By Lady Augusta Eleri, LL.M., C.K. Anyanwu, LL.M., P.N. Vitalis, Esq., T.E.N. Udo, Esq., Precious Chidiadi Eti, Esq.
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ABSTRACT
The power of a court to transfer a suit to another court where it lacks jurisdiction is not automatic but depends on the provisions of the law. This article examines the legal position on the transfer of suits between the Federal High Court and State High Courts in Nigeria, with particular attention to the statutory provisions and judicial decisions governing the exercise of such powers. It considers the power of the Federal High Court to transfer matters to a State High Court or the High Court of the Federal Capital Territory, Abuja, and the limitations on the power of a State High Court to transfer matters to the Federal High Court. The authors employed a doctrinal legal research method which incorporates both primary and secondary sources of law and legal materials. The article also examines the position on transfers between High Courts of different States, transfers between judicial divisions of the same court, and the extent of the Court of Appeal’s powers to order a transfer under the Court of Appeal Act. In addition, it considers the statutory power of a Chief Judge to transfer criminal cases, including the circumstances in which that power may or may not be exercised. Drawing from relevant statutory provisions and judicial authorities, the article highlights the fact that the power to transfer a matter must have a clear legal basis and must be exercised within the limits prescribed by law. It concludes that a court cannot transfer a matter merely because another court has jurisdiction to hear it; the power to do so must be expressly recognised by the applicable law.
Keywords: Jurisdiction, transfer of suits, Federal High Court, State High Courts, Court of Appeal, Chief Judge, Administration of Criminal Justice Act, judicial divisions.
INTRODUCTION
It is imperative to note that the question of whether a court that lacks jurisdiction over a matter can transfer the case to another court that has the requisite jurisdiction has continued to arise in Nigerian courts. Although the law recognises the power of certain courts to transfer matters, that power is not automatic. It must be exercised within the limits set by the Constitution, relevant statutes and applicable rules of court. A distinction must be drawn between the power of the Federal High Court to transfer a matter to a State High Court or the High Court of the Federal Capital Territory, Abuja, and the power of a State High Court to transfer a matter to the Federal High Court. While the Federal High Court has express statutory authority to make such transfers, the position is different where a State High Court seeks to transfer a matter to the Federal High Court. The courts have also considered the circumstances in which the Court of Appeal can exercise its powers to make orders that ought to have been made by a trial court, particularly where the trial court lacked jurisdiction in the first place. This piece examines the relevant statutory provisions and judicial decisions on the subject. It also considers the power of a Chief Judge to transfer criminal cases, the limits of that power, and the circumstances in which an appellate court may or may not order the transfer of a suit.
TRANSFER OF SUITS IN CIVIL MATTERS
In this regard, this piece considers the propriety of a court’s power to transfer a suit suo motu. It also examines the power of the Federal High Court to transfer a suit to a State High Court and vice versa. Equally important, it considers whether a court can transfer a suit from one state to another or between different judicial divisions of the same court.
A) Power of a Court to Transfer a Suit to the Appropriate Court Suo Motu
The issue is whether a trial court can transfer a case to the appropriate court with jurisdiction without first inviting the parties to address the matter.
