(2018) LPELR-45708(SC)

Transcription

1 SOCIO-POLITICAL RESEARCH DEVELOPMENT v. MINISTRY OF FCT & ORS CITATION: In the Supreme Court of Nigeria ON FRIDAY, 28TH SEPTEMBER, 2018 Suit No: SC.203/2008 IBRAHIM TANKO MUHAMMAD OLUKAYODE ARIWOOLA KUMAI BAYANG AKA'AHS AMINA ADAMU AUGIE SIDI DAUDA BAGE Before Their Lordships: Between SOCIO-POLITICAL RESEARCH DEVELOPMENT And 1. MINISTRY OF FEDERAL CAPITAL TERRITORY 2. HAJIYA MAIMUNA BELLO AJANAH 3. HAJIA HADIZA ABDULLAHI Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "Now, appellant's issue four which tallies with respondents' issue No.1, is a challenge on the legal personality of the appellant, that it is not a juristic personality. But, who is the appellant in this appeal? Paragraph 1 of the appellant/plaintiff's statement of claim at the Court of trial, stated that the plaintiff is a socio-political research and development company registered in Nigeria. The respondents' statement of defence, in denial, stated that the defendants were not aware of the plaintiff's status and that the plaintiff was not a juristic person in law. The trial Court treated the matter in a Ruling delivered on 9/12/99 holding that the plaintiff/appellant was an outfit registered in Nigeria: "All I now know about the plaintiff is that it is a Socio-Political Research and Development outfit registered in Nigeria as per paragraph 1 of the Statement of Claim. It is not known under what part of the Companies and Allied Matters Act that it was registered. For instance, if the plaintiff was registered in the business name register, it could besides its legal capacity sue and be sued as per Ndoma-Egba, JCA in Yusuf v. Adewuyi Brothers & Co. (supra). If it is a partnership or a friendly society, it has a right to sue or be sued under its name. See: Carlen Nig. Ltd's case (supra) Order 11 Rule 9 of the High Court of the FCT Abuja (Civil Procedure Rules) 1991 also allows partners sues or be sued in the name of their firm." However, the Court below, in its judgment delivered on 13th February, 2008, per Aboki, JCA, made the following findings: "I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the personality to sue and be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited" - Ltd or "Public Liability Company" - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business name under part B of Companies and Allied Act which requires disclosure of the business name registration number as required by Section 582 sub Section 1(c) of the Act. It was also not disclosed whether the plaintiff/respondent has been registered as a partnership." Thus, the plaintiff/respondent/appellant was found to be an unregistered outfit under the laws operating in Nigeria. The consequence is that a non-juristic person can neither sue nor be sued, for want of capacity. I adopt the analysis given by the Court below when it says: "It is trite that a non-juristic person cannot sue or be sued. It follows therefore that no action can be brought by or against any party other than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity. A statute can confer a legal personality on a party thus:- a) under the name by which it may sue or be sued. Or, b) a right to sue or be sued by that name such as in the cases of business name, partnership, trade union etc. See. Lion of Africa Insurance Company Ltd. v Esan (1999) 8 NWLR (Pt.614) 197 at 201; Carlen Nig Ltd v. University of Jos (1994) 1 NWLR Pt 323) 631. Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand the capacity to sue and be sued is not thereby given by a mere recognition or acceptance of its existence, only the law confers that attribute or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. See: Lion of Africa Insurance Pls v. Esan (supra) at page 201; Peat Marwick Ani Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369) 71. I have examined the printed records of this appeal, there is however no evidence that the plaintiff/respondent have(sic) actually been registered under the Companies and Allied Matters Act or any statute and have(sic) acquired legal personality to sue or be sued. It has not been shown from its name or from the averment in paragraph 1 of the Statement of Claim whether it is a private limited liability company or a public liability company. It is clear from its name that it has not complied with the provisions of Section 29 of the Companies and Allied Matters Act which requires all companies to end their names with the word "Limited" - Ltd or "public Liability Company" - Plc etc. There is nothing before the Court to show that the plaintiff/respondent has been registered as a business name under Part B of the Companies and Allied Matters Act which requires disclosure of the business name registration number as required by Section 582(1)(c) of the Act. It was also not disclosed whether the plaintiff/respondent has been registered as a partnership." The Court below, in my view, has stated the correct position of the law in relation to Companies and Allied matters. In this regard, issue 4 is decided against the appellant."per MUHAMMAD, J.S.C. (Pp , Paras. F-C) - read in context

