Triumph Assurance Company Limited V. M.m.t. Fadlallah & Sons Limited (1999)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The dispute between the parties in this appeal started at the High Court of Justice Kano State sitting at Kano where by a writ of summons dated 3/3/93, the plaintiff claimed against the defendant the sum of N1,030,800.00 (One Million, Thirty Thousand and Eight Hundred Naira) being the cost/value of the plaintiff’s textiles goods lost during the riot in Kano on 15/10/1991 and which risk the defendant insured and covered by its policy No. 4k590 112 which is a contract of indemnity and which amount the defendant had failed, refused and neglected to settle inspite of repeated demands. After the exchange and settlement of pleadings, namely, statement of claim, statement of defence and a reply thereof between the parties, the case came before Nuhu Galadanci J. of the Kano High Court for hearing.

In the course of hearing, after the plaintiff had called evidence in proof of its claim and closed its case, the defendant without calling any witness filed a notice of preliminary objection dated 19/1/96 to the plaintiff’s case being heard by the trial court mainly on the ground that the trial court lacked jurisdiction to entertain the suit. The particulars of the grounds of the objection are:

“1. That the provisions of Decree 107 and 61 Suspension and Modification Decree 1993 confers exclusive jurisdiction on the Federal High Court.

2. Also Insurance Decree No 58 of 1991 confers exclusive jurisdiction on the Federal High Court.
3. That the action is time barred and therefore the court lacks jurisdiction.”

After hearing the learned counsel of the parties on the preliminary objection to the jurisdiction of his court, the learned trial Judge in his ruling delivered on 15/3/96 dismissed the defendant’s preliminary objection and held that his court which had an unlimited jurisdiction under Section 236(1) of the 1979 Constitution had jurisdiction to entertain the suit inspite of the provisions of Decrees 61 and 107 of 1993 which had enhanced the jurisdiction of the Federal High Court. Dissatisfied with that ruling of the trial court of 15/3/96, the defendant has now appealed to this Court. The defendant which is now the appellant had filed two grounds of appeal from which the following two issues were formulated in the appellant’s brief of argument:

“1. Whether the learned trial Judge was right to have (sic) held that Decree 107 of 1993 has amended Decree 61 of 1993 and therefore confers jurisdiction in insurance matters on the High Court on the ground that Decree 107 came two months after the promulgation of Decree No. 61 of 1993 and that the latter should be regarded as the law, for the fact that paragraph (n) dealing with insurance matters was omitted from Decree 107 of 1993.

2. Whether the learned trial Judge was right to have suo motu raised the issue of communication of notice of repudiation of the respondent’s claim to the respondents via Exhibit 7 and relying on the Exhibit 7 which was directed to the broker to the respondent and not to the respondent and upon this rejected the appellant’s submission.”

The plaintiff which is now the respondent in this appeal also filed its respondent’s brief of argument in compliance with the rules of this Court. However, the learned counsel of the respondent in the respondent’s brief rather than oppose or contest the appeal, simply adopted the issues for determination in the appellant’s brief of argument together with all the appellant’s arguments therein in support of the appeal and conceded that the appeal should be allowed and the case transferred to the Federal High Court for hearing and determination on the merit.

The argument of the appellant in support of Issue No. 1 in this appeal is that since the claim of the respondent before the lower court was an insurance claim, by virtue of the provisions of Decrees 60 of 1991, 61 and 107 of 1993, it is only the Federal High Court that has jurisdiction to entertain the respondent’s claim in the suit. That the omission of paragraph (n) in Decree No. 107 of 1993 which amended Section 230(1) of the 1979 Constitution had not amended or repealed the provisions of Decree No. 61 of 1993 which conferred exclusive jurisdiction in insurance matters on the Federal High Court. Learned counsel to the appellant further pointed out that it was the duty of the learned trial Judge to give effect to the clear provisions of Decree 60 of 1991 and Decree 61 of 1993 both of which had conferred exclusive jurisdiction in the present case on the Federal High Court.

It is well settled and our law reports are replete with decided cases by the Supreme Court and this Court which have established the principle that the word “jurisdiction” means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. See Ndaeyo v. Ogunnaya (1977) 1 SC 11. The limits of this jurisdiction may be circumscribed or restricted by statute. See National Bank v. Shoyoye (1977) 5 SC 181.

It is also a fundamental principle of our law that it is the claim of the plaintiff which determines the jurisdiction of the court. See Adeyemi v. Opeyori (1976) 6 – 10 SC 31. This is because it is the plaintiff who invokes the constitutional right for a determination of his rights and accordingly the exercise of the judicial powers of the constitution vested in the courts. It follows therefore that in the determination of the issue of jurisdiction whether or not to entertain a claim, the applicable law is that which was in force at the time when the cause of action arose and not that which was in force when the issue of jurisdiction was raised. See Uwaifo v. Attorney General (1982) 7 SC 124. The appellant in the present case had relied specifically on the relevant provisions of Decree 60 of 1991 and Decrees 61 and 107 of 1993 as conferring exclusive jurisdiction on the Federal High Court in all matters connected with insurance to the exclusion of the State High Court. It is true that Section 7 of the Federal High Court Act Cap 134 of the Laws of the Federation 1990 as amended by Decree 60 of 1991 which reads:

“7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to-

(a) …

(b) …

(c) insurance including third party claim and the National Provident Fund.