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Jacob Ndaeyo v. Godwin Ogunaya (1977) LLJR-SC

Jacob Ndaeyo v. Godwin Ogunaya (1977)

LawGlobal-Hub Lead Judgment Report

C. IDIGBE, J.S.C.

The appellant is the defendant in an action in detinue heard and determined in the High Court of the former East Central (now Imo) state, holden at Owerri. During the Nigeria civil war the respondent (i.e. the plaintiff in these proceedings) lost a Heidelberg Printing Machine, the subject matter of the claim in these proceedings – in circumstances which according to him – quite possibly, amounted to stealing by a servant or a highway robbery.

The facts leading to the loss of the printing machine aforesaid (hereinafter referred to as “The Printing Machine”) are not only somewhat vague certainly indecisive on the issue of stealing or robbery but they are, however, not really material to the principal questions in this appeal; and these are whether these proceedings were commenced in the proper venue and, if not, whether they are invalid for want of jurisdiction in the trial Court.

Briefly, the facts in support of the respondent’s claim and which from the records do not appear to be in dispute are as follows. Just before the Federal troops took over Port Harcourt from the Rebel troops in May, 1968, during the Civil War the respondent began to evacuate his property – the subject matter of the claim in the case in hand inclusive – from Port Harcourt just under ten miles from Owerri (now the Capital of Imo Sate and the situs of the court of trial) at a village known as Mgbirichi, the lorry conveying the respondent’s property from Port Harcourt to his hometown, beyond Owerri broke down and in the interval between the search for motor mechanics and the repair of the said lorry unknown persons removed the lorry and its contents from the sport where it had broken down.

Apart from the respondent’s evidence that neither his lorry nor the driver has since been found, nothing else is known of their the lorry or the driver. Soon after the civil war the Printing Machine was found in possession of the appellant; it was being used for the purpose of his business as a printer and publisher in his business premises at Uyo in the Cross River (formerly, South Eastern) state. On interrogation the appellant who, from the records, knew nothing of the facts leading up to, and the alleged incident at, Mgbirichi explained that the Printing Machine was recovered in Port Harcourt by the Abandoned Property Authority of the Rivers State who later sold the same to him.

A report by the respondent was lodged with the Police Authorities at Owerri who, carried out investigations and, subsequently visited the business premises of the appellant at Uyo from where they removed the Printing Machine into Owerri with a view to possible criminal court action against the appellant who had failed to produce to them a satisfactory receipt, of purchase of the same, from the Rivers State Abandoned Property Authority. Later, however, on the advice of the Imo State Ministry of Justice, the Police Authorities declined to take any criminal action in court advised the respondent to pursue his civil remedies, if he so desired. These proceedings were initiated in the High court by the respondent on the advice of his solicitor.

In the trial court the appellant by his counsel contended that the action was incompetent since the writ of summons in these proceedings should have been taken out at Port Harcourt; therefore, he submitted the High Court of Imo State (then East Central State) had no jurisdiction to entertain the claim. The learned trial Judge overruled the contention and objection of learned counsel for the appellant, entertained the claim and made an order in favour of the respondent. We will example, anon, in detail the contentions of the appellant, the decisions of the learned trial Judge and the reasons therefore.

The objection to the jurisdiction of the court of trial was raised by the appellant at a very early stage of the proceedings. Para 14 of the statement of defence reads:

“…… the Defendant will at the trial raise all legal and equitable defences open to him and in particular that the High Court at Owerri has

(1) No jurisdiction to entertain the trial by virtue of section 46(1) & (2) of the High Court Law of ……………. Eastern Nigeria and Order VII Rule 1 & 5

(2) That the determination of the ownership of the said Machine should be by the High Court of the Rivers State of Nigeria by virtue of Section 13 (3) of the Abandoned Property Edict No 8 of 1969”.

Dealing with the issue relating to the jurisdiction the learned trial Judge observed as follows:

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“In his address learned counsel for the defendant contended that the court has no jurisdiction to entertain this case on two grounds, firstly that the defendant does not reside within the jurisdiction pursuant to the provision of section 22(1) of the High Court Law and secondly that the situs of the subject matter of the case is at Uyo which is also outside the Jurisdiction of this court vide order VII Rules I and IV of the High Court Rules.

