Chief Chika Okafor & Anor. V. Alhaji Tijjani Hashim (Galadiman Kano) & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The plaintiff/1st respondent took out a writ of summons dated 29th January, 1999 against the 3rd and 4th defendants/1st and 2nd appellants and 1st and 2nd defendants/2nd and 3rd respondents at the High Court of the Federal Capital Territory (FCT) Abuja seeking the following reliefs/declarations:

1. A declaration and an order that the certificate of occupancy No.FCT/ABU/KN 3641 dated 25th February, 1998 registered at the Lands Registry as FC 125 at page 125 in volume 82 on 17th March, 1998, convey to the plaintiff a valid legal title over Plot 1549 at Zone A4, Asokoro District, Abuja measuring 2204.91 Square Meters and demarcated with property beacons number PB 6326.

2 A declaration and an order that the certificate of occupancy No.FCT/ABU/KN.3641 granted to the plaintiff has not been validly revoked in pursuance to section 28 of the Land Use Act, 1978.

3. A declaration and order that the interests assumed by or purportedly granted to the 3rd and 4th defendants over Plot 1549 of Zone A4, Asokoro district, Abuja is null, illegal and void, having been assumed or granted concurrent to or during the pendency of Certificate of Occupancy No. FCT/ABU/KN.3641.
4. A declaration that the purported notice of Revocation of the certificate of occupancy No. FCT/ABU/KN.3641 dated 11th January, 1999 is null and void having been given in bad faith contrary to the spirit and letters of the provisions of the Land Use Act especially as no known conduct of the plaintiff constitutes either a probation, or a breach of any term or provisions governing the certificate of occupancy which in any case has never been brought to his attention.
5. An order setting aside the purported notice of revocation dated 11th January, 1999 on the grounds amongst others that;

(a) The basis upon which such a revocation can be founded under section 28(1) of the Land Use Act, 1978, does not exist at all or if it exists, notice of such grounds has never been communicated to the plaintiff as dictated by the ordinary norms of fairness.

(b) Failure to give the plaintiff a fair hearing of the allegations militating against his rights over the property conveyed by certificate of occupancy No.FCT/ABU/KN.3641 is ultra vires the binding provision of the Constitution of the Federal Republic of Nigeria, 1979 and is to that extent a nullity.

6. An order setting aside any assignment or other rights granted to or acquired by the defendants over Plot 1549 Zone A4, Asokoro District, Abuja during the pendency of or contrary to, the plaintiff’s right vested by Certificate of Occupancy No. FCT/ABU/KN.3641.
7. An order of injunction restraining the defendants by themselves, their servants, functionaries, agents, privies, any other person or persons whatsoever and whomsoever from entering upon, selling, alienating or otherwise interfering with the plaintiff’s legal right over Plot 1549 Zone A4, Asokoro District, Abuja covered by certificate of occupancy No. FCT/ABU/KN.3641, doing any further act or things inconsistent with the right and interests of the plaintiff at Law or in Equity over the aforesaid property.

The plaintiff/1st respondent on the 1st February, 1999 obtained the leave of the trial court to issue and serve the writ of summons outside the jurisdiction of the court, an order of substituted service on the 4th defendant and an order of interim injunction restraining the defendants from doing anything inconsistent with the rights of the plaintiff 1st respondent at law or in equity over the property known as Plot 1549, Zone A4, Asokoro District covered by Certificate of occupancy No. FCT/ABU/KN.3641 pending the determination of the motion on notice.

The order was served along with the writ of summons and the case fixed for 25th February, 1999 for the hearing of the motion on notice. On the 24th February, 1999 learned counsel for the 1st and 2nd defendants/appellants filed a notice of preliminary objection that the trial court lacked jurisdiction to entertain the matter. The said notice was moved on the 25th February, 2000 the day the motion was to have been heard, and on the 24th March, 1999 the court ruled that it had jurisdiction to hear the motion overruling the preliminary objection.

The 3rd and 4th defendants now appellants being dissatisfied with the ruling have now appealed to this court challenging the decision on two grounds of appeals.

