3PLR -MERCHANT BANK OF AFRICA V. OWONIBOYS TECHNICAL SERVICE LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MERCHANT BANK OF AFRICA

V.

OWONIBOYS TECHNICAL SERVICE LIMITED

 

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/144/92

THURSDAY, 21^ST APRIL, 1994

3PLR/1994/69  (CA)

 

OTHER CITATIONS

8 N.W.L.R. PART 365 PG.705

 

BEFORE THEIR LORDSHIPS

UMARU ABDULLAHI;

MURITALA AREMU OKUNOLA;

OKWUCHKWU OPENE.

 

REPRESENTATION

Udom & Udom – for appellant

Chief A. S Awomola SAN – for respondents

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL

COMPETENCE OF COURT

ISSUE OF JURISDICTION

 

MAIN JUDGEMENT

Lead Judgement: Delivered by Okunola JCA

This is an appeal by the defendant/appellant against the ruling of Gbadeyan J of the High court of Kwara State, holden at Omuaran, in the Omuaran Division delivered on 13/4/92.

 

The facts of this case briefly put are as follows: The appellant filed a motion on Notice dated 28/6/91 praying an order of the lower court, striking out the suit, or in the alternative remitting the suit back to the Chief Judge of Kwara State for re assignment within the Ilorin Judicial Division, on the grounds that the High Court of Omuaran had no jurisdiction to entertain the suit. It is pursuant to state that the trial in this suit commenced on 26/6/89 before Fabiyi J sitting at court No 5 in Ilorin Judicial Division. Sometime in 1990 the trial Judge was transferred from Ilorin Judicial Division to Omuaran Judicial Division by which time the case has reached the stage of defence. Upon a directive of the Chief Judge of the state that all cases which were partly heard by the presiding Judge hitherto handling them at their old stations should be taken to their new stations and concluded there. Fabiyi J complied and continued to hear this case at the Omuaran Judicial Division. At a later state a letter of re transfer of the case to Ilorin Judicial Division was written by the defendant/appellant to the Hon Chief Judge but the application was not successful. In the end Fabiyi J went to Kogi state as a Judge of that state Obadayan J succeeded Fabiyi J at Omuaran and inherited this suit.

 

After taking several stages before Hon. Justices Fabijyi and Obadayan respectively at Omuaran the defendant/appellant brought formal application challenging the jurisdiction of the court to hear the suit at Omuaran Judicial Division. After full arguments had been taken by the court the court in a considered ruling delivered on 13/4/92 held that it had jurisdiction to entertain the suit and set same down for trial, thereby overruling the objection of the defendant/appellant. Dissatisfied with this Ruling the defendant/appellant appealed to this court on 3 grounds From the three grounds of appeal the appellant has formulated the following three issues for determination in this appeal viz:

 

1. Whether in the circumstances of this case and particularly upon the interpretation of Order 10 Rule 3 of the High court of Kwara State (Civil Procedure) Rules 1987 the learned trial Judge was right in assuming jurisdiction to entertain the action inspite of the objection of the defendant/appellant.

 

2. Whether the fact that thee is only one High court of Justice in Kwara State implies that cases may be commenced and/or continued in any judicial Division in the state without regard to the rule as to venue.

 

3. Whether the power of the Kwara State Chief Judge to assign or direct cases to the Judges or Judicial Divisions under S 68 of the High Court Law (Amendment) Edict of Kwara State is not subject to the Limitations of the rule as to venue, the High court of Kwara State (Civil procedure) Rules (1987) and other statutory provisions.

 

The learned counsel to the respondent also formulated two issues which but for framing and language used boil down to the issues raised by the appellant in the appellant’s brief. As indicated supra both counsel to the parties, filed their respective briefs on behalf of their clients. Thus on 24/1/94 when this appeal came up for hearing, the learned counsel to the appellant who was present at the last adjourned date but absent in court on that day was pursuant to Order 6 Rule 9 of the court of Appeal Rules deemed to have adopted his appellant brief filed on 17/7/93.

 

By way of reply Chief A J. Awomolo SAN leading Yinka Oyinloye for the respondent also adopted the respondent’s brief filed on 29/11/93. The learned SAN narrowed the issues raised by both parties down to one whether a Division of the High court in a matter commenced in another Division can properly hear and determine such a case. He restated as contained on Pg. 4 of the respondent’s brief that issue No.1 covers grounds (a) & (b) while issue No 2 covers ground (c) of the grounds of appeal.