In DEC OIL & GAS LTD v. SHELL NIG. GAS LTD (2019) LPELR-49347(SC), the apex court had this to say:
“…..I will not hesitate to state that it does not amount to breach of fair hearing as rightly held by my learned brother Galumje, JSC, in the lead judgment. Per OGBUAGU, JSC in FASAKIN FOODS (NIG.) LTD. V. SHOSANYA (2006) LPELR-1244 (SC) reiterated that the Federal High Court can transfer a cause or matter to a State High Court, by virtue of Section 22(2) of the Act. See also ALUMINIUM MANUFACTURING CO. (NIG.) LTD. V. N.P.A. (1987) 1. Section 22(2) of the Federal High Court Act is a saving provision. It saves a matter duly and properly filed in a Court of law from being struck out. Instead of striking out for lack of jurisdiction, Section 22(2) vests in the Federal High Court, the power to transfer the matter to the appropriate Court. See Per NIKI TOBI, JSC inFASAKIN FOODS (NIG.) LTD. V. SHOSANYA (2006) LPELR- 1244 (SC). Thus, the power exercised by the trial Court is within the ambit of the law to do so. In fact, may I produce the relevant Section for emphasis. Section 22(1)(2) of the Federal High Court Act provides:- “22. (1) A Judge of the Court at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without application from any of the parties thereto, shall transfer such cause or matter before him to other Judge of the Court. (1975 No. 36). (2) No cause or matter shall be struck out by the Court merely on the ground that such cause or 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.” The Federal High Court Judge therefore has power to order a transfer suo motu. In the exercise of the powers above, the Judge is merely acting administratively and the issue of lack of fair hearing cannot avail a party raising it in the circumstances. Clearly there is no right of appeal where the Judge, in his administrative capacity, transfers a case from one Court to another either suo motu or upon the application of a party to the suit.”
Per UWANI MUSA ABBA AJI, JSC (Pp 39 – 41 Paras B – C)
B) The Power of the Federal High Court to Transfer a Suit to a State High Court
Section 22(2) of the Federal High Court Act (as amended) and Order 2 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019 provide for the transfer of matters from the Federal High Court to a State High Court or the High Court of the Federal Capital Territory, Abuja, where the Federal High Court lacks jurisdiction to entertain the matter.
Section 22(1) of the Federal High Court Act provides as follows:
“….A Judge of the Court may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court.”
Order 2 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019 provides as follows:
“…..No proceeding which has been taken before the plea in objection shall be in any way affected thereby, but the Judge may order that the cause be transferred to the Judicial Division to which itis proved to his satisfaction, to belong or, failing such proof, order that it be retained and proceeded with within the Court in which it had been commenced.”
Thus, when the Federal High Court finds that it lacks jurisdiction over a matter, it is not required to strike it out. Instead, it is empowered to transfer the suit to the appropriate State High Court or the High Court of the Federal Capital Territory (FCT).
In Maigana v. I.T.F. (2021) 8 NWLR (Pt. 1777) 1 S.C., the Supreme Court considered the purpose and effect of section 22(2) of the Federal High Court Act and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009.
The Court held that the purpose of these provisions is to save a suit filed at the Federal High Court over which that Court has no jurisdiction. Section 22(2) gives the Federal High Court the power to transfer the suit to either the State High Court or the High Court of the Federal Capital Territory, Abuja, where the court has jurisdiction to hear the matter.
The Court further held that nothing in the provisions requires a Judge to decline jurisdiction before making an order of transfer. There is also nothing in the provisions to suggest that where a Judge wrongly assumes jurisdiction and determines a case to finality, an order of transfer under Section 22(2) cannot be made.
Similarly, in Abubakar v. Buhari (2023) 12 NWLR (Pt. 1897) 61 S.C, the Supreme Court considered the provisions of section 22(1) of the Federal High Court Act and Order 2 rule 4 of the Federal High Court (Civil Procedure) Rules, 2019.
The Court held that where an action is commenced in the wrong judicial division of the Federal High Court and the Court is not minded to proceed with its hearing, the appropriate order is to transfer the matter to the proper judicial division rather than strike out the suit.
The Court went further to hold that even where the Federal High Court determines that it lacks jurisdiction over a matter, it is mandated to transfer the matter to the appropriate court instead of striking it out. The trial court was therefore wrong to have struck out the case of the 1st respondent.
See also: Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 C.A.
The Supreme Court reaffirmed this principle in W.A.E.C. v. Folorunsho (2025) 17 NWLR (Pt. 2014) 283 S.C., where it held that by virtue of section 22 of the Federal High Court Act, where the Federal High Court lacks jurisdiction to hear a suit, it ought to transfer the suit to the relevant court that has jurisdiction.
