SYLVANUS EMEKA MADUBUIKE & ORS. V. ROMANUS ELOCHUKWU MADUBUIKE

SYLVANUS EMEKA MADUBUIKE & ORS. V. ROMANUS ELOCHUKWU MADUBUIKE
final
In The Court of Appeal
Ekiti Judicial Division
On Friday, the 20th day of January, 2012
Suit No: CA/AE/52/2010
 
Before Their Lordships
 
          SONTOYE DENTON-WEST    ……. Justice, Court of Appeal
CHIDI NWAOMA UWA    ……. Justice, Court of Appeal
TOM SHAIBU YAKUBU    ……. Justice, Court of Appeal
    
 
 Between
    1. SYLVANUS EMEKA MADUBUIKE
2. MARTHA ROSE MADIBUIKE
3. VERONICA MADUBUIKE
4. EMMANUEL O. MADUBUIKE
5. PETER O. MADUBUIKE
6. JUDE C. MADUBUIKE
7. MPHAEL MADUBUIKE
8. FRANCIS MADUBUIKE    Appellants
            
 
      And                   
    ROMANUS ELOCHUKWU MADUBUIKE    Respondent


        
 
                  
     


COUNSEL:
                              

Emeka Kalu    For the Appellants
 
Anugo Offor Esq.    For the Respondent

 

JUDGMENT:          
        

CHIDI NWAOMA UWA, J.C.A.: (Delivering the Leading Ruling): On the 20th day of June, 2011, this court suo motu raised the issue of this court's jurisdiction to hear and determine the substantive appeal as presently constituted when the suit that led to the appeal originated from the Enugu Division of the Federal High Court. To this effect written addresses were ordered by the court. The appellants' written address dated 12/7/11 was filed on 14/7/11 while the Respondent's written address was dated and filed on 1/8/11.

When this court was addressed on 24/10/11 Emeka Kalu Esq adopted and relied upon his written address on behalf of the appellants so did Mr. Anugo Offor Esq on behalf of the Respondent. Prior to this date, the Court of Appeal Ilorin Division was faced with the same question which led to the matter being adjourned sine die before the creation of this division of the court.

The Respondent had taken out this action vide a writ of summons and claim dated 74th day of October, 1994, filed on 14th day of October, 1994, pages 2-4 vol. 1 of the printed records. The proceedings were commenced at the Federal High Court Enugu Division against the 1st – 8th Defendants and five others not parties to this appeal. As a result, the Respondent as plaintiff subsequently amended his statement of claim.

The 1st – 8th Appellants as Defendants filed their statement of defence dated 23/4/04 on the 29th day of April, 2004. The trial commenced at the Federal High Court, Enugu Division before Allagoa, J on 19th day of June, 2007 and continued, the defence commenced, the matter was adjourned to 26th May, 2008 for continuation of defence. Before the said date, the presiding judge was transferred to Ado Ekiti Division of the Federal High Court. Before the adjourned date, 26/5/08, the Honourable Chief Judge of the Federal High Court vide a fiat dated 21/4/08 ordered that the case be continued and concluded by Allagoa, J now sitting in the Ado Ekiti Judicial Division of the Federal High Court.

The court proceeded and concluded the matter and entered judgment against the Appellants who subsequently applied that the judgment be set aside. The application for setting aside, was dismissed and the appellants appealed against the judgment.

The Appellants are contending that the learned trial judge over looked the fact that the matter was an assigned suit from the Enugu Division of the Federal High Court which ought to be treated as such but, which was heard as if the matter originated from the Ado Ekiti Judicial Division of the Federal High Court in heading the processes relating to the Enugu Division as Ado Ekiti Judicial Division.

It was submitted by the learned counsel to the appellants that the presiding judge deliberately headed the proceedings as such. Further, that Ilorin Division of this court directed that an application be brought before Allagoa, J to correct this error which resulted in the application dated 20/1/10 which was dismissed on 23/2/10.

It was submitted that the Ado Ekiti Division of this court is the proper court to hear the appeal, reliance was placed on the case of GOVERNMENT of GONGOLA STATE V. TUKUR (1987) NWLR (PT.47) PAGE 102 PARTICULARLY PAGES 103 – 104 PARAGRAPHS A – C. We were urged to utilize our powers under Section 15 of the court of Appeal Act to correct the errors made by the trial court. Also relied upon is the case of AUBERGINE V. H.N.B. LTD (2002) 28 WRN 114 at 121 line 35, and the case of OHAKIM & ANOR V. AGBASO & 4 ORS (2010) 6-7 SC 85 at 93-94 particularly lines 30-15 in urging us to hold that Ado Ekiti Division of this court is the only court with the jurisdiction to hear and determine this appeal.

