FEDERAL STAFF HOSPITAL JABI & ANOR V OHANAKA & ANOR

FEDERAL STAFF HOSPITAL JABI & ANOR V OHANAKA & ANOR


IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON THURSDAY, 12TH JULY, 2018


Appeal No: CA/A/754/2015
CITATION:

Before Their Lordships:

ABUBAKAR DATTI YAHAYA, JCA

TINUADE AKOMOLAFE-WILSON, JCA

TANI YUSUF HASSAN, JCA


BETWEEN

FEDERAL STAFF HOSPITAL, JABI

THE CHIEF MEDICAL DIRECTOR FEDERAL STAFF HOSPITAL

(APPELLANTS)

AND

MR. CHIJIOKE OHANAKA

THE HONOURABLE MINISTER OF HEALTH, FEDERAL REPUBLIC OF NIGERIA

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Reply Brief – Purpose of a reply brief

“A reply brief under the rules of the Court is not to afford an appellant another or further bite at the cherry or opportunity to provide additional arguments in support of an appeal, but to answer, reply or respond to any fresh or new points raised in the respondent’s brief. A reply brief is filed when an issue of law or argument is raised in the respondent’s brief – Oguebego Vs P.D.P (2016) 4 NWLR (part 1503) 446 at 454.
In the instant case, the appellants’ reply brief is unnecessary as the respondent’s brief did not raise any fresh or new issue that requires a reply by the appellants. The appellants’ reply brief is a repetition of what has already been argued in the main brief. It is therefore discountenanced.”Per HASSAN, JCA read in context

B. JURISDICTION
2. Jurisdiction of the Federal High Court – Whether the Federal High Court has jurisdiction to entertain matters of simple contract and tort of negligence

“The case of the 1st respondent as plaintiff at the lower Court is that on the 21st day of November, 2012, he paid for a genotype test to be conducted on him by the 1st appellant in anticipation of marriage between him and one Miss Maryrose C. Ejem (now Mrs. Maryrose C. Ohanaka).
On the following day, he was issued with a result showing his genotype to be “AA”. That there is a colleague in their office who needed blood donation and he volunteered to donate. His blood sample was collected for screening at the Asokoro District Hospital where he asked the laboratory attendant to also use the same blood sample to conduct other tests on him including a genotype test.
The result issued to him by the Asokoro General Hospital showed his Genotype as “AS”. The 1st respondent went to Echo Scan Limited for the same test which confirmed his genotype to be “AS”. That based on the result issued by the 1st appellant showing his genotype as “AA” he conducted a traditional marriage with Miss Maryrose C. Ejem whose genotype was also verified to be “AS”. As a result of this discovery the 1st respondent was said to have suffered shock, emotional and psychological trauma having already conducted a traditional marriage under the belief that his genotype was “AA”. Learned counsel for the appellants in his brief of argument, after setting out part of the ruling of the lower Court that, it is the subject matter that guides the Court in determining whether it has jurisdiction or not, submitted that the trial Court having taken this line of reasoning turned around to decline their preliminary objection and assumed jurisdiction in the suit.

In the 1st respondent’s brief, it is argued that the 1st respondent entered into a contract of genotype verification with the appellants which is one of their duties or functions. That where there is a breach of contract or duty, the 1st respondent is entitled to claim damages. It is the contention of the 1st respondent that the action of the appellants which he complained of, is within the administration, management and control of the appellants, which is within the purview of paragraph (p) of Section 251(1) of the 1999 Constitution of Nigeria (as amended) and also paragraphs (q) (r) and (s) of the same Section 251(1).

It will not be out of place to reproduce Section 251(1) (p) (q) (r) and (s) of the Constitution. Section 251(1) reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters-
(p) The administration or management and control of the Federal Government or any of its agencies.

(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.
(r) 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,
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity. By Section 251(1) (s) of the Constitution, the jurisdiction of the Federal High Court as enumerated in Sub-paragraph (a) – (r) may be extended by an Act of National Assembly.

