MUSA ISMAILA MAIGANA v. INDUSTRIAL TRAINING FUND & ANOR
(2014)LCN/7213(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2014
CA/YL/64/2013
RATIO
JURISDICTION: NULLITY OF A PROCEEDING CONDUCTED WITHOUT JURISDICTION
It is now well settled that the issue of jurisdiction is the bedrock of adjudication in our country, Nigeria and in other courts all over the world, whether a court has or does not have jurisdiction is a threshold issue and is of the greatest importance in all manner of litigation before our courts. Whenever the question as to whether a court has or does not have jurisdiction is raised, it must be looked into first or at the earliest opportunity offered depending on the particular proceedings. This is because any proceeding before a court, no matter how well conducted without jurisdiction, is a nullity and the outcome thereby has no legal consequence whatsoever. Therefore at any stage the issue of jurisdiction is raised, the court is duty bound to consider it timeously before taking any fresh or further steps in the matter. See:-
– ELUGBE VS. OMOKHAFE (2004) 18 NWLR PART 905 PAGE 319.
– OKAFOR VS. ATTORNEY GENERAL, ANAMBRA STATE (1991) 6 NWLR PART 200 PAGE 659.
Once a court lacks jurisdiction as in this case, the matter ends there. The only duty on the part of the court at that stage is to strike out the suit. And as soon as that is done, the litigant would be free to file an action in a court of competent jurisdiction. See:-
– UMANAH VS ATTAH (2006) 17 NWLR PART 1009 PAGE 503.
– FASAKIN FOOD NIG. LTD VS. MARTINS B. SHOSANYA (2000) ALL FWLR PART 320 PAGE 1059 AT 1077. per JIMI OLUKAYODE BADA, J.C.A.
The law is and has always been that jurisdiction is the very basis and life blood of every matter or cause in our Courts with which a Court tries or hears a case, be it trial Court or Appellate Court. Without jurisdiction, it is certain in law, any such trial or hearing is nothing but a nullity. It is thus a threshold issue which can be raised at any stage of the proceedings and even for the first time on appeal. Once it is raised, the Court is under a duty and indeed an obligation to consider it first and resolve it one way or the other. See Madukolu V. Nkemdilim (Supra) at 581; Essien V. Essien (2010) All FWLR (Pt. 523) 1192; Onuorah V. K.P.R.C. (supra) @ P.1; Balogun V. Ohiwhere (supra) @ P.1724. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A
JURISDICTION; WHEN A COURT IS COMPETENT TO HEAR A MATTER
In law, a Court is competent to hear and determine a matter before it when and only when all the conditions precedent and prerequisite to the exercise of jurisdiction are fulfilled. These conditions precedent, as have been commonly identified over the years in a long line of decided cases, includes inter alia that the subject matter of the suit is within the jurisdictional competence of the Court. See Okereke V. Yar’Adua (2008) All FWLR (pt. 430) 25 @ Pp.636 -637; Madukolu V. Nkemdilim (1962) 2 All NLR 581; Onuorah V. K.P.R.C. Ltd. (2005) All FWLR (pt. 256) 1; Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
JURISDICTION; WHEN JURISDICTION CAN BE RAISED
The issue of jurisdiction is very fundamental and it is the centre pin upon which the entire litigation hinges upon, hence it can be raised at any stage either by the parties or court. See Oyakhire V State (2006) 15 NWLR (pt. 1010) 15, Omaghomi V Nigerian Airways Ltd (2006) 16 NWLR (pt.1011) 310. Being a threshold issue, it is fundamental to the exercise by the court of the powers conferred on it by section 6(6) (a) of the 1999 Constitution (as altered). Consequently, any adjudication done without jurisdiction is a nullity no matter how well conducted. See Equity Bank of Nigeria Ltd V Halilco (Nig) Ltd (2006) 7 NWLR (Pt.980) 568 at 586, NDIC V CBN (2002) 7 NWLR (Pt.766) 272. Consequently, the proceedings of the lower court and the judgment are hereby struck out. The appeal has no legs to stand on and is also struck out. per ADAMU JAURO, J.C.A
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
MUSA ISMAILA MAIGANA Appellant(s)
AND
1. INDUSTRIAL TRAINING FUND
2. INDUSTRIAL TRAINING FUND GOVERNING COUNCIL Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Yola Judicial Division in Adamawa State in SUIT NO:-FHC/YL/CS/3/2011 BETWEEN:- MUSA ISMAIL MAIGANA VS. INDUSTRIAL TRAINING FUND & 1 OTHER delivered on the 1st day of July, 2013 wherein the Plaintiff’s claim was dismissed in its entirety.
