. Oputa (1987) 3 NWLR (Pt. 60) 259 AT pp. 293-294; Anon Lodge Hotels Ltd V. Mercantile Bank (1993) 3 NWLR (Pt. 284) 721 AT p. 732; Ishola V. Ajiboye (1998) 1 NWLR (Pt. 532) 71 AT p. 79.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue three, learned counsel for the Respondent had submitted that assuming without conceding that it is the High Court of Rivers State that has jurisdiction to hear and determine the Respondent’s suit, in law the Court below has the powers, both statutory and inherent, to transfer the Respondent’s suit to the High Court of Rivers State if it finds that it does not have the territorial jurisdiction to entertain the Respondent’s suit and urged the Court to hold, assuming but without conceding that the Court below lacked the jurisdiction to entertain the Respondent’s suit, that the Court below was right when it transferred the Respondent’s suit to the High Court of Rivers State and to dismiss the appeal and affirm the Order of Transfer of the Respondent’s suit from the High Court of the Federal Capital Territory Abuja to the High Court of River State. Counsel referred to Order 41 Rule 6 of the High Court of FCT (Civil Procedure) Rules 2018.

APPELLANT’S REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant merely reiterated his earlier submissions but in law, the reply brief is not an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. In the circumstances, the Appellant’s Reply brief having brought nothing new to the discussion table is hereby discountenanced. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016. See also Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2-3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

RESOLUTION OF ISSUE ONE
My lords, upon joinder of issues in the substantive suit commenced on 1/6/2016 by the Respondent as Claimant against the Appellant as Defendant, the Appellant filed a Motion on Notice filed on 7/3/2018 pursuant to Order 23 Rule 2 (1) & (2) of the High Court of the FCT (Civil Procedure) Rules 2018 and Section 58 (4) (B) and (C) of the Public Procurement Act 2007, praying for the following reliefs, namely:
1. An Order of the Court dismissing the suit
2. And for such further Order and other Orders as the Court may deem fit to make in the circumstances

The Motion on Notice was supported by a 13 paragraphs Affidavit deposed to by one Emmanuel Akuma. In opposition, the Respondent filed an 8 paragraphs Counter-Affidavit deposed to by one Rose Saidu. In reply, the Appellant filed a 7 paragraph Further and Better Affidavit deposed to by Emmanuel Akuma. The Motion on Notice was heard on 30/10/2018 and on 10/12/2018, the Court below delivered its ruling, in which it upheld the preliminary objection that it lacks the jurisdiction to entertain the Respondent’s suit but proceeded to make an Order transferring the Respondent’s suit to the High Court of Rivers State. See pages 44-58, 66-78, 86-91 and 102-120 of the Record of Appeal.

In the ruling delivered on 10/12/2018 and appealed against by the Appellant, the Court below had stated and ordered inter alia thus:
“Having found that this Court is deficient of territorial jurisdiction to entertain the case the proper order to make in the circumstances is not dismissal of the suit as urged by the Applicant’s Counsel. The Court has been given discretion in Order 41 Rule 6 of the Rules of Court 2018 to transfer a cause or matter in which it has no jurisdiction to the Court with competent jurisdiction. Being so enabled, this suit is transferred to the High Court of Rivers State.” See pages 119-102 of the Record of Appeal.”

My lords, in law, jurisdiction is epicenter of the adjudication process and therefore, it determines the powers of a Court to either hear or determine a cause or matter or to decline to do so where it has not, the jurisdiction so to do. Jurisdiction is statutorily conferred. Thus, where none is conferred neither the Court nor the parties can confer jurisdiction on the Court. A Court, it has been said over and over again is competent only when it is properly constituted as regards numbers and qualifications of the members, no member is disqualified for one reason or another; the subject matter of the case is within its jurisdiction; there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case before the Court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu & Ors V. Nkemdilim (1962) 2 NSCC 374. See Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310.

In this appeal, the issue is not whether or not the Court below has the jurisdiction to entertain the Respondent’s suit, as that issue is not in contention in this appeal, but rather whether or not the Court below having held that it had not the jurisdiction to entertain the Respondent’s suit was it right to have refused and/or declined to strike it out as prayed for by the Appellant but rather making an Order for its transfer to the High Court of Rivers State vide Order 41 Rule 6 of the High Court of the FTC (Civil Procedure) Rules 2018?

