IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 7 TH DAY OF MAY 2013 SUIT NO. FCT/HC/CV/2055/11 M/2997/12 BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE OJO JUDGE BETWEEN: ABDULRASHEED AJANA PLAINTIFF/APPLICANT AND 1. ZENITH BANK PLC 2. UGONNA AGARANDU DEFENDANTS/RESPONDENTS 3. CHARLES OMERE RULING This is a motion on notice brought under the inherent jurisdiction of this Court wherein the plaintiff seeks the following reliefs: 1. An order of Court transferring SUIT CV/2055/11 pending before this Honourable Court to the National Industrial Court, this Court having been divested with the power to hearing same by the Constitution of the Federal Republic of Nigeria 1999 (as amended). 1

2 2. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance. The motion is supported by an 8 paragraphed affidavit and a counsel s written address. The defendants counsel filed a written address containing his arguments in opposition to the motion while the plaintiff/applicant s counsel filed a reply on points of law. The plaintiff filed a writ of summons in this Court on the 21 st of December 2011 wherein he seeks the following reliefs: i) The sum of N100,000,000 (one hundred million naira) as damages for defamation, when on 9 th November 2010, the defendants falsely and maliciously published (and/or caused to be published) of and concerning the plaintiff, to his colleagues at work, other bankers, customers, neighbours, policemen and other persons, the following words, viva voce and in writing: Rasheed Ajanah is a staff of the bank who stole the sum of Eleven Million, three Hundred and Ninety Six Thousand Five Hundred Naira only (N11,396,500) from the Bank. He was the cash officer and he was found to be manipulating the general ledger account and he consistently refused to reconcile the account until he was asked to do so. He is on the run and currently at large and should be arrested wherever he is found. ii) The sum of N10,000,000 (Ten Million Naira) for the torts of malicious falsehood and false imprisonment, when on 2

3 12 th November 2010 the Nigerian Police Force, at the defendants petition, instigation and supervision, arrested, interrogated and detained the Plaintiff, for no just cause. iii) The sum of N10,000,000 (Ten Million Naira) against the 1 st Defendant, being damages for impairment of health and/or injuries suffered by the Plaintiff due to the 1 st Defendant s inclement working conditions/environment and/or exposure to health hazard. iv) The sum of N1,000, (One Million Naira), against the 1 st Defendant, being Plaintiff s outstanding/accrued disengagement benefits and other terminal entitlements. v) An unconditional letter of apology by the Defendants to the Plaintiff, copy of which should be posted on the 1 st Defendant s website or advertised by means of an insertion in a National Newspaper. thus: Paragraphs 4 and 5 of the Affidavit in support of this motion reads 4. That after the plaintiff had filed this suit before the High Court of the Federal Capital Territory, Abuja a further research by his lawyers (Messrs Ola Olanipekun & Co.) revealed that the National Industrial Court is now vested with the exclusive jurisdiction to adjudicate on civil cause and matters relating to or connected with any labour employment, trade union, industrial relation and matters arising from work place, the condition of service, including health, safety, welfare or labour, employee, worker and matters incidental thereto or connected therewith. 3

4 5. The Plaintiffs counsel promptly made consultations and decided that this suit be transferred to the National Industrial Court which has jurisdiction for determination. Both parties are agreed that by virtue of Section 254 C(1A) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) it is the National Industrial Court that has jurisdiction over this case. I have gone through the reliefs claimed in this suit. I am in agreement with counsel that this court does not have jurisdiction over this matter but that same squarely falls within the jurisdiction of the National Industrial Court and I so hold. The area of disagreement between the parties is what order to make in the circumstances, whether it is one transferring the suit to the National Industrial Court or one striking it out. The Plaintiff s Counsel relying on the provision of Section 24 of the National Industrial Court Act 2006 urged me to transfer this case to the National Industrial Court which has jurisdiction to entertain same. The position of learned counsel to the defendant/respondent is that the proper order is one striking out this suit. He submitted that the law is that where a court finds that it has no jurisdiction to hear a suit the proper order to make is one striking it out. He relied on the cases of FASAKIN FOODS (NIG.) LTD. VS. SHOSANYA (2006) 10 NWLR Pt 987 Pg. 126; NEN LTD VS. ASIOGU (2008) 14 NWLR Pt Pg. 587 and DAIRO VS. UBN (2007) 16 NWLR Pt Pg