These decisions establish that the Federal High Court has statutory authority to transfer a matter to the appropriate State High Court or the High Court of the Federal Capital Territory, Abuja, where it lacks jurisdiction.
C) Whether a State High Court Can Transfer a Suit to the Federal High Court
The position is different when a State High Court seeks to transfer a matter to the Federal High Court.
Although section 22(3) of the Federal High Court Act purported to give a State High Court or the High Court of the Federal Capital Territory, Abuja, the power to transfer a matter to the Federal High Court, the Supreme Court has declared that provision unconstitutional and invalid.
The reason is that the National Assembly lacks the constitutional authority to confer such a power on State High Courts through that provision.
In N.N.P.C. v. Alabi (2023) 6 NWLR (Pt. 1879) 81 S.C., the Supreme Court considered whether a State High Court could transfer a matter to the Federal High Court where it lacked jurisdiction to determine the matter.
The Court held that, under the High Court of Oyo State (Civil Procedure) Rules applicable when the cause of action arose, there were no rules of court conferring on the trial court the power to transfer matters to the Federal High Court where it lacked jurisdiction.
This position received further clarification in NIMASA v. Ihenacho (2026) 13 NWLR (Pt. 2057) 261 (SC).
In that case, the Supreme Court made a clear distinction between the power of the Federal High Court to transfer a matter to a State High Court and the purported power of a State High Court to transfer a matter to the Federal High Court.
The Court held that the Federal High Court has the power to transfer a cause or matter to a State High Court or the High Court of the Federal Capital Territory, Abuja, by virtue of section 22(2) of the Federal High Court Act (as amended).
However, a State High Court, including the High Court of Lagos State, cannot transfer a matter to the Federal High Court where it lacks jurisdiction to entertain the suit, as it has no applicable rule of procedure enabling it to do so.
The Court further explained that section 22(3) of the Federal High Court Act, which purported to confer such power on State High Courts and the High Court of the Federal Capital Territory, Abuja, had already been judicially declared null and void because the National Assembly lacked the power to enact that provision.
Consequently, the Supreme Court held that the reliance placed on section 22(3) by the Court of Appeal and the 1st and 2nd respondents was misplaced.
Having found that the High Court of Lagos State lacked jurisdiction to entertain the suit, the Supreme Court held that the proper order the Court of Appeal ought to have made was to strike out the suit and not to transfer it to the Federal High Court.
The decision of the Court of Appeal transferring the suit to the Federal High Court for accelerated hearing and determination was therefore set aside.
The decision in NIMASA v. Ihenacho (2026) 13 NWLR (Pt. 2057) 261 (SC) is particularly important because it settles the distinction between the powers of the two courts. While the Federal High Court can transfer a matter to a State High Court where it lacks jurisdiction, the reverse is not permitted under section 22(3) of the Federal High Court Act.
D) Transfer of Cases Between High Courts of Different States
Another important question is whether a High Court of one State can transfer a matter to the High Court of another State.
In Dairo v. Union Bank & Anor (2007) LPELR-913 (SC), the Supreme Court considered whether a court could transfer a case from one State to another.
The Court held that such a transfer was not permissible. For instance, the High Court of Lagos State cannot transfer a case to the High Court of Ogun State, nor can the High Court of Ogun State transfer a case to the High Court of Lagos State.
The decision was based on sections 234(1) and 236 of the 1979 Constitution, which recognised the authority of the Chief Judge of a State in relation to the transfer of cases within that State’s judicial structure.
Any attempt to transfer a case across State boundaries would be unconstitutional and void.
The Court also relied on Najih Stephen v. Ollivio Pedrochi (1938) NNLR 51 in support of this position.
The implication is that the power to transfer cases is not a general power that one High Court can exercise over another High Court in a different State. Such power must be supported by the Constitution.