Now, by Section 255 (1) of the Constitution of Nigeria 1999 (as amended),it is provided thus:
“There shall be a High Court of the Federal Capital Territory Abuja”
By Section 257 (1) and (2) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“257(1): Subject to the provision of Section 251 and any other provision of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory Abuja shall have jurisdiction to hear and determine any civil proceeding 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 proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
“(2) The reference to civil or criminal proceedings in the Section includes a reference to proceedings which originate in the High Court of the Federal Capital Territory Abuja and those to which are brought before the High Court of the Federal Capital Territory Abuja to dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
By Order 41 Rule 6 of the High Court of the FCT (Civil Procedure) Rules 2018, it is provided thus:
“Where a Court has no jurisdiction in a cause or matter, the Judge may by Order transfer the cause of matter to the Court with competent jurisdiction”
However, by Order 1 of the High Court of the FCT (Civil Procedure) Rules 2018, dealing with ‘Application and Interpretation’ of the provisions of the High Court of the FCT (Civil Procedure) Rules 2018, it is provided thus:
“Court” means the High Court of the FCT Abuja.
So, in the light of the above provisions of both the Constitution of Nigeria and the Rules of the High Court of the FCT 2018, was the Court below wrong when it ordered the transfer of the Respondent’s suit to the High Court of River State when it found that it had no jurisdiction over the Respondent’s suit as contended by the learned counsel for the Appellant or was the Court below right when it ordered the transfer of the Respondent’s suit to the High Court of River State when it found that it had no jurisdiction over the Respondent’s suit as contended by the learned counsel for the Respondent?
I have taken time to review and consider the submissions of counsel on this issue and read through the plethora of decided cases relied upon by them and brought to our attention in this appeal on this issue. This issue, it appears, has inundated the Courts and decisions on it are surfeit as are replete in our law reports. I shall commence my consideration with some of these decisions and thereafter resolve this issue according to law.
Let me commence with the decisions of this Court. In Mudiaga-Odje V. YPS (Nig) Ltd (2014) 5 NWLR (Pt. 1400) 412 AT p. 439, this Court had per Lokulo-Sodipe JCA, pronounced emphatically inter alia thus: “…The lower Court had no power to have transferred the case to the High Court of Lagos State for trial. The proper order which the lower Court ought to have made as there was no substantive law empowering it to transfer cases wrongly initiated in the High Court of Delta State to the High Court of another State, in contradistinction to cases initiated in the wrong Judicial Division of the High Court of Delta State, is one striking out the case.”
See also APC V. ODEY (2019) LPELR-47702 (CA), where this Court had stated inter alia thus:
“A Court that is devoid of jurisdiction over a matter is bound to make an order in respect thereof. There appears to be a brake on adherence to the law that where a Court discovers that it is denied of jurisdiction to determine a matter, the only option left to it is to make an order striking it out.”
See further Mr. Tayo Adesanya & Anor V. Mr. Jimi Lawal & Ors (2018) LPELR-46664 (CA) per Georgewill JCA.
Now, let me gravitate to the Apex Court, the decisions of the Supreme Court of the land. In Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 AT p. 525, where the Supreme Court had per Tobi JSC, (God bless His Soul), reiterated inter alia thus:
“Once a Court lacks jurisdiction… The matter ends there and the only procedural duty of the Court is to strike it out.
No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a Court of competent jurisdiction”.
Interestingly, the Supreme Court had offered some guide in the interpretation of the equivalent provision of Section 22 (2) of the Federal High Court Act, which provides inter alia thus:
“…The Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.”
In Fasakin Foods V. Shosanya (2006) 4 SC (Pt.2) 204 AT pp. 221-223, the issue before the Supreme Court was the scope of operation and validity or otherwise of Section 22 (3) of the Federal High Court Act, Niki Tobi JSC., (God bless his soul) had stated inter alia thus:
“And that takes me to the issue whether Section 22(3) of the Federal High Court Act is inconsistent with provisions of Section 233 and 239 of the 1979 Constitution…What is the purport of Section 22(3) of the Federal High Court Act? It is a saving provision, so to say.
It saves a matter duly and properly filed in a Court of law from being struck out instead of striking out for lack of jurisdiction. Section 22(3) vests in High Court of a State the power to transfer the matter to the appropriate Judicial Division of the Federal High Court…In the light of the practice and procedure, the provisions of Sections 233 and 239 in relation to the Federal High Court and the High Court of a State respectively, see Section 22(3) of the Federal High Court Act, dictating to the Constitution what Rule of Court should be followed when a High Court of a State lacks jurisdiction of the Federal High Court. Is such a dictation emanating from a statute proper and acceptable to the Constitution? Is that consistent with the supremacy clause of the Constitution? Why should a Statute dictate terms for the Constitution to follow? Is not the reverse position that is consistent with Section 1(3) of that Constitution? A few questions are still boiling but I think I can stop here. It is the common law tradition, if I may say so, that where a Court lacks jurisdiction, the order is to strike it out to enable the party commence the action de novo in a competent Court of jurisdiction…. Section 22(3) of the Federal High Court Act lacks the strength and capacity to ruin the common law tradition. The Subsection was too ambitious and this Court will cut it to size. I so cut it.”
See also Oloriode V. Oyebi (1984) 1 SCNLR 390; Din V. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471.
My lords, it would appear that in law even where there is a provision for transfer of cases from one Court to another Court in another Division of the same Court, the power to do so and thereby transfer any case within the Divisions of the same Court is strictly vested in the Chief Judge of that Court. It follows therefore, no Judge sitting in a Division of a Court is vested with any such power of transfer. See Patil V. FRN (2016) 8 NWLR (Pt. 1515) 483 AT p. 508.
In conclusion, in the worst-case scenario, where a Court lacks jurisdiction, it cannot make an order transferring the suit to another Court except where there is a clear provision in a Statute, not by mere Rules of Court, to that effect. See Njoku V. UBN Plc. (2015) 10 NWLR (Pt. 1468) 552 AT p. 577.
Having sufficiently averted my mind to both the provisions of the Constitution and the Rules of the Court below as well as the decisions of both the Supreme Court and this Court, I feel emboldened to state and hold firmly that the Court below having correctly found that it lacked the territorial jurisdiction to entertain the Respondent’s suit, the only option open to it in law was to proceed to strike out the Respondent’s suit for being incompetent before it. It does not have the luxury or liberty to do any other thing or to Order otherwise. It lacked the power and cannot therefore, transfer the Respondent’s suit to the High Court of Rivers State, which is not in any way under or subject to its supervision and/or directives, being even Courts of Coordinate jurisdiction. Indeed, there is no such provisions, and none was brought to our attention, in the High Court of the FCT Act and/or in the Constitution of Nigeria, 1999 (as amended) empowering the Court below to exercise such power of transfer of incompetent suits before it to any other competent Court in another State. See Section 257 of the Constitution of Nigeria, 1999 (as amended); Sections 1-21 of the High Court of the Federal Capital Territory Act, and Order 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018. See also Fasakin Foods V. Shosanya (2006) 4 SC (Pt.2) 204 AT pp. 221-223.
It is therefore, true in law, and as aptly and unassailably submitted by learned counsel for the Appellant, that in the absence of any Constitutional and/or Statutory provisions enabling the Court below in that behalf, it erred gravely when it relied on the provisions of Order 41 Rule 6 of the High Court of FCT (Civil Procedure) Rules 2018 to transfer the incompetent seat to the Rivers State High Court or face of the provisions of Section 257 of the Constitution of Nigeria 1999 (as amended) by which jurisdiction was conferred on the High Court of FCT Abuja. At any rate, the Court referred to under Order 41 Rule 6 of the High Court of FCT (Civil Procedure) Rules 2018, which was erroneously relied upon by the Court below to make the Order of transfer of the Respondent’s suit to the High Court of Rivers State, is clearly defined by Order 1 of the High Court of FCT (Civil Procedure) Rules 2018 to be the High Court of FCT Abuja and no other Court. The High Court of FCT (Civil Procedure) Rules, 2018 neither created nor established the High Court of FCT Abuja nor conferred any jurisdiction on it. See Fasakin Foods V. Shosanya (2006) 4 SC (Pt.2) 204 AT pp. 221-223.