In the Respondent's written address it was submitted that this court lacks the jurisdiction to hear this appeal. The conditions that govern the jurisdiction of a court to entertain a matter were enumerated as in the cases of MADUKOLUM VS. NKEMDILIM (1962) 2 SCNLR 34 and AJAO V. OBELE (2005) 5 NWLR (PT 918) 400 at 414-415 paragraphs H-C RATIO 11. The conditions are that:

a. The proper parties are before the court

b. The subject matter falls within the jurisdiction of the court and there is no feature preventing the court from exercising jurisdiction.

c. The composition of the court as to members and qualifications.

d. The suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction.

The respondent contended that the appellants failed to comply with the second condition above. It was submitted that the subject matter that gave rise to this appeal originated from Enugu Judicial Division of the Federal High Court and not within the jurisdiction of the Court of Appeal sitting in Ado Ekiti but the Court of Appeal, Enugu Division. Further that what determines the jurisdiction of the court is the claim or relief sought by the plaintiff before the court. Reliance was placed on the cases of TUKUR vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt.117) 517 S.C, and MULTI-PURPOSE VENTURES LTD VS. AG RIVERS STATE (1997) 9 NWLR (PT.522) 642 C.A.

It was argued that an order made by this court sitting in Ado Ekiti does not go beyond the territorial boundary of Ado Ekiti Judicial Division, while relying on the case of FGN vs OSHIOMHOLE (2004) 3 NWLR (PT.860) 305 RATIO 5. The relief sought by the appellants in paragraph 4 of their Notice of appeal was highlighted. The learned counsel to the respondent submitted that the filing of the appeal in the Ado Ekiti division of this court shows that the appeal was not commenced by due process of law and that the Enugu division is the proper venue with the competence to entertain this appeal. It was argued that, the assignment of the matter from the Enugu division of the Federal High Court for completion at Ado Ekiti was merely for administrative convenience and does not derogate from the fact that the case originated from the Enugu Division of the Federal High Court. Further, that the appellants cannot, based on the fiat confer jurisdiction on this court where it has none, see OKOLO VS. UNION BANK OF NIGERIA PLC (2004) ALL FWLR (PT.197) 981 RATIO 2. MOBIL PRODUCTION NIG. LTD. V. MONOKPO (2004) ALL FWLR (PT.1950 575 AT 657. ALSO MUDIAGA – ERHUEN VS. N.E.C. (2003) FWLR (PT.137) 1066 AT 1069. It was submitted that the case of GOVERNMENT OF GONGOLA STATE VS. TUKUR (SUPRA) cited and relied upon by the learned appellants' counsel does not support their case that the Court of Appeal Ado Ekiti is the proper court to hear this appeal.

No doubt, it is the law that jurisdiction is determined by the nature of the plaintiff's claim. It is therefore the statement of claim of the plaintiff that has to be examined to determine whether or not the court has jurisdiction. See CHIEF NUMOGUN SAM ADEYEMI V. OPEYORI (1976) 9 -10 SC 31 at 49, AKANBI VS. MILITARY GOVERNOR ONDO STATE (1990) 3 NWLR (PT.140) 525 at 532.There is also no doubt that this matter commenced at the Federal High Court Enugu and was concluded at the Federal High Court Ado Ekiti vide a fiat granted by the chief judge of the Federal High Court dated 21/4/08 that the matter be concluded by the presiding judge Allagoa, J who had been transferred to Ado Ekiti judicial division of the Federal High Court. The initial Notice of appeal dated 23rd February, 2009 was filed on 25/2/09 at the Federal High Court Ado Ekiti (pages 204 – 206, vol. 3 of the printed records of appeal. The amended Notice of Appeal dated and filed on 29th April, 2011 was also filed at the Court of Appeal, Ado Ekiti, Ekiti Division).

In the original Notice as well as the amended Notice of Appeal the appellants sought the following relief:

4. RELIEF SOUGHT FROM THE COURT OF APPEAL.

To set aside the entire judgment of the court below and order a retrial by another judge sitting at the Enugu Division of the Federal High Court."

The Learned counsel to the Respondent had argued that from the nature of the claim and the relief sought in this court, this division of the court cannot make an order that would be binding on the Federal High Court Enugu division which is not within the territorial jurisdiction of the coutt of appeal sitting in Ado Ekiti, OSHIOMHOLE'S CASE (SUPRA) was cited and relied upon amongst others. The above case is applicable in respect of the jurisdiction of a High Court of a State or of the Federal Capital Territory, Abuja which is confined to the area of the court vis-a-vis the nature of the claim before it. Therefore, if for instance the above mentioned courts should grant an order of injunction, such order would not go beyond the territorial boundary of such a State or the Federal Capital Territory High Court. Any order made by these courts would be effective only within their territories and those outside their territory would not be bound by it and could ignore same. See also DALHATU V. TURAKI (2003) 15 NWLR (PT 843) 310, and ABUBAKRI v. SMITH (1973) 3 ECSLR 536. The relief sought in Oshiomhole's case was wider and beyond and/or outside the territorial jurisdiction of the High Court and for that reason it was held to be unenforceable.

