Aluminium Manufacturing Company (Nigeria) Ltd. V. Nigerian Ports Authority (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C

The question of the limits of the Admiralty Jurisdiction of the Federal High Court as provided by the Federal High Court Act (formerly Federal Revenue Court Decree) 1973 has arisen in only a few cases that have come before this Court on appeal. It has only been incidental to the real question of whether a claim filed before the Federal High Court comes or does not come within the jurisdiction of that Court. That appears to me to be the position in this case and the main question for determination by this Court is this:

“Does the claim of the appellant come within the Admiralty Jurisdiction of the Federal High Court”

The Federal High Court (Kachikwu, J.) answered this question in the negative and transferred the suit to the Lagos State High Court in pursuance of the powers vested in it by the Federal High Court Act section 22(2).

The Court of Appeal also answered the question in the negative when the matter was taken up there on appeal by the plaintiff/appellant. The Court of Appeal however set aside the order transferring the suit to the Lagos State High Court and substituted it with an order striking out the suit. Still dissatisfied, the Plaintiff/appellant has now raised the question before the Supreme Court in this appeal.

The claim before the Federal High Court was a simple claim of N198,872.99 general and special damages with interest at the rate of 10% per annum for “breach of a contract of bailment and or breach of duty as a bailee in the custody of 47 packages of aluminium sheets delivered to the defendant ex. M.V. River Aboine.” More particularly, the particulars of claim endorsed on the writ of summons read:

C.I.F. value of 47 packages of aluminium sheets N178,872.99 General damages N20,000;And the plaintiff claims N198,872.99 with interest at 10% per annum and costs.”

The pith of the matter is that 47 packages of aluminium sheets were lost while they were in the custody of the defendant.

This is brought out clearly by the facts pleaded by the plaintiff in paragraphs 3, 4, 5, 6, 7,8,9, 11, 12 and 13 which read:

“3. By a Bill of Lading No. 10 dated Amsterdam 4th May, 1981 and issued by Elder Dempster Lines Ltd. it was certified that 78 packages of wooden plates were consigned to the plaintiff at Apapa on M.V. River Aboine.

4. On or about the 18th day of May.1981, the said M.V. “River Aboine” arrived at Apapa bearing the aforesaid packages of wooden plates.
5. By an Importers Tally Sheet No. B0 753-00521 dated 31/5/81, it was certified by the defendant that 78 wooden plates of aluminium sheets were off-loaded from the said M.V. River Aboine into the defendant’s custody.
6. By an ‘Import Entry For Home Use’ dated 21st day of May, 1981, it was certified by the Board of customs and Excise that a duty of N24,090.67 was paid on 78 packages aluminium sheets ex M.V. Aboine the value of which consignment is N229,434.91.
7. By a letter addressed to the defendant dated June 4, 1981, Messrs Mid Maritime Services Ltd. the Plaintiff’s clearing agents, notified the defendant that 47 packages out of the aforementioned consignment were short delivered.
8. By a letter dated the 10th September, 1981, the defendant informed the plaintiff that investigation revealed that 78 packages were manifested and all recorded as landed into defendant’s custody. However, only 31 packages were traced and delivered to the plaintiff. Port police had been requested to investigate on the loss of 47 packages.
9. By a further letter to the plaintiff dated the 15th October 1981, the defendant stated as follows:

‘Further to my letter dated 10/9/81, investigation conducted to locate the 47 plates has not been successful. There is no record of the 47 plates being delivered and since they cannot be located despite series of physical searches, it should be assumed that they were illegally removed from this quay.’

11. The plaintiff avers that the defendant was a bailee for reward of the said wooden plates and was accordingly under a duty to deliver them to the plaintiff intact.
12. In breach of contract and/or duty, the defendant short delivered 47 wooden plates of aluminium sheets to the plaintiff.
13. Further or alternatively, the said loss was caused by the negligence of the defendant, its servants or agents in breach of the defendant’s duty as a bailee for reward.”