By reason of all the foregoing, I hold firmly that the Court below was wrong when having held that it lacks the jurisdictional competence to entertain the Respondent’s suit, which is already dead before it and whose death it has sanctioned by its finding and was merely awaiting a decent burial by way of a striking out, it still proceeded to make an Order transferring the said suit to the High Court of Rivers State. Indeed, the Court below had no such power of resurrection! In law therefore, such an Order of Transfer, in the absence of jurisdiction, was perverse and is thus, liable to be set aside. See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors. (2018) LPELR-46678(CA), where this Court had per Georgewill JCA, stated inter alia thus:
“In law, when it is said that a decision is perverse it means persistent in error, different from what is reasonable or required and against the weight of evidence…A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence led before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties.”
See also CSS Book Shop Ltd. v The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310; Ogunde V. Abdulsalam (2017) LPELR-41875 (CA) per Georgewill JCA., AT pp. 34-35; Michael V. Access Bank Plc (2017) LPELR-41981 (CA) per Georgewill JCA., AT pp. 38-39.

In the light of all I have stated and found as above, issue one for determination is hereby resolved in favor of the Appellant against the Respondent.

ISSUE TWO
My lords, I have taken time to consider the submission of counsel under this issue but I have already found that the Respondent’s suit was incompetent and thus robbed the Court below of its jurisdiction. In law, that is the end of the matter. In a suit that is incompetent and thus liable to be struck there can be no jurisdiction to consider and resolve and/or determine any other issues with any validity. It will all be a sheer waste of time ending up in nullity upon nullity. The power of a Court to determine any issue, save the issue of jurisdiction, is inextricably tied to its competence and jurisdiction to entertain such a suit.

