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Tag: jurisdiction

  • Industrial Court affirms jurisdiction in suits on company funds recovery

    The National Industrial Court of Nigeria sitting in Yola, Adamawa State capital, has held that the court has exclusive jurisdiction to determine civil suits to recover a company’s funds misappropriated by an employee.

    This was the verdict of the Presiding Judge of Yola Division, Justice Nelson Ogbuanya, in a suit by West African Cotton Ltd against Oscar Amos on the issue of jurisdiction raised by the defendant.

    The claimant said the defendant was employed as an accountant in charge of its Yola office  accounts unit in January 2008.

    The claimant accused Amos of embezzling and misappropriating the company’s money.

    Confronted with the allegations in February 2015, the defendant undertook to repay the missing sum, totaling N812,518.40.

    But, the defendant reneged on his promise and allegedly abandoned his duty post for over one year, prompting the claimant to replace him and file the suit.

    Amos said he asked for casual leave to enable him source for funds to replace the missing money.

    He said when he returned to office after the expiration of the casual leave on February 28, 2015 without the sum, he was orally directed to stay away from office until the issue was resolved by the claimant’s head office in Lagos, which he complied with.

    He counter-claimed, asking for the amount covering the five months he stayed away, during which his appointment was not formally terminated.

    In his verdict, Justice Ogbuanya upheld both the employer’s claims and the counter-claim in the sum of N500,000.

    He ordered a set-off to be applied and the employee to refund the balance to the employer within one month to end the employment relationship.

    Justice Ogbuanya held that the court had exclusive jurisdiction on the matter.

    “It is, therefore,  my humble but tenacious view and I hold that, whereas in the instant case, the claimant as an employer, takes the civil option and institutes a civil suit  to pursue an otherwise criminal claim (misappropriation of fund/criminal abuse of office) against its employee trusted with funds in the course of duty at work place, and carefully couch the claim as a civil action (recovery of missing/misappropriated funds) and is ready to establish the case as a civil claim and to discharge the onerous evidential burden placed thereby (for making criminal allegation in civil claim), the National Industrial Court is not only the appropriate court to ventilate the claim, but it also has exclusive jurisdiction to entertain the civil suit, for recovery of misappropriated fund at work place in the course of duty by an employee.

    “In other words, the National Industrial Court of Nigeria has exclusive jurisdiction over civil claims for recovery of misappropriated funds by employee in the course of employment, pursuant to S.254C (1) (a) Constitution of Federal Republic of Nigeria (as Amended by the 3rd Alteration Act 2010), which granted this Court an exclusive jurisdiction, in such civil causes or matter ‘relating to or connected with any labour, employment…and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.’”

  • Court declines jurisdiction in taxi operators’ suit

    Court declines jurisdiction in taxi operators’ suit

    The Federal High Court in Lagos has declined jurisdiction in a suit by some commercial taxi drivers in Lagos against the Incorporated Trustees of Lagos State Taxi Drivers and Cabs Operators Association (LASTDCOA).

    Justice Chuka Obiozor ruled that it was the Lagos High Court that had jurisdiction on the matter.

    The suit was filed by the plaintiffs – Arogundade Adekunle, Kolawole Afolabi and Taofeek Oladokun – on behalf of themselves and other commercial/taxi drivers.

    The second to fourth defendants in the suit are Lagos State Chief Vehicle Inspection Officer (CVIO), Lagos State Attorney-General and Commissioner for Justice and the Corporate Affairs Commission (CAC).

    The plaintiffs, through their counsel, Marcus Eyarhono, sought a declaration that the first defendant, Incorporated Trustees of Lagos State Taxi Drivers and Cab Operators Association, is a private body and not an arm or agent of the Lagos State government. Thus, its decisions/and or activities cannot bind the plaintiffs.

    They also sought a declaration, among others, that they are entitled to carry on business in the state without interference by officers of the second to fourth defendants, or any other person or group of persons.

    But the defendants, in their defence filed through their counsel, Oluwafunmilayo Jimoh, urged the court to dismiss the suit for being “vexatious, frivolous and an abuse of court process.”

    They averred that following the plaintiffs’ petitions to the Lagos State House of Assembly, the lawmakers resolved that the claimants should either identity with with any of 11 state government recognised taxi operators or apply to the Ministry of Transportation as an entity.

    But that the plaintiffs persisted in their “unjust vendetta” against the first defendant and, with the intention of “tackling it until it surrenders”, instituted the suit against the defendants.

    In his ruling yesterday, the judge upheld the defendants’ contention that the applicants had filed their claim in the wrong court.

    Justice Obiozor held: “The subject matter falls within the jurisdiction of the Lagos State High Court. I therefore decline jurisdiction on this matter.

    “However, according to the laws of the federation of Nigeria, 2004, I will not strike out this suit, but I hereby transfer the suit to the Honourable Chief Judge of Lagos State.”

  • Fed Govt challenges court’s jurisdiction on Bi-Courtney’s suit

    Fed Govt challenges court’s jurisdiction on Bi-Courtney’s suit

    The Federal Government has challenged the Federal High Court’s jurisdiction to entertain a suit by Bi-Courtney Limited, following a dispute about concession agreement between them.

    Bi-Courtney is claiming N66 billion as damages arising from an alleged breach of the concession agreement for the re-development of the domestic terminal of the Murtala Muhammed Airport, Ikeja.

