The Recurrent Issue of the Jurisdiction of the Federal High Court
Forty-two years after the establishment of the Federal High Court (“FHC”) in 1973, the concept of its substantive jurisdiction remains elusive as issues concerning same still elicit numerous academic and judicial reactions. This is buttressed in the varying decisions on the point emanating from the appellate courts. The recent decisions of the apex court, the instant appeal inclusive, however, seem to have maintained a consistent position, with a view to settling this issue with some measure of finality.
Facts The Appellant in this appeal instituted an action against the Respondent at the High Court of the Federal Capital Territory, Abuja, (the “trial court”). By a writ of summons filed under the undefended list procedure, the Appellant claimed the sum of N5, 088,211.18 against the Respondent, predicated on an overdraft facility in the sum of N570, 000.00, allegedly, advanced to one Charles Ogbolu. In line with the applicable rules of the trial court, the Respondent filed a notice of intention to defend and an accompanying Affidavit wherein it stated that it was not privy to the loan agreement between the Appellant and the said Chris Ogbolu.
The trial court entered judgment against the Respondent. Dissatisfied with the judgment of the trial court, the Respondent appealed to the Court of Appeal, Abuja Division (the “Court of Appeal”). The Court of Appeal, in its judgment delivered on 8 December, 2015, allowed the appeal of the Respondent and struck out the Appellant’s claim on the grounds that (i) the trial court lacked jurisdiction; (ii) the action was statute-barred, having been commenced outside the three months period limited under the Public Officers Protection Act (“POPA”); (iii) the action was incompetent having been commenced without the mandatory pre-action Notice and (iv) the action was unsuitable for placement under the undefended list procedure.
Aggrieved by the decision of the Court of Appeal, the Appellant (the Respondent at the Court of Appeal) filed an appeal at the Supreme Court, wherein the court was entreated to determine whether or not the decision of the Court of the Appeal was properly founded, having regard to the established principles of law.
On the first issue, whether the Court of Appeal was right to have discountenanced the preliminary objection of the Appellant and allow the new issues raised by the Respondent without the leave of the Court, the Appellant submitted that the Court of Appeal erred in law in refusing to consider its preliminary objection solely on the ground that the three clear days’ notice required by Order 3 Rule 15(1) of the Court of Appeal Rules (then applicable) was not given to the Respondent.
In canvassing arguments on this point, the Appellant, whilst relying on the cases of AUTO IMPORT EXPORT v ADEBAYO (2003) 7 WRN 1 and NSIRIM v NSIRIM (1990) 3 NWLR (pr.138) 285, 296, amongst others, posited that the essence of the aforesaid rule was to put the Respondent (Appellant at the Court of Appeal) on notice of the objection raised, at least three days before the hearing of same. It was further submitted that the said objection having been raised in the brief of argument and the Respondent having replied to same in its reply brief, and , above all, the period of 5 months having elapsed before the hearing of the appeal, the Respondent had more than sufficient notice of the objection.
On the second limb of the first issue, the Appellant submitted that, although the two new issues raised were jurisdictional issues, the new issues could only be raised with the leave of the court.
As regards the second issue on the jurisdiction of the trial court to entertain the suit, the Appellant submitted that, by reason of the fact that the Appellant’s claim at the trial court was for the recovery of outstanding loan facility, which in essence revolves around a simple contract, the trial court was the proper forum and not the Federal High Court. The Appellant relied on Section 251 and 257 of the Nigerian Constitution and the case of ONUORAH v KADUNA REFINING AND PETROCHEMICAL CO. LTD (2005) 6 MJSC 137, amongst others. The Appellant further submitted on this issue that the action was not statute barred as Section 26 (1)(a) (b) of the Nigerian Agricultural Insurance Act, similar to Section 2(a) of the Public Officers’ Protection Act, relied on by the Court of Appeal are inapplicable to actions for breach of contracts, recovery of land, etc. The Appellant further submitted that it complied with the pre-action notice requirement, since the action was commenced about a year after its 14 days’ notice to the Respondent of its intention to institute the said action.
On the third issue as to the suitability of the undefended list procedure to the factual circumstance of the suit, the Appellant submitted that upon the filing of a notice of intention to defend, the trial court has the duty to examine the supporting affidavit to ascertain if it discloses a triable issue. The Appellant thus submitted that the Court of Appeal erred in holding that the trial court ought to have transferred the matter to the general cause list for hearing immediately a notice of intention to defend was filed, without considering the supporting affidavit.