Briefly the facts of the case are that the Plaintiff who was until the 12th day of March, 2009, an employee of the Defendants had on 9/6/2009 challenged his dismissal by the 1st Respondent and claimed jointly and severally from the Respondents as follows:-
“i. A declaration that the purported dismissal of the Plaintiff is illegal, null and void.
ii. A declaration that the Plaintiff is still an employee of the Defendants and therefore entitled to all his remuneration and entitlements.
iii. An order of this honourable court reinstating the Plaintiff back to the employment of the Defendants.
iv. An injunction restraining the Defendants jointly and severally from treating the Plaintiff as a dismissed employee same being illegal, null and void.
v. The cost of this suit.”
The suit was initially commenced at Federal High Court Maiduguri Judicial Division in SUIT NO: FHC/MG/CS/10/2009. But on 9th day of June, 2010 the trial Judge in Maiduguri transferred the suit to Federal High Court, Yola Judicial Division.
Hearing commenced before the Federal High Court Yola Judicial Division, Yola on 12th day of July, 2011.
In a considered Judgment delivered by the trial Judge on 1st day of July 2013, the Plaintiff/Appellant’s claims were dismissed.
Dissatisfied with the Judgment of the trial court, the Appellant appealed to this court vide Notice of Appeal dated the 29th day of July, 2013 and filed on 2nd August, 2013.
The Notice of Appeal contained five (5) grounds of appeal but Ground 1 of the grounds of appeal was abandoned.
The learned Counsel for the Appellant formulated a sole issue for the determination of the Appeal. The issue is reproduced as follows:-
“Whether having regard to the fact that the Appellant’s employment was one with a statutory flavor, the 1st Respondent complied with its staff regulation and conditions of service when it purported to dismiss the Appellant from its employment. (The issue covers Grounds 2,3,4 and 5 of the grounds of Appeal)”.
The learned Counsel for the Respondents on his own part also formulated a sole issue for the determination of the appeal. The said issue is also reproduced as follows:-
“Whether the trial Judge was right when he held that the dismissal of the Appellant was proper in law.”
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 27/2/2014 but deemed as properly filed and served on 15/4/2014. He also referred to the Appellant’s reply brief which was filed on 30/4/2014 within time.
He adopted the said Appellant’s brief of argument and the Appellant’s reply brief as his argument in urging that the appeal be allowed. He abandoned Ground 1 of the Notice and Grounds of Appeal.
The learned Counsel for the Respondents on his own part also referred to the Respondents’ brief of argument filed on 16/4/2014. He adopted the said Respondents’ brief as his argument in urging that this appeal be dismissed.
Question from the court:
This suit was transferred from the Federal High Court Maiduguri to the Federal High Court, Yola on the 9th day of June, 2010 and hearing commenced on the 12th day of July, 2011. (See pages 227 and 231 of the Record of Appeal).
In view of the foregoing, could the Federal High Court, Yola be said to have jurisdiction in view of the amendment to the 1999 Constitution, in particular, Section 254 (c)(1)(a) of the said Constitution?
The learned Counsel for the Appellant submitted that since the suit was filed in Federal High Court Maiduguri on 6th June 2009 although it was later transferred to the Federal High Court Yola Judicial Division, that the case was still within the competence of the Federal High Court, Yola at the time it was heard.
Counsel for the Respondents in his own submission stated that after the amendment to the 1999 Constitution in relation to the Jurisdiction of the National Industrial Court that the Federal High Court, Yola had jurisdiction at the time the case was heard in view of the fact that it was filed in Federal High Court, Maiduguri long before the amendment to the jurisdiction of National Industrial Court.