    Attorney-general of the federation (AGF), Asset Management Corporation of Nigeria (AMCON) and the Federal Airport Authority of Nigeria (FAAN) are the defendants.

    The Federal Government, through its lawyer, Prof. Fabian Ajogwu (SAN), told Justice Ibrahim Buba that the defendants have pending applications, namely: motion for  a stay of further proceedings and a motion challenging the court’s jurisdiction.

    Bi-Courtney, through its lawyer, Wale Akoni (SAN), also informed the court of its pending application to amend its originating process.

    Ajogwu argued that the court lacks jurisdiction to entertain the suit on the grounds that the reliefs sought by the plaintiff had been decided upon by Justice G. Olotu of an Abuja Division of the Federal High Court.

    The instant suit, he said, therefore constitutes an abuse of court process and should be dismissed.

    “The issues have been determined by Justice Olotu since 2012. I urge the court to grant this application and dismiss the plaintiff’s suit,” he said.

    Bi-Courtney filed the suit by writ of summons on February 1, 2013, seeking damages, declarative and injunctive reliefs following an alleged breach of the agreement ofApril 24, 2003.

    On February 25, 2013, the AGF and FAAN urged the court to strike out Bi-Courtney’s suit or stay proceedings pending when arbitration was concluded.

    Last November 9, Justice Buba dismissed the defendants’ preliminary objection on the grounds that parties in a sister case were already in arbitration.

    Dissatisfied with the ruling, AGF and FAAN filed a notice of appeal on December 11, 2015.

    They averred that unless Justice Buba stays proceedings, the Court of Appeal would be foisted with a fait accompli (an accomplished deed) and its decision would be rendered nugatory.

    “It will be in the interest of justice for this court to grant this application. The plaintiff/respondent will not be prejudiced by the grant of this application,” the defendants said.

    But Bi-Courtney opposed the application. Akoni said the claims in the suit had not been decided by any other court.

    He said the case was about the Federal Government not honouring the agreement, which was not an issue before the previous judge.

    “I urge your lordship to dismiss this application,” Akoni said.

    Bi-Courtney said the Federal Government owes it N132 billion, adding that it was not indebted to AMCON, which sought to take over its assets.

    The plaintiff said Justice Olotu, on April 5, 2012, ordered the Federal Government, through the AGF, to pay it N132, 540,580,304.00, “being money due to be rendered and remitted to the applicant (Bi-Courtney).”

    The judge had directed the AGF “to mandatorily compel” the affected government institutions and bodies to make the payment “without any further delay” to Bi-Courtney.

    Justice Buba adjourned until April 21 for ruling on the application challenging the court’s jurisdiction.

     

  • Court declines jurisdiction on NCP’s suit

    Court declines jurisdiction on NCP’s suit

    A Lagos State High Court sitting in Igbosere yesterday declined further jurisdiction in a suit by the National Conscience Party (NCP), challenging the appointment of executive secretaries to manage the affairs of the 57 Local Governments and Local Council Development Areas (LCDAs).

    Justice Abdulfatai Lawal had fixed the matter for hearing of the applications for stay of execution of the earlier judgment delivered by the court on October 23, last year, but elected to decline further jurisdiction after confirming that the records of proceedings have been transmitted to the Court of Appeal.

    In the said judgment, Justice Lawal had declared the appointment of caretaker committees in Lagos State as illegal and unconstitutional.

    He ordered the State Independent Electoral Commission (LASIEC) to conduct election within 30 days.

    Dissatisfied, the government filed a notice of appeal against the judgment and prayed the court to stay execution of the judgment, pending the hearing and determination of the appeal.

    At the resumed hearing, a counsel representing the Attorney General and Commissioner for Justice, Adeniji Kazeem, informed the court that the records of appeal had been transmitted to the Appeal Court, thereby ousting the jurisdiction of the High Court to continue with the matter in accordance with Order 4 Rule 10 and 11 of the Court of Appeal Rules 2011.

    The trial judge, who agreed with the argument, held that indeed his court had become functus officio of the matter, and subsequently declined jurisdiction.

    The records of proceedings transmitted to the Court of Appeal were dated November 17, last year.

    The government and LAISEC are contending that unless the Independent National Electoral Commission (INEC) gave voter register to LAISEC, election cannot be conducted in the state.

    They argued further that the delay in the conduct of elections could not be blamed on the government, and thereby urged the court to dismiss the case.

    The Court of Appeal is yet to give a date for hearing of the appeal.

  • ‘CCT can’t proceed with trials while its jurisdiction is being challenged’

    The Composition of the Tribunal is stated in paragraph 15(1) of Part 1, Fifth Schedule of the 1999 Constitution.

    It shall consist of a Chairman and two members. The expression “shall” is mandatory. The qualification of the Chairman is prescribed.  Although by paragraph 15(3) the Chairman and the members shall be appointed by the President in accordance with the recommendation of the National Judicial Council, the qualifications of the other two members are not prescribed. It is however unarguable that there shall be three members to constitute the Tribunal.

    In sub-paragraph (4) of Paragraph 15, the National Assembly is empowered by law to confer on the Code of Conduct Tribunal, such additional powers as may appear to it to be necessary to enable it more effective to discharge the functions conferred on it in this Schedule.

    Paragraph 12(1) – (4) provides for the tenure of the Office of Chairman and Members of the Tribunal.

