3PLR – KADUNA REFINING & PETROCHEMICAL COMPANY LTD V. MR. FELIX ONUORA
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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KADUNA REFINING & PETROCHEMICAL COMPANY LTD
V.
MR. FELIX ONUORA
IN THE COURT OF APPEAL
KADUNA JUDICIAL DIVISION
5TH JUNE 2000
3PLR/2000/150 (CA)
OTHER CITATIONS
6 NWLR (Part 921) Page 393
BEFORE THEIR LORDSHIPS
RABIU DANLAMI MUHAMMED
VICTOR AIMEPOMO OYELEYE OMAGE
OLUDADE OLADAPO OBADINA
BETWEEN
KADUNA REFINING & PETROCHEMICAL COMPANY LTD.
AND
- FELIX ONUORA (Trading Under The Name And Style Of Ikechi Supermarket And Trading Company.)
REPRESENTATION
MAIN ISSUES
EVIDENCE – Pleadings not supported by evidence – effect of
INTERPRETATION OF STATUTES – Section 230 of the 1979 Constitution – effect on jurisdiction of the Federal High Court
PRACTICE AND PROCEDURE – Jurisdiction – Need for leave to raise on appeal – when required.
MAIN JUDGEMENT
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (delivering the leading judgment)
In his claim in the court below the Respondent in this appeal who was, then the Plaintiff, sought from the court below, the following reliefs:-
“(a) A declaration that the purported increase / review of the 18 litre empty tins by the Defendant, from N25 to N40 with effect from 10/5/93 as not affecting the Plaintiff who paid for his own much earlier than the commencement date of the price increase / review.
(b) An order of specific performance directing the Defendant to issue/supply the Plaintiff (sic) remaining 17,012 pieces of the 18 litre empty tins not later than 30 days from the date of judgment.
(c) N1,000.00 General damages from the defendant to the Plaintiff for the breach of the arrangement / agreement between him and the defendant.”
After hearing evidence from the Plaintiff who called witnesses and tendered exhibits and from the Defendant who testified for the Company, the court below made findings and ruled as follows. “That the purported price increase/review for 18 litre tins to N40 by the defendant with effect from 10th May, 1993 does not relate to and or affect the 10,760 and 48,000 pieces of empty 18 litres tins paid for by the Plaintiff on 15th March, 1993, and 22nd April, 1993. An order for specific performance of the contract by the defendant to supply to the Plaintiff forthwith the outstanding balance of 17,012 pieces of empty 18 litre tins. Costs in favour of the Respondent against the plaintiff”. The Defendant in the court below was dissatisfied with the judgment and he appealed to this court, filing in the first place three original grounds of appeal. In a motion filed on 4/11/98, the Appellant sought and obtained on 9/2/99 an order of court to file, serve and argue an additional ground of appeal annexed to the affidavit in support of the motion. The said additional ground of appeal manifests as issue (1) of the Appellants ground of appeal. The issue is “whether by virtue of Sec. 203 (1) of the 1979 Constitution as modified by Decree No. 107 of 1993 the trial court has been vested with jurisdiction to adjudicate on matter involving contract of sale or supply matter.”The additional ground of appeal upon which the issue above is founded reads as follow “The learned trial judge erred in law when he assumed jurisdiction to hear and determine the Respondent’s claim for declaratory order, specific performance and General damages in a matter involving contract of sale on the ground that Sec. 230(1) of the 1979 Constitution as amended and as modified by Decree No. 107 of 1993 vested such jurisdiction on the Federal High Court. The Appellant’s brief was deemed to be filed by order of court upon an application of the Appellant on 23/9/99 when the Appellant asked for extension of time to file same. The other issues, contained in the Appellants brief are (ii) “whether or not the contract between the parties was an unconditional and conclusive one or otherwise (iii) Having regard to the totality of evidence adduced at the trial court whether or not the trial court was right in its decision against the Appellant.” It is material and relevant to the consideration and determination of this appeal to state here that the judgment against which the appeal is lodged is of the Federal High Court, Kaduna. The judgment was delivered by the said court on 1st August, 1997 Coram O.J. Okeke J. The Respondent’s brief of argument was filed on 14/10/99. At the hearing of the appeal, the Respondent adopted his brief. The Respondent submitted that he adopts the issue for determination formulated by the Appellant with minor variation recorded as follows:-
“(a) Whether the trial court lacked the jurisdiction to sustain the subject matter of the suit, having regards to the pleadings of the Plaintiff, the admission in the Defendants pleading vis a vis the provision of Decree 107 of 1993.
