Trial Courts And Territorial Jurisdiction (II)

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Calabar, Names of Justices that sat on the appeal: Mohammed B

Lawal Garba, J.C.A (Presided; Uzo I. Ndukwe-Anyanwu, J.C.A. (Read theLeading Judgment);

Isaiah Olufemi Akeju, J.C.A

Appeal No: CA/C/182/2010

Date of Judgment: Thursday, 26th April, 2012  C

Names of Counsel: Ebere Uzoatu Esq-for the Appellant Dasil Akpan Esq-for the Respondent High Court

Name of the High Court: High Court Akwa IbomState,

UYO   D Date of Judgment; Wednesday, 5th July, 2006 Counsel:

Ebere Uzoatu Esq-for the Appellant

Dasil Akpan Esq – for the Respondent ANYANWU; J.C.A. (Delivering the Leading Judgment):

The appellant and the respondent entered into a contract for the respondent to supply the appellant with motor spare parts. The respondent has her Head Office in Uyo whilst the appellant has His Head Office in Aba. The respondent supplied the appellant with G the spare part at a cost of N1.2m. The appellant received the parts and made a full payment of N1.2m vide a Zenith Bank cheque of 20th September, 2005. This cheque was returned unpaid for lack of funds. The respondent’s bank UBA also surcharged him with a sum of N210.00.

After several entreaties, the appellant paid instalmentally a total of N550,000.00 only and refused paying any further sums.

The respondent thereafter wrote the appellant through his counsel demanding the payment of N650,000.00 balance remaining from the transaction. Two letters were indeed written and dispatched to A the appellant by courier. On receipt of these letters, the appellant replied alleging that the parts delivered were inferior and thereafter refused to pay any further sums.

The respondent as plaintiff took out a writ under the undefended list procedure. The appellant as B defendant filed an intention to defend together with his affidavit. The trial Judge held that, the defendant/respondent did not disclose any defense on the merit and therefore set a date for hearing.

“The judgment be and is hereby entered in the sum defendant being the balance of the cost of Motor C  Parts (Mack Clutch Assembly) supplied by the plaintiff to the defendant. That the judgment sum shall attract interest at the rate of 5% per annum from today’s date until it is fully liquidated. That cost of this action is D  assessed at the sum of N10,000 in favour of the plaintiff against the defendant.”

Being dissatisfied, the defendant/appellant filed his notice and 3 grounds of appeal. The appellant filed his appellant’s brief on 14th December, 2010 and articulated 3 issues for determination as follows:

E          “(i) Whether upon a calm view of the affidavits, reply and further affidavits of both the respondent and the appellant, the High Court below was right to have assumed jurisdiction to entertain the suit in the first place without first calling for oral evidence to determine the bona fide of the parties.

F (ii) Whether upon a calm view of the affidavit, counter-affidavit, reply to counter-affidavit and further affidavit of both the respondent and the appellant, the High Court below was right to have placed the suit under the undefended list instead of the general cause list in order to give both the appellant and the respondent the opportunity to be heard and be cross-examined to meet with the justice of the case.

(iii) Whether the judgment of the High Court below represents a dispassionate and full consideration of H the issues raised by the appellant before that court and fully made in the appellant’s brief vide affidavit, and further affidavit.”

Also filed is the appellant’s reply brief on 27th may, 2011.

The respondent also filed his brief on 02/02/2011 but deemed properly filed and served on 17th May, 2011. In his brief, A  the A respondent articulated his own 3 issues namely:

“i.  Whether the learned trial judge had jurisdiction to entertain the suit of the plaintiff?

ii. Whether the defendant/appellant had properly raised a case of forgery for consideration by the trial court? B

Iii Whether the learned trial judge was proper in awarding cost of N10,000.00 and interest of 5% per annum in favour of the plaintiff against the appellant?”

The appellant’s issues are very inelegant but what I can decipher to be the ral issues in this appeal are: C

(1)        Whether the High Court Akwa Ibom State had jurisdiction to hear this suit.

(2)        Whether the court was right to have placed this suit under the undefended list procedure with the allegation of forgery  D.

(3)        Whether the judgment and the reliefs granted are within the courts jurisdiction.