    Paragraph 18 (1) – (7) provides for the powers of the Tribunal i.e. the jurisdiction of the Tribunal which is found in Part I paragraph 1–13 of the Fifth Schedule.

    In addition, paragraph 18(2) which prescribes the punishment is specific as to the nature of the powers of the Tribunal. This is paragraph 18 (2). Paragraph 18(3) enlarges the punishment to include the penalties that may be imposed by any law where the conduct is also a criminal offence.

     

    Analysis of the provisions

    It appears from the enabling law that the jurisdiction of the Code of Conduct Tribunal is confined and limited to the conduct clearly outlined in paragraphs 1–13 of the Fifth Schedule. The conduct proscribed has been stated in considerable detail and appears to be exhaustive. These are the only powers it can legally and lawfully exercise.

    It is pertinent to observe that the law which enables the Code of Conduct Tribunal to try persons who have contravened the provisions of the Code have carefully avoided the use of the expression criminal to describe the conduct so punished.  It does not contemplate any other conduct.  Epressio unius est exclusio alterius.  Rather it provides in paragraph 18(3) that the sanctions in paragraph 18 (2) may be imposed, without prejudice to the penalties in any law where the conduct is also a criminal offence.  See also the definition of misconduct in paragraph 19.

    Again paragraph 18(6) has stated clearly that a finding of guilt by the Tribunal for contravention is not a conviction for an offence in a Court of law.  Thus rejecting the defence of autrofois convict or acquit.

    The interpretation provision of paragraph 19 has defined misconduct in the Code to “mean breach of the oath of allegiance or oath of office of a member or breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities”.

  • ‘Courts, tribunals can exercise concurrent jurisdiction on qualification’

    ‘Courts, tribunals can exercise concurrent jurisdiction on qualification’

    A single decision of the Governorship Election Tribunal of Lagos State (here inafter referred to as the “trial tribunal”), in Petition No. Gov./EPT./L/15/2015, delivered on July1, 2015, gave birth to four extant appeals. This cross-appeal is one of them. It probes into the correctness of some portions of the decision; precisely the competence of Paragraphs 13(b) and 14 of the Petition as viable grounds to query the election.

    The facts of the petition, which transformed into the cross-appeal, are submissive to brevity and easy comprehension. The third Cross-Respondent, the Independent National Electoral Commission (INEC, for short), a body constitutionally assigned with the onerous task of conducting election in Nigeria, conducted election into the office of the Governor of Lagos State on April 11, 2015. In the said election, the fourth Cross-Respondent was the flag bearer of the Cross-Appellant, All Progressives Congress, (APC): a registered political party in Nigeria. The second Cross-Respondent, Peoples Democratic Party, (PDP), another registered political party in Nigeria, had the first Cross-Respondent as its standard bearer during the election. At the end of the election exercise, the third Cross-Respondent, INEC, via the fifth Cross-Respondent, declared and returned the fourth Cross-Respondent as the winner of the election. The first and second Cross-Respondents were displeased with the result of the election. Hence, on 30th April, 2015, they beseeched the trial tribunal, by dint of a petition, and solicited for the some reliefs. In expected reactions, the Cross-Appellant and the fourth Cross-Respondent and the third and fifth Cross-Respondents filed their respective replies which joined issues with the petition. At the closure of pleadings, the petition and replies, the Cross-Appellant brought an application, wherein it entreated the trial tribunal to strike out or dismiss the petition for lack of jurisdiction on the grounds that:

    1. The petition was incompetent having failed to state any grounds recognised by law for presenting the petition and which grounds ought to be struck out brevi manu;
    2. While grounds (a) and (b) contained in Paragraph 13 of the petition are completely unknown to the Electoral Act, ground (c) contained on page 14 of the petition is a pre-election matter in respect of which the Tribunal has no jurisdiction;
    3. The petitioners did not meet all the conditions precedent to present the petition.

    The first and second Cross-Respondents, stoutly, registered their opposition to the application. Prior to hearing of the petition, exactly on 26th June, 2015, owing to the incompatible stands of the counsel for the parties, the trial tribunal had ruled that all the notices of preliminary objections and motions “shall be heard and determined in the pre-hearing session”. Sequel to that, the trial tribunal consolidated the Cross-Appellant’s application with other preliminary objections and fused their hearing. In a considered ruling, delivered on 1st July, 2015, the trial tribunal struck out the petition. The first Cross-Respondent was aggrieved by the decision and appealed against it in Appeal No. CA/L/EP/Gov/744/2015. This cross-appeal is the Cross-Appellant’s expression of its dissatisfaction with some parts of the decision.

    In the Cross-Appellant’s brief of argument, it distilled two issues for determination to wit:

    1. Whether the Tribunal was right in its decision when, having held that Paragraph 14 of the petition is a challenge against the nomination of the 4th Cross-Respondent, still went ahead to hold that the said Paragraph 14 of the petition is valid ground for presenting a petition.
    2. Whether the Tribunal did not err in law when it held that Paragraph 13(b) of the petition, which complained of “Irregularities in respect of the use of the card reader during the election”, is a ground recognised under Section 138(1)(b) of the Electoral Act, 2010 (as amended).

    All the Cross-Respondents, who filed briefs of arguments, adopted the two issues formulated by the Cross-Appellant.