The Respondent, in response to the argu- ments canvassed in support of the above issues, submitted, in respect of the first issue, that the Court of Appeal rightly discountenanced the Appellant’s preliminary objection, same being in contravention of the Order 3 Rule 15. It was further submitted that the new issues raised were jurisdictional questions which could be raised suo motu by the court or could be raised at any time without leave of court.
On the issue of jurisdiction, the Respondent, while relying on the case of NEPA v EDEGBENRO & ORS. (2002) 18 NWLR (Pt. 798) 79, submitted that the Court of Appeal rightly held that the trial court had no jurisdiction due to the presence of the Respondent, an agent of the Federal Government, regardless of the nature of action. The Respondent further submitted that the protection offered by the POPA applied irrespective of the nature of the action and that the pre-action notice requirement was never fulfilled as the correspondence exchanged by parties did not qualify as such. On the last issue the Respondent maintained that it had disclosed a triable issue and a defence on the merit in its supporting affidavit, sufficient to warrant the immediate transfer of the suit to the general cause list.
In resolving the issues as argued by the parties, the Supreme Court held that the Court of Appeal imprudently discountenanced the preliminary objection of the Appellant, having regard to the fact that the object/purpose of Order 3 Rule 15, is to safeguard against embarrassment of the Appellant or taking him by surprise. The Supreme Court took the view that, in so far as the Appellant (Respondent at the Court of Appeal) raised the notice of preliminary objection in its brief and the Respondent reacted to same in its Reply brief, there was sufficient compliance with the rule.
Further, the Supreme Court held that there was sufficient notice, since the hearing of the appeal (and, by implication, the objection) did not come up until five months after the filing of the processes. In this regard, the Supreme Court relied on the cases of MAGIT v UNIVERSITY OF AGRICULTURE, MARKURDI AND ORS (2005) LPELR 1816 (SC) 29, B-F; AJIDE v KELANI (1985) 3 NWLR (Pt. 12) 248 and AGBAKA AND ORS v AMADI & ANOR. (1998) 11 NWLR (Pt. 572)16. On the second limb of the first issue, the Court held that, although it is still a valid general principle of law that a party must seek the leave of the court to raise a new issue on appeal, the issue of jurisdiction constitutes an exception thereto, and as such could be raised at any time with or without leave. OBIAKOR & ANOR v THE STATE (2002) 10 NWLR (pt. 776).
On the issue of jurisdiction, the Supreme Court dissipated an enormous amount of judicial energy in its dissection of section 251 of the Nigerian Constitution and analysis of the litany of cases thereon to demonstrate the Court of Appeal’s error in holding that the trial court lacked jurisdiction to entertain the matter before it, simply because the second defendant is an agent of the federal Government. The Supreme Court maintained that, from a conspectus of its recent decisions, it is now firmly settled that in considering the issue of the jurisdiction of the Federal High Court, both the status of the parties and the subject matter of the claim must be considered. OBIUWEVBI v CBN (2011) 7 NWLR (pt. 1247) 465; OLORUNTOBA-OJU v DOPAMU (2008) 7 NWLR (pt.1085) 1. In effect, therefore, as is the case in the instant appeal, matters of simple contract, not being one of the enumerated items in Section 251 of the Nigerian Constitution, could not be entertained by the trial court, regardless of the presence of a Federal government agent. ONUORAH v KRPC CO LTD. (supra); ADELEKAN v ECU-LINE N.V. (2006) 12 NWLR (pt.993) 33, 52, F-N. Indeed, in the words of the court, “…it is hoped that counsel would, henceforth, stop hampering the smooth administration of justice and efficient management of cases, both at the Federal High Court and State High Courts, by their irksome recourse to their time-worm objection to the jurisdiction of these courts based on the interpretation of section 251 (1) (supra), now rested by the above decisions of this court.”
Further the Court held that the scope of immunity afforded public officers by virtue of POPA has been delineated by the courts and as such do not apply to cases of contract as is in the instant appeal. F.G.N v ZEBRA ENERGY LTD. (Supra). Therefore, the issue of limitation does not arise.
Finally, on the third issue, the Supreme Court held that the Court of Appeal was right in holding that the action was wrongly commenced under the undefended list procedure since one of the reliefs included a claim for pre-judgment interest, in respect of which the entitlement thereto was not pleaded in the Appellant’s Undefended list Procedure Application.
The Court allowed the appeal in part, that is, whilst allowing the decision of the Court of Appeal on the issue of raising new jurisdictional issues on appeal and unsuitability of the undefended list procedure, the decision of the Court of Appeal on the substantive jurisdiction of the trial court was set aside. The case was consequently remitted to the Chief Judge of the FCT High Court for reassignment to another judge for hearing on the general cause list.
Representation