3 2. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "First and foremost, it is clear from the records that the appellant was the plaintiff, at the trial Court where this case originated from. A plaintiff is said to be the party who brings a civil suit in a Court of law. And a party who commences an action in Court must be a person known to law, that is, a natural or an artificial person, given legal personality by statute. See; Alhaji Afia Trading and Transport Company Ltd v. Jesitas Insurance Company Ltd. (1986) 4 (Pt.38) 802. It means that no action can be brought or commenced by or against any party other than a natural person or body of persons, unless such a party has been given by statute expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by the name, See; Knight and Searle vs. Dove (1964) 2 All ER 307; Administrator Estate of General Sanni Abacha v. Eke-Spiff & Ors (2009) 3 SCM 1; (2009) NWLR (Pt.1133) 92. There is no doubt that from the onset, parties had joined issue on the juristic personality of the appellant. The appellant in paragraph 2 of the Statement of Claim had pleaded thus: "The plaintiff is a socio-political research and development Company registered in Nigeria. It engaged in Organizing seminars, workshops and Staff trainings for its clients." The respondents as defendants controverted the above averment of the appellant in their paragraph 2 of the statement of defence as follows: "The defendants are not aware of the plaintiff's status and shall at the trial lead evidence to show that the defendant (sic) is not a juristic person in law." In the Notice of preliminary Objection on ground of law filed by the respondents, the followings were given as the grounds of objection. "1. That the plaintiff is not a juristic person in law. 2. That this Honourable Court lacks jurisdiction over this matter." On the writ of summons and statement of claim on pages 1 and 3 respectively, of the record, the appellant describes itself as: "SOCIO-POLITICAL RESEARCH AND DEVELOPMENT LTD." Whereas in subsequent processes filed by the plaintiff/appellant including the processes used at the Court below and the Appeal filed to this Court against the judgment of the Court the Plaintiff/appellant never described itself again as a Limited Company. It has continued to describe itself simply as "Socio-Political Research Development." It is clear that the respondents had challenged personality of the appellant and it is certainly a procedural requirement that whenever issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such evidence, the issue must necessarily be resolved against the party. However, the nature of the evidence that will suffice as to whether in oral or documentary, may well depend on the issue in question and the requirement of the law, See;African Continental Bank Plc & Anor v. Emostrade Ltd (2002) 7 SCM 7 where the Court held that where the issue of corporate personality of a company is put in issue, only the certificate of Incorporation will suffice as proof. In Bank of Baroda v. Iyalabani Company Limited (2002) 12 SCM 7 this Court opined as follows:- It is not sufficient for a plaintiff being a Corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of "LIMITED" or "PLC". That status which it is claiming for itself has to be proved, except it is admitted by the opposing party by tendering its Certificate of Incorporation or such other evidence as would prove its juristic personality." See: also Reptico S. A. Geneva vs. Afribank Nigeria Plc (2013) 9 SCM 85; (2013) 14 NWLR (Pt ; (2013) All FWLR (Pt.702) 1652; (2013) 5 SCNJ 479; (2013) 54 NSCQR 600. The appellant did not produce the evidence of its incorporation and there was no iota of evidence that the respondents admitted to any such fact by their pleadings. There is no doubt that the appellant failed to prove that it has juristic personality that entitles him to sue and be sued. This issue must therefore be and is accordingly resolved against the appellant. The appellant having failed to prove that it has the personality to sue and be sued, the whole action instituted by it is incompetent and liable to be struck out. The appellant's case as constituted before the trial Court is hereby struck out not having been proved to have been instituted by a person known to law. It follows therefore that the instant appeal could not stand as there is no competent appellant. In Geneva vs. Afribank (supra) of similar facts, I had opined that having resolved the issue of legal personality against the appellant, I considered it unnecessary to further consider any other issue raised by the appellant, I hold the same view in this matter."per ARIWOOLA, J.S.C. (Pp , Paras. D-E) - read in context 3. ACTION - LEGAL PERSONALITY: Position of the law as regards juristic or legal personality "The juristic personality of a plaintiff is sine qua non to the plaintiff's capacity to institute and maintain a legal action in Court See: Madukolu v. Nkemdilim (1962) Vol.ANLR (Pt.2) 581. Where the legal capacity of the plaintiff is being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate Court. See: Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622; Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259. Once the juristic personality of an artificial person is raised, the party in question can discharge the burden only by producing the certificate of Incorporation. See: Ataguba & Company v. Gura Nigeria Limited (2005) 6 NWLR (Pt. 927) 429. Since the issue was not resolved before the learned trial Judge entered judgment for the plaintiff, the defendants had the right to appeal and raise the issue for determination. Consequently the Court below was right when it allowed the appeal and set aside the judgment of the trial Court."Per AKA'AHS, J.S.C. (Pp , Paras. B-A) - read in context 4. ACTION - LEGAL PERSONALITY: Distinction between juristic personality and locus standi "?It is an elementary principle that a Plaintiff must be accorded legal recognition before the question of standing to sue can arise. In other words, there is a distinction between juristic personality and locus standi, and the question of a Plaintiff's legal personality to commence an action is not to be confused with the question of standing to sue. It is only a legal person; that is a person or body capable of suing or being sued that can possibly lack locus standi to bring or pursue particular actions. What this means is that the question of the existence of legal personality relates to the very existence of the Plaintiff, or the Defendant, as the case may be, whereas the question of locus relates to the existence of the right of the Plaintiff, a natural or artificial person to sue - see Bank of Baroda V. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt.785) 551 SC. So, an association of persons, without incorporation, cannot be regarded as a legal person for the purposes of action in Court - see Fawehinmi V. NBA (No.2) (1989) 2 NWLR (Pt.105) 558 SC. In this case, there is no evidence that the Appellant had been registered as a legal personality with capacity to sue and be sued, and there is nothing to indicate that it acquired a legal personality by any other means, and the Court of Appeal was right to so hold."per AUGIE, J.S.C. (Pp , Paras. F-A) - read in context