So, when in law can it be said that an issue or case has become spent and thereby rendered merely academic? In law, once it becomes obvious that an issue even if determined on the merit would serve no useful purpose, being no longer of any utilitarian value to any of the parties, or of any effect whatsoever on the decision one way or the other in the matter, then such an issue ceases to be a live issue. It has become merely academic or at best hypothetical! Thus, to proceed to consider such an issue would amount to a mere academic exercise and a waste of the scarce and very precious judicial time of the Court. There is no duty on a Court of law to consider issues which have become or are rendered merely academic as such an exercise would not only end in futility but also drain the Court of its much – needed energy meant to be conserved and expended on matters, which remain live before it. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 AT pp. 254-255; Mbachu V. Anambra-Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497.
It follows therefore, to proceed to consider issue two as to whether or not the Respondent’s cause of action amounted to illegality in a suit already found to be incompetent and thereby robbing the Court below of its jurisdiction would, in my respective view, be merely undertaking an academic exercise. Indeed, the Respondent’s suit as far as the Court below was concerned had become spent leaving no live issues to be determined in an incompetent suit. I refuse to be drawn into the determination of an issue which is no longer live and with no utilitarian value except for its academic illumination and entertainment, which a consideration of issue two would entail, and it is hereby accordingly discountenanced. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR-54583(CA), this Court had per Georgewill JCA, had cause to reiterate inter alia thus:
“My lords, having come to the inescapable conclusion under issue one that the judgment of the Court below is a nullity, that indeed should be end of this appeal since issue two has thereby been rendered merely academic. Courts are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other. See Wema Bank Plc V. AKS Steel Limited (2018) LPELR – 44549 (CA) per Georgewill JCA.”

See also Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 AT p. 525, where the Supreme Court had per Tobi JSC, (God bless His Soul), reiterated inter alia thus:
“Once a Court lacks jurisdiction……The matter ends there and the only procedural duty of the Court is to strike it out. No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a Court of competent jurisdiction”.

On the whole therefore, having resolved issue one for determination in favour of the Appellant against the Respondent, and having discountenanced issue two for determinations, I hold that the appeal has merit and ought to be allowed. Accordingly, the appeal is hereby allowed.

In the result, the Order of Transfer of the Suit No. FCT/HC/CV/1715/2016: Faplin Nig. Ltd V. Zerock Construction Nigeria Ltd made on 10/12/2018 by the Court below, Coram: Jude O. Okeke J., (May God bless His Soul) is hereby set aside.

In its stead, Suit No. FCT/HC/CV/1715/2016: Faplin Nig. Ltd V. Zerock Construction Nigeria Ltd is hereby struck out for being incompetent.
There shall be no Order as to cost

CROSS APPEAL
BETWEEN
FAPLIN NIG. LTD CROSS – APPELLANT
AND
ZEROCK CONSTRUCTION NIGERIA LTD CROSS-RESPONDENT
This is a Cross-appeal against that part of the Ruling of the High Court of Federal Capital Territory, Abuja, Coram: Jude O. Okeke J., in Suit No. FCT/HC/CV/1715/2016: Faplin Nig. Ltd V. Zerock Construction Nigeria Ltd delivered on 10/12/2018, in which the Court below held that the Cross-Appellant’s suit was incompetent by reason of the cause of action having arisen in Port Harcourt outside the territorial jurisdiction of the Federal Capital Territory High Court Abuja.

On 20/12/2021, the Cross-Appellant filed its Notice of Cross-Appeal on one ground of appeal. See pages 48-51 of the Additional Record of Appeal. The parties relied on the Record of Appeal and Additional Record of Appeal as already compiled and transmitted in the Main Appeal. The Cross-Appellant’s brief was filed on 6/10/2021 but was deemed as properly filed on 9/2/2022. The Cross-Respondent’s brief was filed on 25/11/2021 but was deemed as properly filed on 9/2/2022.

At the hearing of the Cross-appeal on 9/2/2022, Felix D. Esume Esq., learned counsel for the Cross-Appellant, appearing with B. C. Ukunebe Esq., adopted the Cross Appellant’s brief as their arguments in support of the Cross-Appeal and urged the Court to allow the Cross-Appeal. On his part, Emmanuel Akuma Esq., learned counsel for the Cross-Respondent adopted the Cross-Respondent’s brief as his arguments in opposition to the Cross-Appeal and urged the Court to dismiss the Cross-Appeal.

BRIEF STATEMENT OF FACTS
The gist of the respective cases of the parties have already been set out in great details in the main appeal and same suffices for the purpose of this Cross-Appeal. However, in the ruling delivered on 10/12/2018 on the Cross-Respondent’s Motion on Notice filed on 7/3/2018 seeking to strike out the Respondent’s suit for being incompetent, the Court below found that the cause of action of the Cross-Appellant was the demand for payment of the debts due it from the Cross-Respondent, which arose in Port Harcourt outside its territorial jurisdiction and thereby rendered the Cross-Appellant’s suit incompetent before the Federal Capital Territory High Court, Abuja, hence the Cross-Appeal. See pages 102-120 of the Record of Appeal. See also pages 48-51 of the Additional Record of Appeal.