The submission of the 1st respondent based on the above provisions of the Constitution, the National Assembly had conferred additional exclusive jurisdiction on the Federal High Court on all civil claims arising from tort of negligence.
I am afraid the proviso has nothing to do with conferring jurisdiction on the Federal High Court on matter of tort of negligence. As such the proviso does not apply in this case.
The Supreme Court in Wema Sec & Finance Plc Vs N.A.I.C. (2015) 16 NWLR 93 at 98 held that the draft person, deliberately, itemized the matters which are intended to be under the exclusive jurisdiction of the Federal High Court. As such in the exercise of its exclusive jurisdiction, the Court can only orbit within the universe of those enumerated issues and to others as may be conferred upon it by an Act of National Assembly.
?In the instant case, actions on simple contract and tort of negligence are not included in those itemized matters under Section 251(1) (q)- (s). There is

also no Act of National Assembly conferring jurisdiction on Federal High Court in action of simple contract and tort of negligence. Therefore the Federal High Court cannot arrogate to itself a jurisdiction only exercisable by the State High Courts. See NNPC Vs Orhiowasele (2013) 13 NWLR (Part 1371) 211; Ports & Cargo Handling and C.H.S.C Ltd Vs Migfo Nig. Ltd (2012) 18 NW (Part 1333) 555 and Gafar Vs Government of Kwara State (2007) 4 NWLR (part 1024) 375.

Section 7 of the Federal High Court Act Cap F12 LFN 2004 set out the limited jurisdiction of the Federal High Court. Matters of simple contract and tort of negligence are not included therein.

In considering the issue of the jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution of Nigeria (as amended) the Supreme Court has taken a position that both the status of the parties that is, whether it is the Federal Government or any of its agencies and whether it relates to any of the items in the section, have to be looked at – Wema Sec & Fin. Plc Vs N.A.I.C. (supra); James Vs INEC (2015) 12 NWLR (part 1474) 538 and N.U.R.T.W. Vs R.T.E.A.N. (2012) 10 NWLR (part 1307) 170. In order to determine whether or not the Court has jurisdiction to entertain a cause or matter, it is the claim of the plaintiff that would be considered.

The Supreme Court in James Vs INEC (supra) held that the fact that an action is against agents of Federal Government of Nigeria does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless the subject matter of the action falls squarely within the jurisdiction of the Federal High Court before the Court can assume jurisdiction in the case against the Federal Government or any of its agencies.

In the instant case, it was not in doubt that the appellants are agencies of the Federal Government, the section does not confer a blanket jurisdiction on the Federal High Court in respect of matters in which an agency of the Federal Government is a party. See Madukolu Vs Nkemdilim (1962) 2 SCNLR 341. ?The case of the 1st respondent as per the Writ of Summons and statement of claim is on the tort of negligence against the appellants. The 1st respondent in paragraph 29 of his statement of claim stated the particulars of negligence. The 1st respondent also argued that he entered into a contract of genotype verification with the appellants. It follows therefore that his claims are on tort of negligence and breach of contract. In Adelekan Vs Ecu-Line NV (supra) at page 52, Onneghen JSC (now CJN) had this to say:

“The provisions of Section 257 of the Constitution of the Federal Republic of Nigeria 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court.”

I had earlier in this judgment, reproduced the claims of the appellant in his statement of claim. It is my respectful view that a claim for damages for negligence or breach of contract as contemplated by the 1st respondent cannot be entertained and determined in the Federal High Court. Therefore the learned trial lacks the jurisdiction to entertain the claim.

The case of ABIEC vs Kanu (supra) which the trial Court relied upon to assume jurisdiction and which the 1st respondent’s counsel heavily relied upon and argued in his submission that the trial Court rightly assumed jurisdiction, is distinguishable with the instant case In that case, the Supreme Court per L T. Muhammad JSC held thus:

“The Federal High Court is the proper Court seized of jurisdiction to deal with the subject matter of updating voters’ register, one of the exclusive functions assigned to the Independent National Electoral commission under the enabling Act and also because INEC is an agency of the Federal Government. In this case, the trial Court had jurisdiction to hear the respondent’s case.”