When, therefore, objection was raised in limine to the jurisdiction of Federal High Court in that the claim as framed does not come or fall within the Admiralty Jurisdiction of the Federal High Court and that the Federal High Court cannot determine the matter in exercise of its civil jurisdiction, the learned trial Judge, Kachikwu, J. (as he then was) upheld the objection. In his ruling, the learned Judge said, inter alia.”

“The claim is for breach of contract of bailment. The fact that the Nigerian Ports Authority is the defendant does not bring it within the admiralty jurisdiction of this Court………The claim has nothing to do with the revenue of the Federal Government. In the circumstances I am of the view that the claim does not come within section 7 of the Federal High Court Act 1973. Therefore. I have no jurisdiction to entertain it. The proper order to make is one of transfer. Accordingly and in pursuance the powers conferred on me by section 22(2) of the Federal High Court Act 1973, this case is transferred to the Lagos State High Court for hearing and determination.”

Aggrieved by the Ruling, the plaintiff appealed to the Court of Appeal to reverse the order of the learned Judge and to order the case to be tried in the Federal High Court. Only two grounds were filed and they read:

“1. The learned Judge erred in law in ruling that a case where goods are off-loaded from a ship into the custody of the Nigerian Ports Authority and are lost by the N.P.A. does not fall within the admiralty jurisdiction of the Federal High Court.

2. That the learned Judge erred in transferring the case to the Lagos High Court.”

The Court of Appeal (Coram, Ademola, Mohammed and Kutigi, JJCA.) after hearing arguments and submissions of counsel for the parties dismissed the appeal. Concluding his lead judgment, Ademola, JCA, (with the concurrence of Mohammed and Kutigi, JJCA.) said:

“I find the position here to be a relationship of bailor and bailee and not contract of carriage of goods by sea.

I cannot therefore say that the broad interpretation of section 1(1)(g) of the Administration of Justice Act 1956 applied by the Supreme Court in American International Insurance Company Ltd. v. Ceekay Traders Ltd. should apply here. To do so would be saying that the Admiralty jurisdiction of the court covers everything that happens in all the ports in Nigeria, a proposition that is yet to get legislative approval.

The second leg of this appeal would have to be dismissed.

The suit should have been struck out of the cause list of the Federal High Court instead of the order of transfer made.”

The Court of Appeal then made an order striking out the suit.

The plaintiff was still not satisfied and has brought the matter on appeal to this Court. Two grounds of appeal were filed along with the notice of appeal and they read:

“1. That the Court of Appeal erred in law in deciding that a case where goods are off loaded from a ship into the custody of the Nigerian Ports Authority and are lost by the NPA does not fall within the Admiralty jurisdiction of the Federal High Court.

2. That the Court of Appeal erred in striking out the said case.”

Only the appellant filed brief in the appeal and appeared at the hearing. The respondent did not. At the hearing, neither the respondent nor learned counsel representing the respondent appeared. The Court decided to hear oral argument in amplification of the brief by the learned counsel for the appellant before reserving judgment.

Learned counsel submitted, and I agree with him, that the two issues for determination revolve round the question of jurisdiction of the Federal High Court. The first issue is whether the claim filed is within the admiralty jurisdiction of the Federal High Court or not and the second issue is whether the order striking out the claim made by the Court of Appeal is justified having regard to the provision of sections 230,231 and 233 of the 1979 Constitution of the Federal Republic of Nigeria and of section 22(2) of the Federal High Court Act and the decision of this Court in Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR 329, 333. Dealing with the first ground of appeal, learned counsel listed the four findings of the Court of Appeal in its judgment and attacked them one by one. These findings as set out in the brief read:

“(1) That the case of Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) 3 SC.59 was nearly on all fours with the present case;

(2) That on the issue of jurisdiction, this matter “is less of an admiralty matter and more of the duty of care on the part of a bailee.”

(3) That to apply a broad interpretation of section 1(1)(g) of the Administration of Justice Act would be saying that the Admiralty jurisdiction of the court covers everything that happens in all ports in Nigeria, a proposition that is yet to receive legislative approval.