ISSUES FOR DETERMINATION
In the Cross-Appellant’s brief, issue two was distilled as the sole issue arising for determination from the one ground of the Cross-appeal, namely:
“Whether or not the Court below was right when it held that the High Court of Rivers State has the territorial jurisdiction to hear and determine the Cross-Appellant’s Suit, notwithstanding the fact that the contract of bidding was entered in and performed in Abuja?” (Distilled from Ground 1 of the Cross -Appeal)

In the Cross-Respondent’s brief, no specific issue was distilled as arising for determination in the Cross-appeal but issues were joined the sole issue, issue three,

My lords, since the parties are ad idem as to the sole issue for determination in the Cross-appeal, I shall and do hereby adopt the Respondent’s issue two as the sole issue for determination in this Cross-appeal.

SOLE ISSUE
“Whether or not the Court below was right when it held that the High Court of Rivers State has the territorial jurisdiction to hear and determine the Cross-Appellant’s suit, notwithstanding the fact that the contract of bidding was entered in and performed in Abuja?

CROSS-APPELLANT’S COUNSEL SUBMISSIONS
On his issue two, as the sole issue for determination, learned counsel for the Cross-Appellant had submitted that the Agreement between the parties was for the bidding of the contract at the Central Bank of Nigeria Headquarters, Abuja and contended that the contract of bidding was performed in Abuja and the letter of award of contract was also collected at the Central Bank of Nigeria Headquarters in Abuja, as admitted even by the Cross Respondent in paragraph 23 of the Statement of Defensc filed on 4/7/2016 and urged the Court to hold that contrary to the perverse finding of the Court below, the Cross-Appellant’s cause of action arose in Abuja within the territorial jurisdiction of the Court below and therefore, competent and to allow the Cross-Appeal, set aside that part of the ruling of the Court below and remit the case to the Court below for hearing and determination according to law. Counsel relied on Alhaji Mustapha Bukar Mulima & Anor V. Hajja Aishatu Usman & Ors (2014) 16 NWLR (Pt. 1432) 160 AT p. 198.

It was also submitted that not only was the contract executed and performed in Abuja, but even the first instalment payment was made by the Cross-Respondent to the Cross-Appellant in Abuja and contended that in law the venue of instituting a matter in case of breach of contract is where the contract was made or to be performed and urged the Court to hold that the Court below erred in law when it held that, by virtue of the fact that the Letter of Demand for the payment of the outstanding sum was sent to the Cross-Respondent’s address at Port-Harcourt, Rivers State, the cause of action arose in Rivers State thereby clothing the High Court of Rivers State with jurisdiction to hear and determine the suit and to allow the Cross-Appeal, set aside that perverse part of the ruling of the Court below as the Respondent’s suit was competent to be filed before the Court below and to be heard and determined by it according to law. Counsel relied on Attorney-General Of Abia State V. Phoenix Environmental Services Nigeria Limited (2015) LPELR-25702 (CA); Lanlehin V. Rufa (1959) 5 SCNLR 475; Arjay Limited V. Airline Management Support Limited (2003) 7 NWLR (Pt. 820) 577 AT pp. 604 -605.

It was further submitted that the Cross-Appellant’s suit was filed in 2016, when the applicable Rules of the Court below was High Court of FCT (Civil Procedure) Rules, 2004, under which the Court below had the jurisdiction to entertain the Cross-Appellant’s suit and contended that the reliance by the Court below on the provisions of High Court of the FCT (Civil Procedure) Rules 2018 to decline jurisdiction over the Cross-Appellant’s suit was erroneous and urged the Court to hold that the applicable Rules of the Court below was the 2004 Rules under which the Cross–Appellant’s suit was filed and to allow the Cross-Appeal and set aside that part of the ruling of the Court below holding the Cross-Appellant’s suit was incompetent. Counsel referred to Order 3 Rule 3 of the High Court of FCT (Civil Procedure) Rules, 2018 and relied on Nigerian National Petroleum Corporation & Anor V. Chief Stephen Orhiowasele & Ors (2013) 13 NWLR (Pt. 1371) 211 AT pp. 215-216; Lagos State Bulk Purchase Corporation V. Purification Techniques (Nig) Ltd (2013) 7 NWLR (Pt. 1352) 82 AT p. 106; Dangote General Textiles Products Ltd & Ors V. Hascon Associates Nig. Ltd & Anor (2013) 16 NWLR (Pt. 1379) 60 AT p. 94.

