Introduction
Recently, the Court of Appeal ("CA") delivered its decision ("Decision") in the case of Central Bank of Nigeria v. Adani Mega System Limited (Appeal No. CA/ABJ/CV/1300/2023) (the "Appeal"). Therein, it made significant judicial pronouncement on the jurisdiction of the Federal High Court ("FHC") over a contract regulated by an Act of the National Assembly.
It considered the provisions of the (A) Pre-Shipment Inspection of Import Act, 1996 (the "Import Inspection Act") and (B) Pre-Shipment Inspection of Export Act, 1996 (the "Export Inspection Act") (together, the "Acts"). It also considered the nature of the contractual relationship between the Central Bank of Nigeria ("CBN") and private service providers engaged in national infrastructure deployment. The CA extended the frontiers of the jurisdiction of the FHC by holding that the contract between the parties in the Appeal "is not an ordinary simple contract", but "a contract that has statutory flavour" and was therefore within the jurisdictional competence of the FHC as stipulated in the Acts.1
In this piece, we appraise the expounding of the law on the jurisdiction of the FHC by the CA in the light of the provisions of section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (the "Constitution"), case law, and other extant laws.
Facts of the Case
The Appeal was lodged to the CA by the CBN against the judgment delivered by the FHC, Abuja Judicial Division on August 29, 2023, wherein the FHC had upheld, in part, the claims of Adani Mega System Limited, the Plaintiff/Respondent ("Respondent").
The dispute between the parties arose from a multi-million-dollar Build-Operate-Own (BOO) agreement entered into on March 20, 2017 (the "Agreement"), between the Central Bank of Nigeria, acting through its Technical Committee of the Comprehensive Import Supervision Scheme ("CISS"), and the Respondent. By the Agreement, the Respondent was engaged, and granted the exclusive right to design, finance, deploy, and manage the scanning services infrastructure required for the inspection of all inbound and outbound cargo as required by the Nigerian law.2
The crux of the dispute was the legality and propriety of the termination of the Agreement. The Respondent contended that it had substantially performed its contractual obligations under the Agreement, only for the CBN to unjustifiably suspend and later cancel the Agreement. The CBN, on its part, argued that the Respondent had breached the terms of the Agreement by subcontracting critical aspects of the project without requisite consent, thus warranting termination.
At the FHC, the CBN challenged the jurisdiction of the court to hear the suit. After evaluating the evidence and submissions of both parties, the FHC entered judgment partly in favour of the Respondent and held that (A) the Respondent had substantially performed the Agreement, (B) the termination of the Agreement by the CBN lacked justification, and (C) the CBN had not adequately linked its claims of contractual breach with sufficient proof. 3 The FHC found that it has jurisdiction to hear the suit leading to the Appeal pursuant to the provisions of the Acts.
Consequently, the CBN filed the Appeal. One of the key issues in the CBN's Brief of Argument is whether the FHC had the jurisdictional competence to hear and determine the Respondent's suit which was based on a simple contract.
The Decision
In a unanimous judgment delivered by Okon Efreti Abang, JCA with Bello Muhammed and Uwazuoke Okorowo, JJCA concurring, the CA considered the legal submissions from both parties and affirmed, inter alia, the jurisdiction of the FHC to hear and determine the suit leading to the Appeal and ultimately dismissed the Appeal.
The CA held that the suit leading to the Appeal was not founded on a simple contract but rather, on matters within the exclusive jurisdiction of the FHC under section 251(1) of the Constitution. The CA noted that the subject-matter of the case was intricately connected with the performance and implementation of a public infrastructure agreement involving the CBN, an agency of the Federal Government, operating under a statutory mandate.
The CA, per Abang JCA, specifically held thus:
"My Lords, upon a calm and due consideration of the facts of this case, reliefs sought by the Respondent and the interpretation of various statutory provisions cited by the parties, it is my humble but firm view that having regard to the agreement of the parties that led to the execution of exhibit PL3 (build, operate and own agreement) for the provisions of the scanning services infrastructure required for Pre-shipment Inspection of all in bound and out bound cargo as prescribed by Nigerian law, the contract is not an ordinary simple contract. It is a contract that has statutory flavour. In other words, it is a contract regulated by statute ... Therefore, where there is a dispute arising from the said contract regulated by statute, it is the statute itself that that will determine the forum where the aggrieved party will ventilate its grievances"4 (Emphasis supplied.)
