Petroleum (Special) Trust Fund V. Fidelity Bank & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The instant appeal is an out-flow of the judgment of the Court of Appeal, Abuja Judicial Division, holden at Abuja, delivered on December 14, 2006 in appeal no. CA/A/43/05. By the judgment in question, the Court below, coram I. T. Muhammad, JCA (now CJN), Adekeye, JCA (later JSC), and Uwa, JCA, affirmed the ruling of the trial FCT High Court delivered on October 12, 2004, thereby striking out the Appellant’s suit (NO. FCT/HC/CV/931/2002) and the Respondent’s counter-claim, for lack of jurisdiction.
The facts and circumstances surrounding the appeal are gleanable from the record of appeal, transmitted 10 this Court on July 14, 2009. The suit was instituted by the Appellant in the trial Court vide a writ of summons. By the statement of claim thereof, dated August 29, 2002, the Appellant claimed against the Defendant (FSB International Bank PLC) the following reliefs:
a). The sum of N33,065,868.70 being Advance payment to RAFS Limited for the execution of National Rural Water Supply in Rivers State Lot RV 31A for a totaled contract sum of N66,131,737.56.
b). The plaintiff further claims from the Defendant interest of 100% on the judgment sum and the cost of this action until payment of the entire sum guaranteed (N33,065,868.70) plus the cost and interest therein.
Interestingly, the case took a dramatic turn. On 17/07/2003, the Defendant filed a notice of preliminary objection, thereby seeking an order “striking out this suit for want of jurisdiction.” The preliminary objection was predicated upon two grounds:
- “The suit has not been commenced in the proper forum.
- The plaintiff lacks the locus stand to institute the action.”
By the statement of defence thereof, the 3rd and 4th Respondents (3rd and 4th Defendants’) not only denied the Appellant’s claim in toto, but equally counter-claimed and thereby sought against the Appellant the following reliefs:
a). AN ORDER directing the plaintiff to issue to the 3rd Defendant forthwith a completion certificate, being the agreed acknowledgment of completion of the extent of work for which the 3rd Defendant was mobilized.
b). AN ORDER awarding special damages to the 3rd Defendant in the sum of N33,065,868.68 for breach of contract.
c). The cost of this action
By the amended statement of claim, dated 01/12/2003, the Appellant claimed against the Respondent (Defendants) jointly and severally:
a. The sum of N33,065,868.70 being advance payment to the 1st Defendant for the execution of the National Rural Water Supply in Rivers State Lot RV.31A, for a totaled contract sum of N66,131,737.56.
b. The plaintiff further claims from the Defendant interest of 10% on the judgment sum, and the cost of this action, until payment of the entire sum guaranteed N33,065,868.70) plus the cost and interest therein.
Parties’ learned counsel were opportuned to address the trial Court upon the 3rd and 4th Respondents’ preliminary objection on 13/07/04 and 24/09/04, respectively.
On 12/09/04, the trial Court, coram Mukhtar, J (as he then was) delivered the vexed ruling to the conclusive effect:
By the doctrine stare decisis, the decisions of both the Supreme Court and the Court of Appeal are binding on this Court and this Court has no choice than to simply follow such decisions.
It is not in dispute that the PTF is an agency of the Federal Government and is a party in this case. It is, therefore, unnecessary to examine the nature of the claim or relieves sought. The simple determine factor is the status of the plaintiff being an agency of the Federal Government. That automatically derobes this Court of jurisdiction to go in to the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court.
The preliminary objection succeeds on this ground. It follows therefore, that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.
On its part, the Court below having been seized of the Appellant’s appeal (CA/A/43/05), delivered the vexed judgment to the conclusive effect:
In the final analysis, any matter within the jurisdiction of the Federal High Court under the above provisions of the Constitution, is outside the general jurisdiction of High Court of Federal Capital Territory Abuja under Section 257 (1) of the 1999 Constitution or a High Court of a State. I therefore resolve the second issue in favour of the Respondents. Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with the counter-claim, for want of jurisdiction.