It is now well settled that the issue of jurisdiction is the bedrock of adjudication in our country, Nigeria and in other courts all over the world, whether a court has or does not have jurisdiction is a threshold issue and is of the greatest importance in all manner of litigation before our courts. Whenever the question as to whether a court has or does not have jurisdiction is raised, it must be looked into first or at the earliest opportunity offered depending on the particular proceedings. This is because any proceeding before a court, no matter how well conducted without jurisdiction, is a nullity and the outcome thereby has no legal consequence whatsoever. Therefore at any stage the issue of jurisdiction is raised, the court is duty bound to consider it timeously before taking any fresh or further steps in the matter. See:-
– ELUGBE VS. OMOKHAFE (2004) 18 NWLR PART 905 PAGE 319.
– OKAFOR VS. ATTORNEY GENERAL, ANAMBRA STATE (1991) 6 NWLR PART 200 PAGE 659.
In the instant case, it would be recalled that the suit was initially filed at the Federal High Court, Maiduguri before it was transferred to the Federal High Court, Yola Judicial Division on 9th day of June, 2010. Hearing commenced on the 12th day of July, 2011 and Judgment was delivered on the 1st day of July, 2013.
The attention of this court was drawn to the additional authority and further written submission filed on 7/5/2014 by learned Counsel for the Appellant – Mr. Hassan G. Maidawa.
It was the decision of this court per J. O. Bada, JCA in N.U.T Niger State VS. Conference of Secondary School Tutors (COSST) Niger State Chapter & 15 Others reported in (2012) 10 NWLR Part 1307 page 89 at 111-112 where it was held that the suit mentioned above be transferred to the National Industrial Court in the interest of Justice.
The learned Counsel for the Appellant urged this court that instead of striking out the claims of the Appellant before the lower court if it finds that it was incompetent but to order its transfer to the National Industrial Court by virtue of Section 22(3) of the Federal High Court Act.
It must be appreciated that the circumstances surrounding this present appeal is different from that of the N.U.T Niger State VS COSST Niger State & 15 Others (supra). This is because as at the time the High Court delivered its ruling on 18th May, 2004, the High Court of Niger State still had jurisdiction, on the matter. But as at the time this court delivered Judgment against the Ruling of the High Court of Niger State on 30th November 2011, the High Court of Niger State had been divested of it’s jurisdiction with the coming into effect of the 3rd Alteration Act, 2010 on 4/3/2011. By virtue of Section 254(c)(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), exclusive Jurisdiction was vested in the National Industrial Court over the subject matter of the claims of the 1st to 11 Plaintiffs/Respondents in N.U.T. Niger State VS COSST Niger State & 15 Others (supra).
As at the time the hearing in this present suit under consideration commenced before the Federal High Court, Yola Judicial Division, could it be said that the court had jurisdiction? I do not think so in view of the provisions of Section 254(c)(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:-
“Notwithstanding the provisions of Sections 251, 257, 271 and anything 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 National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters.
“a. Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters indicated thereto or connected therewith;
b. ……..
………..”
The commencement date of the provisions of the Constitution set out above is 4th day of March, 2011.
But be that as it may, a careful perusal of the provisions of section 254(c)(1)(a) of the 1999 Constitution set out above vis-a-vis this appeal would reveal that as at the time the Federal High Court, Yola Judicial Division commenced hearing in the suit on the 12th day of July 2011, it lacked the jurisdiction to do so.
In order to drum home this point, I will rely on the decision of the Supreme Court in – ISAAC OBIUWEUBI VS. CENTRAL BANK OF NIGERIA (2011) 3 SCNJ PAGE 166. Where the court stated among others as follows:-
“The law in force, or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time the cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court, vested with jurisdiction to try the case. For example Decree 107 of 1993. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990), if trial commences before 1993 the court to try the case would be the State High Court but if after 17/11/1993 the case would be tried in the Federal High Court. Decree 107 of 1993 denies the State High Court jurisdiction as from 17/11/1993 and transferred jurisdiction on the matters in Section 251 of the Constitution to the Federal High Court. As from 17/11/1993 the State High Court no longer had jurisdiction. See:-
– UWAIFO VS. A.G. BENDEL STATE (1982) 7 SC. PAGE 124.
