Roe Limited V. University Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein, a private Limited Liability Company with its head office at Lagos, Nigeria, was in 1996 awarded a contract by the Respondent to computerize some of its departments. The contract was worth the sum of twelve million, seven hundred and sixty-seven thousand, one hundred and ninety-eight naira, fifty-three kobo (N12, 767,198.53k). The Appellant executed the contract satisfactorily and was issued with a certificate of completion. During the execution of the contract aforesaid, the Respondent made certain payments to the Appellant. At the completion and successful execution of the contract, the Appellant and the Respondent reconciled their accounts and they arrived at an outstanding balance of two million eight hundred and one thousand three hundred and three naira, nine kobo (N2,801,303.09) standing to the credit of the Appellant. This was acknowledged by the respondent through its letter dated 6th October, 1997 to the Appellant. The Respondent refused to pay the balance despite repeated demands by the Appellant. As a result of the

1

Respondent’s refusal to pay the outstanding balance, the Appellant took out a writ of summons at the Enugu State High Court, holding at Nsukka dated 16th of October, 2001 in which he claimed the following reliefs:

“(a) The sum of N2,801,303.09 (Two Million Eight Hundred and One Thousand, Three Hundred-and Three Naira, Nine) being the outstanding balance owed by the defendant for the contract performed for the defendant.

(b) 5 % interest on the judgment debt from the date of judgment until it is fully liquidated.”

This claim was accompanied by a 15 paragraphs affidavit in which the Appellant asked the Court to place the suit on the undefended list because it was convinced that the Respondent had no defence to the suit.

The writ of summons was served on the Appellant. Instead of filing a Notice of Intention to defend the suit, the Appellant filed a notice of preliminary objection in which it challenged the jurisdiction of the trial Court in the following words:

“TAKE NOTICE that the Defendant in this case intends to raise preliminary objection to this suit in that the Court lacks jurisdiction to entertain the matter.”

The preliminary objection was heard and in a reserved

2

and considered ruling delivered on the 25th September, 2003, the trial Court upheld the preliminary objection on the ground that the action was statute barred and that the contract was a business between the Appellant and a Federal Government Agency which by Section 251(1)(p),(q),(r) is justiciable only at the Federal High Court since such transaction comes within the term administration or management and control of a Federal Government Agency. The Appellant’s suit was accordingly struck out.

The Appellant’s appeal to the Court of Appeal was unsuccessful as same was dismissed on the 30th of November, 2006.

The Appellant’s Notice of Appeal before this Court, dated 4th January, 2007 and filed on the 5th January, 2007 contains two grounds of appeal which I reproduce hereunder without their particulars thus:

(1) The Court of Appeal erred in law when it held that the suit of the Appellant was statute barred under the Public Officers Protection Act.

(2) The Court of Appeal erred in law by upholding the decision of the High Court that once a Federal Agency is a party in any Suit or matter the State High Court lacks jurisdiction. <br< p=””</br<

3

Parties filed and exchanged briefs of argument. The Appellant’s brief of argument settled by Emeka Mozie Esq of counsel to the Appellant is dated 6th March, 2008 and filed on the 7th of March, 2008, but deemed filed on the 12th of November, 2008. At page 3 of the said brief of argument, two issues were formulated for determination of this appeal, and they read as follows:

1. Whether Section 251(1)(p)(r) of the Constitution of the Federal Republic of Nigeria 1999 vests jurisdiction in the Federal High Court in matters pertaining to recovery of debt owed by the Federal Government or any of its agencies under a simple contract And or whether the decision in NEPA vs Edegbero & Ors (2002) 18 NWLR (Pt. 798) 79 is to the effect that once a Federal Government Agency is a party in a suit, the State High Court has no jurisdiction to entertain the suit.
2. Whether the Respondent can validly for the first time without leave of Court raise on appeal the Public Officers Protection Act And or whether the Public Officers Protection Act applies to breaches of contract.