     

    Arguments on the issues

     

    Learned counsel for the Cross-Appellant submitted that Paragraph 14 of the petition raised issue of nomination which was a pre-election for which the High Court or Federal High Court, not the trial tribunal, had jurisdiction. He referred to Sections 177(C) and 182(1) of the Constitution, as amended. He added that Section 85(1) of the Electoral Act, 2010, as amended, could not add or subtract from the qualification on those provisions. He relied on INEC v. MUSA (2003) 3 NWLR (Pt. 806) 72; (2003) LPELR-1515(SC) for the submission. He noted that the Constitution allowed the National Assembly to legislate on election matters in its Section 184(a)-(c), not the issue of giving 21 days notice of convention to INEC. He stated that the only situation where valid nomination could become part of qualification was as contained in Section 187(1) of the Constitution. He posited that the word “shall” in Section 85(1) of the Electoral Act should be construed as “may” because it had no sanction. He relied on Ifezue v. Mbadugha (1984) NSCC, Vol. 15, 15; (1984) LPELR-1437(SC), Monye v. PTFTM (2002) 15 NWLR (Pt. 789) 209; Section 85(2) of the Electoral Act for the point. He explained that valid nomination would be pertinent in a lawful exclusion from an election. He cited Section 138(1) (d) of the Electoral Act for the view. He noted that invalid nomination qualified as pre-election matter. He cited Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; (2011) LPELR-950(SC) for the point. He explained that the purpose of Section 177 of the Constitution, as amended, was to avoid independent candidacy and not a basis for presenting petition. He criticised the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) and distinguished it from the case in hand. He maintained that a person who did not contest a primary election had no locus standi to challenge its outcome under Section 138(1) (a) of the Electoral Act 2010, as amended. He referred to Bewaji v. Obasanjo (2008) 9 NWLR (Pt. 1093) 540 on the relationship between reliefs and locus standi.

    For the first Cross-Respondent, learned counsel contended that for the fourth Cross-Respondent to be qualified, he must be properly nominated under Section 85(1) of the Electoral Act. He insisted that the trial tribunal rightly applied the ratio decidendi in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC). He reasoned that Paragraph 14 of the petition was a ground that could be addressed in the High Court and in a tribunal. He stated that a pre-election matter, like in the case in hand, could constitute a ground to challenge election. He postulated that a political party must comply with the provisions of Section 85(1) of the Electoral Act for its candidate to qualify as a candidate for an election. He explained that the Act was not in conflict with Sections 177 and 182 (1) of the Constitution, as amended.

    On behalf of the second Cross-Respondent, learned counsel aligned with the submission of the counsel for the first Cross-Respondent that the trial tribunal had jurisdiction in respect of Paragraph 14 of the petition.

    For the fourth respondent, learned counsel submitted that Section 85 of the Act could not be regarded as qualification issue as it related to nomination. She added that Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) and Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED) were not applicable to the case. She reproduced Sections 177 and 182(1) of the Constitution, as amended, and persisted that they had covered the field on the requirement for eligibility as a gubernatorial candidate. She noted that sponsorship was not the case of the first and second Cross-Respondents in the trial tribunal and a Court should not make a case for a party. She adopted the submission of the Cross-Appellant who had the locus standi to question his nomination obtained in a primary election.

     

    Resolution of the issues

     

    The Court in determining issue 1 of the appeal considered the provision of Section 138(1) of the Electoral Act. The Court noted that the provision, which has fallen for interpretation in an avalanche of cases, donates to a party a right to challenge an election on any of the listed grounds, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; (2013) LPELR-19762(SC). The Court noted that the kernel of the Cross-Appellant’s grievance is that the averment in Paragraph 14 of the Petition amounted to a pre-election matter for which the trial tribunal was stripped of the necessary jurisdiction to entertain it. The Court stated that jurisdiction is the authority a Court or tribunal has to adjudicate over a matter submitted to it. Where a Court is drained of the requisite jurisdiction, its proceedings on a matter, no matter the quantum of diligence, brilliance, sophistry and transparency invested in it, will be trapped in the intractable vortex of a nullity, see Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50; (2012) LPELR-7827(SC) (CONSOLIDATED), Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; (2014) LPELR-24217(SC. Thus, no Court would cherish indulging in a juridical exercise whose destiny is a nullity and, de jure, a wasted venture. The Court further stated that the provisions of Section 177 and 182 of the Constitution, as amended, explicitly, enumerate the conditions a person must meet in order to be qualified to contest election for the office of a governor of a state, see PDP v. INEC (2014) 17 NWLR (Pt. 1347) 525. The Court held that nomination connotes “appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named”, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; (2011) LPELR-950(SC). The Court further held that the law has classified nomination and sponsorship as pre-election matters. The Court held further that in the eyes of the law, qualification/disqualification of a candidate for an election is an amphibious incident in that it appertains to pre-election and post-election matters. Put simply, a challenge to qualification/disqualification of a candidate enjoys the status of pre-election and postelection matters, see Gwede v. INEC (supra); Akpamgbo- Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. Thus, the law has endorsed the hybrid status of qualification/disqualification of a candidate in an election. The Court then asked which Court has the jurisdiction to entertain a challenge to qualification? The answer the Court held is discernible from Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED).