I hereby affirm the ruling of the trial Court, delivered on 12th of October, 2004 striking out the Appellant’s suit and counter-claim, for want of jurisdiction.
This appeal fails for lacking in merit.
I award N10,000.00 cost in favour of the Respondents.
On 21/09/2021, when this appeal at long last came up for hearing, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument. Thus, warranting the Court to reserve judgment to today.
Most particularly, the Appellant’s brief, settled by Kyonne l. Mando Esq., on 14/09/2020, spans a total of 17 pages. At pages 2-3 of the brief, three issues call for determination:
2.0 Whether the Court was right when it held that it is parties in a suit and not the plaintiffs claim that determines a Court’s jurisdiction? (Distilled from ground 1)
2.01 Whether the lower Court erred in law when it applied the decision in NEPA vs. EDEGBERO (2002) 18 NWLR (part 788) 79, to the facts-in-issue to decide that on issue of administration, management and control to Appellant’s claim? (Distilled from Ground 2)
2.02 Whether Appellant’s claim for the sum of N33,065,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy kobo) only being the Advance Payment Guarantee by the 1st Respondent as per the Deed of Guarantee dated 6th June, 1998, in favour of the Appellant’s can be said to be related to the Revenue of the Federation to oust Federal Capital Territory High Court from adjudicating on the Appellant’s claim (Distilled from Ground 3)
The issue no. 1 is argued at pages 4-10 of the Appellant’s brief. In the main, it’s submitted that the Court below erred when it found that it’s parties and plaintiffs claim that determine, jurisdiction of a Court, and accordingly dismissed the Appellant’s appeal.
Further submitted, that in law parties do not necessarily determine jurisdiction. Rather, what determines jurisdiction is the plaintiff’s claim. See AG FEDERATION VS. AG ABIA STATE(2001) 11 NWLR (pt. 725) 689 @ 729 paragraphs F-D; ONUORAH VS. KADUNA REFINING PETROCHEMICAL COMPANY (2005) 5 NWLR (pt. 921) 393 @ 405.
The Court is urged to so hold.
The issue no. 2 is argued at pages 10-13 of the said brief, to the effect that the case of NEPA VS. EDEGBERO (2002) 18 NWLR (pt. 789) 79 does not apply to the Appellant’s case, as the facts in the two cases are distinct and quite distinguishable from one another.
It’s argued, that the Appellant’s claim was based on the Deed of Guarantee dated June 6, 1998, issued by the 1st Respondent in favour of the Appellant, thereby guaranteeing the advance payment of the sum of N33,065,868.70. Having collected the said sum, the 3rd Respondent abandoned the contract, while Appellant recalled the sum guaranteed.
That looking at the Appellant’s claim, the case of NEPA VS. EDEGBERO (supra) is not applicable to the Appellant’s claim.
The Court is urged to so hold.
The issue no. 3 is argued at pages 13 to 15 of the brief, to the effect that the Appellant’s claim does not in any way relate to the Revenue of the Federation, as found by the Court below at page 145 lines 15-25 of the record of appeal.
The Court is urged to so hold.
Conclusively, the Court is urged upon to allow the appeal.
Contrariwise, the 1st Respondent’s brief of argument was settled by Abimbola Kayode on 08/10/2020. It spans a total of 15 pages. At page 6 thereof, a sole issue has been couched:
“Whether the Court of Appeal was right to have affirmed the ruling of the lower trial Court striking out the Appellant’s suit on the ground that the FCT High Court had no jurisdiction on the matter.”
The sole issue is argued at pages 7-15 of the Respondent’s brief, to the effect that the Appellant’s claim is beyond the purview of simple contract. It is a claim in respect of the discharge of its functions under Decree No. 25 of 1994 as an Agency of the Federal Government. That’s, it relates to its administration, management and control, and not from simple contract. See Section 3 of Petroleum (special) Trust Fund Act, Cap p. 14 LFN, 2004.
