As man carries out his day to day interactions with his fellow man, there is likely to be strife and disagreement amongst them. This, invariably necessitates the need for a process of resolving these disputes. This is where the law comes to play a role. Under the administration of justice in Nigeria, our justice system is clouded with both substantive and procedural law. There are rules and regulations that define permissible and reprehensible conducts. In other to give effect to these laws, the right and freedom of every individual to access the court for redress was guaranteed. Section 6(6) CFRN 1999 sets this out in clear terms. Regrettably, however, this right has become a subject of abuse by some litigants while approaching the court for redress. Today’s conventional court is flooded with cases wrongly filed before it which in the long run often renders the whole proceeding a nullity. The reason being that, Courts are a creation of statute, and their powers are determined by the enabling law that established them. As a result of this, a court cannot act outside the power conferred on it. The court as an umpire holding evenly the scale of justice between the disputing parties must not entertain a matter without jurisdiction.
There are several instances where matters that falls under the jurisdiction of the State High Court will be taken to the Federal High Court and vice versa. This often arises due to the inadvertence and lack of diligence by one of the counsel in the suit. One may however wonder how the court often deal with issues like this. One maybe tempted to ask: What is the position of law on matters that were wrongly commenced in court that lacks jurisdiction? Will the court strike out such matter or make an order for it to be transferred to the appropriate court? These are some of the questions that will be addressed below. For the purpose of proper analysis, procedures for both the Federal High Court and State High Court will be discussed independently.
PROCEDURE FOR FEDERAL HIGH COURT
The law is trite that whenever a case is wrongly commenced at the Federal High Court which ought to have been commenced at the State High Court, the former court shall transfer such matter to the appropriate State High Court. This can however be done before the court delivers final judgement on the matter. The power to transfer a matter to the State High Court is provided under Section 22(2) of the Federal High Court Act.
The section provides thus:
“No cause or matter shall be struck out by the court merely on the ground that such cause was taken in the court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate high court of a state or of the Federal Capital Territory, Abuja in accordance with Rules of court to be made under section 44 of this Act.”
From the above section, it can be gleaned easily that a judge of the Federal High Court is statutory bound to transfer matters wrongly filed before it to the appropriate court. It therefore follows that, where an action which ought to have been commenced at the State High Court was commenced at the Federal High Court, the judge cannot strike out the suit. It must be transferred to the State High Court.
The above is the practice and procedure for Federal High Court. But then, one may wonder if the practice discussed above is the same in State High Court. Can a judge of the State High court transfer a case to the Federal High Court once it ascertains that it has no jurisdiction on the matter? This will be discussed below.
PROCEDURE FOR STATE HIGH COURT
Prior to the amendment of the 1973 Federal High Court Act, power of transfer can only be exercised by the Federal High Court. However, with the amendment of the Act in 1975, power of transfer was made available for State High Court. By the virtue of the amendment, the State High Court can, as a matter of practice, transfer matters wrongly filed before it, to the Federal High Court. By this, a judge of a State High Court cannot strike out a matter just because it lacks jurisdiction to entertain it. This position can be found under section 22(3) of the Act which provide 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 purpose of this subsection.“
The above is the procedure for a State High Court when faced with matter that falls outside it jurisdiction. However, one may wonder how a Federal High court Act can validly compelled a State High Court to transfer matter wrongly filed before it. Bearing in mind the fact that both courts were established by different laws, can we validly say that the provision of section 22(3) of the Federal High Court Act is valid? This will be addressed below.
