Lack of jurisdiction removes court’s competence – Appeal Court

CORAM This is an appeal against the ruling of the Federal High Court delivered by Hon. Justice D. D. Abutu (as he then was) on the 28th September, 2001 wherein the lower court accepted an invitation to set aside its judgment delivered on 26th September, 2000.  The appellant dissatisfied with the ruling filed a 1st […]

CORAM
This is an appeal against the ruling of the Federal High Court delivered by Hon. Justice D. D. Abutu (as he then was) on the 28th September, 2001 wherein the lower court accepted an invitation to set aside its judgment delivered on 26th September, 2000.  The appellant dissatisfied with the ruling filed a 1st Amended Notice of Appeal setting out 3 grounds of appeal.
The brief facts of this appeal are that the appellant was claimant at the lower court and judgment was entered in its favour in the absence of the respondents who later applied asking the court to set aside its judgment given in default of defence and appearance.  The court set aside the said judgment, a decision which aggrieved the appellant thus this appeal.
The appellant filed his brief of argument dated 28/1/2013 on the same day but deemed on the 24/2/15 which was relied upon and adopted at the hearing of this appeal.
The respondents filed a joint respondents’ brief dated 19/9/2014 deemed on the 24/2/15, relied upon and adopted at the hearing.
The appellant formulated 2 issues for determination as follows:
1.            Whether a trial court has jurisdiction to set aside its own judgment given on the merits of the case on the ground that a party seeks to raise a defence, after trial that the original suit was statute barred?
2.            Whether this honourable court should reverse the ruling of learned trial Judge of 26th September, 2001 and restore the judgment made on the merits of the case.
The respondents on their part also distilled 2 issues for determination as follows:
1.            Whether the Federal High Court has jurisdiction to hear and make declaration in a matter relating as it did in its judgment sought to be restored by the appellant.
2.     Whether judgment delivered without the filing of a defence and non-appearance of a party is a judgment on the merit that cannot be set aside by the trial court.
Proffering arguments on the first issue, the appellant contended that the Federal High Court lacks jurisdiction to set aside its own judgment given on the merit.  Appellant asked 3 questions namely:
(a)     Can a trial court set aside its own judgment delivered on the merit of the case?
(b)    In what circumstances, if any, can a Trial Court set aside its own judgment.
(c)    Can a trial court set aside its own judgment on the ground that a respondent alleges that the original suit was statute barred?
On functus officio principle, the appellant submitted that a court cannot revisit its judgment except to make ancillary orders such as stay of execution or installmental payment, he referred to KADUNA TEXTILES LTD V OBI (1999) 10 NWLR (Pt 621) 138; OYEFOLU & ANOR V DUROSINMI OYEFOLU & ORS (2001) 7 SCNJ 108; 2001 16 NWLR (Pt 738) 1.
Appellant went further to state exceptions to the rule of functus officio which he named as:
(a)    To make ancillary order
(b    Where judgment was procured by fraud
(c)       Where the decision is a nullity
(d)    Judgment made without jurisdiction.
He referred to the following cases:
(i)     BERLIET NIGERIA LIMITED V KACHAKA (1995) 9 NWLR (Pt 240) 478
(ii)        SENATOR (DR) UBA V HON. UKACHUKWU & ORS (2006) ALL FWLR (Pt 337) 515
On the second issue the appellant submitted that the respondents prayed the trial court to consider their twin reliefs namely:
(a)     An order for extension of time within which to apply to court for an order setting aside the judgment of 26/9/2000 and;
(b)      An order setting aside the said judgment.
Appellant argued that the lower court did not advert its mind to the rules of the court in considering the two distinct reliefs which was a wrong exercise of jurisdiction.  He contended that no materials were placed before the court to warrant the orders made.  The complaint is that the respondents did not ask that they be heard on the merit because the considerations of such a prayer would have been different.
RESOLUTION:
Both issues formulated by the appellant and adopted by the court shall be determined together.  It is important to start from the objection taken by the appellant to some aspects of the respondents’ arguments which introduced a new issue not taking root from the grounds of appeal.  The issue is the contention that the claim or reliefs of the appellant before the lower court being one of which is seeking a declaration of title to land cannot be heard or determined by the Federal High Court. That is a challenge to the jurisdiction of the lower court which was not taken before that court.  It is therefore a fresh issue and introduced without leave of court.
To the issue above, the appellant argued opposing the introduction of the new issue by the respondents. 
It is trite that issues for determination must arise from the grounds of appeal which also must have been fashioned out from the judgment or ruling appealed against, see OBA V EGBERONGBE (1999) 8 NWLR (Pt 615) 485; SARAKI & ORS V KOTOYE (1992) 9 NWLR (Pt 264) 156 and OMNIA V DYKTRADE LTD (2007) 15 NWLR (Pt 1058) 576.