CROSS-RESPONDENT’S COUNSEL SUBMISSIONS
On the sole issue for determination, learned Counsel for the Cross-Respondent had submitted that by the amendment of the Statement of Defence and Counter-Claim filed on 4/6/2016, the admission alluded to by the learned counsel for the Cross-Appellant were done away with in the Amended Statement of Defence filed on 1/2/2018 and contended that in law since an amendment takes effect from the date of the original document sought to be amended., once the amendment is made, the action will continue as if the amendment had been inserted from the beginning and urged the Court to hold that the Cross-Respondent did not admit that the cause of action arose in Abuja, which clearly arose in Port Harcourt where the demand for the payment of the alleged outstanding debt was made by the Cross-Appellant to the Cross-Respondent and to dismiss the Cross-Appeal for lacking in merit and affirm that part of the ruling of the Court below. Counsel relied on Adewumi & Anor V. AG. Ekiti State & Ors (2002) LPELR-3160(SC) I; Registered Trustees of the Airlines Operators of Nig V. NAMA (2014) LPELR-22372 (SC); Katto V. CBN (1999) 6 NWLR (Pt. 607) 390 AT p. 412; Rotimi V. McGregor (1974) 11 SC 133 AT 152; AG. Ekiti State Vs Adewumi & amp; Anor (2002) 1 SC 47 AT p. 63; Sneade V. Watherton (1904) 1 K.B. 295 AT 297; Oguma Associated Companies (Nig.) Ltd. V. IBWA (1988) 1 NWLR (Pt. 73) 658 AT p. 673; Ibrahim V. Okutepa (2015) All FWLR (Pt. 785) 33; Customary Court of Appeal Edo State V. Aguele & Ors (2017) LPELR-44632(SC).

It was also submitted that the Court below was perfectly right when it relied on the provision of High Court of the FCT (Civil Procedure) Rules 2018 instead of that of High Court of the FCT (Civil Procedure) Rules, 2014, which was the applicable Rules of the Court below when the Cross-Appellant’s suit was filed and contended that the Court below was right when it relied on Section 257 (2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and held the Cross-Appellant’s claim was founded on the payment of debt and which cause of action only accrued upon demand for payment of the debt and it is refused or declined and urged the Court to hold that the Cross-Appellant’s cause of action arose clearly in Port Harcourt outside the territorial jurisdiction of the Court below and not where the contract was entered into or where the parties resides as was rightly held by the Court below and to dismiss the Cross-Appeal for lacking in merit and affirm that part of the ruling of the Court below. Counsel referred to Section 257 (2) of the Constitution of Nigeria, 1999 (as amended) and relied on Kolo V. First Bank of Nig. Plc (2003) 3 NWLR (Pt. 806) 216; Roda V. FRN. (2015) 10 NWLR (Pt. 1468) 427 AT p. 481.

RESOLUTION OF ISSUE THREE AS SOLE ISSUE
My lords, the Cross-Appellant’s issue two, which was adopted as the sole issue for determination in the Cross-Appeal, deals with the question whether or not the Court was right when it held that the cause of action in the Cross-Appellant’s suit arose in Port Harcourt and therefore, outside the territorial jurisdiction of the Court below and further whether or not the Court below was right when it relied on the provisions of the High Court of the FCT (Civil Procedure) Rules, 2018 to decline jurisdiction rather than relying on the provisions of the High Court of the FCT (Civil Procedure) Rules, 2014, which was the applicable Rules of the Court below at the time the Cross-Appellant’s suit was filed on 13/5/2016?

Now, by paragraph 23 of the original Statement of Defense/Counter-Claim, the Cross-Respondent had admitted that the agreement between the parties was made in Abuja. See page 6 of the Additional Record of Appeal. However, the original Statement of Claim was with the leave of the Court below granted on 29/01/2018 amended and an Amended Statement of Defence was filed on 1/2/2018, and in paragraphs 23 and 24 thereof, the Cross-Respondent denied the averments of the Cross-Appellant in paragraphs 29 and 30 of the Statement of Claim and averred that the Agreement of 1/7/2010 between the parties was entered into in Port Harcourt, Rivers State where the Defendant has her office and carries on business while the Central Bank of Nigeria contract was executed in Abakiliki, Ebonyi State. See page 35 of the Record of Appeal.

It was on the strength of the averments in the pleadings and affidavit and counter-affidavit evidence of the parties that the Court below had delivered its ruling on 10/12/2018, and held inter alia that that the Cross-Appellant’s suit was incompetent on the ground that the cause of action arose in Port Harcourt outside the territorial jurisdiction of the Court below. See pages 102-120 of the Record of Appeal.

I had earlier referred to and reproduced in extenso the provisions of Sections 255(1), 257 (1) and 257 (2) of the Constitution of Nigeria, 1999 (as amended). I have taken time to review and consider the totality of the averments in the pleadings of the parties as well as the affidavit and counter-affidavit evidence of the parties. I have also considered the submissions of learned counsel for the parties in the light of the findings of the Court below.

In law, an amendment takes effect from the date of the original document sought to be amended and therefore, once an amendment is made with the leave of the Court the action will continue as if the amendment had been inserted from the beginning. It follows, therefore, and I so firmly hold, that once the Court below granted the amendment of the Cross-Respondent’s Statement of Defence on 29/01/2018 and the Amended Statement of Defence was filed on 1/2/2018, the initial Statement of Defence filed by the Cross-Respondent on 4/06/2016 became in law immaterial, of no consequence and can no longer determine the issues before the Court below at the time the Cross-Respondent’s Motion on Notice filed on 7/3/2018 was heard and determined by the Court below. See Adewumi & Anor V. AG. Ekiti State & Ors (2002) LPELR -3160 (SC) I, where the Supreme Court had stated inter alia thus:
“The principle is that an amendment duly made takes effect from the date of the original document sought to be amended; and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore, when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning.”
See also Registered Trustees of the Airlines Operators of Nig V. NAMA (2014) LPELR–22372 (SC), where the Supreme Court had stated inter alia thus:
“The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the Court.
See further Ibrahim V. Okutepa (2015) All FWLR (Pt. 785) 33; Customary Court of Appeal Edo State V. Aguele & Ors (2017) LPELR-44632(SC).