THE VALIDITY OR OTHERWISE OF THE PROVISION OF SECTION 22(3) OF THE FEDERAL HIGH COURT ACT
It is respectfully submitted that the provision of Section 22(3) of the Federal High Court Act which allows State High Court to transfer matters wrongly filed before it to the Federal High Court is unconstitutional. The reason for this is as follows:
The Federal High Court and State High Court are independent of each other, and as a result, a Federal High Court Act cannot purport to legislate for a State High Court. While S. 22(2) can enable the Federal High Court to transfer a matter to the state High Court because it is the Act under which it was established, the State High Court cannot be compelled under the Act to transfer a matter to the Federal High Court because, the State High Court is not established under the Act but under a different state law. The court of appeal in the case of ATTAH V. UTHMAN (1987) 1 NWLR (pt.51) 475. held thus:
“Since both the Federal High court and state High court are independent of each other, the provision of S.22(3) of the Federal High court Act, which provides for transfer of matter from one court to the other is unconstitutional.“
A State High Court can only be compelled to transfer matter wrongly commenced before it to a Federal High Court if same is allowed in the State High Court (Civil Procedure) rule. The state house of Assembly of each state has the power to do this. In the absence of any provision to that effect, a judge of the state High court cannot rely on the provision of S. 22(3) of the Federal High court Act to transfer suit wrongly filed before it to a Federal High Court. This position was affirmed by the court in the case of FASHAKIN FOODS (NIG) LTD v SHOSANYA (2006) 10 NWLR (Pt 987 126 where the supreme court per Muhammad JSC held thus:
“Unless and until there is a clear enabling provision in the Lagos State High Court Law or that State High Court (Civil Procedure) Rules empowering the State High Court to exercise the powers vested in it under Section 22 (3) of the Federal High Court Act, not being a law made by the House of Assembly of the State pursuant to Section 239 of the 1979 Constitution, the trial Court has no power to transfer the appellants action wrongly filed in that Court to the Federal High Court, Lagos Judicial Division.“
The above position was further reaffirmed by the court in the case of ADOLE & ANOR. V. PPMC & ANOR. (2009) LPELR-CA/K/357/2005 where the court held thus:
“Under the High Court of Lagos State (Civil Procedure) Rules, 1972, there is no rule of procedure, which enables a State High Court, to transfer a cause or matter, to the Federal High Court. That Court, cannot even in the circumstance, resort to or fall back to the practice and procedure in England as there appears to be no such provision of transfer from a High Court to the Federal High Court. So as it stood or stands, the Lagos State House of Assembly has not made any provision for the transfer of a cause or matter to the Federal High Court.”
From the above authorities, one will see, that the provision of S. 22(3) of the Federal High Court Act which provides for power of transfer of case from state High court to Federal High court remains unconstitutional. This was as a result of the approach of the court towards it. The appropriate steps to be taken by a state High court when faced with matter wrongly filled before it is to strike out the matter. This is exactly the decision of the court in the recent case of WEMA BANK v. CRESTWOOD HOLDINGS LTD (2019) LPELR-CA/L/924/2011 where the court held that:
“There is no such provision in the High Court of Lagos State (Civil Procedure) Rules and so a judge of the State High Court who finds he has no jurisdiction to try a case ought to strike out the suit so as to afford the plaintiff another opportunity of going again before the Court with jurisdiction to try the case.”
NOTE: The above procedure discussed above is totally restricted to transfer of cases from Federal High court and state High court and vice versa only. There are rules and procedures that regulates transfer of case from other courts that were not discussed.
For example, under the Abuja Rules 2004, the High Court of the Federal Capital Territory, Abuja, can transfer a matter to any court or tribunal. Order 32 Rule 1 of the Abuja Rules, 2004 provides thus:
“Subject to the provisions of any enactment, a judge shall have powers to transfer any matter pending in:
(a) His court: or
(b) Any lower court of the Federal capital Territory; or
(c) To any Court or tribunal of competent jurisdiction“
So, the practice differs on the basis of the court in question.
Here in Nigeria, there are statutes that regulates practice and procedure of court when it comes to litigation. They are well enshrined on pages of code. Among these statutes is the Federal High Court Act which provides for power of transfer of cases from a Federal High court to a State High court and vice versa. While the Act can as a matter of law compel a Federal High Court to transfer matters wrongly filled before it to a State High Court, same cannot be applicable when it comes to State High court. State High Courts are established under different laws and only the State High Court Civil procedure can provide for same. As it is, the provision of S. 22(3) of the Federal High Court Act which provides for power of transfer of case from State High Court to Federal High Court remain unconstitutional. A Federal Act cannot purport to legislate for a State High court. It is a strange practice and same is unknown to law.
ABOUT THE AUTHOR
Gobir Habeeb Bolaji is a 400level law Student of Usmanu Danfodiyo University, Sokoto. He can be reach on mobile via 08108527278 or email: firstname.lastname@example.org