(4) That contract under the Bill of Lading has, in my view, terminated. The element of a contract of carriage of goods by sea in the case is no longer…… I find the position here to be a relationship of bailor and bailee and not a contract of goods by sea …. ”

It is necessary to observe that the above quotations could not strictly be described as findings of fact more especially as no evidence was taken in the Federal High Court (the Court of first instance) where the issue of jurisdiction was first considered. The Ruling of the Federal High Court and the decision of the Court of Appeal were based on the facts pleaded in the appellant’s statement of claim I have set out above. On the first finding, learned counsel submitted that the case of Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. 1973 3 SC. 59 was more in favour of his contention than against it. He distinguished it from the instant appeal pointing out that at the time that action was filed and determined in the High Court, the Federal Revenue Court, the fore-runner of the Federal High Court, had not been established. Can it be said that the finding of the trial court in that case (Obaseki, J. (as he then was)) that the contract of carriage by Sea terminated on the arrival of the goods at Warri port does not make the facts on all fours with the instant appeal having regard to the facts pleaded in the statement of claim and reproduced above I certainly will say that I find similarity between the two sets of facts. The facts of the instant appeal are on all fours with those of K. Chellarams & Sons (Nig.) Ltd. case (supra).

Learned counsel for the appellant took up the second finding and submitted with respect to the second finding which was the conclusion arrived at after due consideration of the pleading, that it created a dichotomy between “pure admiralty” and “impure admiralty” cases which the law does not envisage.

I do not think it was the intention of the Court of Appeal to create those two classes of admiralty cases. If a case is “impure admiralty” case, the fact that it is an admiralty case brings it within that definition and the court’s jurisdiction. This is therefore more of an academic discourse than the discourse of issue before the Court.

Once a matter comes partly within the jurisdiction of the Federal Court and partly within the jurisdiction of the State High Court, there is nothing to oust the jurisdiction of the Federal High Court. The Federal Court is entitled to assume its jurisdiction in the matter. The State Court can also assume its jurisdiction in the matter. It should be observed, however, that the State High Court has unlimited jurisdiction. See 236(1) of the 1979 Constitution of the Federal Republic of Nigeria.

On the decision of the court to decline that invitation of counsel to apply a broad interpretation of section 1(1)(g) which would bring everything that happens at the ports in Nigeria within the admiralty jurisdiction of the court, learned counsel submitted that the Administration of Justice Act 1956 does not purport to lay down any proposition of law relating to ports or regarding ports. He added that where the Ports Authority is allegedly implicated in a claim for loss of goods or damage to goods carried in a ship such claim must fall within the admiralty jurisdiction. In the instant appeal, the facts pleaded drew a line separating loss of goods carried in a ship in transit and loss of goods discharged from a ship into the custody of the Nigerian Ports Authority. Discharging goods into the custody of the Nigerian Ports Authority is as good as discharging the goods into the custody of the appellant in the circumstance of this case.

On the fourth finding by the Court of Appeal:

“that that contract under the Bill of Lading has terminated and that the element of a contract of carriage of goods by sea is in this case no longer there, but as between the appellant and the respondent the position is that of a bailor and a bailee.”

learned counsel submitted that the clear implication is that the contract of carriage of goods by sea is a separate and distinct contract from a bailment. He pointed out that a carrier is a bailee of some sort. The facts pleaded, in my view, drew a thick line separating the agreement of carriage of goods by sea from the contract of bailment with the defendant.

The limit of the admiralty jurisdiction of the Federal High Court is as prescribed in the Administration of Justice Act 1956 of England. This was settled by the decision of this Court in American International Insurance Company v. Ceekay Traders Limited (1981) 5 SC. 81. Subsections (1)(g) and (1)(h) of Section 1 read:

“(1) The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:

(g) any claim for loss of or damage to goods carried in a ship

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.”

It was not the English Administration of Justice Act 1956 that conferred Admiralty Jurisdiction on the Federal High Court. It was the Federal High Court Act 1973 by section 7(1)(d) of which reads:

“The Federal High Court shall have and exercise jurisdiction in civil causes and matters.