It is argued that the Appellant’s reliance on AG FEDERATION VS. AG ABIA STATE (supra) et al, is bordered on a misconception of the judgment of the Supreme Court in those two cases. The Court is urged to so hold. Conclusively, the Court is urged upon to so hold and dismiss the appeal.
Having amply considered the nature and circumstances surrounding the present appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, I am amenable to adopting the three issues of the Appellant for determination of the appeal on merits anon.
ISSUE NO. 1
The first issue raises the question of whether or not the Court below was right when it held that it is parties in a suit and not the plaintiff’s claim that determines a Court’s jurisdiction. This issue is distilled from ground 1 of the notice of appeal.
As copiously alluded to above, the trial Court held in the vexed ruling resulting in the instant appeal, that the Appellant being an agency of the Federal Government of Nigeria:
Automatically derobes this Court of jurisdiction to go in the matter. By Section 251 (1) of the 1999 Constitution, the matter is exclusively within the jurisdiction of the Federal High Court. The preliminary objection succeeds on this ground. It follows therefore that this suit and the counter-claim must be and are hereby struck out for want of jurisdiction.
On the part thereof, the Court below, in a considered judgment, the subject of the instant appeal, held to the conclusive effect:
Having also held that the case relates to the management, administration and/or control of the Appellant and relates to the revenue of the Federal Government, I hold that the lower Court lacked the jurisdiction to entertain the matter and was right to have struck out the Appellant’s suit with claim, for want of jurisdiction.
With possible deference, I would want to hold without much ado, that both the Court below and the trial FCT High Court had erred in their findings, to the conclusive effect that the trial Court lacked jurisdiction to entertain and adjudicate upon the instant matter (FCT/HC/CV/931/2002) giving rise to this appeal.
Indeed, this Court has had the cause to reiterate in a plethora of authorities, the doctrine that jurisdiction is a fundamental threshold issue and thus indispensable in administration of justice. And the reason being, that a Court of law or Tribunal can only be competent to entertain and adjudicate upon a matter or appeal before it when:
(a) It’s appropriately constituted in regard to both quorum and qualifications of the members thereof.
(b) The subject matter (Res) is aptly within the purview of its jurisdictional competence, and there is no any feature inherent there in; and
(c) The action (or appeal, as the case may be) is commenced by due process of law, upon fulfillment of any condition precedent.
See the locus classics – MADUKOLU VS. NKEMDILIM (1962) 1 All NLR 587; AG LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (pt. 111) 552; SKENCONSULT VS. UKEY (1981) 1 SC 6; BOT VS. BOT Appeal No. SC.255/2010, judgment on May 7, 2021 (unreported).
Undoubtedly, it would tantamount to a futile effort to set down issues, deliberate on the evidence led and proceed to resolve those issues, one way or the other, if the Court seized of the matter is devoid of jurisdictional competence. As aptly held by this Court:
The substratum of a Court is no doubt jurisdiction. Without it the labourers there in, that is both litigants and counsel, on the one hand, and the judge, on the other hand labour in pain.
See LAGOS STATE VS. DOSUNMU (supra), per Eso, JSC. It is not at all controversial, that the jurisdiction of the Federal High Court is eminently as circumscribed by the provisions of Section 251 (1), (p), (q), (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (which provisions are in pari materia with Section 230 (q), (r), and (s) of the erstwhile 1979 Federal Constitution):
(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters –
(a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(b) Connected with or pertaining to taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation.
(c) Connected with or pertaining to customs and excise duties and export duties, including any claim by or againstthe Nigeria Customs Service or any member of office thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties.
(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory notes and fiscal measures;
Provided that this paragraph shall not apply to any dispute between an individual customs and his bank in respect of transactions between the individual customs and the bank;
(e) Arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks business names, commercial and industrial monopolies, combines and trusts, standards of good and commodities andindustrial standards;
(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal port, (including the constitution and powers of the port, authorities for Federal ports) and carriage by sea;
(h) Diplomatic, consular and trade representation;
(i) Citizenship, naturalization and aliens, deportation of person who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) Bankruptcy and insolvency;
(k) Aviation and safety of aircraft;
(l) Arms, ammunition and explosives;
(m) drugs and poisons;
(n) Mines and mineral (including oil fields, oil mining, geological surveys and natural gas).