In his reply the learned counsel for the plaintiff submitted that within the scope of order VII Rules I and IV supra the seizure was at Mgbirichi in 1968, and that the provisions of the Abandoned Property Edict would not be applicable on the ground that the Machine was not sold by the Authority to the defendant. The issue before this court is to determine which of the two disputants is the owner of the Machine Exh. “B”. There is no disputing the fact that the machine was bought by the plaintiff from R.T. Briscoe Nigeria Ltd. The agreement and receipts proved this. This is readily conceded by the defence which then says that the ownership has shifted unto the Abandoned Property Authority which then transferred it to the defendant by sale. On the evidence before me I do not hold that the plaintiff’s ownership ever shifted to the Abandoned Property. I am satisfied …………. ………………. That the machine was dismantled and removed from Port Harcourt in May, 1968, in a lorry which broke down at Mgbirichi and at which place the plaintiff became deprived of the machine ostensibly by stealing ………………….. ………………… I do not believe that the defendant ever bought the machine in dispute or any party therefore from the Abandoned Property Authority”

The learned trial Judge then obtained with his review of the facts given in evidence before him and finally observed:

“Counsel contended that the machine was seized at Uyo and that the action should be commenced at Uyo where the machine was seized or it Port Harcourt where he bought the machine seized from him at Uyo, The defendant is not suing to recover the machine seized from him at Uyo. If that were so his contention would be meaningful. But the plaintiff’s case is concerned with the recovery of the machine which the evidence shows was fraudulently seized from him at Mgbirichi and on the true construction of the facts counsel’s contention cannot stand. Coming nearer home I would even say that the more pertinent fact is that the subject matter sought to be adjudicated upon was lying within the jurisdiction at the time of the commencement of the action and still does and other considerations may even be said to be remote on either of these two heads I hold that the jurisdiction of the court is not ousted”.

We find it difficult to follow the reasoning of the learned trial Judge in the passage in his Judgement set but in the immediately proceeding quotations and we think, with respect to the learned trial Judge that he failed to appreciate the submissions and contentions of learned counsel for the appellant particularly in so far as they are applicable to the provisions of Section 22 of the High Court Law Cap 61, Laws of Eastern Nigeria 1963 edition Vol IV and order VII Rule (4) of the High Court Rules made pursuant to the provisions of the High Court Law aforesaid (hereinafter, severally, referred to as “the High Court Law” and “the High Court Rules”), applicable in the former East Central – now, Imo – State, which are the only statutory provisions we consider germaine to the issues and questions raised in this appeal. We consider neither the provisions of section 46 of the High Court Law aforesaid nor the provisions of Section 13(3) of Rivers State Abandoned Property Edict No 8 of 1969 relevant to questions aforesaid. Sub-Section 3, of section 13 of the Abandoned Property (Custody and Management) Edict No 8 of 1969 (hereinafter referred to as the Abandoned Property Edict”) reads:-

“(3) where two or more persons claim to be the owner of an abandoned property for purposes of the provisions contained in sub-section (1) of this section they shall each be referred by the Authority to the High Court of the state and either or each of them may thereupon bring an ordinary civil action in the High Court to determine the ownership of such property, and pending the decision of the High Court no payment due the owner thereof shall be made by the Authority in respect of such property”

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Section 13 aforesaid deals with competing claims of ownership of abandoned property and payment in respect of such claims; and, here, the learned trial Judge was of the view that the property in dispute was not an “abandoned Property” as defined in section 2 of the Abandoned Property Edict. We are, however, in this appeal concerned with the issue of jurisdiction of the trial court to entertain the claim in these proceedings and, therefore, find it unnecessary to express any opinion on the learned judge’s finding on the status of the Printing Machine. This is particular so, since the claim may have to be considered by another court of competent jurisdiction.

On the issue of jurisdiction we are satisfied that the High court of Imo State (holden at Owerri) was, on a proper reading of Sec 22(2) of the High Court Law and Rule 4 of order VII of the High Court Rules, not the proper venue for the institution and trial of the respondent’s claim. Sub-section (2) of section 22 of the High Court Law reads:-

“22(2) The Court shall have jurisdiction to hear and determine any civil cause or matter other than the one referred to in sub-section (1) in which the defendant or one of the defendants resides or carries on business within the Jurisdiction of the court” (underlining supplied).

Sub- section (1) of section 22 of the High Court Law deals with the jurisdiction of the Court in actions for or each of contract and specific performance thereof. Order vii of the High Court Rules makes provisions regulating the Institution and trials of action within the various Judicial Division of the High Court of the State; and while Rules 1, 2 & 3 of that Order (i.e. Order Vii) deals with special types or particular classes of actions, Rule IV of that order makes a general provision for institution and trials of action within the various Judicial Divisions of the state High Court. In these proceedings we are, however, concerned with Rules 1 & IV of the said Order and these read:-

“Subject to the provisions of the Law respecting transfer, the place for the trial of any suit or matter shall be regulated as follows:-

(1) All suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and all actions relating to personal property, destined or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distress or seizure took place ………….. . . ……….. ……….. ……………. ……………………….