4 5. APPEAL - NOTICE(S) OF APPEAL: Whether an appellant can file more than one notice of appeal "My lords, appellant's issue No.1 and respondents' issue No.3 are same. Both are on the propriety or otherwise of maintaining simultaneously, two or more appeals by same parties in litigation. Before the hearing of the main appeal by the Court below the appellant, who was the respondent at the Court below, filed a separate Notice of Preliminary Objection on 19/9/2005 which was supported by three grounds of objection and a four paragraph affidavit. A counter affidavit was accordingly filed by the respondents as respondents. The Court below considered the affidavit evidence in respect of the preliminary objection and made the following findings: 1. There is nothing before the Court on record to indicate that there is any pending appeal on the matter before this Court and that Appeal No.CA/A/32/2002 which is an interlocutory appeal has been withdrawn. This leg of the objection has no merit and it is hereby dismissed. 2. It is the duty and responsibility of the appellant in an appeal to transmit the record on which his appeal would be heard. In the present case, the appellants/respondents transmitted the records of the trial Court prepared by one Hajiya Zainab Adamu Aliyu (Assistant Chief Registrar (Appear) and it was filed on 13th July, 2004 and assigned Appeal No.CA/A/113/2004. There is no merit in this ground of objection and it is dismissed. 3. It is very clear from the submission of counsel that the complaint of the applicants with regards to omission or non inclusion of certain documents in the record of proceedings pertains to the record of appeal No.CA/A/32/2002 and record appeal No which is the CA/A/113/2004 record of appeal under consideration in this appeal. The applicant seems not to be in tandem with the appellants and the Court on the record of appeal under consideration. The objection of the applicant is entirely on a different record of proceedings not before the Court and which is not subject of scrutiny in this appeal. It is very clear that there is state of confusion in the camp of the applicant/respondent as to the exact record of proceedings of the appeal it filed a notice of preliminary objection on. The two appeals the respondent/applicant had referred to in both its notice of preliminary objection, the affidavit in support and in the written submission of counsel are appeals Nos.CA/A/32/2002 and CA/A/113/2003 both of which are not before this Court. The appeal under consideration is No.CA/A/113/2004. The third ground of objection lacks merit and it is dismissed. Thus, from the findings and holdings of the Court below, there is no any pending appeal between the parties before it other than appeal No.CA/A/113/2004, upon which it delivered its judgment on the 13th day of February, Now, this is the Court before which all the relevant documents were placed: There can be no better person or authority that could decide better in respect of such documents than that Court. That Court confronted the objector before it (the appellant herein) to justify his claim with evidence which he woefully failed. Then what else can this Court do? I believe nothing. I think for the sake of emphasis, I need to draw attention of prospective appellants and particularly their counsel to be aware by paying due diligence to what the Registry staff who are assigned to receive and assign registration numbers to suits/appeals etc. This is to help detect at initial stage, any mistake or omission which may hinder the progress of their cases. Although there are subsisting decisions of this Court stating that a Court of law will not punish a litigant, where he fulfils obligations placed on him simply because of the omission or failure of a Judge or other Court officials to play their part. Further, granted that there were more than one appeal filed by an appellant, this Court, in several decisions, remains constant that the filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal. See the decisions of Sowemimo, JSC, as he then was and Obaseki, JSC; in Iteshi v. The State (1975) 9-11 SC 41; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710. On the other side of the coin, the respondents challenged the appellant that the appellant having argued the appeal at the Court below (as respondent) on all the grounds and issues raised in the respondents' (appellants') grounds and Notice of appeal and having adopted the issues in appeal No. CA/A113/2004, is not estopped from complaining and/or caught up with the principle of waivers. This is raised in respondents' issue No.4. There is no response from the appellant on the issue of waiver as the reply brief filed did not consider that issue. It is true from the record of proceedings page 145 in paragraph 3.00, titled "ARGUMENT", the appellant adopted all the issues formulated by the respondents as appellants in that Court which related to appeal No.CA/A/113/2004 (pages of the Record). It was in consideration of these briefs that the Court below delivered its judgment of 13/02/2008 which is the subject of this appeal. It is thus, clear that the appellant/respondent had effectively taken all the necessary steps that led to the subject matter of this appeal consequent upon that the appellant is estopped and has waived any right to complain, as one cannot eat one's cake and have it, or as one cannot, at the same time, approbate and reprobate. The doctrine of waiver postulates an abandonment of a right. Two elements for waiver to work need to co-exist; firstly, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver, and in this situation the complaint of the appellant on the multiplicity of appeals before the Court below; secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognizing the act or omission. It has been established in this appeal that the appellant adopted all the issues formulated by the respondents as appellants at the Court below. He argued those issues before the said Court and that Court, accordingly, entered its judgment. Can the appellant, then be heard to complain? I do not think so. He who comes to equity must come with clean hands."per MUHAMMAD, J.S.C. (Pp. 7-12, Paras. A-D) - read in context 6. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter "My lords, I think the first thing we need to settle in this appeal is the barometers or determinants of jurisdiction of a Court. There are several decided authorities which lay the principle that the jurisdiction of a Court is determined by the nature of the plaintiff's claim placed before it as indorsed in the writ of summons. See: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; Tolarin & Ors v. Akinnola (1994) 4 SCNJ, 30, Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Co. (2001) KLR (Pt.77) 331; A.G Abia State v. A-G Federation (2003) 4 NWLR (Pt.809) 138; Onuorah v. KRPC Ltd. (2005) 21 NSCQR 130. (2005) 6 NWLR (Pt.921) 393)."Per MUHAMMAD, J.S.C. (P. 18, Paras. C-F) - read in context