The Respondent’s brief of argument settled by Chief Dr. Ejike Ume SAN, learned counsel for the Respondent is

4

is dated 6th March, 2009 and filed on the 19th March, 2009, but deemed filed on the 16th October, 2017. At page 2 of the brief aforesaid, four issues have been submitted for determination of this appeal. They read thus:

(1) Whether the Court of Appeal can depart or refuse to follow the decision of the Supreme Court of Nigeria in NEPA vs EDEGBERO (supra).

(2) Whether the Court of Appeal was right in upholding the decision of the trial Court and dismissing the Appellant’s appeal.

(3) Whether the Respondent can validly raise for the first time on appeal the issue of jurisdiction at the Court of Appeal to the effect that the action is incompetent in that it is statute barred under the Public Officers Protection Act Cap 379 Laws of the Federal Republic of Nigeria, 1990 without leave of Court.

(4) Whether the Respondent comes within the class or classes of person(s) or body(s) that can be protected by the Public Officers Protection Act.

Learned counsel for the Appellant filed a reply brief on the 24th March. 2009.

The Appellant filed two grounds of appeal and formulated two issues for determination of this appeal.

5

It is the aggrieved party against whom the High Court and the Court of Appeal gave judgment against. The Respondent who is not bereaved seems to be crying more by formulating four issues from the two grounds of appeal. This Court has in a number of decided cases deprecated the rather increasing habit of some counsel who appear before it of showing very little care in the way and manner papers relating to appeals are drafted. The pronouncement of this Court on proliferation of issues are made to guide counsel in the way and manner issues for determination of appeal are to be drafted. Several years after the introduction of brief writing, some counsel have shown little interest in learning from the decisions of the Courts how issues are to be drafted. No wonder therefore, learned counsel for the Respondent found it difficult to tie the four issues to the grounds of appeal. The rule is that an issue can be tied to several grounds of appeal, but a ground of appeal cannot support more than one issue. Where issues framed by either Appellant or Respondent are in excess of the grounds of appeal, the issues in excess of the grounds of appeal which do

6

not seem to arise from those grounds of appeal are liable to be struck out. See Ayangade vs O.A.U T.H. C.M.B (2001) 7 NWLR (Pt. 711) 187: Dung vs Gyang (1994) 8 NWLR (Pt. 362) 315: Labiyi vs Anretiola (1992) 8 NWLR (Pt. 258) 139.

Having read the materials available to me in this appeal, I am of the firm view that the issues submitted by learned counsel for the Appellant can conveniently determine this appeal. I therefore adopt the two issues for that purpose. In doing so, I will consider the two issues in the order in which they are argued.

On issue one, learned counsel for the Appellant submitted that Section 251 (1)(p)(q)(r) of the 1999 Constitution of the Federal Republic of Nigeria does not vest jurisdiction in the Federal High Court in matters pertaining to recovery of debt under a contract. Learned counsel urged this Court to give the words of Section 251(1)(p)(q)(r) their ordinary meaning and not to resort to any external aid. In aid learned counsel cited Texaco Panama Incorporation vs Shell Petroleum Development Go. Nig Ltd (2002) 2 SCNJ 102 at 112 – 113: Justice Kalu Anyah & Ors vs lyayi (1993) 9 SGNJ (Pt 1) 53: Dayo Omosowan & 2 Ors vs Fred

7

Chiedozie (1998) 9 NWLR (Pt. 56) 472.

In a further argument, learned counsel submitted that the jurisdiction of a Court is determined by the plaintiff’s claim as endorsed in the writ of summons. In aid, learned counsel cited Folarin & Ors vs Akinnola (1994) 4 SCNJ 30: Federal Mortgage Bank of Nigeria vs Nigeria Deposit Insurance Co. (2001) KLR (Pt. 77) 331; Tukur vs Government of Gongola State (1989) 4 NWLR (Pt. 117) 517: Onuorah vs KRPC Ltd (2005) 21 NSCQR 130 (2005) 6 NWLR (Pt. 921) 393 A. G Abia State vs A. G Federation (2003) 4 NWLR (Pt. 809) 138.

Learned counsel urged this Court to ignore the authority in NEPA vs Edegbero (2002) 18 NWLR (Pt. 798) 79 because it is not applicable in the instant case. Finally on this issue, learned counsel urged this Court to allow the appeal.