(a) ………………………………………

(b) ………………………………………

(c) ………………………………………

(d) of Admiralty jurisdiction.

The Federal High Court Act 1973 did not define the limit of admiralty jurisdiction but having regard to the provision of section 8(1) of the Act which deprived the High Court of a state or any other court of a state of the jurisdiction vested in the Federal High Court, the limit of the admiralty jurisdiction hitherto conferred on and exercised by a High Court of a state in this case, Lagos State automatically determines the limit of admiralty jurisdiction conferred on the Federal High Court. The provision of subsection (1)of section 8 of the Federal High Court Act reads:

“In so far as jurisdiction is conferred upon the (Federal Revenue Court now) Federal High Court in respect of causes and matters mentioned in the foregoing provisions of this part, the High Court or any other court of a state shall, to the extent that jurisdiction is conferred upon the Federal High Court cease to have jurisdiction in relation to such causes or matters.”

Before the establishment of the Federal Revenue Court in 1973, the High Court of Lagos State exercised within its area of jurisdiction admiralty jurisdiction exercised by the High Court of Justice in England. This is expressly provided by section 10 of the High Court of Lagos Act Cap 80 (Revised Laws at the Federation of Nigeria and Lagos 1958 as amended). It reads:

“The High Court shall in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment possess and exercise, within the limits mentioned, and subject to the provisions of the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities, which are vested in or capable of being exercised by the High Court of Justice in England.”

What is Admiralty Jurisdiction The origin of the Admiralty jurisdiction in England can be traced to ancient times. The jurisdiction of the Admiralty Court in respect of offences committed upon the high seas is rooted in ancient times.

As a result of possessing this criminal jurisdiction, the court of the Lord High Admiral began to hear disputes also in all civil matters connected with the sea and gradually usurped the jurisdiction of the common law court in matters arising in inland tidal waters, in consequence of which two statutes were passed in the reign of Richard II confining the jurisdiction of the Admirals and their deputies to things done upon the sea and in the main stream of great rivers to the seaward side of the bridge.

The civil jurisdiction of the Admiralty Court continued within the limits laid down by the statute of Richard II, but its exercise involved the Admiralty Court in a long struggle with the superior courts of common law. The Admiralty Court asserted the highest and fullest jurisdiction over everything which might happen upon the high seas, but it was obliged to give way to the common law courts and ceased to exercise jurisdiction to the full extent which it had formerly claimed. See Halsbury Laws of England Vol. 1 paragraph 301 page 208. See R. v. City of London Court Judge and Payne (1892) 10.B. 273 at 292-294 CA per Lord Esher, M.R.

The Admiralty Court Act 1840 improved the practice and extended the jurisdiction of the High Court of Admiralty in England. This was followed by a series of Acts which also enlarged or defined the jurisdiction, the latest of which is the Administration of Justice Act 1956. Part 1 of that Act redefines the Admiralty jurisdiction of the High Court and expressly preserve any other jurisdiction vested in the High Court of Admiralty immediately prior to the commencement of the Supreme Court of Judicature Act 1873 section 1(1) (Administration of Justice Act 1956). Thus, the Admiralty jurisdiction of the High Court of Justice in England is derived partly from statute and partly from the inherent jurisdiction of the High Court of Admiralty. The Administration of Justice Act 1956 lists the areas of jurisdiction of High Court under eighteen paragraphs (see section 1(1)(a) to (s)). In addition, the High Court has any other jurisdiction which either was vested in High Court of Admiralty before 1st November, 1875 or is conferred on the High Court as being a court with Admiralty jurisdiction by or under any Act which came into operation on or after that date, and also any other jurisdiction connected with ships or aircraft vested in the High Court which is for the time being assigned by the rules of court to Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court. Of particular interest to the consideration of this instant appeal is the jurisdiction to entertain claims for loss of or damage to cargo. The Admiralty jurisdiction of the High court includes jurisdiction to hear and determine and claim for loss of or damage to goods carried in a ship and any claim arising out of any agreement relating to the carriage of goods in a ship or the use or hire of a ship. (See Administration of Justice Act 1956 section 1(1)(g) and (h)). The jurisdiction prescribed in section 1(1)(h) is wide enough to cover claims in tort arising out of any agreement relating to carriage of goods in a ship. The St. Elefrereo (1957) P.179 (1957) 2 All ER. 374, (1957) 1 Lloyd’s Rep. 283.