5 7. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "Issues two and three (2 & 3) by the appellant are on (1) whether the 1st respondent is indeed an agency of the Federal Government and (2) whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. My lords, from the averments reproduced above from the plaintiff/appellant's statement of claim at the trial Court, especially paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16,17 and 19, the agreement entered by the appellant and respondents is on a simple contract which was alleged to have been breached by the respondents. By the nature of the claim therefore, a State High Court and an FCT High Court are vested with general jurisdiction to entertain disputes on simple contract which is not covered by the provision of Section 251 of the Constitution. In the appeal on hand, the plaintiff/appellant's claim as per its statement of claim has thus, nothing to do with the administration or management of the respondents who are said to be the Ministry, Federal Capital Territory and a Director and Acting Deputy Director with FCT Women Affairs and Social Development Department. In 2005, this Court, in the case of Felix Onuorah (Trading under the name & style of Ikechi Supermarket & Trading Co.) v. Kaduna Refining & Petro-Chemical Co. Ltd. (A subsidiary of Nigerian National Petroleum Corporation), clarified the issue on when the Federal High Court, could exercise its exclusive jurisdiction and when it loses that exclusivity in favour of State High Courts and the High Court of the Federal Capital Territory. The case is reported as: Onuorah v. K. R. P.C. Ltd. (2005) 6 NWLR (Pt.921) 393. This is a case where the appellant entered into a contract to purchase specified number of empty tins from the respondent at an agreed amount, which he paid to the respondent. But before delivery was made to the appellant, the respondent increased the price of the tins and asked the appellant to pay the difference between the old and new prices. The appellant refused, and insisted that the respondent was bound to deliver to him the quantity of the empty tins he had ordered at the price agreed by the parties. Consequently, the appellant filed a suit against the respondent at the Federal High Court in which he claimed as follows: a) "An order of Court declaring the purported price increase/review of the 18 litres empty tins by the defendant from N25 to N40 with effect from 10/5/93 as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase/review. b) An order of specific performance directing the defendant to issue/supply the plaintiff the remaining 17,012 pieces of the 18 litres empty tins not later than 30 days from the date of judgment. c) N1,000,000 general damages from the defendant to the plaintiff for the breach of the arrangement/agreement between him and the defendant." Subsequently, the parties filed their respective pleadings and the suit proceeded to trial. In its judgment, the trial Court granted the reliefs of declaration and specific performance sought by the appellant, but refused the appellant's claim for general damages. The respondent was dissatisfied with the judgment of the trial Court and it appealed to the Court of Appeal where, with the leave of the Court, it raised the issue of the jurisdiction of the trial Court to entertain the suit. The Court of Appeal, in its judgment, allowed the respondent's appeal on the ground that the trial Court lacked jurisdiction to entertain the appellant's suit. The Court of Appeal also set aside the judgment of the trial Court, and struck out the appellant's suit. The appellant was dissatisfied with the decision of the Court of Appeal and appealed to this Court, where it was contended on his behalf that the respondent is a subsidiary of the Nigerian Federal Government; and that consequently, the trial Court had jurisdiction to entertain the appellant's suit. On the other hand, it was contended on behalf of the respondent that the trial Court lacked jurisdiction to entertain the appellant's suit because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The unanimous decision of this Court, per Akintan, JSC, now (rtd.) stated, inter alia: "A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly show that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said section 230(1) can only, be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those, included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the appellant's claim. The Lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim. See. Seven-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 and Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt 825) 416 at 430 & 431. The question whether the respondent is a subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the Court is being made. This is because, as already stated above, the determining factor the Court, which in this case, is one founded on breach of contract." Thus by virtue of Section 251(p) of the 1999 Constitution, as amended, the Federal High Court is vested with exclusive jurisdiction, inter alia, on matters pertaining to the administration or management and control of the Federal Government or any of its agencies. In the appeal on hand, the appellant's claim as stated earlier, does not fall within the ambit of Section 251(p) of the 1999 Constitution. Further, the issue which was over-flogged by the learned counsel for the respective parties, on whether Ministry of the Federal Capital Territory or the Minister of the Federal Capital Territory are agencies or agents of the Federal Government is immaterial in this case as the focal point is on the claim of the appellant as indorsed in its writ of summons and statement of claim. Just a year after Onuorah's case (supra), this Court, again, re-stated its position in Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at p.52, it was held as follows: "The provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 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." Further, I am in agreement with my learned brother, Galinje, JSC, where he commented in the case of ROE LIMITED V. UNIVERSITY OF NIGERIA - Appeal No.SC.42/2007, delivered on the 12th day of January, 2018, (unreported) as follows: "The Federal High Court is a special Court with exclusive jurisdiction limited to those items specified under Section 251 of the 1999 Constitution of the Federal Republic of Nigeria and any other jurisdiction as may be conferred upon it by an Act of the National Assembly. A Court must not while interpreting the provisions of Section 251 of the Constitution, and any other statutes whose wordings are very clear and unambiguous import into them something which is not contained in them. Section 251, has clearly made provisions for action against Federal Government or any of its agencies in any other Court in the proviso after sub-paragraph (s) which reads thus:- '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." There is not any scintilla of doubt therefore, that since the claim of the plaintiff/appellant is based on simple contract, breach of which would involve damages, the High Court of the Federal Capital Territory and not the Federal High Court is the appropriate Court for the settlement of such disputes."per MUHAMMAD, J.S.C. (Pp , Paras. B-E) - read in context 8. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "I am in complete agreement with the stated position of the law that where the claim of the plaintiff is based on simple contract and its breach attracts the award of damages against a defendant which is an agency of the Federal Government, the High Court of the Federal Capital Territory or a State High Court will be the appropriate Court to settle such a dispute and not the Federal High Court. See: the proviso to Section 251(1) of 1999 Constitution as amended. See also: Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt.921) 393."Per AKA'AHS, J.S.C. (P. 46, Paras. C-F) - read in context