 

The learned SAN reiterated the facts of this case as outlined supra and confirmed the preliminary effort of the successor Judge to get the case transferred back to Ilorin which was refused and that it is this refusal that forms the basis of this appeal. He therefore urged the court to dismiss this appeal which he described as frivolous and as constituting an abuse of process. He further urged that if this application is granted the court should order that the case be heard at Omuaran on day to day basis since it is a 1992 case.

 

I have considered the arguments of learned counsel to both sides vis-a-vis the records and the prevailing law. I agree with learned counsel to the respondent that the main issue in this appeal boils down to whether a Division of the court in a matter commenced in another Division can properly hear and determine such a case. This main issue poses two subsidiary issues canvassed by learned counsel to the parties viz:

 

1. Whether the power of the Chief Judge in transferring the instant suit to Ompure Judicial Division from Ilorin Judicial Division final and not subject to appeal.

 

2. Whether or not the ruling of the lower court in the instant appeal that he has jurisdiction is appealable.

 

It is hoped that the resolution of these two posers will determine the instant appeal. As regards the first subsidiary issues as to whether the power of the Chief Judge in transferring the instant suit from Ilorin to Omuaran Judicial Division is final and not appealable I have considered the submissions of both sides on this issue. Both parties agreed that this power had not been challenged by them. They both agreed that the power had been validly exercised by the learned Chief Judge and I so hold.

The issue that arises for determination in the instant appeal is simply that where a chief Judge had validly exercised his power of transfer under the State High court Law as had been done in the instant case whether a Judge sitting in any Judicial Division within the State cannot continue to hear and determine such case that started from one Judicial Division upon the prayer on the evidence hearing same so as to continue with the case. As I stated earlier, I have considered the submissions of both counsel on this issue. I make bold to say that this poser has been resolved by the provisions of the 1979 In order to address this issues as it should be done. It is necessary to restate the elements of the jurisdiction of the State High court. These can be found in s.236 of the 1979 constitution as well as s 12947 of Decree 50 of 1991. These sections had been subject of judicial interpretation by the supreme court in various cases some of which are Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 296 (1983) 6 SC 159; Western Steel Works Ltd v Iron and Steel Workers Union of Nigeria (1989) 1 NWLR (pt 49) 248 to the effect that the jurisdiction of a High Court is unlimited in all matters except on matters expressly or by implication taken away from the general jurisdiction by a valid statute or Decree. The Supreme court has gone further to state the three main features of the competence of a court or lack of same in the locus classicus case of Madukolu & ors v Johnson Nkemdilim (1962) 2 SCNLR 341 (1962) 1 All NLR 587 per Brett F J as follows:-

 

“Put briefly a court is competent when:-

 

1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another and:

 

2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and

 

3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

 

I have gone through the papers in this case. I observe that all the three conditions have been satisfied in the present action to confer jurisdiction on the court sitting in Omuaran and I so hold. The complaint here in my view is centered on place of instituting and trying the instant suit. To get a clear picture of this complaint it will be necessary to examine the Kwara State High Court (Civil Procedure) Rules 1989 on the place of Instituting and trial of Suit within Kwara state.

 

As a starting point it is necessary to mention that Order 10 Rule 3 of the Kwara State High court (Civil procedure) Rules (hereinafter referred to as the Rules) makes general provisions for the trial of the suits relating to contract as stated by learned counsel to the appellant in paragraph 5.6 pages 7-8 of his appellant’s brief where he admitted that the issues before the court in this appeal deal with the second category of jurisdiction i.e geographical jurisdiction or venue. However, it needs to be pointed out that Order 10 Rules 5 & 6 of the Rules make definite provision as regards the objection to suit commenced in any other Division other than that in which it ought to have commenced and the status of the ruling or Order made on such objection. The rules provide on this subject as follows:

 

“5.     In case any suit is commenced in any other Judicial division other than that in which it ought to have been commenced, it may notwithstanding be tried in the Judicial Division in which it has been commenced unless the court otherwise directs or the defendant pleads specially in objection to the jurisdiction before it at the time when he is required to state his answer or to plead in such cases.