In this appeal, the reliefs directed against the appellants by the 1st respondent are entirely different and unrelated to that case. In that case ABIEC vs Kanu (supra), the respondent sued the appellant and INEC as 1st and 2nd defendants seeking for a declaration that the appellant did not have the power to conduct local government council election without a voters’ register, which is different from the claim of tort of negligence in this appeal. The lower Court misapplied the decision of the Supreme Court in ABIEC Vs Kanu (supra) having regard to the reliefs sought thereby, and came to a wrong conclusion by assuming jurisdiction. I tend to agree with the appellants’ counsel that this appeal deserves to be allowed. The authorities cited by the 1st respondent are not all that relevant and are full of misconceptions.

Recent decisions of the Supreme Court inSun Ins (Nig) Plc Vs U.E.C.C. Ltd (2015) 11 NWLR (part 1471) 576; Wema Sec & Fin. Plc Vs N.A.I.C. (2015) 16 NWLR (part 1484) 93 and James Vs INEC (2015) (supra) emphasized that, the fact that an action is against agents of the Federal Government of Nigeria, does not ipso facto bring the case within the jurisdiction of the Federal High Court until the subject matter of the action falls within the jurisdiction of the Federal High Court. We are bound by the decision of the Supreme Court.

From the foregoing, the sole issue for determination must be resolved in favour of the Appellants against the 1st Respondent and it is hereby so resolved.”Per HASSAN, JCA read in context

3. Jurisdiction of the Federal High Court – Whether the Federal High Court has jurisdiction to entertain matters of simple contract and tort of negligence

“I have read in draft the leading judgment of my learned brother Hassan JCA just delivered. It is obvious that having regard to Section 251(1) of the 1999 Constitution as amended, the trial Federal High Court had no jurisdiction to entertain the Suit in view of the fact that the principal claim of the 1st respondent is on damages for tort of negligence or breach of contract – SUN INS (NIG) PLC Vs. U.E.C.C LTD (2015) 11 NWLR (Pt. 1471) 576.”Per YAHAYA, JCA read in context


LEAD JUDGMENT DELIVERED BY HASSAN, JCA


At the Federal High Court, Abuja the 1st respondent as plaintiff instituted an action against the 1st, 2nd appellants and the 2nd respondent as 1st, 2nd and 3rd defendants and the Attorney General of the Federation as the 4th defendant therein on 25th April, 2014 claiming the sum of N35,000,000.00k being general damages suffered by the plaintiff and his wife arising from negligent and wrongful report on the plaintiff’s genotype.

The plaintiff (1st respondent herein) also claims special damages in the sum of N18,000,000. k and cost of the action. The 1st and 2nd defendants/appellants filed a notice of preliminary objection on 14th October, 2014 challenging the jurisdiction of the Court to entertain the matter. On 4th June, 2014, the 4th defendant also filed a notice of preliminary objection on the ground that no cause of action was disclosed against the 4th defendant. The preliminary objection was upheld and name of the 4th defendant, that is, Attorney General and Minister of Justice was struck out.

The preliminary objection of the 1st and 2nd defendants/appellants is predicated on the grounds that the claims of the plaintiff/1st respondent are not within the purview of the provisions of Section 251(1)-(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or Section 7 0f the extant Federal High Court Act. That the plaintiff’s action is predicated on tort of negligence.

The 3rd defendant/2nd respondent also filed a preliminary objection on the same grounds as the 1st and 2nd defendants/appellants.

The plaintiff/1st respondent filed a reply to the preliminary objection. After adoption of the addresses of parties, the lower Court in its ruling dismissed the preliminary objection and held that it has jurisdiction to entertain the matter on the authority of BIEC Vs Kanu (2013) 13 NWLR (part 1370) 69 at 83.

Dissatisfied, the appellants appealed to this Court. The Notice of Appeal filed on the 29th of June, 2015 has one ground of appeal with its particulars and reliefs sought. The ground shorn of its particulars reads:
GROUND ONE

“The learned trial judge erred in law and occasioned miscarriage of justice when His Lordship while refusing the preliminary objection of the appellants, assumed jurisdiction to entertain the suit notwithstanding that the principal claim of the 1st Respondent before the trial Court bothers on damages for tort of negligence.”