– ADAH VS. NYSC (2004) 13 NWLR PART 891 PAGE 639. Jurisdiction of the court to entertain an action is determined, examining the law conferring jurisdiction at the time the suit is instituted and trial commences……
…….”
Once a court lacks jurisdiction as in this case, the matter ends there. The only duty on the part of the court at that stage is to strike out the suit. And as soon as that is done, the litigant would be free to file an action in a court of competent jurisdiction. See:-
– UMANAH VS ATTAH (2006) 17 NWLR PART 1009 PAGE 503.
– FASAKIN FOOD NIG. LTD VS. MARTINS B. SHOSANYA (2000) ALL FWLR PART 320 PAGE 1059 AT 1077.
Furthermore, it would be recalled that the 3rd Alteration Act 2010, which divested the Federal High Court of its jurisdiction in this case came into operation on 4/3/2011 and hearing at the lower court commenced on 12/7/2011. The period between 4/3/2011 and 6/5/2014 when this appeal was heard is long enough for Counsel for the parties to have taken judicial notice of the amendment which divested the Federal High Court of its jurisdiction.
In the circumstance, it is my view that the proceedings and Judgment in SUIT NO:-FHC/YL/CS/3/2011 BETWEEN:- MUSA ISMAIL MAIGANA VS. INDUSTRIAL TRAINING FUND & 1 OTHER delivered on the 1st day of July, 2013 was without jurisdiction and it is therefore a nullity.
Consequent upon the foregoing, the proceedings of the lower court in the said suit and the Judgment are hereby struck out.
In the result, this appeal which arose from the proceedings and Judgment conducted and initiated without jurisdiction, has no legs to stand and is hereby struck out. See:-
– F.R.I.N. VS. GOLD (2007) 11 NWLR PART 1044 PAGE 1 AT 19.
– SHELL PETROLEUM DEVELOPMENT CO (NIG) LTD VS. ABEL ISAIAH & OTHERS (2001) 11 NWLR PART 723 PAGE 168.
– PEENOK INVESTMENT LTD VS. HOTEL PRESIDENTIAL LTD (1983) 4 NCLR PAGE 122.
There shall be no order as to costs.
ADAMU JAURO, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I am in full agreement with the reasoning and conclusion contained therein.
By way of emphasis, I wish to say a word or two on the jurisdictional point raised by the court. The case resulting in this appeal was a challenge to a wrongful dismissal by the appellant against his employees, the respondents. The case was filed in the Federal High Court Maiduguri but later, based on a preliminary objection, it was transferred to the Federal High Court Yola on 9th June, 2011. See page 228 of the record. Upon the transfer, hearing commenced before the Federal High Court Yola on 12th July, 2011 and judgment delivered on 1st July, 2013.
Upon the adoption of briefs of argument, the court raised a jurisdictional point of law and parties were invited to address the court on the point so raised. The point raised was as to the competence of the Federal High Court to adjudicate over the matter in view of the Constitutional amendment to section 254(c) (1)(a). The aforementioned provision which was part of the third alteration to the 1999 Constitution, gave the National Industrial Court exclusive jurisdiction in all employment related matters. The Constitutional amendment came into effect on 4th March, 2011 and hearing commenced before the lower court (Federal High Court) on 12th July, 2011. Both parties submitted that the Federal High Court had jurisdiction, notwithstanding the Constitutional amendment because the matter was a pending case. However when asked the difference between a pending case and a part heard case, both counsel appeared not to see any difference between the two.
A part heard matter as the name implies, is a case whereby hearing had commenced, while pending matters are all cases pending before the court irrespective of whether hearing had commenced or not. Hence all part heard matters are pending cases, but not all pending cases are part heard. That is the fine line of distinction between the two. As of the time of the amendment, if a case is part heard, it will not be affected by the amendment; where hearing had not commenced and the case is only on the cause list as a pending case, it will be affected by the amendment. As of the effective date of the amendment being 4th March, 2011, hearing had not commenced in the instant case culminating in this appeal. As at 12th July, 2011 when hearing commenced in the matter, the Federal High Court had been divested of jurisdiction to hear employment related matters, which is now an exclusive preserve of the National Industrial Court by dint of the Constitutional amendment.