In the circumstances of the above state of the pleadings of the parties as well as the applicable principles of law, I hold that there was no admission on the part of the Cross-Respondent that the agreement of 1/7/2010 between the parties was entered into in Abuja. There was therefore, no admission by the Cross-Respondent, as erroneously, and I if I may add, mischievously contended by the learned counsel for the Cross-Appellant that the Cross-Respondent, whose extant Amended Statement of Defence is in the Record of Appeal, admitted that the cause of action arose in Abuja and thereby clothing the Court below with the requisite jurisdiction.

Having held as above, the real crux of the Cross-Appeal is whether the cause of action of the Cross-Appellant arose in Port Harcourt as found by the Court below or in Abuja as contended by the Cross-Appellant?

But first what is the applicable Rules of the Court below at the time the Cross–Respondent’s Motion on Notice filed on 7/3/2018 was heard and determined by the Court below?

My lords, the law as I understand it, and as made clear in a plethora of decided cases as are replete in the Law Reports, is that whilst in matters of cause of actions relating to substantive law it is the law existing at the time the cause of action arose that is the applicable law, but when it comes to Rules of procedure, in relation to the adjectival law, it is the Rules of the Court at the time of the hearing that is the applicable Rules and not the Rules at existence when the suit was filed. See Nwora & Ors V. Nwabueze & Ors (2019) LPELR-46803 (SC) AT pp. 19-21, where the Supreme Court had per Galumje, JSC, stated inter alia thus:
“…..The Rules of procedure applicable to the hearing of any matter is the existing rules of procedure at the time of the hearing of the case and not the Rules of procedure that existed at the time the cause of action arose… It seems to me that Chief Ezeofor’s contention is founded on the well settled law that the action is governed by the law applicable and in forceat the time the cause of action arose. In this proposition he is on firm ground….It is however not the same principle when the procedure governing the action is being considered. There is a clear distinction between the substantive law applicable and the rule of law governing practice and procedure. It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard. Unless there is any provision to the contrary. This is based on principle that there is no vested right in any course of procedure…..
A litigant has the right to rely on the procedure prescribed for the time being, where the procedure is altered, he must proceed according to the altered manner.”
See also Costa Rica V. Erlanger (1874) 3 Ch.D.89; Agbajo V. Attorney General of the Federation (1986) 2 NWLR (Pt. 23) 528; Savannah Bank of Nigeria Ltd V. Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt. 49) 212.

I hold therefore, that the Court below was perfectly and impeccably right when it relied on the provisions of the High Court of the FCT (Civil Procedure) Rules 2018, which was the existing and applicable Rules of the Court below at the time of the hearing on 30/10/2018 and determination on 10/12/2018 of the Cross-Respondent’s Motion on Notice filed on 7/3/2018.

So, on the pleadings of the parties, particularly the Cross-Appellant, when and where did the cause of action of the Cross-Appellant arose? I have taken time to review the averments in the pleadings of the Cross-Appellant as well as the depositions in the affidavit and counter-affidavit of the parties in the Cross-Respondent’s Motion on Notice filed on 7/3/2018. I have also taken time to consider the reasoning and conclusions reached by the Court below on the issue of when and where the cause of action of the Cross-Appellant arose. It seems fairly well settled in law that in an action for the recovery of debt, the cause of action would accrue upon a demand for payment of the debt by the Creditor and its refusal or decline by the Debtor. See Kolo V. First Bank of Nig. Plc (2003) 3 NWLR (Pt. 806) 216.

In the light of the above clear position of the law, when it comes to a claim for recovery of debt, I cannot but agree with the lucid reasoning and finding of fact of the Court below that the Cross-Appellant’s claim was founded on the payment of debt and therefore, the Cross-Appellant’s cause of action accrued only upon the demand for payment of the debt by the Cross-Appellant through its Solicitor to the Cross-Respondent in Port Harcourt and the alleged refusal and or decline by the Cross-Respondent. The Court below was therefore, right when it found as fact and held firmly that the Cross-Appellant’s cause of action arose clearly in Port Harcourt and not where the contract was entered into or where the parties reside. See Sections 255 (1) and 257 (1) and (2) of the Constitution of Federal Republic of Nigeria 1999 (as Amended).