E) Transfers of Suits Between Different Judicial Divisions of the Same Court
When a suit is validly within a court’s overall jurisdiction but filed in the wrong judicial division, the court should transfer it internally rather than strike it out.
In Abubakar v. Buhari (2023) 12 NWLR (Pt. 1897) 61 S.C., the Supreme Court held that pursuant to Section 22(1) of the Federal High Court Act and Order 2 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019, an action commenced in the wrong judicial division of the Federal High Court should be transferred to the appropriate division rather than struck out. See also: Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 C.A.
However, the power to transfer between divisions cannot be exercised in an abstract vacuum. In Mohammed v. Petrodel Resources (Nig) Ltd (2018) LPELR-44197 (CA), the Court of Appeal noted that while Sections 19(2) and 22(1) of the Federal High Court Act allow transfers to the correct division, this power cannot be exercised where the party requesting the transfer fails to specify or identify the proper judicial division to which the case should be sent.
F) Power of a State High Court to Transfer a Case to Another Court Where It Lacks Jurisdiction
It is important to note that unlike the provision of Section 22(3) of the Federal High Court Act, which makes provision for transfer of matters wrongly commenced in that Court to the appropriate Court, the High Court (Civil Procedure) Rules of Oyo State make no such provision for transfer of matters wrongly instituted in that Court to the appropriate Court. In the circumstance, the only order which the trial Court could make upon determining that it had no jurisdiction was to strike out the matter as it rightly did. The Court below was wrong to transfer the matter, as that power was not provided for in the Rules of the High Court of Oyo State.
See: NNPC v. ALABI & ORS (2022) LPELR-59546 (SC)
G) Power of the Federal High Court to Transfer an Action Wrongly Filed Before It to the National Industrial Court
In CHIEF OF NAVAL STAFF & ANOR v. OKPANACHI (2022) LPELR-58273 (CA), the Court held as follows:
“Now, the position of the law as regards transfer of cases from the Federal High Court and the National Industrial Court is governed or regulated by the Acts establishing both Courts.
Section 22 (2) of the Federal High Court Act provides as follows:
“….No cause or matter shall be struck out the Court merely on the ground that such cause or 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.”
In the same breath, Section 24 (3) of the National Industrial Court of Nigeria Act 2006 provides thus:
“…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.”
By the combine provisions of Section 22 (2) of the Federal High Court Act and Section 24 (3) of the National Industrial Court of Nigeria Act, 2006, the action of transferring the suit to the National Industrial Court by the Federal High Court was correct in law.
Further, Order 28 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2007 provides as follows:
“….Where the Court has in the exercise of the powers conferred by Section 24 (2) of the Act directed that any cause or matter be transferred to the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja, the Court shall make an order under the hand of the President of the Court, Presiding Judge or, in their absence, another Judge appointed under Section 2 (4) (a) of the Act, to that effect and shall specify in the order the High Court to which the cause or matter is transferred.”
The above Rule of Court further empowers the Court of Record established under Section 6(1) (2)(3) and (5) of the 1999 Constitution (as amended) to transfer causes and matters to the appropriate courts listed therein that have jurisdiction under the Constitution to determine such causes or matters.
In the circumstance, I hold the view that the transfer was proper in law and I so hold.”
Per DANLAMI ZAMA SENCHI, JCA (Pp 27 – 29 Paras C – F)
TRANSFER OF CASES IN CRIMINAL MATTERS
In criminal matters, statutory safeguards balance administrative convenience against the integrity of trials. Thus, the power to transfer cases is not limited to civil proceedings. The law also makes specific provisions for the transfer of criminal cases in appropriate circumstances.
Furthermore, it is important to underscore the fact that while states have enacted laws governing criminal proceedings, those laws share similar provisions with the Administration of Criminal Justice Act, 2015, which is used to buttress the points herein.
Sections 98(1) and 93(2) of the Administration of Criminal Justice Act (ACJA), 2015, govern the transfer of criminal cases.