(o) Weights and measures.
(p) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly;
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 of treason, treasonable felony and allied offences.
In the instant case, it is obvious that so much reliance has been placed by the two Courts below on the decision of this Court in NEPA VS. EDEGBERO(supra), to arrive at their findings, albeit erroneously, that because the Appellant was a Federal Agency, the trial FCT High Court was automatically devoid of jurisdiction to entertain the matter. That analogy does not, by any stretch of imagination, appeal to me! Interestingly, the most often cited pronouncements of this Court in NEPA VS. EDEGBERO(supra) was the one attributed to Ogundare, JSC @ (pages 95) viz:
It is not in dispute that the defendant (NEPA) is a Federal Government Agency… It is also not disputed that the cause of action in the matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of that plaintiffs and others. In the light of all these, therefore, the action on the other hand came squarely within the provision of Section 230 (1) (s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have my self read the proviso to paragraph (q), (r), and (s) of Subsection (1) of Section 230 all over again, I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the Lawmakers was to take away from the jurisdiction of the State High Court Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the provision extended this to actions for damages, injunction or specific performance. It did not say as the learned trial Judge, with profound respect, appear to read into it that action for damages, injunction or specific performances against the Federal Government or any of its agencies could still come before a State High Court.
Regrettably, it is on the basis of the pronouncement of His Lordship Ogundare, JSC that the two Courts below came to the conclusion, albeit erroneously, that once a party is an agency of the Federal Government, without more, the Federal High Court must assume exclusive jurisdiction in the matter.
Indeed, the fundamental doctrine is well settled, beyond per adventure, that in construing the provisions of Section 251 (1) of the 1999 Constitution, as amended, certain important factors ought to be taken in to account. They are (i) the parties in the matter; and not the least (ii) the subject matter (res) of the litigation. As aptly held by this Court in NEPA VS. EDEGBERO (supra):The Court must consider both (i.e subject matter) in construing the parties, the Court will have no difficulty in identifying any agency of the Federal Government in certain matters. The case law and the law of agency will certainly be of help in relevant cases in this appeal, both counsel agree that the Appellant, the National Electric power Authority is an agency of the Federal Government. They are correct. It cannot be otherwise. See Adebilije vs. NEPA (1998) 12 NWLR (pt. 577) 219. Per Niki Tobi, JSC @ 1573 paragraphs E-H.
What’s more, according to the learned jurist, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government on any of its agencies:
The matter must arise from the operation and interpretation of the constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by the Federal Government or any of its agencies. It is for the purpose of emphasis. Per Niki Tobi, JSC. Not unexpectedly, Uwais, CJN, cherishingly postulated:
The clear intendment of the modification to Section 230 of the 1979 (in parimateria with Section 251 (1) of the 1999 Constitution (supra) by the Constitution (Suspension and Modification) Decree 107 of 1993, was to confer on the Federal High Court exclusive jurisdiction in respect of the matters specified under Subsection(1) (a) to (s) thereof. The postulates of Uwais, CJN and Niki Tobi, JSC, copiously alluded to above, formidably form the integral aggregate of the lead judgment delivered by Ogundare, JSC.
The doctrine is settled, that it is the aggregate of the lead judgment and the concurring judgments or opinions that crystallize into the entirety of the decision of the Court seized of the matter or appeal. See OLORUNTOBA – OJU VS. ABDURAHEEM (2009) 6 MJSC (pt. 1) 1 @ 56 paragraphs E-F.
In the circumstance, the first issue ought to be, and it is hereby resolved in favour of the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the Court below erred in law when it applied the decision in NEPA VS. EDEGBERO (supra) the facts in issue to decide that on issue of administration, management and control to Appellant’s claim. Distilled from ground 2 of the notice of appeal.