    The Court held that it flows that the law allots/allocates concurrent jurisdiction to the regular Courts, Federal High Court or High Court, on the one hand, and election tribunal, on the other hand, to adjudicate over qualification/disqualification of a candidate to contest an election. If a party decides to visit the regular Courts for redress, then the law preserves his right to pursue his right beyond the holding of an election, see Ikechukwu v. Nwoye  (2015) 3 NWLR (Pt. 1446) 367. On the authority of Gwede v. INEC (2015) 242 LRCN 138, a party can approach the regular Courts on a pre-election matter even after election provided he acts timeously. The Court noted that the philosophical basis for this hallowed principle of law is to repel any injustice that may be inflicted on parties in electoral process. In sum, the Court held that the first and second Cross-Respondents did not insult the law by incorporating Paragraph 14, which questions the qualification of the fourth Cross-Respondent, in their petition.  The Court dishonoured the inciting and enticing invitation of the Cross-Appellant to ignore the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) on account of per incuriam. The Court noted only the Supreme Court that is imbued with the jurisdiction to do so.  In the end, the Court resolved issue one against the Cross-Appellant and in favour of the first and second Cross-Respondents.

    The Court noted that the heart of issue 2 is that Paragraph 13(b) of the petition does not qualify as a ground to challenge the election of 11th April, 2015. In considering this issue, the Court situated the Paragraph with the prescription of Section 138(1) of the Electoral with a view to discovering its validity. The Court noted that indisputably, the law mandates parties to election petitions to adhere strictly to statutory forms in drafting their grounds of petitions. The Court noted that the case of Ojukwu v. Yar ‘adua (2009) 12 NWLR (Pt. 1154) 50; (2009) LPELR-2403(SC) lavishly and freely cited by the feuding parties to fetch the favour of the Court, allows a petitioner to “use his own language to convey the exact meaning and purport of the subsection”, at 121, per Tobi, JSC. The Court further noted the authority, also, gives a petitioner the licence to paraphrase the grounds upon which an election can be challenged. The Court held that the content of Paragraph 13(b) does not, in the least, fit into any of the grounds catalogued in the inviolate provision of Section 138(1) of the Electoral Act. Issue 2 was resolved in favour of the Cross-Appellant and against the first and second Cross-Respondents.

    On the whole, having resolved the two issues for and against the Cross-Appellant, the Court held that the appeal was partially-meritorious and succeeds in part. Consequently, the Court allowed the cross-appeal in part. Accordingly, the Court affirmed the portion of the trial tribunal’s decision declaring Paragraph 14 of the petition as competent and triable by it. The Court aside its part of the decision which approved Paragraph 13(b) as a competent ground for presenting the petition. In lieu of it, it struck out the Paragraph 13(b) of the petition on account of incompetence.

     

    • Edited by LawPavilion, LawPavilion Citation: (2015) LPELR-25668(CA)

     

     

  • Court assumes jurisdiction over N100m suit filed against developer

    Court assumes jurisdiction over N100m suit filed against developer

    A Lagos State High Court sitting in Epe has assumed jurisdiction over the suit filed by Homeowners within the Pearl Garden Estate situated at Sangotedo Village in Eti-Osa Local Government Area of the state against a property developer, Oyetubo Jokotade Estate Resource Limited.

    The claimants had sued the property developer before the court over alleged incessant harassment and imposition of arbitrary charges.

    Joined as second defendant in the suit is CMB Building Maintenance and Investment Company Limited, which is in charge of providing estate management services.

    The N100 million suit was instituted by Messrs Francis Adesuyi, Felix Obiakor, Martin Ajayi-Obe and Peter Afenotan on behalf of themselves and all interested homeowners within the Pearl Garden Estate.

    The trial judge,  while assuming jurisdiction over the suit, dismissed the defendants application which prayed for the matter to be referred to arbitration.

    The judge in his ruling, held that the defendants had already  taken certain steps in the suit which had conferred jurisdiction on the court.

    Justice  Bashua also  fixed June 15, 2015 for hearing of an interlocutory application dated February 19, 2015 which was filed by the claimant’s counsel, Mr Adeyinka Adeyemi.

    He directed the defendant’s counsel, Mr. Gabriel Uwaifo, to file his reply in order for the court to hear arguments on the said application.

    In the application, the claimants are asking the court for an Order of Interlocutory Injunction restraining the defendants and their agents from harassing or restricting the movement of the homeowners within the estate, pending the hearing an determination of the substantive suit.

    They also asked for:”an Order of Interlocutory Injunction restraining the defendants and their agents from interfering with the rights of the homeowners in providing safe and drinkable water for themselves and their family members, pending the hearing an determination of the substantive suit.

    “An Order of interlocutory injunction restraining the defendants and their agents, further demanding or collecting reticulation charges in the sum of N650,000 or any other sums from the claimants contrary to the express terms of the Deeds of Assignment and the Sale and Management Agreement, pending the hearing an determination of the substantive suit.”

    The claimants further asked the court to restrain the defendants and their agents from further collecting the unilaterally imposed N35,000 fee from the homeowners, pending the hearing an determination of the substantive suit.

     

  • Calabar dredging suit: Defendants to be served outside jurisdiction

    Calabar dredging suit: Defendants to be served outside jurisdiction

    Justice Emmanuel Obilo of the Federal High in Calabar, Cross River State, yesterday granted Sam Nmeje’s prayers to serve the defendants outside the jurisdiction of the court.

    Nmeje instituted the suit to declare as illegal the contract awarded for the dredging of the Calabar Channel.

    The President, the Attorney-General of the Federation (AGF), the Minister of Transport, the Nigerian Ports Authority (NPA), the Bureau of Public Procurement (BPP) and the Calabar Channel Management Limited are the first to sixth defendants.