(b) Whether or not the contract between the parties was an unconditional and conclusive one or otherwise.
(c) Is the judgment of the learned trial judge against the weight of evidence?”
In this appeal, on issue one I will consider together the submission of Appellant and Respondent. In the adoption by the Respondent of the Appellant’s issue one, both the Appellant and the Respondent are united in the need to consider the jurisdiction of the court below before any other issue is considered. Both briefs of argument have expressed and it is the correct statement of the law, that it is the nature of the Plaintiff’s claim before the court below which determines the jurisdiction of the court. This excludes other factors like the Statement of Defence. The Respondent who is an individual is a juristic being and who obtained judgment of the Kaduna Federal High Court against the Appellant has submitted that the said Federal High Court has a jurisdiction to determine the claim of a breach of contract with itself and the Kaduna Refining and Petrochemical Company Ltd. The Appellant has submitted that the Kaduna Federal High Court does not have jurisdiction to adjudicate on a matter of a breach of contract between individuals who are not government agencies. It is the Appellant’s submission that the Kaduna Refining and Petrochemical Company Ltd. is a limited liability company which is a corporate body and is independent of any other Company, and in particular in its management, it is not a subsidiary of the Nigeria National Petroleum Corporation and that it is certainly not an agency of the Federal Government, though they may be the subscribers to its shares. The Respondent denies this in his brief, and submitted that the Appellant company, as Defendant in court below has admitted in his pleading that it is a subsidiary of the Nigeria National Petroleum and so an agent of the Federal Government. In the face of such an admission, Respondent avers that no further onus of proof lies on the Plaintiff since admission of a fact is the strongest proof of the fact. Respondent submitted that the Appellant being a Government functionary took an “administrative decision” as contained in section 231(1) 5 of Decree No. 107 of 1993, which provisions vested jurisdiction in the Federal High Court of any dispute between Respondent an individual and the Federal Government. In that administrative decision then he submitted that the Defendant/Appellant unilaterally increased the price of 18 litre empty tins from N25 to N40,000 per tin. The Appellant submits that as a limited liability company incorporated under the Companies Act 1968 now Companies and Allied Matters Act 1990, it is not an agency of the Federal Government. The claim of the Plaintiff before the Federal High Court Kaduna is as stated in the opening paragraphs of this judgment which is substantially a claim for an alleged breach of contract of supply, and damages resultant on the alleged breach. The Respondent has raised in his brief an objection to the issue on jurisdiction raised by the Appellant. The Respondent’s complaint is that the Appellant did not raise the issue of jurisdiction in the court below, and that the Appellant did not obtain the leave of the court before he raised the issue of jurisdiction. The Respondent therefore urged the court to discountenance the appellant’s issue No. 1.
It is appropriate to commence the consideration of this appeal by observing and commenting, indeed to determine the status of the Appellant, the Kaduna Refinery and Petrochemical Company Limited. It is without contest a limited liability company with its Board of Directors. The Respondent has submitted in the words below, that the Defendant has admitted that it is a subsidiary of the Nigeria National Petroleum Corporation and therefore an agent or a functionary of the Federal Government of Nigeria, and quoted as follows : “An admission in pleading is the strongest form of proof, since what is admitted needs no further proof.”