The parties in line with the rules of this Court adopted their briefs.

The appellants’ brief dated the 15th day of June, 2016 and filed on the 17th of June, 2016 has a sole issue distilled for determination as follows:

1. “Whether on the basis of the reliefs of the 1st respondent the Federal High Court by virtue of the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has jurisdiction to entertain a claim for damages for negligence.”

The 1st respondent’s brief dated 18th July, 2016 was filed on the th of July, 2016, wherein a lone issue was identified for determination as follows:

1. “Whether considering the parties, the claims and the reliefs sought by the 1st respondent, the trial Court properly held that the Federal High Court, Abuja has the jurisdiction to entertain the suit.”

The appellant’s reply brief dated 17th October, 2016 was filed on 18th October, 2016 and deemed properly filed on 18th October, 2016.

The 2nd respondent did not file any brief. The lone issue formulated by the appellants and 1st respondent are similar. I shall be guided by the appellants’ issue in determining the appeal.

ISSUE ONE

“Whether on the basis of the reliefs of the 1st respondent the Federal High Court by virtue provisions of the of Section 251(l) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has jurisdiction to entertain a claim for damages for negligence.”

Learned counsel for the appellant in arguing that it is plaintiff’s claim that determines jurisdiction relied on the cases of Anyah v. Iyayi (1993) 7 NWLR (Pt. 305) 290,; Kwara State vs. Warah (1995) 7 NWLR (Pt. 405) 120; Anigboro vs Sea Trucks (Nig) Ltd (1995) 6 NWLR (Pt.399) 35 and Onuorah vs. Okeke (2005) 10 NWLR (Pt.932) 40.

Referring to Section 251(1) of the 1999 Constitution, containing several items which only the Federal High Court has jurisdiction to entertain to the exclusion of any other Court, it is submitted that when the jurisdiction of the Federal High Court under Section 251(1) is in issue the following must co-exist:

a. The parties or party must be the Federal Government or its agency.

b. The subject matter of the litigation must be on the basis of the items or any of the items listed under Section 251(1) of the Constitution 1999 (as amended).

That it is not enough to have an agency of the Federal Government as a party for the Federal High Court to have jurisdiction, the Court must carefully examine the facts and circumstances of the case in order to determine if the claims are within the jurisdiction of the Court. He relied on Enterprise Bank Plc Vs Aroso (2014) 3 NWLR (part 1394) 356 at 390 – 391 and Dosumu Vs NNPC (2015) 6 NWLR (part 1403) 282.

The appellants contended that the claim of the 1st respondent is rooted in the tort of negligence wherein he particularized the alleged negligence allegedly committed by the appellants at paragraph 29 of his statement of claim.

Relying on the case of Trade Bank Plc Vs Benilux (Nig.) Ltd (2003) 9 NWLR (Part 825) 416 at 432 and 434; Onuorah vs. Kaduna Refinery & Petrochemical Co. Ltd (2005) 6 NWLR (Part 921) 395 at 405 and Adelekan vs. Ecu Line NV (2006) 12 NWLR (Pt.993) 33 among others, it is submitted that the Federal High Court is not a dumping ground for all matter of which a Federal Agency is a party to, the subject matter or claim in the suit is what confers jurisdiction to the Court.

Learned counsel for the appellant submitted that under Section 251 of the Constitution eighteen subject matters were itemized that fall within the exclusive jurisdiction of the Federal High Court. That the Federal High Court therefore lacks jurisdiction in the areas where the subject matter of the suit is not within the itemized list of Section 251 of the Constitution 1999 (as amended) and Section 7 of the Federal High Court Act, Cap F12, Laws of the Federation, 2004. That both the Constitution and the Act revealed that the subject matter of tort is not part of the enumerated subject matters of which the Federal High Court was conferred with jurisdiction.

We are urged to resolve the sole issue in favour of the appellants.

Responding, learned counsel for 1st respondent contended that the Federal High Court is the appropriate Court clothed with jurisdiction to entertain the suit considering the claims and the reliefs sought by the 1st respondent.