    Presenting a motion ex parte yesterday, Mr Monjok Agom, who held brief for the plaintiff’s lawyer, Mr Reginald Osere, sought two reliefs.

    These are: •An order granting the plaintiff/applicant leave “to serve originating processes in this suit to the 1st to fifth defendants outside the jurisdiction of the court” and

    •“An order directing that the sixth defendant to be served by substituted means by publishing same in one national newspaper on the grounds that the bailiff could not effect service after multiple trials.”

    After listening to Agom’s presentation, Justice Obilo said the applicant had satisfied the requirement for granting the first relief sought.

    But the second relief was refused because the applicant had refused to fulfil the requirements for its grant.

    “There is nothing placed before this court to show that the bailiff ever attempted to serve the sixth defendant at any time. The sixth defendant is entitled to personal service,” he said.

    Justice Obilo fixed the report of service in the case for March 24.

    Speaking with our reporter after the court sitting, Agom said: “Today was a routine application for the case to begin. The parties ought to be served so that at the end of the day, we know that these are the issues before the court. So, for this application, the rules require that if you are to serve an application outside of a state – because some of the parties are to be served in Abuja – you ought to bring a formal application to that effect so that permission would be granted to you; so that you now serve outside of the state.

    “For the first to fifth defendants, the court accepted that they should be served outside Abuja, but refused that the sixth defendant could not be served by a publication in the newspaper, and ought to be served personally.

    “The judge noted that there was nothing in the application to show that the bailiff had actually tried to reach them without success.”

  • Supreme Court has no direct appellate jurisdiction on lpdc’s decisions

     
    IN THE SUPREME COURT
    HOLDEN AT ABUJA
    ON FRIDAY 16TH MAY, 2014

    Before their lordship

    MAHMUD MOHAMMED, J.S.C.
    IBRAHIM TANKO MUHAMMAD, J.S.C.
    JOHN AFOLABI FABIYI, J.S.C.
    SULEIMAN GALADIMA, J.S.C.
    MARY UKAEGO PETER-ODILI, J.S.C.
    MUSA DATTIJO MUHAMMAD, J.S.C.
    KUDIRAT OLATOKUNBO KEKERE-EKUN, J.S.C.
    Between

    ROTIMI WILLIAMS AKINTOKUN
    Appellant

    And

    LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC)…

    Respondent

    Lead Ruling by Justice Muhammad

    This interlocutory ruling stemmed from the appeal filed by Mr. Rotimi Williams Akintokun, the appellant, which he filed sometime in April, 2006. From the record of appeal before the Court, Mr. Akintokun, a legal practitioner, was practicing under the name and style of “ROTIMI WILLIAMS AKINTOKUN AND COMPANY” of 75B, Coker Road, Ilupeju, Lagos. The complaint levied against Mr. Akintokun emanated from a petition written against him to the Nigerian Bar Association [NBA] by his clients, the Ogunesu Family of Ule Ogunesu, 4 Olubi Street, Itundegun, Ikorodu, Lagos State. The clients alleged in their petition that Mr. Akintokun committed acts of professional misconduct in that while acting as their solicitor, he deliberately misled them regarding an alleged acquisition of their land by the Lagos State Government. That he failed to carry out his clients’ instructions to promptly move against adversaries in respect of the land. He also caused the land to be under-surveyed with intent to cheat his clients. That he went further to sell the land without any authorization and contrary to the instructions of his clients. That he employed extra-judicial methods while pretending to be carrying out the instructions of his clients. On the 4th day of April, 2006, after completion of hearing, the Legal Practitioners Disciplinary Committee [LPDC] of the Body of Benchers delivered its Direction in which it directed the Chief Registrar of the Supreme Court to strike off the name of Mr. Akintokun from the Roll, as a legal practitioner in Nigeria. Mr. Akintokun was dissatisfied with the direction of the LPDC and he lodged his appeal to the Supreme Court.

    Parties to the appeal filed and exchanged briefs of argument. The appeal was slated for hearing on the 22nd day of October, 2013. On the hearing date, the panel, headed by Onnoghen, JSC; raised the issue, suo motu; whether the Honourable Court had the jurisdiction to hear an appeal direct from the LPDC, in view of the court’s recent decision in ALADEJOBI V NIGERIAN BAR ASSOCIATION. Appeal No.SC.121/2011, delivered on the 12th day of July, 2013 (now reported in (2013) 15 NWLR (PT.1376) 66); (2013) LPELR-20940 SC. Some arguments were proffered before the panel by each of the counsel for the respective parties, both asking the court to depart from its decision given earlier in Aladejobi’s case. The panel exercised its discretion and fixed the 13th of January 2013, for the issue raised to be heard by a full court, consisting of a seven member panel. That is how the present panel which took arguments from the parties came about. It is to be noted that the Hon. Attorney General of the Federation and the President of the Nigerian Bar Association were invited by the Court to serve as Amicus Curiae with a view to enriching the arguments on the issue.

    In all the four briefs of argument filed by [1] Chief Bolaji Ayorinde, SAN who was for the appellant in the appeal; [2] Mr. Emmanuel C. Aguma for the respondent in the appeal; [3] Mr. Mohammed Bello Adoke, SAN, as Amicus Curiae and [4] Mr. Oke Wali, SAN, Amicus Curiae, the single issue raised for determination is similar and that is:

    “Whether in view of its recent decision in JIDE ALADEJOBI V. NIGERIAN BAR ASSOCIATION, the Supreme Court has jurisdiction to entertain the instant appeal against the direction of the Legal Practitioners Disciplinary Committee.”