The appellants filed a brief of argument whereby they formulated 2 issues based on the grounds of appeal for determination by this court. These two issues are:

1. Whether or not the High Court of Federal Capital Territory (FCT) is a Federal High Court or a State High Court.
2. Whether or not the High Court of the Federal Capital Territory has jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1)(q)(r)(s) of the 1979 Constitution as amended by Decree No.107 of 1993.

In addition the respondent also filed his brief and framed the following three issues;

1. Whether the High Court of the Federal Capital Territory, Abuja has jurisdiction to entertain the suit No. FCT/HC/CV/132/99 or not.
2. What is the proper order to be made in respect of the suit if the trial court is found to lack jurisdiction?
3. Whether the High Court of the Federal Capital Territory, Abuja is a Federal High Court or not.

Issues one and three formulated by the respondents are similar to the two issues raised by the appellants, they will therefore be taken and treated together, while the 2nd issue formulated by the respondents will be treated separately.

ISSUE ONE

Whether or not the High Court of the Federal Capital Territory (FCT) is a Federal High Court or a State High Court.

Arguing this issue, it was the submission of the appellants that the Federal High Court was created by virtue of the provisions of section 228 and the High Court, Federal Capital Territory by virtue of section 261 of the 1979 Constitution, that the jurisdiction of each of the two courts is specifically provided for in the two sections and that section 263 of the 1979 Constitution makes the creation of the High Court of the Federal Capital Territory equivalent to those in the States contending that the High Court, Federal Capital Territory (FCT) cannot be said to be a Federal High Court.

The contention of the respondents on that, is that by virtue of the provisions of section 6 of the 1979 Constitution, the judicial powers of the Federation were vested in the Federal Courts of which Abuja High Court is one while the judicial powers of the States were vested in the High Court of the States. That the use of the term Federal High Court, to describe the Abuja High Court is more of a territorial description rather than jurisdictional description. The bone of contention in this issue is the finding of the trial court at page 23 lines 12 to 21 of the records where he said:

“Section 267 of the 1979 Constitution as amended direct that Abuja High Court as I understand that provision is that like the State High Court, which have powers to entertain actions emanating either from the State or against the Government, the Abuja High Court established for the Federal Capital Territory has the powers to entertain all actions against the Federal Government or any of its agencies within the Federal Capital Territory (FCT) so long as such conflict with the items stated for the Federal High Court under section 230(1) of the amended Constitution”.

I see nothing wrong with the above finding. It is a fact that the Federal High Court is established by virtue of section 228(1) of the 1979 Constitution, and its jurisdiction and powers derived from the provisions of sections 230 and 231 respectively.

Similarly, the High Court of the Federal Capital Territory is established by virtue of section 261 of the 1979 Constitution and derives its jurisdiction and powers from section 263 of the said Constitution. What is important here is that the courts in the Federal Capital Territory are established for the Federal Capital Territory and all judicial powers which are vested in the State Courts shall vest in the court of the Federal Capital Territory (FCT).

The Federal High Court and the High Court of the Federal Capital Territory (FCT) are each confined to their various jurisdictions.

The High Court of the Federal Capital Territory is confined to the Federal Capital Territory and cannot be seen to be exercising jurisdiction outside the Territory. Equating it to a State High court is not to my mind derogating its status but rather showing that they have concurrent powers in civil/criminal and appellate jurisdiction. A matter before the Niger State High Court cannot be tried before the High Court by the Federal Capital Territory and vice-versa. Each matter has to be decided in the jurisdiction where it arose, but for the purpose of exercising any jurisdiction conferred upon it by either the Constitution or an Act of the National Assembly the High Court of the Federal Capital Territory (FCT) shall have all the powers of the High Court of a State.

To answer the question raised in the issue, therefore, the High Court of the Federal Capital Territory is not a High Court of a State it however exercises similar powers and jurisdiction as a High Court of a State within the Federal Capital Territory.

ISSUE TWO

Whether or not the High Court of the Federal Capital Territory has jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1) (q) (r) (s) of the 1979 Constitution as amended by Decree No. 107 of 1993.

It is the appellant’s submission on that issue that the Federal Capital Territory, Abuja High Court is not a Federal High Court both in creation and in statute it can therefore not assume jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1) (q) (s) by Decree No.107 of 1993, that the said provisions excludes the jurisdiction of the State High Courts of which the Abuja High Court is one from hearing or entertaining any matter which involves the Federal Government or its agencies and urged us to hold that the trial Judge lacks jurisdiction to hear the case.