Fresh issue has been described in the case of DIRECT ON PC LTD V SOF TECHNOLOGIES LTD (2011) LPELR – 4042 (CA) as follows:
“For avoidance of doubt, a fresh issue or point of law is a new point of law which was not raised by any of the parties at the trial of the case.” The motion upon which the judgment of the lower court was set aside did not mention the aspect now introduced even though it challenged the jurisdiction of the trial court on a different ground, which state that the suit was statute barred. The challenge to jurisdiction of the lower court introduced is the one touching on declaration of title to land, and that land matters are not within the ambit of the Federal High Court’s jurisdiction.  I therefore agree with the appellant that it is a new issue.
I agree with the appellant that a fresh issue not canvassed at the lower court, ordinary, the party raising it must seek and obtain leave of court before raising and arguing the said issue.  A party can only raise and argue a fresh issue where it has filed a cross appeal or respondents Notice to contend that the judgment should be sustained on other grounds.  None of these steps were taken by the respondents so they cannot ordinarily raise an issue for determination, see EKE V OGBONDA (2000) 18 NWLR (Pt 192) 506 at 522.  Any issue not distilled from the ground of appeal filed by the appellant is incompetent and ought to be discountenanced, see GLOBE FISHING INDUSTRIES LTD V COKER (1990) 7 NWLR (Pt 162) 265; UTB LTD V DOLMETSCH (NIG) LTD (2007) 16 NWLR (Pt 1061) 520 and OBIOHA V DURU (1994) 8 NWLR (Pt 365) 631 at 646 – 647.
It is trite that parties are not allowed to introduce or setup one case at the trial court and proceed to argue another on appeal.  There should be consistency as there must be orderliness in the pursuit of justice, see AWUSE V ODILI (2003) 18 NWLR (Pt 851) 116 at 161; OLUFEMI V BABALOLA (2003) 4 SCNJ 287; and GOAR V DASUN & ORS (2009) LPELR – 4205 (CA).
However, the rule is not rigid because there are exceptions to it and particularly when the fresh issue touches on jurisdiction. The court in the case of ALI V ALBISHIR (2007) LPELR – 8319 (CA) held as follows:
“The general principle is that when a party seeks to file and argue any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first.  But where the point or issue sought to be raised relates to the issues of jurisdiction, the point or issue can properly be filed and argued with or without leave of court even if it is being raised for the first time.”
It is clear that the fresh issue raised and argued by the respondents is a challenge to the jurisdiction of the lower court and contending that it lacks jurisdiction to determine the claim ab initio.  Let us look at the claim before the lower court.  The appellant by his statement of claim sought the following reliefs:
(a)     It is hereby declared that the plaintiff is entitled to the right and occupancy in respect of the parcel of land situate and lying at Yakoya in Ojodu Isheri Ikeja Local Government, Lagos measuring approximately 10.06 hectares (24.85 acres) and more particularly described in file No. PSL 566 attached hereto.
(b)     It is further declared that the Federal Government of Nigeria has no right whatsoever to transfer any title or interest in the parcel of land vested in the plaintiff (appellant) as aforesaid to any person whatsoever.
(c)    The Federal Government of Nigeria by its agents, servants or privies is hereby restrained from interfering with the Plaintiff’s right or interest in the parcel of land measuring 10.06 hectares situate at Yakoya near Ojodu, Isheri  Ikeja Local Government Area, Lagos State.
Basically, the claim or reliefs of the appellant has a principal relief of declaration of title and right to occupancy over a piece of land situate and lying at Yakoya in Ojodu Isheri, Ikeja Local Government, Lagos.
Now, the big question; does the Federal High Court have jurisdiction to determine a suit wherein a declaration of title to land is sought?  Jurisdiction is a threshold issue in any adjudication and it is one that the court must clearly be certain to have and not one that should be assumed.  Jurisdiction is what the constitution clothes a court with or what a statute gives in very clear and exact terms.  The jurisdiction of the Federal High Court given under the 1999 Constitution is at Section 251 (1) (a) – (s) which is a list of exclusive items that the Federal High Court can exercise jurisdiction.  Going through it with the finest comb I could not see land matters mentioned therein.
Jurisdiction is known to be determined by the claim before the court, see MINISTER FOR WORKS V TOMAS (NIG) LTD (2002) 2 NWLR (Pt 752) 740.  The jurisdiction of the court will be determined by the subject matter of the claim and not the claim relating to the injunction as argued by the appellant which is an ancillary relief and which depends on the primary claim.  See OLORUNTOBA – OJU V DOPAMU (2008) 7 NWLR (Pt 1085¬) 1.
The appellant contended that the claim is one that the Federal High Court has jurisdiction because it questions executive powers and the actions of Federal Government agencies.  No matter how it is looked at, the relief is seeking a declaration of title to land; occupancy rights and land is not part of the Federal High Court’s jurisdiction as decided by a plethora of cases.  The Appellant argued copiously on party jurisdiction and relied on NABORE PROPERTIES LIMITED V PEACE COVER NIGERIA LIMITED & ORS (2014) LPELR – 22586 (CA).  I agree with the said decision as it concerns items listed under Section 251 (1) (a) – (s) of the 1999 Constitution as amended.  I did say earlier that land is not mentioned therein.  Land matters come under the Land Use Act which has been given a special place in the 1999 Constitution.  The apex court too has settled the issue.  There is no way party jurisdiction can take preeminence over subject matter and as stated earlier, when it comes to Federal Government and its agencies, party and subject matter are relevant and both must rest in the Federal High Court but in all that land cannot come under the Federal High Court by virtue of extant laws on the said subject.