6 9. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "Yes, the issue of whether the FCT High Court had jurisdiction to entertain the Appellant's action has to be resolved in its favour, because its Suit was based on a simple contract, and it is settled that the Federal High Court is not the appropriate Court to hear it - Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt.921) 393."Per AUGIE, J.S.C. (P. 55, Paras. C-E) - read in context 10. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether the issue of jurisdiction can be raised for the first time at the appellate Court "The appellant contended in the said reply brief of argument that the first issue the respondents raised is whether the appeal is not incompetent by virtue of the fact that the appellant lacks the requisite legal personality to maintain and sustain an action or appeal. The appellant contended further that this is the same as appellant's issue 4. There is no doubt that this issue of juristic personality of the appellant touches and affects the jurisdiction and competence of the Court to entertain the matter, hence it can be raised at any time and level of the Courts."Per ARIWOOLA, J.S.C. (P. 37, Paras. C-E) - read in context

7 IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, herein, was the respondent/plaintiff at the Court of Appeal, Abuja (Court below) and the High Court of the Federal Capital Territory, Abuja (the trial Court), respectively. The respondents, herein were the appellants at the Court below and defendants at the trial Court. The plaintiff took out a writ of summons dated 3rd August, 1999 and filed along with it a statement of claim. The matter was before Kolajo, J. and several applications filed by the respondents/defendants in the matter were heard and refused. Kolajo, J. retired before the matter was finally determined and it was consequently re-assigned to I. U. Bello, J. (as he then was). On the 30th of September, 2001, Bello, J. took a motion for stay of proceedings which he granted pending appeal. The respondents alleged that the appellant, without any notice to them, moved the trial Court to discharge the order of stay of proceedings earlier granted by the same Court when they were served with notice of motion for judgment filed by the appellant. The respondents filed a 1