My Lords, the city of Port Harcourt, fondly called the Garden City’ is certainly outside the territorial jurisdiction of the High Court of the FCT, Abuja. In Roda V. FRN (2015) 10 NWLR (Pt. 1468) 427 AT p. 481, the Supreme Court had per Peter-Odili JSC, opined inter alia thus:
“Territorial or geographical jurisdiction refer to the geographical area in which matters brought before the Courts for adjudication arose. Courts are usually not seized of matters that occur outside territory. Thus, where ingredients of an offence occur outside the territorial jurisdiction of the Court, such a Court will not assume jurisdiction over the offence for apparent lack of jurisdiction.”
See also Okponetus & Ors V. APGA & Anor (2021) LPELR – 55923 (CA), per Georgewill JCA.

My lords, the law is and has always been that once the conclusion reached by a trial Court, or any Court for that matter, is correct then even a wrong reason for the correct conclusion and/or finding, which is the pathway to the conclusion, will not by itself alone vitiate the correct finding and/or conclusion of the Court below. Therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. It follows that it is only and only if the conclusion reached and/or the finding made itself turns out to be wrong that an appellate Court would be under a duty to intervene to make proper findings and reach correct conclusions. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 AT p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46; Agbon-Ojeme V. Selo–Ojeme & Ors (2020) LPELR–49688 (CA) per Georgewill JCA.

In the light of all I have stated and found as above, the Cross-Appellants’ issue two, which is the sole issues for determination in this Cross-appeal, is hereby resolved against the Cross-Appellant in favour of the Cross-Respondent.

On the whole therefore, having resolved the Cross-Appellant’s issue two, as the sole issue for determination in the Cross-appeal, against the Cross-Appellant in favour of the Cross-Respondent, I hold that the Cross-appeal lacks merit and is thus, liable to be dismissed. Accordingly, the Cross-appeal is hereby dismissed.

In the result, that part of the ruling of the High Court of Federal Capital Territory, Abuja, Coram: Jude O. Okeke J., in Suit No. FCT/HC/CV/1715/2016: Faplin Nig. Ltd V. Zerock Construction Nigeria Ltd delivered on 10/12/2018, in which it held that the cause of action in the Respondent’s suit arose in Port Harcourt outside the territorial jurisdiction of the Federal Capital Territory High Court, Abuja and thereby robbed the Court below of its jurisdiction to hear and determine the Cross-Appellant’s suit, is hereby affirmed.
There shall be no order as to cost

PETER OLABISI IGE, J.C.A.: I have read the judgment in the main appeal and I am in complete agreement with my Learned Brother GEORGEWILL, JCA who delivered the lead judgment and I also agree with the judgment on the cross-appeal and consequential orders made in the lead judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have seen and read the lead judgment of my learned brother SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal is meritorious and it is allowed by me as well.

I want to chip in on the issue of “whether the learned trial Judge was wrong when he failed to strike out the suit and rather acted without jurisdiction to transfer the matter from High Court of the Federal Capital Territory to High Court of Rivers State.”

It has now become universally accepted that when an objection as to the jurisdiction of a Court is raised or the Court suo motu raised it, it is fundamental and indeed a duty of the Court to resolve the issue before delving into the matter. See B.A.S.F. (NIG) LTD V FAITH ENTERPRISES LTD, (2010) NSQR 381 at 411, AFRO CONTINENTAL (NIG) LTD & ANOR V CO-OPERATIVE ASSOCIATION INC (2016) LPELR 40007(SC), A.G ANAMBRA STATE V A.G FEDERATION, (1993)6 NWLR (pt.302) 692 and A.G LAGOS STATE V DOSUNMU, (1989)3 NWLR (pt. 111)582.

Thus, it is trite that immediately the Court determines the issue and arrived at a conclusion that it lacked the requisite jurisdiction to hear and determine the action, any further exercise thereafter is null and void and of no effect. It was an exercise in futility as it attempted to put something upon nothing. The suit or action must be struck out for being incompetent. See MADUKOLU V NKEMDILIM, (1962) SCNLR 341, McFOY V U.A.C (1962) AC 152 and UMANAH V ATTAH, (2006)17 NWLR (pt. 1009) 503 at 525. In the instant case, the lower Court having correctly found that it has no territorial jurisdiction to entertain the action of the Respondent, at that stage the proper Order to make by the trial Court was an Order striking out the action before it. Hence, the Order of transfer of the action from the lower Court to High Court of Rivers State was made without requisite jurisdiction and therefore a nullity. Thus, the Order of Transfer being a nullity, it is hereby set aside.

Accordingly, suit No. FCT/HC/CV/1715/2016 filed before the lower Court is hereby struck out for being incompetent.
No award as to cost.

CROSS-APPEAL
The lead judgment in the Cross-Appeal by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA was read by me before now and I agree with the reasoning, finding and conclusion arrived thereat that this Cross-Appeal lacks merit and it is dismissed by me as well.

Accordingly, the part of the decision of the lower Court in suit No. FCT/HC/CV/1715/2016 that the cause of action arose in Part- Harcourt outside the territorial jurisdiction of the lower Court is hereby affirmed.
No award as to cost.