The appellant further argued that party jurisdiction places the claim within the Federal High Court and that there is a distinction between party and subject matter jurisdiction.  The argument may be valid for other claims or subjects but for land even where Federal Government and its agencies is a party, the court with jurisdiction is the State High Court.
Generally, where the Federal Government or any of its agencies is a party in a matter, the question of jurisdiction is two dimensional, the court in the case of THE GOVERNMENT OF KWARA STATE & ORS V IREPODUN BLOCK MANUFACTURING COMPANY & ORS (2012) LPELR – 8532 (CA) held as follows:
“The jurisdiction of a court to entertain a matter in which a Federal Government agency is a party, has two dimensional facts.  In this issue, where a Federal Government agency is a party to a proceeding a court is mandated to look at both party and subject matter jurisdictional aspects to it.  That is to say, a court has to in addition to a party being a Federal Government or agency, examine the facts of a matter with a view to determining the subject matter of it.  If the res comes within the jurisdictional provisions under Section 251 of the 1999 Constitution as amended, then the Federal High Court will have exclusive jurisdiction.  Where the party is a Federal Government agency, where however, the subject matter falls outside the precincts of those provisions, then a State High Court will be vested with jurisdiction notwithstanding that the party involved is a Federal Government agency.  The Supreme Court has set a seal on this grey and niggling area in the case of OBIUWEUBI V C.B.N (2011) 7 NWLR (Pt 1247) 465.  The rationale behind this cardinal principle of law is underpinned by the fact that one of the triumvirate ingredients of jurisdiction is that the subject matter of a case must come within the jurisdiction of adjudicating court and there is no feature therein which will prevent it, the court, from exercising its jurisdiction.”
The settled position therefore is that where the Federal Government or its agencies is a party, the court must examine further the subject matter along the party to determine if the court has jurisdiction.  The era of using Federal Government or its agencies as a blanket cover to give Federal High Court jurisdiction on matters which are clearly outside Section 251 of the 1999 Constitution and where it has no jurisdiction is over.  It is a court with exclusive jurisdiction on specified matters unlike the High Court which has a general jurisdiction, see AGBASO V IWUNZE (2014) LPELR – 24108 (CA) relying on ADETAYO V ADEMOLA (2010) NWLR (Pt 1215) 169.  The appellant tried to distinguish the claim and the case of ADETAYO V ADEMOLA (SUPRA) by contending that the claim in this case challenges executive actions of the Federal Government and its agencies and therefore not a land matter.  The claim of the appellant as highlighted above seeks a declaration or entitlement to certificate of occupancy over the land in question.  It also seeks a declaration that the respondents have no right to transfer title over the said land and furthermore for injunction against the respondents from taking steps to interfere with appellant’s title and enjoyment of a quiet possession.  I do not know if a certificate of occupancy is issued in respect of any other thing other than land and whether transfer of title over land is not within the confines of land matters.
The reliefs are straightforward reliefs touching on land.  There is no level of semantics that can transform it to another claim.  The alleged challenge to actions of the Federal Government to acquisition are ancillary to the claims touching on title to land.  The reliefs all touch on land because the issue of title to the said land is in issue.  I do not see how this case can be distinguished from ADETAYO V ADEMOLA (SUPRA).
Flowing from the above therefore it is settled that the Federal High Court has no jurisdiction in the subject matter of land.  The court said jurisdiction is the blood that gives life to the survival of an action in a court of law, without jurisdiction, the action will be like an animal  that has been drained of it blood.  It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise, see UTIH V ONOYIVWE (1991) 1 NWLR (Pt 166) 166.
Lack of jurisdiction removes the competence of the court.  It was held by the court thus: It is well settled in many decision of this court that a court is competent when the subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. See GALADIMA V TAMBAI (2000) 11 NWLR (Pt 677) 1.
Being a jurisdictional issue, the trial court should not have determined the case ab initio to even warrant any appeal to be sustained on it.  All it did must collapse like a pack of cards and be washed away.  The only duty this court has to do is to strike out Suit No: FCH/L/CS/820/1995 and set aside the ruling of the lower court delivered on 28th September, 2001 by HON. JUSTICE D. D. ABUTU.  I also strike out this appeal for want of jurisdiction as this court lacks the jurisdiction to determine an appeal from the Federal High Court on land matters.
No order as to cost.
 APPEARANCES: GEORGE ETOMI; OLUGBADE BARSAN; OLUWATOSIN REUS (MISS) and S. E. OMORAGBON FOR 1ST RESPONDENT
O. N. IBRAHIM (STATE COUNSEL) FOR 2ND RESPONDENT