Referring to paragraphs (i), (p), (q) and (r) of Section 251 of the 1999 Constitution which vests exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its Agency is a party, it is submitted that the appellants and the 2nd respondent being Federal Government Agencies the Federal High Court is possessed with jurisdiction to try the suit of the 1st respondent. Relying on the cases of ABIEC Vs KANU (2013) 13 NWLR (part 1370) 69 at 83 para D – H; NEPA Vs. EDEGBERO and 15 Ors (2002) 12 NSCQR 105; FGN Vs Oshiomhole (2004) 3 NWLR (part 860) 305 and IGP Vs AIGBIREMOLEN (1999) 13 NWLR (part 635) 443 among others, it is submitted that the claims and reliefs sought as per the Writ of Summons and statement of claim of the 1st respondent are purely on damages which confer jurisdiction on the Federal High Court pursuant to Section 251(1) (p) (q) (r) and (s) of the Constitution.

That the wrong complained of by the 1st respondent was committed in the course of carrying out one of the functions of the hospital namely to verify genotypes of persons. That the proviso to Section 251(1) of the Constitution clearly gives the Federal High Court jurisdiction to entertain all actions or claims for damages, injunction or specific performance against the Federal Government or any of its agencies as far as the action is based on any enactment, law or equity. The Court was referred to Jev & anor Vs Iyortyom & 2 Ors (2014) 5 – 6 SC part III) 82 at 118; Enterprises Bank Ltd Vs Aroso (supra); Kakih vs PDP & 3 Ors (2014) 6 – 7 (part 1) 99 at 149 – 159 and PDP Vs Sylva (2012)4 – 5 SC 174.

It is the submission of the respondent’s counsel that the cases cited and relied upon by the appellants are inapplicable to this case as some of the parties therein are not Government Agencies. That the action of the appellants which the 1st respondent complains about, comes within the administration, management and control of the appellants which entires the 1st respondent for the relief sought within the purview of paragraph (p) of Section 251(1) of the 1999 Constitution -NEPA Vs Edegbero (supra).

Submitting further, is that the 1st respondent entered into a contract of genotype verification with the appellants which is one of the duties or functions of the appellants. That the verification was bugled by the appellants which gave rise to the action for damages by the 1st respondent.

We are finally urged to discountenance the authorities cited and relied upon by the appellant and uphold the ruling of the trial Court that assumed jurisdiction to entertain the suit.

A reply brief under the rules of the Court is not to afford an appellant another or further bite at the cherry or opportunity to provide additional arguments in support of an appeal, but to answer, reply or respond to any fresh or new points raised in the respondent’s brief. A reply brief is filed when an issue of law or argument is raised in the respondent’s brief – Oguebego Vs P.D.P (2016) 4 NWLR (part 1503) 446 at 454.

In the instant case, the appellants’ reply brief is unnecessary as the respondent’s brief did not raise any fresh or new issue that requires a reply by the appellants. The appellants’ reply brief is a repetition of what has already been argued in the main brief. It is therefore discountenanced.

The case of the 1st respondent as plaintiff at the lower Court is that on the 21st day of November, 2012, he paid for a genotype test to be conducted on him by the 1st appellant in anticipation of marriage between him and one Miss Maryrose C. Ejem (now Mrs. Maryrose C. Ohanaka).

On the following day, he was issued with a result showing his genotype to be “AA”. That there is a colleague in their office who needed blood donation and he volunteered to donate. His blood sample was collected for screening at the Asokoro District Hospital where he asked the laboratory attendant to also use the same blood sample to conduct other tests on him including a genotype test.

The result issued to him by the Asokoro General Hospital showed his Genotype as “AS”. The 1st respondent went to Echo Scan Limited for the same test which confirmed his genotype to be “AS”. That based on the result issued by the 1st appellant showing his genotype as “AA” he conducted a traditional marriage with Miss Maryrose C. Ejem whose genotype was also verified to be “AS”. As a result of this discovery the 1st respondent was said to have suffered shock, emotional and psychological trauma having already conducted a traditional marriage under the belief that his genotype was “AA”.