I have seen from the printed record, that the Defendant now Appellant did admit the paragraph in the Plaintiffs Statement of Claim, that the Defendant is a limited liability company and a subsidiary of the Nigeria National Petroleum Corporation. It was an admission which related only half the truth. In any case, it is our rule of procedure that pleadings do not constitute evidence See FCDA v. Noibi (1990) 3 NWLR (Pt. 138), 270 at 581, and pleadings which are not supported by evidence go to no issue See Woluchem v. Gudi (1981) 5 SC 291. Even if there is evidence of admission that the Defendant is a subsidiary of N.N.P.C. in so far as the Defendant is a company limited by shares with its own directors, it is in law a separate entity see: Salomon v. Salomon ; see also George Will v. Ekine (1998) 8 NWLR (Pt. 562) p. 466. I have read through the record of the proceedings in the court below I see no evidence in support of the alleged agency of the Defendant to the Federal Government. Infact it is an elementary knowledge that a company limited by shares is a different entity from its subscribers. It is apparent that the Plaintiff in the court below assumed that the Defendant’s subscribers to the Defendant may be the Nigeria National Petroleum Company Plc. in the assumption the Plaintiff is in error. The Plaintiff is also in error to assume that the Defendant is a subsidiary of the Nigeria National Petroleum Corporation, and an agent of the Federal Government. The Appellant in his brief of argument has submitted and I accept same, that the Kaduna Refining and Petrochemical Company Ltd. is a distinct and separate legal entity, and a legal personality regardless of the shareholding structure, see N.I.D.B. and Ors. v. Jembo Nig. Ltd. (1997) 2 NWLR (Pt. 489) 543. In that case the distinct personality of a limited liability company was affirmed. It is not an agency of the Federal Government.
Having established the distinct personality of the Appellant as a limited liability company, it is apt here to respond to the complaint of the Respondent in his brief that the Appellant did not obtain the leave of this court to raise the issue of jurisdiction of the court. The Respondent has said in his brief that the court’s jurisdiction was not a point of the defence of the Appellant in the court below. The record in this appeal shows that leave was granted to the Appellant to raise the issue of jurisdiction in this court. The circumstance and the grounds of appeal allowed is as stated in the preamble to this judgment. See supra. The issue of jurisdiction is so fundamental in a court proceedings that it ought first to be considered at the commencement of hearing of the suit See: Barclays Bank of Nig. Ltd. v. Central Bank of Nig. (1976) 1 All NLR p. 409 (11); AG. Lagos State v. Hon. Justice L.J. Dosunmu (1989) 3 NWLR (Pt. 111).
It is the law that the jurisdiction of a court of law is determined by the Plaintiff’s claim before the Court see :Ope Adeyemi v. Opeyeri 9 – 10 Sc 319. In the instant case, the claim of the Plaintiff before the Federal High Court Kaduna is for an order for specific performance of a contract to supply manufactured products and for damages for a breach of contract.
One of the reasons why the Plaintiff justified the preferment of the claim in the Federal High Court Kaduna is because he concluded that the Defendant is a subsidiary of NNPC and so an agent of the Federal Government. The Respondent has submitted that the Defendant being a subsidiary of the Nigeria National Petroleum Corporation it came under the jurisdiction of the Federal High Court under the provision of Sec. 230(1) and 230(1) s of Decree No. 107 of 1993, which amended the provision of the 1979 Constitution and removed Federal Agencies from the jurisdiction of the State High Court; The decree created exclusive jurisdiction for the Federal High Court on all matters arising on concerning (sic) all functionaries or agency of the Federal Government of Nigeria.
I have read with diligence the provision of decree No. 107 of 1992, Decree No. 60 of 1991 which both created and widened the jurisdiction of the Federal High Court. I can find nowhere therein where provisions are made for the jurisdiction of the Federal High Court in a matter for specific performance or for a claim of damages, made between two parties neither of which is a Government agent or functionary of the Federal Government. Neither the Plaintiff nor the Defendant in the court below is an agent or a functionary of the Federal Government or any Government in Nigeria for that matter. The Federal High Court in Kaduna or any Federal High Court in Nigeria would appear not to possess any jurisdiction to preside and determine such a claim as the Plaintiff had in the court below. However, it is worthwhile to consider section 230(1) of Decree 107 of 1993 which provides as follows:-
“Notwithstanding any thing to the contrary contained in this constitution and the addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in Civil causes or matters arising from s. 230(1) 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”.
The above provision which is subscribed to in the section also refer to actions against agent of the Federal Government and its functionaries. No evidence has been produced that the jurisdiction of the Federal High Court by the National Assembly has been widened beyond the contents of Decree No. 107. In the absence of a proof that the Appellant/Defendant in the court below is a Government agency, it must be held that the court with jurisdiction to hear and preside over Respondent’s claim in the court below is not the Federal High Court, but the State High Court. See in Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 596, which decision has been consistently followed, in various decisions of Court, the Supreme court of Nigeria prescribed the following indices on the requirement of jurisdiction of the court, and direct that for a court to be seized of jurisdiction.