Section 98(1) provides as follows:
(1) The Chief Judge of a High Court may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interests of the public peace, transfer any case from one court to another:
This power is particularly important in cases where security concerns, possible bias or public unrest may affect the proper conduct of proceedings.
Also, Section 93(2) provides as follows:
(2) A criminal charge shall be filed and tried in the division where the alleged offence was committed unless it can be shown that it is convenient to do otherwise for security reasons.
The Chief Judge’s Power to Transfer Criminal Cases Cannot Be Exercised by an Ordinary Trial Judge
Having established that the Chief Judge can transfer criminal matters, the next issue is whether the Chief Judge alone can exercise this power or whether it can be shared.
The power granted to the Chief Judge under the relevant criminal justice legislation belongs to the Chief Judge. It is not a general power that every Judge of the High Court can exercise.
This issue was considered in State v. Yusuf & Anor (2026) LPELR-83960 (CA).
The Court of Appeal examined section 111 of the Administration of Criminal Justice Law 2017 of Kaduna State, which provides:
“(1) The Chief Judge may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer any case from one Court to another.
(3) The power of the Chief Judge referred to in subsection (1) of this Section shall not be exercised where the prosecution has called witnesses.”
The Court also considered Order 35 Rule 1 of the High Court (Civil Procedure) Rules of Kaduna State, which provides:
- Where the Chief Judge has in exercise of any powers conferred on the Chief Judge by any relevant law, ordered the transfer of any action or matter from a lower Court to the High Court, a copy of the order duly certified by the Registrar shall forthwith be sent to the Registrar of the lower Court and the latter shall forthwith transmit to the High Court documents referred to in the relevant law and other necessary documents and processes.”
The Court held that the provisions show that the Chief Judge has the authority to transfer matters in both civil and criminal proceedings, subject to the applicable laws.
In the case before the Court, the trial Judge had ordered the transfer of the matter to a Magistrate Court on Chediya Road. The Court held that the power to make such a transfer under the relevant provision belonged to the Chief Judge and not the trial Judge.
The Court further explained that an assigning Judge does not become the Chief Judge simply because he is responsible for assigning cases to Judges within a particular division. His authority is limited to assigning cases among Judges within that division. It does not extend to exercising a statutory power reserved for the Chief Judge.
In reaching its decision in State v. Yusuf & Anor (supra), the Court of Appeal further relied on the established principle that where a statute prescribes the manner in which an act must be done, that act must be performed in the manner prescribed by the statute.
The Court therefore held that the trial Judge acted outside his powers when he ordered the transfer. The order was made without the authority of the Chief Judge and was consequently a nullity.
The Court also referred to Alanamu v. F.R.N. (2020) 4 NWLR (Pt. 1713) 13 (CA), where the Court of Appeal considered section 98(1) and (2) of the Administration of Criminal Justice Act, 2015.
In that case, the Court held that the Chief Judge could transfer a criminal case where such transfer would promote the ends of justice or serve the interest of public peace. However, the power could not be exercised once the prosecution had called witnesses.
Position of the Law Regarding the Power of a Chief Judge to Transfer a Suit from One State to Another
It is pertinent to note that the Chief Judge of the Federal High Court has the power to transfer a criminal matter from one state to another.
Thus, by virtue of Section 254 of the Constitution of the Federal Republic of Nigeria, it is provided that subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules regulating the practice and procedure of the Federal High Court. Then Section 98 of the Administration of Criminal Justice Act, 2015 empowers the Chief Judge of the Federal High Court to transfer a case pending in one Division of the Court to another if it appears to him that the transfer of the case will promote the ends of justice or will be in the interest of the public peace. In the instant case, the Chief Judge of the Federal High Court acted under Section 98 of the ACJA and transferred the case from Kano to Abuja. In this situation, raising an issue of territorial jurisdiction is sterile and futile.”