Learned counsel for the appellants in his brief of argument, after setting out part of the ruling of the lower Court that, it is the subject matter that guides the Court in determining whether it has jurisdiction or not, submitted that the trial Court having taken this line of reasoning turned around to decline their preliminary objection and assumed jurisdiction in the suit.

In the 1st respondent’s brief, it is argued that the 1st respondent entered into a contract of genotype verification with the appellants which is one of their duties or functions. That where there is a breach of contract or duty, the 1st respondent is entitled to claim damages. It is the contention of the 1st respondent that the action of the appellants which he complained of, is within the administration, management and control of the appellants, which is within the purview of paragraph (p) of Section 251(1) of the 1999 Constitution of Nigeria (as amended) and also paragraphs (q) (r) and (s) of the same Section 251(1).

It will not be out of place to reproduce Section 251(1) (p) (q) (r) and (s) of the Constitution. Section 251(1) reads:

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters-

(p) The administration or management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.

(r) 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,

(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.

Provided that nothing in the provisions of paragraphs (p),

(q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

By Section 251(1) (s) of the Constitution, the jurisdiction of the Federal High Court as enumerated in Sub-paragraph (a)- (r) may be extended by an Act of National Assembly. The submission of the 1st respondent based on the above provisions of the Constitution, the National Assembly had conferred additional exclusive jurisdiction on the Federal High Court on all civil claims arising from tort of negligence.

I am afraid the proviso has nothing to do with conferring jurisdiction on the Federal High Court on matter of tort of negligence. As such the proviso does not apply in this case. The Supreme Court in Wema Sec & Finance Plc Vs N.A.I.C. (2015) 16 NWLR 93 at 98 held that the draft person, deliberately, itemized the matters which are intended to be under the exclusive jurisdiction of the Federal High Court. As such in the exercise of its exclusive jurisdiction, the Court can only orbit within the universe of those enumerated issues and to others as may be conferred upon it by an Act of National Assembly.

In the instant case, actions on simple contract and tort of negligence are not included in those itemized matters under Section 251(1) (q)- (s). There is also no Act of National Assembly conferring jurisdiction on Federal High Court in action of simple contract and tort of negligence. Therefore the Federal High Court cannot arrogate to itself a jurisdiction only exercisable by the State High Courts. See NNPC Vs Orhiowasele (2013) 13 NWLR (Part 1371) 211;Ports & Cargo Handling and C.H.S.C Ltd Vs Migfo Nig. Ltd (2012) 18 NWLR (Part 1333) 555 and Gafar Vs Government of Kwara State (2007) 4 NWLR (part 1024) 375.

Section 7 of the Federal High Court Act Cap F12 LFN 2004 set out the limited jurisdiction of the Federal High Court. Matters of simple contract and tort of negligence are not included therein.

In considering the issue of the jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution of Nigeria (as amended) the Supreme Court has taken a position that both the status of the parties that is, whether it is the Federal Government or any of its agencies and whether it relates to any of the items in the section, have to be looked at – Wema Sec & Fin. Plc Vs N.A.I.C. (supra); James Vs INEC (2015) 12 NWLR (part 1474) 538 and N.U.R.T.W. Vs R.T.E.A.N. (2012) 10 NWLR (part 1307) 170.

In order to determine whether or not the Court has jurisdiction to entertain a cause or matter, it is the claim of the plaintiff that would be considered.

The Supreme Court in James Vs INEC (supra) held that the fact that an action is against agents of Federal Government of Nigeria does not ipso facto bring the case within the jurisdiction of the Federal High Court, unless the subject matter of the action falls squarely within the jurisdiction of the Federal High Court before the Court can assume jurisdiction in the case against the Federal Government or any of its agencies.

In the instant case, it was not in doubt that the appellants are agencies of the Federal Government, the section does not confer a blanket jurisdiction on the Federal High Court in respect of matters in which an agency of the Federal Government is a party. See Madukolu Vs Nkemdilim (1962) 2 SCNLR 341.