Learned counsel for the Respondent submitted on this issue that the lower court was right in upholding the decision of the trial Court, because the two Courts below were bound by the decision of this Court in Nepa vs Edegbero (supra). In a further argument, learned counsel urged this Court not to disturb the concurrent findings of both the High Court and the Court of Appeal

8

unless it is shown that there is miscarriage of justice. In aid, learned counsel cited the authorities in David Adganmonyi vs A-G of Bendel State (1987) 1 NWLR (Pt. 47) 26: Chinwendu vs Mbamali (1980) 3 SC 31.

In resolving the contentions by the respective parties, the lower Court at page 51 of the printed record of this appeal held:

“To my mind the relief being sought by the Appellant against the Respondent are for claims affecting the administrative decision of the Federal Government Agency. The Supreme Court has put the exclusiveness in respect of the jurisdiction of the Federal High Court in matters touching and concerning Federal Agency, which the Respondent is, in the case of Nepa vs Edegbero (supra) beyond controversy at page at E – F…”

The decision in the case ofNepa vs Edegbero (supra) which was heavily relied on by the lower Court was based on Section 251 (1)(p)(q)(r) of the 1999 Constitution of the Federal Republic of Nigeria. Both the Appellant and the Respondent strongly relied on the provisions of Section 251 (1)(p)(q)(r)) of the Constitution in putting forward their respective cases.

9

It is therefore relevant to reproduce the provisions of the aforementioned section of the Constitution for clarity as follows:

“251 (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 causes and matters.

(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, 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….”

At page 97 paragraphs E – F of the case of Nepa vs Edegbero (supra) this Court per Ogundare said:

“From what I have said earlier in this judgment, the aim of paragraphs (q) (r) and (s) of Subsection 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of

10

its agents was a part. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.”

It is to be noted that Section 230 of the 1979 Constitution is the same as Section 251 of the 1999 Constitution.

In the case of NEPA vs EDEGBERO (supra), the Respondents were employees of the Appellant (NEPA). Following an industrial action embarked upon by the employees of the Appellant including the Respondents in August, 1994, the respondents’ appointments were by a letter dated 10/8/1994 terminated. The respondents instituted various suits claiming in each case as follows:

1. A declaration that the purported termination of the respondents’ appointment was irregular, wrongful null and void and of no effect whatsoever.
2. An order reinstating the respondents and payment of their salaries and all their entitlements.
3. A perpetual injunction restraining the Appellant from harassing, intimidating and violation of the respondents’ right.

The various actions initiated by the respondents were consolidated. It was contended at the High Court that the State High Court had no jurisdiction since NEPA is

11

an agent of the Federal Government. Reference was made to Section 230 (1)(q)(r) and (s) of the 1979 Constitution, which is in pari material with Section 251 (1)(q)(r) and(s) of the 1999 Constitution, as amended by Decree 107 of 1993. High Court overruled the objection on jurisdiction. Appeal to the Court of Appeal was dismissed. On a further appeal to this Court, it was held:

“It is not in dispute that the defendant NEPA is a Federal Government Agency. The two Courts below made a finding of fact to this effect and this has not been challenged by the plaintiffs. lt is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The decision is for declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointment of the plaintiffs and others. In the light of all these, therefore, the action on hand came squarely within the provision of Section 230 (1)(q)(r) and (s) of the 1979 Constitution.”

The claims of the Respondents in NEPA vs EDEGBERO were clearly meant to interfere with the decision of the

12

Appellant to dismiss the respondents declaration and injunction which clearly fall under Section 251 (1)(p)(q) and (r) of the 1999 Constitution and are therefore justiciable only at the Federal High Court. The lower Court misunderstood the pronouncement in NEPA vs EDEGBERO (supra) at page 97 paragraph F, where this court said:

”A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.”