See: FRN v. LAMIDO (2026) LPELR-83056 (SC)
Instances Where the Chief Judge Cannot Exercise This Power
It is important to note that both Section 98(2) of the ACJA, 2015, and state statutes (e.g., Section 111(2) of the Kaduna State ACJL 2017) place a strict limit on when a criminal case can be transferred:
The Chief Judge cannot exercise the power of transfer once the prosecution has called witnesses.
F.R.N. v. Lamido (2026) 12 NWLR (Pt. 2054) 351 (p. 256, para. B) affirms that transfers are meant for the early stages of proceedings. Once witness testimony begins, the trial court currently handling the matter must take it to completion to preserve the integrity of the evidence.
POWERS AND LIMITS OF THE COURT OF APPEAL TO TRANSFER A SUIT
The Court of Appeal has powers under Section 16 of the Court of Appeal Act (now Section 15) to make orders which the trial court could legally have made but failed to make.
Section 15 provides as follows:
“….The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
However, this power is not unlimited. It cannot be used to make an order that the trial court itself had no jurisdiction to make. The limits/exceptions are as follows:
i) When the Trial Court Lacks Jurisdiction
The Supreme Court considered the issue in Usman v. Nigerian Unity Line Plc (2025) LPELR-80608 (SC).
In that case, the appellant complained about the refusal of the Court of Appeal to transfer the suit to the appropriate State High Court after it had been established that the Federal High Court lacked jurisdiction over the claim.
The Court of Appeal had held that the State High Court was the court with jurisdiction to entertain the respondents’ claim. However, it refused to transfer the matter, choosing instead to strike out the appeal.
The Supreme Court upheld that position. Per Tijjani Abubakar, JSC, the Court held:
“On the issue of refusal of the lower Court to transfer the suit to the appropriate Court, Admittedly, Section 16 (now Section 15) of the Court of Appeal Act grants the lower Court full jurisdiction over proceedings commenced at the trial Court as if such proceeding had been instituted at the Court of Appeal as Court of first instance. The lower Court at pages 119 to 121 of the records of appeal, held as follows: “….it is agreed that the submission of the learned silk for the Appellant that the Federal High Court lacks the jurisdiction to entertain any matter bordering on a simple contract is correct. It is the State High Court that has jurisdiction to entertain the Respondents claim in the circumstance. We are urged in the Respondents brief to allow the appeal on this ground of jurisdiction and to exercise our powers under Section 15 of the Court of Appeal Act 2004 to transfer this matter to the appropriate division of the State High Court as the lower Court ought to have under Section 22(2) of the Federal High Court Act or retrial. With this concession in the Respondents brief that it is the State High Court that has the requisite jurisdiction to try or entertain the case, my duty has been simplified. Since the Federal High Court has no jurisdiction to entertain the case as it did, the whole proceeding is a nullity…I will strike out the appeal as incompetent based on the issue of jurisdiction…” The law is settled on an infantry of judicial decisions that in the exercise of the powers conferred by Section 15 of the Court of Appeal Act, the Court of Appeal can only make orders which the Court of first instance ought to have made legally but failed. In other words, the Court of Appeal has no jurisdiction to make an order for the transfer of the case to the appropriate Court since the Federal High Court itself acted without jurisdiction. I am therefore in full agreement with the lower Court that the order of transfer sought to be made by the Appellant is outside the jurisdiction of the lower Court since the trial Court had no jurisdiction.”
The effect of this decision is that the Court of Appeal cannot use section 15 of the Court of Appeal Act to transfer a matter to a court which the trial court itself could not have transferred it to. The powers of the Court of Appeal under that section are subject to the same legal limitations that bind the trial court.
ii) Absence of a Competent Appeal or Trial Court Jurisdiction
In Okoli v. Duru & Ors (2006) LPELR-12601 (CA), the Court of Appeal considered the circumstances in which it could invoke its powers under Section 16 of the Court of Appeal Act.