In arriving at its position that the Agreement has a "statutory flavour", the CA considered the (A) contents of the Agreement (Exhibit PL3); and (B) letter of award of contract to the Respondent dated February 16, 2017 (the "Award Letter") (Exhibit PL1). For example, clause B of the Agreement provides thus: "pursuant to the Pre-Shipment Inspection of Export Act and the Pre-Shipment Inspection of Import Act party A has granted the right to design, manufacture, deploy, operate and maintain the entire scanning needs of the country of all cargo and person's inbound and out bound points with all public service obligations related thereto to party B."
The CA also considered the introductory clauses, clauses C and F of the Agreement. According to the CA, the Award Letter clearly shows that the Agreement was made pursuant to the provisions of the Acts. The CA found that the CBN entered into the Agreement in discharge of the CBN's statutory functions (assisted by CISS) required under section 13(1) and 15(1) of the Pre-Shipment Inspection of Export Act and that the Certificate of "No-Objection" issued by the Bureau of Public Procurement (the "BPP") to the CBN (Exhibit PL4) was issued pursuant to the provisions of sections 13(1) and 15 (1) of the Export Inspection Act. The CA held thus:
"Therefore, my Lords, where there is a dispute arising from the contract, it is the law or the statute that will be considered to determine the forum where such compliant could be filed. In this case, it is the Pre-Shipment Inspection Export Act, Cap 25, laws of the Federation and Pre-Shipment Inspection of Import Act Cap. 26 laws of the Federation 2004 that conferred jurisdiction on the trial court being Federal High Court to entertain the suit."5 (Emphasis provided.)
The CA referred to the provisions of sections 20(3) of the Export Inspection Act and 9(2) of the Import Inspection Act which conferred jurisdiction on proceedings relating to the Export Inspection Act on the FHC. According to the CA, section 251(1) of the Constitution provides that the National Assembly may confer additional jurisdiction on the FHC in addition to the exclusive jurisdiction specified in the Constitution. The National Assembly has done that here under the provisions of sections 20(3) of the Export Inspection Act and 9(2) of the Import Inspection Act.
The CA pronounced on the inapplicability of the litany of loci classic cited by the CBN with respect to the jurisdiction of the FHC on cases on simple contract to the suit leading to the Appeal. The CA considered the case of Onuorah v. Kaduna Refining & Petro Chemical Co. Limited (2005) 6 NWLR (Pt.921)393 ("Onuorah and KPRC"). According to the CA, the facts in Onuorah and KPRC were in relation to a contract for the supply of empty tins at an agreed price. There was no law passed by the National Assembly which the transaction sought to implement, and which specified that any dispute arising from the transaction be filed at the FHC.
The CA also considered the case of Bank of Industry Limited v. Obeya (2022) 4 NWLR (Pt. 1821) 589 ("Obeya"). The claim in Obeya's case was for the payment of the balance of professional fees by an agency of the Federal Government to a service provider. The contract was not predicated or regulated by a statute. The case of Ikpekpe v. Warri Refinery & Petrochemical Company Limited (2018) 17 NWLR (Pt. 1648) 280 ("Warri Refinery") was also considered by the CA. In Warri Refinery, the Appellant sued the Respondent at the High Court of Delta State and sought for a declaration that the Appellant was entitled to be employed by the Respondent as driver with effect from June 12, 1987. The Supreme Court found that the case was rightly filed at the High Court of Delta State.
Appraisal of the "Additional Jurisdiction" of the Federal High Court
While the Supreme Court of Nigeria has not pronounced on the Decision yet, we agree with the reasoning of the Justices of the CA in holding that the FHC has jurisdiction to entertain the suit leading to the Appeal. Jurisdiction of a court is a threshold issue.6 Its creation is not donated by the whims and caprices of the parties but by statutes and the Constitution.7
The Constitution (and the statute8 ) which created the FHC conferred on it exclusive jurisdiction on items specified in section 251 (1) of the Constitution. To be sure, section 251(1) of the Constitution provides thus: "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 causes and matters." (Emphasis supplied.)