The respondent, on the other hand, submitted in his brief that the trial court has jurisdiction to entertain the suit before it pointing out that it is always the relief which is claimed before a court that determines the jurisdiction of a court to adjudicate on it. That the reliefs claimed by the respondent against the appellant as contained in paragraph 1.01-07 of the appellant’s brief and paragraph 1.01 of the respondent’s brief relate to a dispute over Plot 1549, Zone A4, Asokoro District, Abuja covered by a certificate of occupancy No.FCT/ABU/KN 3641 a clear land case. That the matter is not covered by section 230(1) (q) (r) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993. Submitting further that though the said provisions increased or enlarged the jurisdiction of the Federal High Court it does not make it unlimited as in the case of the State High Courts. Further contending that unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a court of limited jurisdiction which cannot exercise jurisdiction over any cause or matter outside that conferred on it by section 7 of the Federal High Court Act No.13 of 1973 which created it and as enabled by section 230 of the 1979 Constitution as modified by section 230(1) of Decree No. 107 of 1993.

Submitting that there is nowhere in Decree 107 where it was stipulated that any suit in which the Federal Government or its agency is sued must be justiciable only in the Federal High Court nor is there anywhere in the Decree where the Federal High Court is given jurisdiction to deal with matters relating to land. That a court cannot assume jurisdiction where none exists even when two of the defendants are Federal Government agencies urging us to hold that the trial court has jurisdiction to determine the matter.

It is of interest to note that by virtue of the provisions of section 230(q) (r) of Decree 107 of 1993 and section 251(1)(q) (r) of the 1999 Constitution the Federal High Court assumes jurisdiction in an action where the Federal Government or any of its agencies is a party.

There is however a provision to the above provisions in section 230(1) (s) of Decree 107 of 1993 and section 251(1) (s) of the 1999 Constitution which provides:

‘Provided that nothing in the provisions of paragraphs (p) (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its Agencies in an Action for damages, injunction or specific performance where the action is based on any enactment, law or equity’.

This court has in the case of Nigeria Deposit Insurance Corporation v. Federal Mortgage Bank of Nigeria, (1997) (Pt. 490) 2 NWLR 735 interpreted section 230(1)(d) and the proviso(s) while answering the question whether a State High Court has jurisdiction to entertain action between one bank and another held that:

1. The State High Courts have jurisdiction in the circumstances indicated in the provisior.
2. The Federal High Court shall not have exclusive jurisdiction in the circumstances indicated in the provisor.
3. The fact that the Federal High Court has exclusive jurisdiction in section 230(1) (d) shall not apply to matters falling within the circumstances of the proviso and does not entirely remove jurisdiction therein from the Federal High Court.
4. Both the Federal and the State High Court have and can exercise concurrent jurisdiction in such circumstances.

The matter to be adjudicated upon before the trial court is for a declaration and an injunction against the action of the Federal Government over a land matter. The two actions are both equitable.

The provisor to section 230 of Decree 107 of 1993 will come in to give the High Court of the Federal Capital Territory, which has unlimited jurisdiction, jurisdiction in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity even where the Federal Government or any of its agencies is a party.

Similarly, section 230(1)(r) of the said Decree will confer on the Federal High Court jurisdiction to determine the matter as the action at hand is based on an administrative action by the Federal Government:- Ona v. Atenda (2000) 5 NWLR (Pt. 656) 244.

It would appear therefore from the above that the two courts have concurrent jurisdiction to determine the matter at hand. The learned trial Judge was therefore right to hold that he has jurisdiction to determine the interlocutory application before him.

Having found on above, the third issue before us becomes academic. It is however trite that where a court rules that it lacks jurisdiction in a matter the proper order to make with regards to the case is to strike it out, and allow the parties to initiate the action before a proper court with the relevant jurisdiction.

On the whole this appeal lacks merit and I hereby dismiss it. The case is remitted back to the trial court for determination of both the motion and the substantive case before it. Costs of N5,000.00 (Five Thousand Naira) is awarded to the respondents.

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Other Citations: (2000)LCN/0853(CA)