ISSUE 1

The appellant in his brief argued that the contract to supply him the Mack Truck Clutch Assembly Exh. A was concluded in E Aba, Abia State and as such the suit should have been instituted in Aba, Abia State. Also the defendant/appellant carries out business in Aba, Abia State.

In response the learned counsel for the respondent submitted that s. 251 of the 1999 Constitution of the Federal Republic of F Nigeria gave the court jurisdiction to hear and determine suits that occur within their territorial jurisdiction. The respondent’s counsel submitted that the respondent’s claim is for the recovery of a liquidated sum of N650,000.00 being the outstanding balance for the cost of goods supplied by the respondent to the appellant in G 2005.

Learned counsel to the respondent referred the court to paragraphs 6,7 and 8 of the respondent’s affidavit as follows:

“6 That sometime in September 2005 the defendant … approached the plaintiff’s chief executive…. H at the plaintiff’s head office at No. 203 Ikot Ekpene Road, Uyo and requested the plaintiff to supply to the defendant Mack Truck Clutch Assembly (motor parts)…

A         7.  That the defendant inspected the said motor part and having being satisfied withits quality and condition agreed to purchase same at a total cost of N1.200,000.00.

8. That the plaintiff supplied the said motor part to the B  defendant who took delivery in good condition and transported same to her office at Aba.

From the above the trial Judge held as follows:

“The defendant insists that Abia State is the proper jurisdiction/venue. “The law is that it is the plaintiff’s claim that determines jurisdiction. In that respect, it is clear from paragraphs  6 and  7 of the affidavit in support of the Motion Exparte that the plaintiff says the contract, the subject matter of this suit was concluded, executed and performed in Uyo, Akwa Ibom State.

That being so, the proper jurisdiction is Uyo, Akwa Ibom State.”

D Counsel referred the court to O R  3 Akwa Ibom State High Court (CIVIL Procedure) Rules 1980 which provides that:

“Suits arising from breach of contract shall be commenced and determined in the judicial Division in which the contract was entered into or ought to have been performed or in which the defendant resides or carries on business.”

Counsel submits that under s. 22 (1) of the High Court Law, Akwa Ibom State that the suit is no longer a breach of contract perse but F one for recovery of a debt. See Rivers State Govt of Nig. V. Specialist Konsult (2005) 21 NSCOR page 612, (2005) 7 NWLR (Pt. 923) 145

Counsel referred the court to the distinction between judicial division and geographical venue enunciated by Nzeako J.C.A. in Intrnational Nigerbuild construction Co Ltd v. Giwa (2003) 13 G  NWLR (Pt.836) page 69 at pages 98-99, paras H-A.

It was held:

“The test of where the defendants reside, applied by counsel in his argument to show that jurisdiction lies in the Lagos High Court, applies when the matter in controversy is the issue of judicial division to bring a suit. This is a different issue from the wider issue of territorials or geographical venue or jurisdiction which is their bone of contention under this issue in this appeal. There is distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of A a court and jurisdiction in relation to the jurisdiction as it relates to the jurisdiction in relation to the judicial division within which to commence an action. the distinction between venue, as aspect of jurisdiction whcih could be administrative or geographical, in B which a suit may be herd, is often provided in the rules of court of the various states of the Federation.

But when it comes to territorial jurisdiction, whcih is whether a suit ought to have been brough in one state but brought in another, the criteria is different. In such C a case, the court has no jurisdiction and it cannot be conferred by agreement or consent of the parties”

I.K. Martins (Nig) Ltd v. University Press Ltd. (1992) 1 NWLR (Pt. 217) pg. 322 it was held that “where no place for payment is specified by a contract, it is the duty of the debtor to seek the D creditor in order to pay him at his place of business or residence.

see also the cases of National Bank Ltd. v. Shoyoye (1977) 5 SC 181; Abia State Transport Corporation v. Quorum Consortium Ltd.

(2004) 1 NWLR (Pt. 855) pg. 601.

Counsel submitted finally that the contract was entered into, performed and or executed to completion at Uyo, Akwa Ibom State.

Counsel urges the court to hold that Akwa Ibom State High Court has jurisdiction to entertain this suit.