I think that pronouncement concerned such matters as the ones claimed by the respondents and nothing more. In the instant case, the Appellant’s claim has nothing to do with administration or the management and control of the University of Nigeria, an agent of the Federal Government. It was a claim for debt arising from a simple contract which has been held in a myriad of decisions that the Federal High Court has no jurisdiction to entertain. In Onuorah vs KRPC (2005) 6 NWLR (Pt. 921) 393. the Appellant entered into a contract to purchase specified number of empty tins from the Respondent at an agreed amount which he paid to the Respondent. Before delivery was made to the Appellant, the Respondent increased the price of

13

the tins and asked the Appellant to pay the difference between the old and the new prices. The Appellant refused and insisted that the Respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently, the Appellant filed an action at the Federal High Court in which he claimed:

(a) An order of Court declaring the purported price increase as not affecting the plaintiff who paid for her own empty tins much earlier than the commencement date of the price increase.

(b) An order of specific performance directing the defendant to supply the plaintiff the remaining empty tins not later than 30 days from the date of judgment.

(c) N1,000,000 general damages.

The Federal High Court granted the first and 2nd reliefs. The Respondent appealed and raised the issue of jurisdiction for the first time at the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the Federal High Court had no jurisdiction and the suit was struck out. At the Supreme Court, it was argued that the Respondent being a subsidiary of NNPC which in turn is an agent of the Federal Government,

14

the trial Federal High Court had jurisdiction to entertain the Appellant’s claims. On the other hand, it was contended on behalf of the Respondent that the trial Court lacked jurisdiction to entertain the Appellant’s claims because it was based on simple contract and that only a State High Court has jurisdiction to hear and determine the suit.

This Court, per Akintan JSC held at page 405 paragraphs A-D as follows:

“A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction

15

conferred on the Federal High Court that Court therefore had no jurisdiction to entertain the appellant’s claim. The lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim.” See Seven-Up Bottling Co. Ltd. vs. Abiola & Sons Bottling Co. Ltd (2001) 13 NWLR (Pt. 730) 469. Trade Bank Plc vs Benilux (Nig) Ltd (2003) 9 NWLR (Pt. 825) 416 at 430 & 431.

In Adelekan vs Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33 at 52. this Court in a lead judgment delivered by Onnoghen JSC (as he then was) held:

“The provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. lt is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court.”

The law is very well settled beyond any argument that the jurisdiction of a Court is determined by the nature of the claim before it. SeeTukur Govt of Gongola State (1989) 4 NWLR (Pt. 17) 517.

16

The Federal High Court is a special Court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria and any other jurisdiction as may be conferred on it by an Act of the National Assembly. A Court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very clear and unambiguous import into them something which is not contained in them. Section 251, has clearly made provisions for action against Federal Government or any of its agency in any other Court in the Proviso after Sub-paragraph (s) which reads thus:

“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.”

In the instant case, the Appellant’s claim at the High Court is for recovery of debt which arose from simple contract. The Enugu State High Court has jurisdiction to hear and determine the suit. The Enugu State High

17

Court was wrong when it declined jurisdiction to hear and determine the case. The judgment in Onuorah vs KRPC was delivered on the 11th of February, 2005 and was cited in the Appellant’s brief of argument before the Court of Appeal. Throughout the judgment of the Court of Appeal, no reference was made to this very important authority. No wonder therefore the lower Court acting on the principle of stare decisis dwelt so much on NEPA vs EDEGBERO (supra) which was an earlier decision that was decided on a claim other than the claim for recovery of debt arising from simple contractual relationship.

Under the doctrine of stare decisis, lower Courts are bound to follow the decisions of Higher Courts, irrespective of whether those decisions are wrong. The doctrine is meant to achieve certainty and stability in the decision of the Courts. However in doing so, the lower Courts must not rely on previous decision that have been overruled. The Supreme Court is the final Court in the land. The justices of the Court are not super human beings that are infallible. So where they err, they take liberty to correct. In the process some of the Courts’ decisions are overruled. It is on

18

this premise that the lower Courts are enjoined to follow latter or latest decisions of this Court. Even if the decisions in NEPA vs EDEGBERO (supra) and Onuorah vs KRPC (supra) were founded on the same facts, the decision in Onuorah vs KRPC (supra) was latter in time and the lower Court was bound to follow it. Its failure to do so found no justification in the doctrine of stare decisis, and I so hold.