It is in the exercise of the legislative powers of the National Assembly that the Acts were passed, and by sections 20(3) of the Export Inspection Act and 9(2) of the Import Inspection Act, an additional jurisdiction was conferred on the FHC with respect to every proceeding, civil or criminal, in relation to the provisions of the Acts. To be sure, section 20(3) of the Export Inspection Act provides that "[e]very proceeding under this Act shall be ...commenced at the Federal High Court and any references to this Act to Court shall be construed accordingly."
The above provision is clear and unambiguous. Where the words of a statute are clear, a court of law is to give effect to them. 9 This, we submit, was rightly done by the FHC, and affirmed by the CA.
We are also of the view that CA was right with the Decision, as the Agreement was clearly entered into in furtherance of the provisions of the Acts. For instance, clause F of the Agreement explicitly states thus: "As a result of this selection process, the purpose of this Agreement is to (1) Grant to party B [the Respondent] the exclusive right to finance, rehabilitate, manage, maintain, develop, and optimize the scanning needs of the country in line with the provisions of the pre-shipment inspection of export and pre-shipment inspection of import Act; (2) Engage party B (the Respondent] to deploy that Octopus based monitoring platform to achieve the technical committee's vision of a robust Enterprise Export processing." (Emphasis supplied).
The above, and other clauses in the Agreement (such as clauses b (quoted above) and c), the Award Letter and the Certificate of No-Objection issued by the BPP clearly confirmed that the parties' intention was in respect of a contract regulated by statute, that is, the Acts, and not an ordinary simple contract.
In view of the foregoing, it is important to note that the circumstances leading to the Decision of the CA in the Appeal are peculiar and, we submit, has narrow application. The Decision is only applicable to (1) contracts that are clearly made (a) in furtherance of a statute and (b) in order to give effect to such statute. Further, (2) the underlying statute must have clearly conferred jurisdiction on the FHC to hear disputes arising from the statute. It will, therefore, be misleading to describe the Decision of the CA in the Appeal as the CA holding that the FHC has jurisdiction to hear all contracts with statutory flavour, where the statutes in furtherance of which contract was made did not confer jurisdiction on the FHC.
Conclusion
The Decision of the CA in this appeal opens new frontiers to the jurisdiction of the FHC and reinforces the role of the courts in preventing injustice10 and in upholding due process in the execution of governmentbacked infrastructure agreements. The long-held position within the legal community that all disputes on simple contract are to be instituted at the High Court is no longer valid. Subject to the conditions aforementioned and specified in the Appeal, the FHC will have jurisdiction to hear and determine disputes on contracts made in furtherance of a statute.
Footnotes
1 Central Bank of Nigeria v. Adani Mega System Limited (Appeal No. CA/ABJ/CV/1300/2023) at page 27, per Abang JCA.
2 Ibid.
3 Ibid.
4 Ibid, at page 27-28
5 Ibid, page 31-32.
6 See Onoita v. Texaco (Nig.) Plc (2024) 18 NWLR (Pt. 1969) 171; UBA Plc v. Triedent Consulting Ltd. (2023) 14 NWLR (Pt. 1903) 95; Rahman Brothers Ltd. v. NPA (2019) 6 NWLR (Pt. 1667) 126.
7 See Azubuogu v. Oranezi et al. (2017) LPELR-42669 (SC); Okocha Samuel Osi v. Accord Party et al. (2016) LPELR-41388 (SC).
8 Section 7, Federal High Court, Act Cap 134, Laws of the Federal Republic of Nigeria, 2004.
9 NNPC v. Fang Tai Eng. Co. Ltd (2023) 15 NWLR (Pt. 1906) 117, 183.
10 Ibid, at page 47 where the CA itself held that "A Court of law has a duty to prevent injustice in any given circumstances and avoid rendering a decision which will enable a party to escape from his obligations under a contract regulated by statute by his own wrongful act or otherwise profit by his own wrongful act."
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