The case of the 1st respondent as per the Writ of Summons and statement of claim is on the tort of negligence against the appellants. The 1st respondent in paragraph 29 of his statement of claim stated the particulars of negligence. The 1st respondent also argued that he entered into a contract of genotype verification with the appellants. It follows therefore that his claims are on tort of negligence and breach of contract. In Adelekan Vs Ecu-Line NV (supra) at page 52, Onneghen JSC (now CJN) had this to say:

“The provisions of Section 257 of the Constitution of the Federal Republic of Nigeria 1999, hereinafter called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High ourt, which jurisdiction clearly does not include dealing with any case of simple contract or damages for negligence as envisaged by the action before the trial Court.”

I had earlier in this judgment, reproduced the claims of the appellant in his statement of claim. It is my respectful view that a claim for damages for negligence or breach of contract as contemplated by the 1st respondent cannot be entertained and determined in the Federal High Court. Therefore the learned trial lacks the jurisdiction to entertain the claim.

The case of ABIEC vs Kanu (supra) which the trial Court relied upon to assume jurisdiction and which the 1st respondent’s counsel heavily relied upon and argued in his submission that the trial Court rightly assumed jurisdiction, is distinguishable with the instant case

In that case, the Supreme Court per L T. Muhammad JSC held thus:

“The Federal High Court is the proper Court seized of jurisdiction to deal with the subject matter of updating voters’ register, one of the exclusive functions assigned to the Independent National Electoral commission under the enabling Act and also because INEC is an agency of the Federal Government. In this case, the trial Court had jurisdiction to hear the respondent’s case.”

In this appeal, the reliefs directed against the appellants by the 1st respondent are entirely different and unrelated to that case. In that case ABIEC vs Kanu (supra), the respondent sued the appellant and INEC as 1st and 2nd defendants seeking for a declaration that the appellant did not have the power to conduct local government council election without a voters’ register, which is different from the claim of tort of negligence in this appeal. The lower Court misapplied the decision of the Supreme Court in ABIEC Vs Kanu (supra) having regard to the reliefs sought thereby, and came to a wrong conclusion by assuming jurisdiction. I tend to agree with the appellants’ counsel that this appeal deserves to be allowed. The authorities cited by the 1st respondent are not all that relevant and are full of misconceptions.

Recent decisions of the Supreme Court inSun Ins (Nig) Plc Vs U.E.C.C. Ltd (2015) 11 NWLR (part 1471) 576; Wema Sec & Fin. Plc Vs N.A.I.C. (2015) 16 NWLR (part 1484) 93 and James Vs INEC (2015) (supra)
emphasized that, the fact that an action is against agents of the Federal Government of Nigeria, does not ipso facto bring the case within the jurisdiction of the Federal High Court until the subject matter of the action falls within the jurisdiction of the Federal High Court. We are bound by the decision of the Supreme Court.

From the foregoing, the sole issue for determination must be resolved in favour of the Appellants against the 1st Respondent and it is hereby so resolved.

The appeal succeeds and it is allowed. The Ruling of the trial Court delivered on 15th June, 2015 in Suit No.FHC/ABJ/CS/324/2014 by Hon. Justice E. S. Chukwu is hereby set aside.

Parties to bear their respective costs.

YAHAYA, JCA

I have read in draft the leading judgment of my learned brother Hassan JCA just delivered. It is obvious that having regard to Section 251(1) of the 1999 Constitution as amended, the trial Federal High Court had no jurisdiction to entertain the Suit in view of the fact that the principal claim of the 1st respondent is on damages for tort of negligence or breach of contract – SUN INS (NIG) PLC Vs. U.E.C.C LTD (2015) 11 NWLR (Pt. 1471) 576.

I agree that this appeal has merit and it is allowed. I set aside the Ruling of the trial Court delivered on 15/6/15.

AKOMOLAFE-WILSON, JCA

I had the preview of the lead judgment of my learned brother, TANI YUSUF HASSAN, JCA. I am in agreement with his reasoning and conclusion reached in allowing the appeal.

Appearances:

Ifeanyi M. Nrialike with him, Miss C. I. Okorie For Appellant(s)

Mrs. Rita Chris-Garuba with him, C. Mbani, C. Izekwei and Friday Lavan – for 1st Respondent Mrs. R. S. El – Usman – for 2nd Respondent. For Respondent(s)