 

6. No proceedings which may have been taken previously to a plea in objection shall be in any way affected thereby but the Judge shall order that the cause be transferred to the Judicial Division to which it may be proved to his satisfaction to belong, or failing such proof, that it be entertained and proceed in the court in which it has been commenced, and the order shall not be subject to appeal”

 

The long and short of the above provisions of the Rules is that even if a suit is commenced in a wrong judicial Division, notwithstanding the provisions of Rule 3 then such suit shall be determined in the wrong Judicial Division. If the trial court orders as such since such order is final and not subject to appeal. The reason for this is clear. It is simply that where a statute takes away a right of appeal as in the instant case, no litigant can be heard on such a matter on appeal since the right to appeal is statutory. This view was confirmed by this court in Onagoruwa v The State (1992) 5 NWLR (pt 244) 713 p 730. The Supreme Court also gave judicial stamp of authority to the view that once an objection to jurisdiction based on venue of trial within a state has been overruled, that was the end of the matter. This was the case of ogbere Onogitere & ors v Echcediare Itietie & ors (1972) All NLR (pt 2) 147 where the court had occasion to interpret the provisions of Order 6 Rule 6 & 7 of the Old Mid West High court (Civil Procedure) Rules which were pari material with the present Order 10 Rules 5 & 6 of the Kwara State Rules (1909) The court held at p 587 per Coker JSC (as he then was) as follows:-

 

“Thus it is clear that after the objection had been overruled by the Judge the defendants are precluded by the provisions of Order 6 rule from raising the point of jurisdiction again as they have now attempted to do before us. Learned counsel for the defendants eventually conceded that this was the actual position in law and dropped the point.”

 

The above stance of the Supreme Court applies to the present appeal by which this court is bound. The appellant in the instant appeal filed a preliminary objection at the Omuaran High Court on the merit. The said objection in full satisfaction of the combined provisions of Rule 5 & 6 of Order 10 of the Rule was considered and dismissed. This appeal has been brought against the said ruling which I hold is final on the point. Since the Preliminary Objection has been overruled by the learned trial Judge, the defendants/appellants in e instant appeal are precluded by the provisions of Order 10 Rules 5 & 6 of the Kwara State Rules 1989 from raising the point of jurisdiction again as they have now attempted to do before us. To say the least it is an abuse of the process of this court and I so hold. This is moreso when the trial Judge had exercised his discretion not to transfer the case validly, the appellate court lacks basis for interfering with such exercise of discretion. See

 

1. Kudoro v Alaka (1956) SCNLR 255 (1956) 1 FSC 82 p 83

 

2. Enekeba v Enekeba (1964) 1 All NLR 102 p 107; (1964) NMLR 42

 

3. Nwuzoke v The State; (1988) 1 NWLR (pt 72) 529 (1988) 2 SCNJ 344

 

4. Alhaji Aliyu Balogun v Alhaji Shittu Labiran; (1988) 3 NWLR (pt 80) 66 (1988) 6 SCNJ 71

 

At this juncture it needs to be pointed out that since the transfer of the present action to Omuaran parties have taken several steps in the matter such that the appellant could be deemed to have waived any right to complain on the venue of the trial. This is moreso when Order 2 Rule 1(1) of the Rules has cured such defect as to venue see also Ariori v Elemo (1983) 1 SCNLR 1 (1983) 1 SCNLR 1.

 

I need to comment on the final phase of the first subsidiary issue raised in this appeal – whether the trial of suit in a wrong Judicial Division affects the jurisdiction of the High court. This poser has been resolved as I indicated earlier on in this judgement by S 234(1) of the 1979 Constitution which established a High court for each state of the Federation. The above constitutional provision has been interpreted by the appellate courts in a number of cases ranging from Chief Osigwe Egbo & ors v Chief Victor Laguma & ors (1988) 3 NWLR (pt 80) 109 p 127 to S. O Ukpai v U. O Okoro & ors (1983) 2 SCNLR 380 where Eso JCA (as he then was) stated thus at pages 390 and 391 inter alia:

 

“There is no doubt that it is more convenient for this election petition to be heard in Afikpo, that is, in the Afikpo Judicial Division as it is this Judicial Division that serves the Federal constituency in question. But then that is certainly not an issue of jurisdiction which I have said is taken care of by sections 345 and 237(2) (c) of the constitution…In my view the High court sitting at Umuahia was right to have held that it had jurisdiction in the matter as there is only one High Court in and with jurisdiction throughout the state. The decision of the Federal Court of Appeal to the effect that there are High courts of the Judicial division is entirely misconceived. There is only one High court in Imo State with jurisdiction all over the State…….”.

 

See also Qua Steel Products Ltd & Anor v Akpan Okong Bassey (1992) 5 NWLR (pt 239) 67 p 75.