8 motion for the stay of proceedings and a motion for preliminary objection to the appellant's motion for judgment. The trial Court refused both applications which were struck out. What was then left before the trial Court was the appellant's motion for judgment and counter affidavit of the respondents. The respondents meanwhile, had filed an interlocutory appeal entered by the Court below as No.CA/A/32/2002. The trial Court overruled the objection of the respondents and entered judgment for the appellant based on the motion for judgment. The respondents were dissatisfied and filed their appeal to the Court below praying that Court to strike out the interlocutory appeal No.CA/A/32/2003 on the ground that it was similar to the substantive appeal filed. From the records, both parties pursued to its logical conclusion, appeal No. CA/A/113/2004 where the Court below held that the respondents were agencies or agents of the Federal Government and as such the FCT High Court had no jurisdiction to entertain the appellant's action despite the fact that its claim was based on a simple contract. That is the basis of the appellant's appeal to this Court. 2

9 In this Court, briefs were filed and exchanged with issues formulated therein. Appellant's issues read as follows;- 1. "Whether it is proper for the respondents to maintain Appeals No.CA/A/32/2002, CA/A/113/2003 and CA/A/113/2004 before the Lower Court or neglect to serve their Notice of Appeal, Record of Proceedings and appellant's brief in Appeal No. CA/A/113/2004 on the appellant. 2. Whether the 1st respondent is indeed an agency of the Federal Government. 3. Whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. 4. Whether the respondents validly raised ground 2 of their grounds of appeal which challenges the legal personality of the appellant." The respondents set out their issues as follows:- 1) "Whether this appeal is not incompetent by virtue of the fact that the appellant lacks the requisite legal personality to maintain and sustain an action or appeal. 2) Whether the 1st respondent is indeed an agency of Federal Government of Nigeria thereby giving the Federal High Court exclusive jurisdiction as provided 3

10 for in Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. 3) Whether the respondents/appellants maintained and pursued appeal No.CA/A/113/2004 before the Court of Appeal Abuja Division. 4) Whether the appellant/respondent having argued the appeal at the Court below on all the grounds and issues raised in the appellant/respondents' grounds and Notice of appeal and having adopted the issues in appeal No. CA/A/113/04 entered on the 13/04/09, is not estopped from complaining and/or caught up with the principles of waiver." Learned counsel for the appellant in his submission on issue one is that there were three different appeal numbers on various processes before the Lower Court. The Record of Proceedings served on the appellant is in respect of appeal No.CA/A/32/2001. The appellant's brief is in respect of Appeal No. CA/A/113/2003. The appellant raised a preliminary objection on the ground that the respondents were maintaining multiple appeals at the same time. Learned counsel for the appellant stated that although the Lower Court captured the picture of the confusion of the appellant but came to the conclusion that the confusion 4

11 was self-induced which learned counsel described as "Unfortunate." Learned counsel went on to explain that the Record of Proceedings served on the appellant by the respondents has Appeal No.CA/A/32/2002 and the appellants brief has the number CA/A/113/2003. The respondents never served the Record or appellants' brief in respect of Appeal No.CA/A/113/2004 on the appellant. Now, for some stated reasons, the appellant raised a preliminary objection before the Court below on the ground that the respondents were maintaining multiple appeals at the same time. The Court below, learned counsel submitted, completely neglected appellant's complaint in the preliminary objection and said the appeal before it is CA/A/113/2004 and that Court did not ask the respondents to explain the three different appeal numbers. Learned counsel urged that maintaining these three appeals at once is an abuse that warrants the dismissal of the appeal No. CA/A/113/2004. He cited the cases of African Reinsurance Corp v. Construction Nigerian Ltd. (2003) 13 NWLR (Pt.838) 609; Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126, among others. He urged this Court to set aside the judgment of the Lower Court. 5

12 Respondents issue No.3 to my understanding, is subsumed into appellant's issue No 1 (Learned counsel for the respondents conceded to this much). (See page 18 of the respondents' brief of argument). He conceded further that Appeal No.CA/A/32/2002 existed as an interlocutory appeal, initially. He argued that no appeal No.CA/A/113/2003 ever existed lf it ever existed at all, learned counsel argued that it may have been as a result of misnumbering caused at the Registry in the Court below. Learned counsel for the respondents submitted that assuming, without conceding, that the said appeals existed, there is nothing in law that forbids the filing of more than one appeal. Learned counsel argued further that there is nothing in law stopping an appellant from filing more than one notice of appeal, the respondents/appellants filed, maintained and pursued to its logical conclusion only one substantive appeal No. CA/A/113/2004 in which the Lower Court delivered its judgment of 13th February, He cited in support Tukur v. Govt. of Gongola State (1988)1 NWLR (Pt.68) 39 where this Court held that the right of appeal cannot be lost by the filing of more than one notice of appeal. 6

