Court of Appeal’s Power to Exercise Original Jurisdiction in a Claim

In the Supreme Court of Nigeria

Holden at Abuja

On Tuesday, the 7th day of December, 2021

Before Their Lordships

Musa Dattijo Muhammed

Chima Centus Nweze

 Uwani Musa Abba Aji

Helen Moronkeji Ogunwumiju

Adamu Jauro

Justices, Supreme Court

SC./CV/669/2020

Between

                  Bank of Industry Limited                                                                                     Appellant

                                                                                             And

         Ebenezer Obeya                                                                                                                 Respondent

        (Practicing under the name &

        style EBENEZER OBEYA & CO.)

(Lead Judgement delivered by Honourable Helen Moronkeji Ogunwumiju, JSC)

Fact

The Appellant, a development finance institution substantially owned by the Federal Government, engaged the professional services of the Respondent, a legal practitioner. Following some disagreement about payment of his professional fees, the Respondent commenced this suit against the Appellant at the High Court of the Federal Capital Territory, Abuja, by a Writ of Summons under the Undefended List for balance of his professional fees including pre-judgement and post-judgement interest sum.

In response, the Appellant filed a Memorandum of Conditional Appearance and a Notice of Preliminary Objection, on the grounds that the service of the Writ of Summons issued on the office of the Respondent at Abuja is not valid, the venue not being the registered office of the Appellant and that the trial court had no jurisdiction to entertain the subject-matter of the suit against the Appellant. The trial court upheld the Preliminary Objection and struck out the case. The Respondent, who was dissatisfied with the decision of the trial court, filed an appeal to the Court of Appeal. The appellate court allowed the appeal and granted the claim of the Respondent except the pre-judgment interest. The Appellant thus, filed an appeal to the Supreme Court.

Issues for Determination

The following two issues were considered and determined by the court:

1.“Whether the Court of Appeal was right in setting aside the decision of the High Court of the Federal Capital Territory, Abuja which declined jurisdiction to entertain the suit, on the grounds that the originating court process was served by the Respondent on the Appellant at its branch office in Abuja instead of its headquarters in Lagos, and the fact that the Appellant being an agency of the Federal Government of Nigeria, the Federal High Court ought to assume jurisdiction in the circumstances of the case.

2. Whether it was proper for the lower court to exercise original jurisdiction in favour of the Respondent in respect of his claim, which the trial court did not hear on the basis of lack of jurisdiction.

Arguments

Submitting on issue one, counsel for the Appellant argued that the proper mode of service on a company must be at the registered office of the company by giving the Writ to any Director, Company Secretary or other principal officer at the registered office of the company, or by leaving the process at its registered office. Counsel argued that the service of the originating process by the Respondent on the Appellant at the branch office in Abuja contravenes the provision of Section 78 of the Companies and Allied Matters Act 2001 (CAMA), Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, and the judicial authorities on mode of effecting service of originating court processes on a corporate body like the Appellant. Counsel relied on WEST AFRICA LTD v AFLON & ANOR (2014) LPELR- 22975(CA). He posited that the court below was wrong in setting aside the decision of the High Court of the FCT, Abuja which had declined to entertain the suit on the basis that it had no subject-matter jurisdiction, and it was wrong to hold that the claim of the Respondent which is in respect of a simple contract is within the jurisdiction of the High Court of the FCT. Counsel argued that by the provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 the Respondent ought not to have initiated the suit at the lower court against the Appellant under the undefended list procedure, knowing that the Appellant who will bear the consequence of the action is an institution owned and controlled by the Federal Government of Nigeria and only a Federal High Court can competently assume jurisdiction in matters relating to it in the performance of its statutory functions, Counsel relied on CENTRAL BANK OF NIGERIA v AUTO IMPORT EXPORT (2013) 2 NWLR (Pt. 1737) 80.

In response, learned counsel for the Respondent submitted that a community reading of Section 78 of CAMA, and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 shows that Section 78 envisages two types of documents, one being a court process and any other type of document. CAMA also provides that where the document to be served is a court process service is governed by the Rules of Court, while any other document may be sent to the head office or registered office. Counsel relied on NBC PLC v UBANI (2013) LPELR- 21902 (SC). He argued that the corporate headquarters of the Appellant by Order 11 Rule 8 is in Abuja, FCT, and as stated in the Exhibits attached to the Respondent’s affidavit in support of the Writ. Counsel submitted further that jurisdiction is fundamental to adjudication, and the jurisdiction of the Federal High Court on simple contracts and land has been settled. He contended that the Writ of Summons and its supporting affidavit indicate a claim for recovery of professional fees which is a cause based on simple contract and in which case the High Court of the FCT can assume jurisdiction, since it is the nature of a claim that determines the court vested with jurisdiction to determine same. Counsel submitted that Section 251 (1)(a)-(r) does not include issues of simple contract, as a subject over which the Federal High Court can assume jurisdiction.