This case that commenced in Enugu Division of the Federal High Court was concluded in Ado Ekiti Division of the Federal High Court where the initial Notice of Appeal was filed. The subsequent amended Notice of appeal as I said earlier in this Ruling was also filed in Ado Ekiti. The appellant's brief of argument, the application to regularize same, the application to regularize the amended Notice of appeal amongst several other applications in the case file and responses by the respondent were all filed in Ado Ekiti Division of the Federal High Court and this court.

In this ruling we are not concerned at this stage with the jurisdiction of the Federal High Court, sitting at Ado Ekiti and the order of Fiat granted by the Federal High Court Chief Judge (that is left for the main appeal), we are concerned with whether this Division of the court could entertain the appeal as opposed to the Enugu Division of this court. The territorial jurisdictions of the State High Courts are confined to their territories unlike that of this court which is as wide as the various existing divisions. For this reason a trial in the High Court in one state culminating in an appeal could be rightly heard in another division of this court outside the division where appeals from the state would normally be heard.

It is common knowledge that justices of this court are assigned to sit in various other divisions outside their regular divisions, likewise cases may be assigned to divisions outside where the appeals from the lower courts would normally be heard for one reason or the other. In the instant case, this matter could be heard in Enugu division of this court, it could be Ilorin, Akure or any other division as well as Ekiti Division by the regular justices posted to Enugu division of this court, those sitting in Ado Ekiti could be assigned to hear the appeal in Enugu or anywhere else it makes no difference. Even if all the processes were filed in Enugu or Ado Ekiti it would make no difference as the case could be properly determined by this court sitting in Ado Ekiti Division of this court. The court of Appeal is one and each division would entertain any appeal it has jurisdiction to entertain as conferred on it by the Constitution of the Federal Republic of Nigeria.

The various divisions are created for administrative purposes. Recently, on the 6th day of January, 2012 appeal No.CA/OW/EPT/52/2011 Peoples Democratic Party (PDP) AND Chief Anayo Rochas Okorocha & 10 ors (unreported) was heard and determined at the Abuja Division of this court when the decision of the lower court was outside Abuja, precisely Owerri, the Notice of Appeal and all other processes were filed in Owerri.

Therefore, I disagree with the learned appellants' counsel who argued that it is only the Ekiti Division of the court that has jurisdiction to hear and determine this appeal; it could have been heard elsewhere. I also do not agree with the learned counsel to the Respondent that it is only the Enugu division that has the jurisdiction to hear the appeal, the case having emanated from the Enugu division of the Federal High Court.

On the other hand I am of the humble view that this division of the court has the power to entertain this appeal in which processes have already been filed in this division and I so hold.

With the relief sought, the learned counsel to the Respondent had argued that this division of the court cannot make an order that would be binding on the Enugu division of the Federal High Court. Territorial jurisdiction of the State High Court is distinguishable from that of this court. While the territorial jurisdiction of the state High Court does not go beyond its borders that of this court certainly goes beyond its divisional and or territorial borders. In the present case, should the appeal go in favour of the appellants as plaintiffs, nothing stops this court from remitting the case back to the chief Judge of the Federal High Court for assignment to the Federal High Court Judge sitting in Enugu as prayed or to any other judge of the Federal High Court if he so wishes. It is therefore erroneous to argue that the powers of this Court and division is limited to making orders that would be binding only on the Federal High Court, sitting in Ado-Ekiti in the present case.

In the final analysis, I hold that Ekiti Division of this court could and would hear this appeal, No order as to costs.

 

 

SOTONYE DENTON WEST, J.C.A.: I have been privileged to read this Ruling just delivered; wherein the main issue dealt with relating to jurisdiction as raised in the parties' addresses has been fully orchestrated upon in some judgments of this Court especially in the yet unreported decision in Appeal No: CA/AE/94/2010 delivered on 20/01/2012.

I was of the humbly opinion in my contribution therein that the Federal High Court of Nigeria is one throughout the country. In view of the provisions of Section 249 of the Federal Republic of Nigeria. 1999 as amended, which provides as follows:

"(1) There shall be a Federal High Court.

(2) The Federal High Court shall consist of -

(a) A Chief Judge of the Federal High Court; and

(b) Such member of Judges of the Federal High Court as may be prescribed by an Act of the National Assembly."

Ipso facto, the Court of Appeal is also one and the same throughout the country. In view of our earlier disposition on this issue, I am obliged to abide by the orders made in this Ruling and I so do.

 

 

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of having read before now, the ruling, just delivered by my Lord, Chidi Nwaoma Uwa, JCA.

I am in complete agreement with the reasoning and conclusion contained in the said ruling.

Section 237 (1) of the 1999 of the Federal Republic of Nigeria Constitution (as amended) provides that:

"There shall be a Court of Appeal".

So, there is one and only one Court of Appeal of Nigeria. It is a Court without territorial borders in Nigeria. See the unreported decision of this Court in Appeal No.CA/AE/94/2010 between Federal Airports Authority of Nigeria vs. Sylvester C. Nwoye of 20th January, 2012, at page 15 thereof.

I, too make no order as to costs.