In Obiuweubi vs CBN (2011) 7 NWLR (Pt. 1247) 465 at 501 paras C – D, this court held:

“S.P.D.C Nig Ltd vs lsaiah (supra) was decided in 2001 while O.H.M.B vs Garba (supra); Olutola vs Unilorin (supra); Osakue vs F.C.E (supra) were decided in 2002, 2004 and 2010. The position of stare decisis is not for counsel to follow the decision he likes, but to follow the decision that is more recent.”

For all I have said, the first issue is resolved in favour of the Appellant.

The second issue for determination is whether the Respondent can validly for the first time without leave of Court raise on appeal the Public Officers Protection Act. And or whether the Public Officers Protection Act applies to breaches of contract.

19

The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court. But where the question sought to be raised involves substantial points of law, substantive or procedural and it is plain that no further evidence could be adduced in its support, the Court will allow the question to be raised and the points taken in order to prevent an obvious miscarriage of justice. See Akpene vs Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29: Shonekan vs Smith (1964) ALL NLR 168 at 173. The issue of whether or not an action is filed within the time stipulated by law goes to the jurisdiction of the Court. Any omission to institute proceedings within the statutory time limit deprives the Court of jurisdiction to hear and determine the matter.

Jurisdiction being the soul of adjudication, can be raised at any stage of proceedings, and even at the Supreme Court for the first time. In lsaac Gaji & Ors vs Emmanuel D. Paye (2003) 8 NWLR (Pt. 82) 583 at 599 – 600 paras H – A. where this Court held:

“The general principle is that when a party seeks to

20

file and argue in this Court any fresh issue not canvassed in the lower Courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the Court even if it is being raised for the first time.” See Obiakor vs The State (2002) 10 NLWR (Pt. 776) 612 at 626: UTB Ltd & Ors vs Dolmetsch Pharmacy Nig Ltd (2007) 6 SC (Pt. 1) 1.

The lower Court was therefore not wrong when it allowed the Respondent to raise for the first time on appeal the issue of Public Protection Act.

However I entirely agree with learned counsel for the Appellant that the Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt. This Court in F.G.N vs Zebra Energy Ltd (2002) 18 NWLR (Pt.798) 162 at 196 held:

“The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.” See

21

N.P.A vs Construzion (1974) 1 ALL NLR (Pt. 11) 463; Soule vs L.E.D.B (1965) L.L.R 118. I entirely agree with the previous views of my brothers.

For the reasons I have set out hereinabove, this issue shall be, and it is hereby resolved in favour of the Appellant.

This appeal is against the concurrent findings of the High Court and the Court of Appeal. The attitude of this Court is that it will not interfere with the concurrent findings of the High Court and the Court of Appeal unless there are special and exceptional reasons that warrant such interference. such reasons could be that the findings of the two lower Courts are either not supported by evidence or that the Courts have drawn wrong conclusion from accepted or proved facts and by such conduct, their conclusion has led to a miscarriage of justice. In the instant case, there are sufficient reasons for interference by this Court based on the resolution of the two issues submitted by the Appellant for determination of this appeal.

Having resolved the two issues in favour of the Appellant, this appeal shall be and it is hereby allowed. The ruling of the trial Court in which the Respondent’s

22

Preliminary objection was upheld and the judgment of the lower Court affirming that ruling are hereby set aside and quashed.

The reliefs sought from this Court by the Appellant is so clear. It reads as follows:

“That the judgment of the Court of Appeal be set aside and the Appellant’s suit relisted for hearing at the High Court Nsukka, which has jurisdiction in the matter.”

Having set aside the judgment of the lower Court, as sought by the Appellant, this case shall be and it is hereby remitted to the Chief Judge of Enugu State High Court to be assigned to Nsukka Division of the said High Court for trial.

There shall be cost of prosecuting this appeal which I assess at N300,000 in favour of the Appellant and against the Respondent.

---

SC.42/2007