At the time the High Court of Lagos Act was passed, the High Court of Justice in England exercise Admiralty Jurisdiction prescribed by the Administration of Justice Act 1956 section 7(1). See American International Insurance Company Limited v. Ceekay Traders Limited (1981) 5 S.C. 81 at 100-102.

I have set out above the provision of paragraphs (g) and (h) of subsection I of section 7 which I consider relevant to this appeal. Learned counsel submitted that the claim in this matter falls squarely within the provision in paragraph (h) which reads:

“Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”

The words of the paragraph are clear and unambiguous and should be given their broad ordinary meaning. By broad interpretation, I mean interpretation within the con of the section. Any interpretation that takes it out of con cannot but do violence to the meaning of the section. It cannot be sincerely argued that the fact of this instant appeal brings the claim within the provision of paragraph (h) or paragraph (g).

The claim does not arise out of any agreement relating to carriage of goods in a ship or to the use or hire of a ship. The facts pleaded did not say so or lead to such conclusion. It cannot be the intention of the legislature that the agreement must be discharged before the claim arises. In other words, any claim which arises from acts or omission of third parties after the agreement has been executed or terminated does not come within the purview of that paragraph (h) of subsection 1. It will amount to ridiculous interpretation to say that because the goods had been carried in a ship any claim for damage or loss occurring after the completion of the journey by sea to Apapa occurring anywhere on land falls within the paragraph. In my view, the facts pleaded in the statement of claim cannot bring the claim within the provision of paragraph (g) or (h) and therefore, I agree with the decision of the court below that the claim is not within the Admiralty or other civil jurisdiction of the Federal High Court. The claim is totally devoid of any maritime colouring and founded on a simple contract of bailment and negligence. This is more so as the transaction which gave rise to the claim is in the nature of a bailment.

A bailment is defined as a delivery of goods on condition that the recipient shall ultimately restore them to the bailor, they may thus be hired or lent or pledged or as in this case deposited for safe custody.

Paragraph 8 of the statement of claim clearly shows that 78 wooden plates of aluminium sheets were landed into defendant’s custody. Paragraph 7 of the statement of claim discloses that the plaintiff paid N24,090.67 duty on the 78 wooden plates of aluminium to the Board of Customs and Excise based on the particulars given on the completed form Import for Home Use dated 21st May, 1981. The Defendant is therefore a bailee. It had custody of the 78 wooden plates at one time and according to the facts pleaded in paragraph 9 of the statement of claim the defendant stated in its letter of 10/9/81 that it should be assumed that 47 plates out of the 78 plates were illegally removed from the quay. They were not lost on board the ship “M.V. Aboine” to make the claim an Admiralty matter. They were lost on the quay after they left the ship and entered the custody of the defendant. Indeed, the facts pleaded in paragraph 2 of the statement of claim to wit:

“The defendant is a statutory body with powers to take delivery of goods off-loaded from ships and to deliver them to their rightful consignees.”

completely negates the submission of learned counsel for the appellant that the claim arose out of any agreement relating to carriage of goods in a ship. The Federal High Court therefore cannot exercise admiralty jurisdiction to determine the claim.

The second issue for determination is whether if the appeal against the lower court’s decision on the question of jurisdiction fails, the proper order is one of “transfer out of the cause or matter to Lagos State High Court or striking out.”

On this issue, learned counsel submitted that the proper order is one of transfer of the suit to the Lagos State High Court and cited section 22(2) of the Federal High Court Act as his statutory authority. He also relied on the decision of this Court in the case of Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NMLR, 329 at 333.