Flowing from the discussion under the foregoing first issue, it is my view that the decision of this Court in NEPA VS. EDEGBERO (supra) is quite distinct, and distinguishable from the facts and circumstances of the instant case. Unlike the case of NEPA VS. EDEGBERO (supra) which had to do with master and servant (Employer and Employee) relationship, the instant case is purely contractual, and therefore within the purview of the trial FCT High Court’s jurisdiction. And I so hold.
In the circumstance, the second issue ought to be, and it is hereby resolved in favour of the Appellant.
ISSUE NO. 3
The third issue raises the vexed question of whether or not the Appellant’s claim for the sum of N33,868.70 (Thirty Three Million Sixty Five Thousand Eight Hundred and Sixty Eight Naira Seventy Kobo) only being the advance payment guarantee by the 1st Respondent as per the Deed of Guaranty dated 6th June, 1998, in favour of the Appellant can be related to the revenue of the Federation to oust jurisdiction of the FCT High Court from adjudicating on the Appellant’s claim. The third issue is distilled from ground 3 of the notice of appeal.
The ratio decidendi of the judgment of the Court below the present third issue relates to, could be found at page 145 lines 15-25 of the Record of Appeal thus:
“The Appellant advances the claimed sum to the 3rd Respondent in exercise of its power as provided under Section 2(d) (vi) and (g) Petroleum (Special Trust Fund) Decree No. 25 of 1994 the claim is therefore for a revenue of the Federal Government i.e. Advance Payment in my view come under the management administration and control of the Appellant and relates to the revenue of the Federal Government. As a result, any claim by the Appellant or against it pursuant to or consequent upon the exercise of its administrative functions under the Act is to be determined by the High Court and FCT or State High Court… ”
By virtue of the provision of Section 162 (1) of the 1999 Constitution, as amended (supra), the Federal Government is mandated to maintain a special account to be called the federal account into which shall be paid all revenues collected by the Government of the Federation. The exceptions thereto are the proceeds from the personnel of the Armed Forces, the Nigeria Police Force, the Ministry or Department of Government charged with the responsibility for Foreign Affairs, and the residents of the Federal Capital Territory (FCT), Abuja.
The Court below came to the conclusive finding regarding the second issue thus:
The Appellant’s claim not being that of a breach of contract by the third Respondent but out of the Appellant’s administrative function of managing its revenue or funds, the lower Court it not conferred with the jurisdiction to entertain the suit… The claim thus, is for the recovery of the money which emanated from the purse of an agency of the Federal Government, the Appellant and not for damages arising out of a breach of contract. See Federal Housing Authority vs. John Shoy International Limited (2005) NWLR (pt. 908) 637 at 65.
The extant Section 162 (1) of the 1999 Constitution, as amended, provides:
162: Distributable Pool Account
- The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, Nigeria Police Force, the Ministry or department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja.
Regarding the actual meaning of the term ‘revenue,’ Section 162 (10) of the 1999 Constitution (supra), has, unequivocally provided:
(10) For the purpose of Subsection (1) of this Section, “revenue” means any income or returns accruing to or derived by the Government of the Federation from any source and includes –
a. any receipt, however, described, arising from the operation of any law;
b. any return, however described, arising from or in respect of any property held by the Government of the Federation;
c. any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any Company or statutory.
Invariably, the term ‘revenue’ denotes an income derivable from any and all (lawful) incomes, gross income or gross receipts. It simply means a source of income; the periodic yield or interest from investment, et al. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1577.
It must be postulated, at this point in time, that the provisions of Section 162 of the 1999 Constitution (supra) strictly deal with distribution or allocation of accruable revenue among the Federal Governments State Governments, Local Governments, the Legislature, the Judiciary, et al.
By virtue of the proviso to Section 251(1) of the 1999 Constitution (supra):
provided that nothing in the provision 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.
The term ‘specific performance’ denotes the rendering of a promised performance through a judgment or decree; a Court ordered remedy requiring precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. Specific performance is an equitable remedy that lies within the purview of the Court’s discretion to award whenever the common law remedy is inadequate, either because damages would be insufficient or could not possibly be established. Also termed ‘Specific Relief; ‘Performance in specific’. See BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687.