    In his submissions, the Learned Senior Counsel for the Appellant in the main appeal, Chief Ayorinde, argued that the decision of the court in the case of Aladejobi v Nigerian Bar Association now reported in (2013) 15 NWLR (P1.1376) 66; (2013) LPELR-20940 SC, to the effect that the Supreme Court does not have jurisdiction to entertain appeal against the direction of the Legal Practitioners Disciplinary Committee was given per incuriam and he insisted the Court to depart from its decision in Aladejobi’s case. He referred to the case of Charles Okike v The Legal Practitioners Disciplinary Committee (No.1) 2005 3-4 SC 49 at 67, where the Court held that it had jurisdiction to entertain an appeal from the Directions of the LPDC. Chief Ayorinde submitted that the decision in Okike (supra) was never overruled in Aladejobi’s case. It was Okike v. LPDC (No.2) (2005) 15 NWLR (Pt.49) 471; (2005) LPELR-2450(SC) which was considered and is clearly different and distinct from Okike No.1. He submitted that the principle of law decided in Okike No.1 is still valid and subsisting and it is the law to be followed as regards jurisdiction of the Supreme Court to entertain appeal from the Directions of the Legal Practitioners Disciplinary Committee.

    It was Chief Ayorinde’s further submission that assuming, without conceding, that the case of Okike No.1 was considered by the Court in Aladejobi’s case, the court was yet invited to set aside its decision in Aladejobi’s case. That it is undisputed that the Appeal Committee of the Body of Benchers is yet to be created up till now and an Appellant cannot appeal to a non-existing body. In relation to the discipline of Legal Practitioners, generally, Chief Ayorinde made copious references to some statutes and case law such as the Legal Practitioners (Amendment) Decree No. 21 of 1994. He argued that the Legal Practitioners Act Cap. L11, Laws of the Federation, 2004, did not take into cognizance the substantial amendments made by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 and it does not represent the law. Chief Ayorinde urged the Court to depart by overruling the decision in Aladejobi’s case in Appeal No SC.21/2011 delivered on 12/07/2013.

    Learned counsel for the respondent in the appeal, Mr. Aguma made his submission in the brief of argument filed by him in respect of this matter that the judgment of the court in Aladejobi’s case (supra), did not take into consideration the court’s earlier decision in Okike’s case (supra) that had completely resolved the matter. The court in that case, he added, reviewed Decree No.21 of 1994 and agreed that it had through a process of amendment created a new section 12[7] of the Legal Practitioners Act that allows appeal from directions of the LPDC to lie direct to the Supreme Court. The Court he argued is vested with jurisdiction to hear appeals directly from the LPDC of the Body of Benchers. He conceded further that there is some difficulty that is created by the Law Reviewers because the amendments legislated in the procedure for the discipline of erring legal practitioners by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 are omitted in the published statute. This omission, learned counsel submitted further, is capable of misleading the most diligent of courts and counsel.

     

  • When parties may invoke original jurisdiction of Supreme Court

    IN THE SUPREME COURT OF NIGERIA

    HOLDEN AT ABUJA

    ON FRIDAY THE 11TH DAY OF APRIL, 2014

    BEFORE THEIR LORDSHIPS:

    MAHMUD MOHAMMED, J.S.C.

    JOHN AFOLABI FABIYI, J.S.C.

    NWALI SYLVESTER NGWUTA, J.S.C.

    MARY UKAEGO PETER ODILI, J.S.C.

    MUSA DATTIJO MUHAMMAD, J.S.C.

    KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

    JOHN INYANG OKORO, J.S.C.

    Between :

    The Attorney-General of Lagos State …. Plaintiff

    And

    The Attorney-General of the Federation & 35 Ors …. Respondents

    By an Amended Originating Summons  dated 10th August, 2009 and filed at the Registry of this Court on 12th August, 2009, the Plaintiff Lagos State through its Attorney-General, invoked the originating jurisdiction of the Supreme Court and sued the 1st Defendant, the Federation of Nigeria through the Attorney-General of the Federation and claimed that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other Legislative Body to enact Laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No.102 of 1993, now Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004, for the determination of the following questions.

    1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an Act of the National Assembly?

    2. If the answer is in the affirmative whether the combination of the provisions of Section 2, 4, 6 and 7 of the said Value Added Tax Act which empowered a Federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other States of the Federation?

    3. If the answer to question 2 is in the affirmative, whether Sections 2, 3, 4, 5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.

    The 1st Defendant, the Attorney General of the Federation, upon being served the amended Originating Summons, filed a Notice of Preliminary Objection pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 and Section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999 urging the Court to strike out and/or dismiss the Plaintiff’s suit on the grounds set out in the schedule to the preliminary objection.

    Before considering the issues, the Court stated that a judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties. The Court further stated that being a challenge to the jurisdiction of the Court to entertain Plaintiff’s action, therefore, 1st Defendant’s preliminary objection has to be determined first. Having been raised, all proceedings must abate until the issue is resolved.

    The two issues the 1st Defendant considers to have arisen for the determination of his preliminary objection as distilled at paragraph 3 of his written brief thereon read:-

    “1. Whether the Supreme Court’s original jurisdiction can be invoked where the Acts and Allegations constituting the main dispute are Acts of an Agency of the Federal Government.