(4) All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. If there are more defendants then one resident in a different Judicial Divisions, the suit may be commenced in any one of such Judicial Divisions; subject, however, to any order which the court may, on the application of any of the parties. ……… ”

The Law relating to transfer mentioned in the opening passage of Order VII aforesaid is to be found in section 46 of the High Court Law and it merely empowers a Judge of the High Court of the State, at any stage of the proceedings before him, and before final judgement either with of without application from any of the parties to the proceedings to transfer those proceedings to a magistrate or a Judge in the same or any other Judicial Division of the Court of that State. On a proper reading of the above quoted section and Rules, it does appear to us that these proceedings could have been commenced either in the High Court of the Rivers State or that of the Cross River (formerly South Eastern) State but certainly not in the High Court of Imo (formerly East Central) State for there is evidence that the defendant who lives at, and carries on his business as a printer and publisher in, Port Harcourt in the Rivers State also operates a branch of his business at Uyo in the Cross River State.

We note that in a passage in the judgement set out earlier on the learned trial observed:

“………………… the Plaintiff’s case is concerned with the recovery of the machine which the evidence shows was fraudulently seized from him at Mgbirichi …………………..”

Earlier on, however, in his judgement the learned Judge had, in a view of the plaintiff’s case, said that he was satisfied that the lorry in which the plaintiff’s goods were being conveyed from Port-Harcourt in May, 1968, “broke down at Mgbirichi at which place the plaintiff was deprived of the machine ostensibly by stealing ………………………….. ……………. …………….”

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We think the evidence before the learned Judge is mere consistent with the fact that the lorry and its contents (the Printing Machine inclusive) were stolen not seized) at Mgbirichi and that the Printing Machine was seized (i.e. taken legal possession of by law enforcement agencies) from the business premises of the appellant at Uyo. There is certainly no evidence on the record of any seized, at Mgbirichi either of the lorry or its contents and it seems to us that, following its erroneous conclusion that there was such a “seizure”, the court further erroneously misapplied the Provisions of Rule (1) of Order VII of the High Court Rules. The provisions of section 22 of the High Court Law and Order VII of the High Court Rules are meant to be applied together and the trial court appears to have lost sight of this. The position, therefore, is that even if the Printing Machine had been “seized” at Mgbirichi (a village within the Jurisdiction of the High Court of Imo State), the trial court still had to consider the question whether the appellant (qua defendant) was resident and/or carried on business within, the jurisdiction (i.e. within Imo State).

These proceedings having been commenced in the High Court of Imo State instead of the High Court of the Cross River State, what then is the effect of this error We think that this is a matter which goes to the Jurisdiction of the Court of trial. “By ‘jurisdiction’ is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means ……………. A limitation may be ………………………… as to the area over which the jurisdiction extends …………………………………………….” [see Vol. 10, Halsbury Laws of England P 323, Para 715; 4th Edition (1975)]. What occurred in the instant case is not one of mere irregularity in the exercise of the jurisdiction of the trial court, in which case the order made by the court would not necessarily be invalid. After all, “Court ……… have ‘jurisdiction’ to be wrong in law; that is why we hear appeals on questions of law” [Per Diplock L. J. In Oscroft v Benabo (196)2 A. E. R. 548 at 557].

There is a distinction, however, between a judgement which a court is not competent to make and one which even if wrong in law or in fact, is within its competency. What occurred in these proceedings amounts to total lack of jurisdiction for under the provisions of the Law establishment the trial court (i.e. section 22, [particularly, sub-section 2 of the High Court Law aforesaid) the jurisdiction of the High Court of Imo State, so far as concerns defendants in a civil cause or matter, is limited to such defendants as are resident and/or carry on business, within that state. The evidence on record, however, is that the appellant (i.e. the defendant in these proceedings) neither resides, nor carries on business, within Imo (formerly East Central) state. Where, therefore, a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing [see Halsbury Laws of England op cit Art 715; Attorney General for Trinidad and Tobago v Erichie (1893 A.C 518 P.C. at 522-523 also Timith v Amabebe (1958)14 W.A.C.A. 374].

It follows therefore, that the trial Court had no jurisdiction to entertain these proceedings and the Judgement of that court is VOID and of no effect. This appeal, therefore, succeeds and the judgement of the High Court of the former East Central (now, Imo) State holden at Owerri, dated the 23rd November 1973 in Suit HOW/236/72 together with the cost of N=150 awarded in favour of the respondent is hereby set aside, and in its place it is ordered that the claim in suit HOW/236/72 be struck out for want of Jurisdiction and this shall be the Judgement of the Court. Costs awarded by the trial court, if already paid to the respondent, shall be refunded by him to the appellant. The appellant shall have costs of this appeal fixed at N139, and costs in the lower court assessed at N100.


Other Citation: (1977) LCN/1954(SC)

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