Court’s Judgement and Rationale

In resolving the first issue, the Supreme Court opined that the issue is of twin fold but based on the challenge to the jurisdiction of the trial court and the court below. The first challenge relates to lack of proper service of the originating process on the Appellant, and the second challenge relates to the lack of jurisdiction of the trial court to try the subject-matter of the litigation. It stands to reason that if the trial court lacks jurisdiction, the appellate court also would be tainted with the same virus – ODOM & ORS v PDP & ORS (2015) LPELR-24351(SC). Their Lordships relied on Section 78 of the CAMA to hold that the provision has transferred the question of service of court processes from CAMA to the applicable rules of court, and the applicable rules of court in this case is Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, 2004. What the rule provides for is the “corporate office” and not “registered headquarters” as argued by the Appellant. Since the rules of the court specifically mentions “Corporate Office”, the question is whether  the Abuja address of the Appellant is the corporate office of the Appellant. The Appellant’s acknowledgement stamp on the Respondent’s letters exhibited in the record served on the Appellant, holds out the Appellant as having its “corporate headquarters” in Abuja. The Appellant having admitted this fact in writing, is estopped from denying the representation it already made to the Respondent.

Regarding the other issue of jurisdiction of the trial court, the Apex Court’s issue was that the provision of Section 251 of the Constitution which confers exclusive jurisdiction on the Federal High Court in matters affecting the Federal Government of Nigeria and its agencies, and whether the Federal High Court lacks jurisdiction over simple contracts, Their Lordships held that the current conventional wisdom is as stated in OIL & GAS EXPORT FREE ZONE AUTHORITY v DR. T.C. OSANAKPO (2019) 6 NWLR (Pt. 1668). Therein, it was held that “Section 251(1) of the 1999 Constitution (as amended) does not vest the Federal High Court with jurisdiction over an action based on simple contract or debt recovery, even if the Defendant to the action is an agency of the Federal Government…”. The law is that it is not enough for the Respondent to be a Federal Government department or agency, the subject-matter of the action must fall within the jurisdiction of the Federal High Court. In this instance, the trial court was wrong to have upheld the Appellant’s Preliminary Objection and declined jurisdiction based on the service of the Writ on the Appellant at the address it held out to be its corporate address, and to have refused the determination of the case which was based on simple contract.

In deciding the second issue, the Supreme Court held that the powers of the Court of Appeal to assume jurisdiction as derived from Section 15 of its Act, is to enable the appellate court make any order or give any directive the trial court ought to have made but failed to do. The purpose of Section 15 thereof, is also to avoid duplicity of legal proceedings and ensure speedy delivery of justice. In the instant case, the matter was commenced under the Undefended List Procedure. The court referred to Order 21 Rule 4 of the Federal Capital Territory, Abuja High Court Civil Procedure Rules, 2004 to hold that the Appellant failed to put up any defence before the trial court, but rather filed a Preliminary Objection to the suit neglecting its defence to the claim. This presumes that the Appellant had no defence. Therefore, when a matter is on the undefended list, there is no need to summon witnesses at all. It is basically decided on affidavit evidence – MASSKEN NIG. LTD. & ORS v. AMAKA & ANOR (2017) 16 NWLR (Pt. 1592) 438. The exhibits attached to the affidavit at the trial court were before the court below as proof of the Respondent’s claim, and there is no rebuttal of the proof either by a counter-affidavit or defence by the Appellant.

There is no doubt that one of the conditions precedent for the court below to exercise its power, is that the trial court must have jurisdiction to adjudicate on same, and the issue raised by the claim at trial must be capable of being distilled from the grounds of appeal. The issues raised in ground 3 of the Respondent’s appeal and the issues raised by the Respondent’s claim before the trial court are very clear, and the condition was therefore satisfied. The other condition is the availability of all necessary materials, for the court’s consideration. The claim in this matter is one that was brought under the undefended list, and to be determined on Affidavit evidence alone. There is no empowerment in the Court of Appeal to proceed to determine a matter on its merits in all cases. Where the Court of Appeal sets aside the order of the trial court striking out a suit for want of competence or jurisdiction, the appellate court will not ordinarily proceed to determine a matter on the merit when no witness had given viva voce evidence, been cross-examined and the trial court had given an opinion on the veracity and merit of the case. The power may be utilised to correct errors of lower courts in re-assessing or re-evaluating of evidence, and in such process, utilising evidence on record that was not utilised by lower court, and rejecting inadmissible evidence utilised by lower court – CAPPA AND D’ALBERTO LTD v DEJI AKINTILO (2003) 4 S.C.N.J 1. In the circumstances of this case, all the materials the trial court would have needed to determine the merits of the claim, were before the court below.

The last condition is that, the court would consider the hardship or injustice that would follow if the case is remitted to the trial court. There is no doubt that in cases of liquidated money demand, the more the matter drags on, the lower the value of the debt, this is not good for our economy. Issues of liquidated money demand, should be settled expeditiously. The time allowed by the Rules for the Appellant to file a defence had passed, no useful purpose would be served by the Court of Appeal’s remittance of the suit back to the trial court. In OBI v INEC, the Supreme court clearly stated these conditions and after it found that the trial court had jurisdiction and the Court of Appeal Act to determine the main issues before the court, it invoked section 22 of the Supreme Court Act and took full jurisdiction of the whole proceedings as if the proceeding was instituted in the Supreme court as the court of first instance and made necessary orders. Having held that the trial court had jurisdiction and could have tried this suit, the Court of Appeal was right that in view of time lapse and the nature of the suit (undefended list), it would be unfair and a miscarriage of justice to return the file to the trial court, since Section 15 of the Court of Appeal Act empowers the Court of Appeal to assume original jurisdiction in the circumstances of this case.

Appeal Dismissed.

Representation

Aliyu Sarki, SAN with Sunday Adeagbo, Afolabi Omotosho, A.M.A Adejumobi, D.Y. Sumail and Abdullahi Halima for the Appellant.

Chucks Udo-Kal with Obuma Obasi Nwakwo for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)