    2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

    On the 1st issue arising from the preliminary objection, Mr. J. B.  Daudu ( SAN), 1st Defendant’s learned senior counsel, submitted that the original jurisdiction of the Supreme Court is provided for under Section 232 (1) of the 1999 Constitution. And for the original jurisdiction of the court to be invoked, it was contended, the Plaintiff’s claim must disclose a dispute between the federation and a state or states as constituent unit or units or between the states inter-se. The dispute, 1st Defendant’s learned senior counsel further submitted, must be one on which the existence or extent of a legal right of the parties in their capacities as such is involved. Learned senior counsel relied on AG Bendel State v. AG Fed (1982) 3 NCLRI, AG Federation v. AG Abia State (2001) 1 NWLR (pt.625) 689 at 728, AG Federation v. AG Imo State (1993) 4 NCLR 178 and more particularly AG Kano State v. AG. Federation (2007) 3 SC 59 at 1.

    Counsel further contended that the affidavit in support of Plaintiff’s originating summons, only disclosed a dispute between the Plaintiff and an agency of the 1st Defendant. Plaintiff’s complaint, it was further argued, centres squarely on the collection of Tax on supply of goods and services by the Federal Inland Revenue Services which Act makes it tremendously difficult for the Plaintiff or any of its agencies to collect taxes from those sources. He submitted that the Plaintiff’s claim is about restraining 1st Defendant’s agent from imposing and collecting taxes on the supply of goods and services within Lagos State and no more. Being a claim pertaining to the acts of an agency of the 1st Defendant rather than a dispute between the federation and the Plaintiff or between the states themselves as constituents of the federation, the original jurisdiction of the Supreme Court under Section 232 (1) of the 1999 Constitution cannot be invoked by the Plaintiff/Respondent. Further relying on the decision of this Court in AG Benue State v. AG Federation and 35 others (supra), learned senior counsel urged that the Plaintiff’s suit as presently constituted be struck-out for want of jurisdiction.

    On the 2nd issue, learned senior counsel for the 1st Defendant contended that the Plaintiff’s suit which seeks to re-litigate afresh issues that had been tried and decided by courts of competent jurisdiction other than the Supreme Court is an abuse of the process of this Court. Learned senior counsel inter alia relied on AG Ondo State v. AG Ekiti State (2001) 7 NWLR (Pt.743) 706, CBN v. Ahmed (2001) 11 NWLR (Pt.24) 369 and Ogoejofo v. Ogoejofo (2006) 22 NWLR 183 and contends that the suit constitutes an abuse of the process of this Court. Learned senior counsel further submitted that the Plaintiff and the 1st Defendant were the principal parties in suit No.ID/105/01 wherein the Plaintiff obtained a decision in his favour. The nominal parties and the 1st Defendant being dissatisfied with the decision filed appeals CA/L/23/04 and CA/L/727m/05 respectively. The two appeals are still pending. It is the same subject matter, contended learned senior counsel that the Plaintiff raises in the present suit. Again, suit No FHC/L/205/04 between the Plaintiff and the agents of the 1st Defendant as well as Plaintiff’s appeal No. CA/L/428/05 on the same subject matter instantly raised by the Plaintiff, have all been determined against the Plaintiff. The Plaintiff is yet to appeal against the decision of the Court of Appeal. On the whole, Plaintiff’s claim, learned senior counsel to the 1st Defendant submitted, should be struck out and/or dismissed.

    Responding to the 1st issue for the determination of the preliminary objection, Mr. Sofunde (SAN)  for the Plaintiff submitted that it is the claim of the Plaintiff that determines a court’s jurisdiction. Learned senior counsel relied on AG Federation v. AG Abia State (2001) 11 NWLR (Pt.625) 689 at 740 and Izenkwe v. Nnadozie 14 WACA 361 at 363 from which the former decision drew.  Learned senior counsel submitted that a dispute is clearly shown to exist between the Plaintiff and the federation. Learned Plaintiff’s counsel concedes that on the authorities, particularly AG Kano v. AG Federation (2007) 6 NWLR (Pt.1029) 164 at 182 the existence of a dispute between the federation and a state or the states inter-se as constituent units is an essential requirement for the invocation of the original jurisdiction of this Court.

    By the reliefs the Plaintiff seeks and the facts as contained in the relevant paragraphs in his supporting affidavit, Plaintiff’s learned senior counsel contended that the Plaintiff’s suit is challenging the constitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the Act. Plaintiff’s grouse in the suit is not really about the act of the collection of these taxes by the F.I.R.S., an agency of the 1st Defendant, but rather on the legality or otherwise of the legislation on which the acts of the F.I.R.S. are founded. The Plaintiff, it is submitted, has no dispute with the Federal Board of Inland Revenue which remains a mere agent but with the legislative competence of the 1st Defendant vis-a-vis the taxes collected by the Board. Were the Plaintiff’s quarrel to be in relation to the act of collecting this tax by 1st Defendant’s agent without more, it would have been impossible to bring Plaintiff’s claim within the purview of Section 232 (1) of the 1999 Constitution that provides for this Court’s original jurisdiction.

    Learned senior counsel cited the cases of AG Abia State v. AG Federation (2007) 6 NWLR (Pt.1029) 200 and AG of Benue State v. AG of the Federation & 35 others unreported decision of this Court in Appeal No.179/2006 delivered on 25th October, 2007.