 

The second subsidiary issue centers on the power of the Chief Judge to transfer the hearing of the suit to continue at Omuaran. The parties are in agreement that the Chief Judge directed the hearing of this suit to continue at Omuaran. I have considered the submissions of both sides on this subsidiary issue as well. it is necessary to comment on the status of this power of transfer by the Chief Judge under the law. The relevant law is the High court Law Cap 49 Laws of Northern Nigeria applicable to Kwara State (hereinafter referred to as the Law). The general power of the Chief Judge of Kwara State to transfer a case from one Judge to another and by transfer from one Judicial Division to another is enshrined in S. 72 of the Law as follows:-

 

1. The Chief justice may at anytime or any stage of the proceeding before judgment and either or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.

 

2. The power of transfer under this Section shall be exercised by means of an order under the hand of the Chief Justice and the seal of the court and may apply…………

 

1. in its entirety or
2. in respect of any part thereof; or

iii.      in respect of any procedure to be taken thereon;

or

 

(b)     generally to all such causes or maters as may be described in such order whether future or in dependence at the date of the order.

 

3. The power conferred upon the Chief Justice by this Section shall be in addition to and not in derogation from any other power or duty to transfer conferred or imposed upon a Judge by this law or by any other written law.”

 

The gist of the above provision is the granting of a discretion to the Chief Judge on whether to order the transfer of a matter from one Judge to the other or from a Judicial Division to the other or vice versa. However, in order to emphasise the fact this power of transfer by the Chief Judge is a matter of discretion and an Administrative act, s.77 of the Law provides inter alia thus:-

 

“No appeal shall subject to the provisions of section 36 lie from any order of transfer made under section 71, 72 73 74 or 76.”

 

It is important to note that section 36 of the High court Law deals with the reference of matters of jurisdiction of the High court and Sharia court of Appeal to the court of Appeal for resolution in case of dispute as to which of the two courts, had jurisdiction on any issue. However, it is clear from the entire gamut of the High court Law that there are no legal fetters in the discretionary powers of the Chief Judge on the issue of transferring or ordering the hearing of any matter in any Judicial Division within the state once such power is based on legal principles. See Enoghere Onogitere & ors supra. The provisions of section 234 and 236 of the 1979 establishing one High court for each state of the Federation is clear notwithstanding the creation of judicial division in each state. It is my view that there is nothing in the above quoted provision of the High court Law inconsistent with any of the constitutional provisions. Thus once sections 72,73 and 76 of the High court Law are given their ordinary interpretation and meaning as directed by the Supreme court in Toriola v Williams (1982) 7 SC 27 pp 46 48 Board of custom & Excise v Barau (1982) 10 SC 48 pp 127 – 129 Awolowo V Shagari (1979) 6-7 SC 51 pp 63-64.

 

It will be obvious that the appellant cannot appeal against the valid exercise of the Chief Judges power of transfer under S 73 of the Law. The finding of the learned trial Judge on this contained on page 16 of the records went as follows:

“The power to assign or direct cases to the judges or Judicial divisions is vested in the Honourable Chief Judge and this power has been duly exercised in transferring the matter to Omuaran.”

 

Since the appellant has not appealed against this finding of fact, it shows that the Honourable Chief Judge had validly exercised his discretion pursuant to provisions of section 72 73 and 76 of the law and I so hold. In the circumstance any appeal based on the valid exercise of the Honourable Chief Judge’s power is conceived and I so hold.

 

In the result this appeal fails as it lacks merit. It is accordingly dismissed. suit No KWA/12/88 is hereby remitted for trial at the Omuaran Judicial Division as ordered by the Chief Judge of Kwara State. Since this is a (1988) suit accelerated hearing of this matter on a day to day basis immediately after commencement is hereby ordered. Costs of N500.00 is hereby awarded in favour of the respondent.

Cases referred to in the judgment:

 

Ariori v Elemo (1983) 1 SCM;R 1

Awolowo v Shagari (1979) 6 – 7 SC 51

Balogun v Labiran (1988) 3 NWLR (pt 80) 66

Board of Customs v Barau (1982) 10 S C 48

Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 296

Egbo v Laguma (1988) 3 NWLR (pt 80) 109

Enekebe v Enekebe (1964) 1 All NLR 102

Kudoro v Alaka (1956) SCNLR 255

Madukolu v Nkemdilim (1962) 2 SCNLR 341

Nwuzoke v State (1988) 1 NWLR (pt 72) 529

Onagoruwa v State (1992) 5 NWLR (pt 244) 713

Onogitere v Itietie (1972) All NLR (pt 2) 147

Qua Steel products Ltd v Bassey (1992) 5 NWLR (pt 239) 67

Toriola v Williams (1982) 7 SC 27

Ukpai v Okoro (1983) 2 SCNLR 380

Western Steel Works Ltd v Iron & Steel Workers Union of Nig. (1989) 1 NWLR (pt 49) 284.