Learned counsel appears to be on firm ground on this issue. The Supreme Court considered the provisions of section 22(2) of the Federal Revenue Court Decree now Federal High Court Act in Mokelu’s case (supra) and said at page 433;

“We have carefully considered the wording of section 22(2) of the Federal Revenue Court Decree 1973 and we are convinced that for a true and correct meaning to be given to the word “may” it must be construed as imposing an obligatory duty. Absurdity or repugnancy would follow from holding that a discretion was given; because when a Judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. In our view, the learned Judge having rightly held that he had no jurisdiction was clearly in error when he ordered the case to be struck out contrary to the provisions of section 22(2) of the Federal Revenue Court Decree. The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of section 22(2).”

This was in 1976 before the Constitution of the Federal Republic of Nigeria 1979 came into force. Section 22(2) of the Federal Revenue Decree reads:

“No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken to the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought and the Judge of the Federal Revenue 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 in accordance with the rules of court to be made under section 43 of this Decree.”

A similar power was given to the High Court of the States by section 22(3) of the Decree. This was before the Constitution of the Federal Republic of Nigeria 1979 came into force.

The 1979 Constitution created and established the Federal High Court

See section 230(2). That section 230(2) reads:

“Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) relates, such court shall as from the date when this section comes into force be restyled “Federal High Court” and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law” (Italics mine)

It appears to me that the power of transfer granted by section 22(2) of the Federal High Court Act continues to reside in the Federal High Court. This is so notwithstanding Sections 231(1) and 233 of the Constitution. Section 231(1) conferred all the powers of a State High Court on the Federal High Court for the purpose of exercising any jurisdiction conferred upon it by the Constitution of the Federal Republic 1979.

On practice and procedure to be followed in the Federal High Court section 233 of the 1979 Constitution provides as follows:

“The National Assembly (now Armed Forces Ruling Council) may by law make provisions with respect to the practice and procedure of the Federal High Court (including the service and execution of all civil and criminal processes of the court); and until other provisions are made by the National Assembly (Armed Forces Ruling Council) the jurisdiction hereby conferred upon the Federal High Court shall be exercised in accordance with the practice and procedure for the time being in force in relation to a High Court of a State or to any other Court with like jurisdiction. ”

The Federal High Court which dealt with this matter in the first instance exercises its jurisdiction in Lagos State.

The question that arises in this matter is whether there is power in a State High Court, in this case, Lagos State High Court to transfer a matter which it has no jurisdiction to entertain. The clear answer is in the negative in such cases, the order it has power to make is an order striking out the matter.

The practice and procedure of the High Court of a State is regulated by section 239 of the 1979 Constitution which reads:

“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.

By virtue of section 274 of the Constitution, the High Court of Lagos State (Civil Procedure) Rules are applicable. In particular, Order 22 Rules (2) and (3) of the High Court of Lagos State (Civil Procedure) Rules read:

(2) Any party shall be entitled to raise by his pleading any point of law and unless the court or Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

(3) If in the opinion of the court or a Judge in Chambers the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence or set off, counterclaim or reply therein, the court or Judge may thereupon dismiss the action or make such other orders therein as may be just.

However, the express provision of section 230(2) of the Constitution giving the court the powers the Federal Revenue Court had under section 22(2)and which the State High Courts have under section 22(3) of the Federal Court Revenue Decree supersede and nullify the provision of Order 22 Rule 3 of the High Court of Lagos State Civil Procedure Rules in relation to the question of transfer after upholding a plea to the jurisdiction of the court.

Since the Federal Revenue Court had power to transfer a matter in respect of which it had no jurisdiction to a State High Court, the Federal High Court, which is the Federal Revenue Court under a new name continues to have the power to transfer. The appeal against the order striking out the suit succeeds. The order striking ‘out the suit’ made by the Court of Appeal is hereby set aside and in its stead the order of transfer made by the Federal High Court is hereby restored.

Subject to restoration of the order of transfer the appeal is hereby dismissed and the decision of the Court of Appeal on the issue of jurisdiction affirmed.

There will be no order as to costs.

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SC.114/1985