5 Section 24 of the National Industrial Court Act provides thus: 24(2) No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the Federal High Court or of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the court before whom such causes or matter is brought may cause such cause or matter to be transferred to the appropriate Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 36 of this Act. (3) Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of Court for the purposes of this subsection. 5

6 The above provisions are similar to Section 23(3) of the Federal High Court Act which provides thus: Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include power to make rules of Court for the purposes of this subsection. Section 22(3) of the Federal High Court Act has been given judicial interpretation. See FASAKIN FOODS (NIG.) LTD. VS. SHOSANYA (2006) 10 NWLR Pt. 987 Pg. 126 and E.C.O IJEOMA VS. PETROMEAD OIL (NIG.) LTD. and ORS. (Unreported) SUIT NO: CA/PH/69/2007 delivered by the Court of Appeal (Port Harcourt) Judicial Division on Thursday 9 th day of July, In FASAKIN FOODS (NIG.) LTD. VS. SHOSANYA (SUPRA) the appellant instituted an action against the respondent at the Lagos High Court. The Lagos High Court found that the court with proper jurisdiction was the Federal High Court and directed, pursuant to Section 22(3) of the Federal High Court Act, that the suit be transferred to the Federal 6

7 High Court. Dissatisfied, the respondent appealed to the Court of Appeal, which said court set aside the order of transfer, and in its place, made an order striking out the suit for lack of jurisdiction on the ground that the High Court had no power to transfer the suit to the Federal High Court. The appellant being dissatisfied with the decision of the Court of Appeal appealed to the Supreme Court. Citing Sections 233 and 239 of the 1979 Constitution the Supreme Court held that while only the National Assembly could make laws with respect to the practice and procedure in the Federal High Court, the power to make similar laws for the High Court of a State is vested in the House of Assembly of a State. That the Lagos High Court s powers can only be exercised subject to laws made by the Lagos State House of Assembly just as any other State High Court under Section 239 of the 1979 Constitution (which vested legislative authority to make laws for the High Court of a State in that State s House of Assembly). The Supreme Court held that Section 22(3) of the Federal High Court Act (an Act of the National Assembly) was inconsistent with the Constitution in so far as it purports to legislate in respect of powers of State High Courts. The apex Court therefore held that a State High Court cannot purport to act under Section 22(3) of the Federal High Court Act (which is a law made by the National Assembly) to transfer a suit over which it has found that it has no jurisdiction, to the Federal High Court. Such an act, according to the apex court, would be invalid and inconsistent with the Constitution. The apex Court further held that there is no rule of procedure under Rules of the Lagos High Court which empowers it to transfer a cause or matter to the Federal High Court and as courts can only act in accordance with its Rules, any such transfer would be a null act as there is no ground for going against the age long tradition at Common 7

8 Law that a court which finds itself without jurisdiction over a matter ought to strike same out. The Supreme Court held at Pg. 149 Paras. B - D per Ogbuagu JSC as follows: This is because it has long been settled in a number of decided cases that where a Court holds that it has no jurisdiction, the proper order to make is to strike out the suit or proceeding. It does not transfer and cannot transfer. TOBI, JSC at Pg. 157 in that case held thus: It is the common law tradition, if I may say so, that where a Court lacks jurisdiction, the order is to strike it out to enable the party to commence the action de novo in a Court of competent jurisdiction. Section 22(3) of the Federal High Court Act lacks the strength and capacity to ruin the Common Law tradition. The subsection was too ambitious and this Court will cut it to size. I so cut it. The provisions of Section 24 of the National Industrial Court Act 2006 being similar to that of Section 22(3) of the Federal High Court Act, whatever interpretation that has been given by the Supreme Court to the latter would apply to the former. By the doctrine of judicial procedent I am bound by the decision in FASAKIN FOODS (NIG.) LTD. VS. SHOSANYA (SUPRA) and my view is that same has clearly settled the issue for determination in this motion. 8

9 This Court has no power to transfer a case to the National Industrial Court and I so hold. Having held that I have no jurisdiction to hear this matter the proper order to make in the circumstance is that striking out the suit. Accordingly, this suit is struck out for want of jurisdiction. HON. JUSTICE F. A. OJO JUDGE 7/05/2013 Terence Vembe for the Plaintiff. John Erameh with Abdulraheem Kamil and Brenda Nwosa (Miss) for the Defendants. 9