13 Further, it is urged that this Court should hold that filing, maintaining and pursuing one appeal No.CA/A/113/2004 does not amount to abuse of Court processes. My lords, appellant's issue No.1 and respondents' issue No.3 are same. Both are on the propriety or otherwise of maintaining simultaneously, two or more appeals by same parties in litigation. Before the hearing of the main appeal by the Court below the appellant, who was the respondent at the Court below, filed a separate Notice of Preliminary Objection on 19/9/2005 which was supported by three grounds of objection and a four paragraph affidavit. A counter affidavit was accordingly filed by the respondents as respondents. The Court below considered the affidavit evidence in respect of the preliminary objection and made the following findings: 1. There is nothing before the Court on record to indicate that there is any pending appeal on the matter before this Court and that Appeal No.CA/A/32/2002 which is an interlocutory appeal has been withdrawn. This leg of the objection has no merit and it is hereby dismissed. 2. It is the duty and responsibility of the appellant in 7

14 an appeal to transmit the record on which his appeal would be heard. In the present case, the appellants/respondents transmitted the records of the trial Court prepared by one Hajiya Zainab Adamu Aliyu (Assistant Chief Registrar (Appear) and it was filed on 13th July, 2004 and assigned Appeal No.CA/A/113/2004. There is no merit in this ground of objection and it is dismissed. 3. It is very clear from the submission of counsel that the complaint of the applicants with regards to omission or non inclusion of certain documents in the record of proceedings pertains to the record of appeal No.CA/A/32/2002 and record appeal No which is the CA/A/113/2004 record of appeal under consideration in this appeal. The applicant seems not to be in tandem with the appellants and the Court on the record of appeal under consideration. The objection of the applicant is entirely on a different record of proceedings not before the Court and which is not subject of scrutiny in this appeal. It is very clear that there is state of confusion in the camp of the applicant/respondent as to the exact record of proceedings of the appeal it filed a notice of preliminary objection on. The two appeals the 8

15 respondent/applicant had referred to in both its notice of preliminary objection, the affidavit in support and in the written submission of counsel are appeals Nos.CA/A/32/2002 and CA/A/113/2003 both of which are not before this Court. The appeal under consideration is No.CA/A/113/2004. The third ground of objection lacks merit and it is dismissed. Thus, from the findings and holdings of the Court below, there is no any pending appeal between the parties before it other than appeal No.CA/A/113/2004, upon which it delivered its judgment on the 13th day of February, Now, this is the Court before which all the relevant documents were placed: There can be no better person or authority that could decide better in respect of such documents than that Court. That Court confronted the objector before it (the appellant herein) to justify his claim with evidence which he woefully failed. Then what else can this Court do? I believe nothing. I think for the sake of emphasis, I need to draw attention of prospective appellants and particularly their counsel to be aware by paying due diligence to what the Registry staff 9

16 who are assigned to receive and assign registration numbers to suits/appeals etc. This is to help detect at initial stage, any mistake or omission which may hinder the progress of their cases. Although there are subsisting decisions of this Court stating that a Court of law will not punish a litigant, where he fulfils obligations placed on him simply because of the omission or failure of a Judge or other Court officials to play their part. Further, granted that there were more than one appeal filed by an appellant, this Court, in several decisions, remains constant that the filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal. See the decisions of Sowemimo, JSC, as he then was and Obaseki, JSC; in Iteshi v. The State (1975) 9-11 SC 41; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710. On the other side of the coin, the respondents challenged the appellant that the appellant having argued the appeal 10

17 at the Court below (as respondent) on all the grounds and issues raised in the respondents' (appellants') grounds and Notice of appeal and having adopted the issues in appeal No. CA/A113/2004, is not estopped from complaining and/or caught up with the principle of waivers. This is raised in respondents' issue No.4. There is no response from the appellant on the issue of waiver as the reply brief filed did not consider that issue. It is true from the record of proceedings page 145 in paragraph 3.00, titled "ARGUMENT, the appellant adopted all the issues formulated by the respondents as appellants in that Court which related to appeal No.CA/A/113/2004 (pages of the Record). It was in consideration of these briefs that the Court below delivered its judgment of 13/02/2008 which is the subject of this appeal. It is thus, clear that the appellant/respondent had effectively taken all the necessary steps that led to the subject matter of this appeal consequent upon that the appellant is estopped and has waived any right to complain, as one cannot eat one's cake and have it, or as one cannot, at the same time, approbate and reprobate. The doctrine of waiver 11