The Court stated:
The power and great judicial tool placed at the disposal of the Justices of this Court by Section 16 of the Court of Appeal Act enables us to do that which the trial Courts can do legally but which they fail to do. Thus, the power reposed by Section 16 (supra) is not one to be exercised at large but only upon a clearly defined legal framework. Not even the glowing words of a learned Counsel’s superb address can propel us to invoke the powers of Section 16 (supra) where there is no competent appeal before us of whatever worth. Also requisite is the pendency of a main suit within the jurisdiction of the trial Court as in the instant application. Where the trial Court lacks jurisdiction, we cannot do that which it ought to do because, without jurisdiction, it cannot and ought to do naught. This Court is impotent to act without a prior pronouncement by the Court below except in situations, under Section 239 of the Constitution of the Federal Republic of Nigeria, 1999. The Trial Court says it has no jurisdiction to grant the injunctive order sought. There is no appeal against that pronouncement before this Court.”
The principle from this decision is that the Court of Appeal cannot use section 16 of the Court of Appeal Act to make an order which the trial court itself could not legally have made. Where the trial court lacks jurisdiction, the Court of Appeal cannot rely on that provision to exercise a power that was never available to the trial court.
This principle was also considered in Mohammed v. Petrodel Resources (Nig) Ltd (2018) LPELR-44197 (CA).
In that case, counsel for the respondent argued that sections 19(2) and 22(1) of the Federal High Court Act permitted the transfer of an action commenced in the wrong judicial division of the Federal High Court to the proper division.
The Court held that even if those provisions conferred such a power, the power could not be exercised in the circumstances of the case because the respondent had failed to identify the proper judicial division where the suit ought to have been commenced and determined.
The Court stated:
“The learned counsel for the respondent also contended that, by virtue of Sections 19(2) and 22(1) of the Federal High Court Act, an action commenced in a wrong judicial division of the Federal High Court can be transferred to another judicial division of that Court. Assuming that Sections 19(2) and 22(1) of the Federal High Court Act have given power to the Federal High Court to transfer suits commenced in a wrong judicial division of the Court to the right judicial division, having regard to the peculiar facts of this case, where the respondent has not been able to state or say the right judicial division of the trial Court where its suit ought to have been commenced and determined, the alleged power granted by those sections cannot be properly exercised, for such a power cannot be exercised in vacuo.”
The decision shows that even where a statutory power of transfer exists, the court must have sufficient information to identify the court or judicial division to which the matter should be transferred. The power cannot be exercised without a proper basis.
CONCLUSION
The decisions of courts considered above show that the power to transfer a suit from one court to another is not a general power available to every court. It must be exercised within the limits of the Constitution, relevant statutes and applicable rules of court.
The Federal High Court has express statutory power under section 22(2) of the Federal High Court Act to transfer a matter to a State High Court or the High Court of the Federal Capital Territory, Abuja, where it lacks jurisdiction. On the other hand, a State High Court cannot transfer a matter to the Federal High Court merely because the latter has jurisdiction. Section 22(3) of the Federal High Court Act, which purported to confer that power, has been declared null and void. The Supreme Court’s decisions make this position clear. Where a State High Court lacks jurisdiction and has no applicable rule authorising the transfer, the proper order is to strike out the suit. The position is also clear that a High Court of one State cannot transfer a matter to the High Court of another State. Furthermore, the Court of Appeal cannot rely on section 15 or section 16 of the Court of Appeal Act to make a transfer order that the trial court itself had no legal authority to make. In criminal proceedings, the law gives the Chief Judge a specific power to transfer cases where doing so will promote the ends of justice or serve the interest of public peace. However, that power cannot be exercised once the prosecution has called witnesses, and it belongs to the Chief Judge rather than an ordinary trial Judge. The central lesson is that jurisdiction must always come first. A court cannot transfer a matter simply because another court is better placed to hear it. There must be a clear legal basis for the transfer, and the court making the order must act within the authority given to it by law. Where no such authority exists, the court must make the appropriate order, which may be to strike out the suit rather than transfer it.
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