(1) The court must be properly constituted
(2) The subject matter before the court must be within the competence of the court, and it is the Plaintiff’s claim which points to the propriety of the subject matter in that court.
(3) The action in the court must be initiated by due process of the law. See: Ejike v. Ifeani (1990) 4 NWLR .
In the instant case falling under the subject matter of the claim and the parties before the court are not such for which the jurisdiction of the Federal High Court are created. The suit is incompetent before the Federal High Court as it has no jurisdiction. The competence of a court is basic. It may be raised at any stage of the proceedings even in an appellate court as it is done in this case, See: Alhaji Oloyede Ishola v. Maumdu Ajiboye (1994) 6 NWLR (Pt. 352) 506 at 589. Para F.H. per Iguh JSC. It is a common parlance that the jurisdiction of a court is the very basis on which any tribunal tries a case. It is the life line of all trials.
It is settled law that a trial without jurisdiction is a nullity. I find from the above that the Federal High court Kaduna has no jurisdiction to determine or hear the complaint of the Plaintiff/Respondent against the Defendant/Appellant in the court below. It is settled law that where a court has no jurisdiction, it cannot enforce it’s coercive powers and the proceedings before it is a nullity See: Per Karibi- White JSC in Akinbobola v. Filson Fisko (1991) 1 NWLR (Pt.167) at 284.The Supreme Court also considered the effect of a judgment given where there is no jurisdiction in Obayuwana v. Obazee (1972) SC 247 and ruled that it is no effect. In the instant case the judgment of the Federal High Court Kaduna delivered on 1/8/97 has no effect, it is a nullity. There is no benefit in considering the other issues in this appeal. I will refrain from consideration of the other issues in the appeal. For the above reasons the judgment of the court below is set aside and the Plaintiff’s claim there is struck out. The appeal succeeds. There will be costs of N5000, to the Appellant.
RABIU DANLAMI MUHAMMAD, J.C.A.
I have read before now the judgment just delivered by my learned brother Omage JCA. I agree with him that the appeal has merit and it is hereby allowed. It is trite law that it is the Plaintiffs claim that determine the jurisdiction of the Court. The claim of the Respondent at the lower Court as per the Statement of Claim clearly showed that it was for a contract of sale or supply. The Respondent was asking for an order of specific performance of the said contract of sale or supply.
The jurisdiction of the Federal High Court is as prescribed by s. 230(1) of the 1979 Constitution as modified by Decree No. 107 of 1993. I have carefully considered the jurisdiction of the Federal High Court as prescribed by Decree 107 and I am of the firm view that its jurisdiction does not include simple contracts between limited liability company and individuals. Clearly the Federal High Court lacks jurisdiction to entertain the matter. The decision of the Lower Court is a nullity. I abide by all the orders in the leading judgment including the order as to costs.
Cases referred to in the judgment
A.G. Lagos State v. Hon. Justice L.J. Dosunmu (1989) NWLR (Pt. 111)
Akinbobola v. Filson Fisko (1991) 1 NWLR (Pt.167) at 28
Alhaji Oloyede Ishola v. Maumdu Ajiboye (1994) 6 NWLR (Pt. 352) 502 at 559
Barclays Bank of Nig. v. Central Bank of Nig. (1989) 3 NWLR (Pt. 111)
Ejike v. Ifeani (1990) 4 NWLR
FCDA v. Naibi (1990) 3 NWLR (Pt. 138), 270 at 581
George Will v. Ekure (1998) 8 NWLR (Pt. 562) 466
Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 593
N.I.D.B. & Ors. v. Jembo Nig. Ltd. (1997) 2 NWLR (Pt. 489) 543
Obayuwana v. Obazee (1972) SC 247
Ope Adeyemi v. Opeyeri 9-10 SC 319
Salomon v. Salomon
Woluchem v. Gudi (1981) 5 SC. 291
Statutes referred to in the judgment
Constitution (Suspension And Modification) Decree No. 107 Of 1993 Section 230(1)
Constitution of the Federal Republic of Nigerian, 1979 s. 230(1)