Instructively, the rationale of ‘Specific Performance’ being inherent in Court’s jurisdiction is not far-fetched. Undoubtedly, fundamental objective of ‘Specific Performance’ is that the common law remedy of damages was often inadequate. It would thus in effect compel the promisee to sell his right to performance for a pecuniary consideration. As aptly posited by Hansbury almost eight decades ago:
“The object of the equitable remedy is to put A into the same position, by personal compulsion of B as he would already have been in if B had performed voluntarily what now he is being compelled to do. ”
See HAROL GREVILLE HANBURY MODERN EQUITY: THE PRINCIPLES OF EQUITY 3rd Edition (1943) 445 @ 446.
What’s more, Keeton aptly reiterated the fundamental objectives of the equitable doctrine of specific performance, thus:
In essence, the remedy of specific performance enforces the execution of a contract according to its terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. In specific performance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt for which the offender may be imprisoned until he is prepared to comply with the decree. Actually … it is not strictly accurate to say that the Court enforces execution of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court.
See G.N. KEETON: AN INTRODUCTION TO EQUITY: 5th Edition 1961 @ 304; BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1687.
It is a cardinal doctrine of interpretation, that the words of a Constitution ought not be construed with debilitating or stultifying narrowness. See UNITED STATES VS. CLASSIC 313 US 299; NAFIU RABIU VS. KANO STATE (1981) 2 NWLR 293; AG FEDERATION VS. AG ABIA STATE (supra) per Uwais, CJN @ 21 paragraphs A-F.
Thus, whenever a Court is inevitably confronted with the interpretation of a constitutional provision, as in the instant case, the provisions of the Constitution as a whole ought to be read in determining the object of the provision. See NAFIU RABIU VS. THE STATE (1980) 8-11 SC 130 @ 148; (1980) 8-11 SC (Reprint) 85.
I think, it was in JUSTICE RALIAT ELELU-HABEEB (CHIEF JUDGE OF KWARA STATE) VS. AG FEDERATION (2012) 2 SC (pt. 1) 145, that this Court aptly reiterated the trite fundamental doctrine:
The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it.
Having amply considered the provisions of the 1999 Constitution as a whole vis-a-vis the provision of Section 162 of the Constitution (supra), I am unable to appreciate let alone uphold, the highly misconceived summation, that the sum of N33,065,868.70 only being the Advance Payment made by the Appellant to the 3rd Respondent for the execution of the rural water supply in Rivers State, related to the revenue of the Federation. And I so hold.
It ought to be reiterated, at the tail-end of this judgment, that as an appellate Court we sit to review the decisions of the Court below strictly on points of law. However, as aptly reiterated by this Court not too long ago:
We must bear in mind at all time that, we are bound by the findings thereof provided there is sufficient evidence on record upon which the Court below came to the said conclusions of facts. See NafiuRabiu vs. Kano State (1980) SCNJ 130, (1981) 2 NCLR 293 quoting with approval Denning, J. (as he then was) in Bracegirdle v. Oxley (1947) 1 All ER 126 @130 PARAGRAPHS D-F.
See FEKOLOMOH VS. THE STATE (2021) 6 NWLR (pt. 1773) per Saulawa, JSC @ 493 paragraphs B-E; KINGMAN VS. SEAGER (1938) 1KB 397; DURNELL VS. SCOTT (1939) 1 All ER 183.
In the circumstances, the third issue is hereby resolved in favour of the Appellant.
Hence, having resolved all the three issues raised by the Appellant in favour thereof, and against the Respondents, the appeal resultantly succeeds, and it is hereby allowed by me.
Consequently, the judgment of the Court of Appeal, Abuja, Judicial Division, delivered on December 14, 2006 in appeal No. CA/A/43/05 is hereby set aside.
The suit – FCT/HC/CV.931/2002 is hereby remitted to the trial FCT High Court for trial on the merits.
Parties shall bear their respective costs of litigation.