18 postulates an abandonment of a right. Two elements for waiver to work need to co-exist; firstly, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver, and in this situation the complaint of the appellant on the multiplicity of appeals before the Court below; secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognising the act or omission. It has been established in this appeal that the appellant adopted all the issues formulated by the respondents as appellants at the Court below. He argued those issues before the said Court and that Court, accordingly, entered its judgment. Can the appellant, then be heard to complain? I do not think so. He who comes to equity must come with clean hands. Now, moving on to consider appellant s issues Nos. 2 and 3 which have been argued together by the learned counsel for the appellant, i.e. whether the 1st respondent is indeed an agency of the Federal Government and whether the Federal High Court has exclusive jurisdiction over matters of simple contracts involving agencies of the Federal Government. 12

19 Learned counsel for the appellant submits that the 1st respondent is not an agency of the Federal Government but an agency of a State pursuant to the combined effect of Sections 2(2),3(1), , 301(a) and 302 of the 1999 Constitution. Section 299, he argued further, provides that the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja, as if it were one of the States of the Federation. He cited and relied on what he termed "Locus Classicus" on the matter, the case of Okoyode v. FCDA (2005) 7 WRN 97 at page 132 and 151, where he said the Court of Appeal held all authorities or bodies created for the sake of the Federal Capital Territory including the Minister or Ministry in charge of administering the territory are not agencies of the Federal Government, relying on the case of Federal Mortgage Bank of Nigeria v. Olloh (2002) 30 WRN 1 (2002) 9 NWLR (Pt.773) at page 175 where this Court held that Federal Mortgage Bank of Nigeria is not an agency of the Federal Government even though the word "federal" is part of its name. In the same way, it is further argued, the 1st respondent who carries out no function 13

20 for the Federal Government cannot be termed as an agency of the Federal Government. The contract which is the subject matter of the suit was for the training of the staff of the 1st respondent which has nothing to do with the Federal Government or any of its agencies. It was argued further that the claim of the appellant before the trial Court could not have been brought before the Federal High Court as it was a matter of the enforcement of a simple contract which is not covered by Section 251(1) of the Constitution. The case of Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt.921) 393, at 405, was cited in support, among others. Learned counsel for the appellant urged this Court to hold that the 1st respondent is not an agency of the Federal Government subject to the jurisdiction of the Federal High Court. Learned counsel for the appellant submitted that the 2nd and 3rd respondents did not file any defence to the suit and they never testified. The Court of Appeal in referring to them as agents of a disclosed principal who should not be liable, exceeded the limits of its power and its findings on this point ought to be set 14

21 aside by this Court. The claim of the appellant at the trial Court was for damages for breach of contract and it had nothing to do with the administration or control of the Federal Government or any of its agencies. The matter did neither arise from the operation or interpretation of the Constitution nor claiming a declaration or an injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The claim, it was contended, is simply for damages for breach of contract. Learned counsel urged this Court to be persuaded by the authorities infederal Mortgage Bank of Nigeria v. Olloh and Onuorah and it should hold that the Federal High Court has no jurisdiction to entertain the appellant's suit because respondents are not agencies of the Federal Government. The claim itself, is not covered by any of the paragraphs of Section 251(1) of the 1999 Constitution. Respondents' issue No.2 correlates with appellant s issues 2 and 3. Learned counsel for the respondents submits that the Lower Court rightly dealt with what the trial Court neglected as fundamental as it is. He submits that the 15

22 Ministry of the Federal Capital Territory, is not an agency of a State but an agency of the Federal Government. Learned counsel made reference to various constitutional provisions of the 1999 Constitution; Federal Capital Territory Act, Cap.F6 LFN, 2004, Vol.6 and judicial authorities. From the provisions of the Act as cited by the learned counsel in his brief of argument, he submits that the Federal Capital territory is not a State and therefore, the Ministry of the Federal Capital Territory cannot be regarded or treated as a state agency but an agency of the Federal Government. Consequently, it is argued further, the trial Court lacked the jurisdiction to entertain this suit as held by the Court below. Learned counsel cited Court of Appeal case of Military Administrator of Benue State v. Abayilo (2001) 5 NWLR (Pt.705) 19 at pages Learned counsel cited as well the provisions of Sections 298 and 299 of the 1999 Constitution that the Federal Capital Territory is not meant to be the 37th State of the Federal Republic of Nigeria as contemplated by the interpretation given in the case of Okoyode v. FCDA (2005) 27 WRN 97. It is learned counsel's submission that the 16