At this juncture, I deem it necessary to refer to the case of Olutola V. University of Ilorin (2004) 12 SCNJ 236. The appellant, a Professor of Education Management and Planning was removed from office in October, 1989. Aggrieved by the removal he filed an action challenging same in the Kwara State High Court on 13th January, 1993. The trial in the suit continued unabated until 8th May, 1996 when judgment was delivered. In the course of trial the Federal Government promulgated the Constitution (Suspension and Modification) Decree No. 107 of 1993. The Decree amended the Constitution to the effect that the Federal High Court was given exclusive jurisdiction to hear and determine actions arising from administration or management and control of Federal Government or any of its agencies; or for a declaration or injunction affecting the validity of any executive or administrative action or decision by Federal Government or any of its agencies. The effective date of the Decree was 17th November, 1993. The appellants case though filed 13th January, 1993 the trial proper did not commence until 31st March, 1994 after the effective date of the Decree when the court was divested of jurisdiction. The apex court held that the trial court had no jurisdiction and the trial was a nullity.
The apex court in the aforementioned case of Olutola V University of Ilorin (supra) per Ejiwunmi, JSC at pages 251 -252 stated thus:
“Now it is clear from the printed record that the appellant commenced his action by a writ of summons on the 13th January, 1993. Although it would appear that before that date appellant had apparently filed an earlier writ of summons against the defendant dated 11th December, 1989. It does appear that probably because the writ was not served within the prescribed period to effect service, the appellant sought and obtained the leave of court to file the writ of summons upon which the action was tried. Be that as it may the trial proper of the case did not commence until the 31st of March, 1994 when the appellant started it with his own evidence. The trial then continued on various dates until it was concluded by the trial judge on the 8th May, 1996 when the learned trial judge Ibiwoye J. delivered his judgment. It is clear and manifest that throughout the trial of the case that culminated with the judgment of the trial judge, none of the learned counsel for the parties and also the trial judge questioned the jurisdiction of the trial court to try the case. Whereas by virtue of Decree No. 107 of 1993, the trial court no longer had jurisdiction to try and determine matters as we raised in this case on appeal.”
His Lordship, Edozie, JSC in the same case at pages 267 -268 stated thus:
“Thus a State High Court may have the jurisdiction to entertain a suit at the time the cause of action founded on that suit arose but at the time of the actual trial it is divested of that jurisdiction. That was exactly what happened in the present appeal. The appellant’s cause of action arose in 1989 when the respondent by its council’s letter Ref. VI/RO.5032 removed the appellant from, inter alia, the office of the Dean of the Faculty. As at that point in time and even as at the time he commenced action in January, 1993 before the High Court of Justice Kwara State, the existing substantive law then was the 1979 Constitution which by section 236 thereof conferred unlimited jurisdiction on State High Court rightly assumed the jurisdiction to entertain the appellants claim. But the trial continued till 8th May 1996 when judgment was delivered. Before then, the unlimited jurisdiction conferred on the State High Court had been curtailed by the Constitution (Suspension and Modification Decree) No. 107 of 1993 which amended section 230 (1) of the 1979 constitution). The decree, which has, as its effective date, 17th November, 1993 divested from the State High Court and vested on the Federal High Court exclusive jurisdiction over the subject matter in dispute between the parties.”
His Lordship concluded thus on page 268 of the same report:
“Although a statute is prospective and not retrospective, since Decree No. 107 of 1993 made no special provision for cases already pending in court on its effective date of 17th November, 1993, those cases such as the one that gave rise to the instant appeal were caught by the Decree thereby rendering the decision of the trial court on 18th May 1996 in the instant case a complete nullity as it had lost the jurisdiction to entertain the matter.”
The same position was affirmed by the apex court in the case of Cyril O. Osakue V Federal College of Educ. (Tech) Asaba (2010) 3 SCNJ (pt. 11) 529. Adekeye, JSC restated the position of the law on page 552, as follows:
“As I have mentioned earlier on in this judgment the cause of action in this matter arose in 1990 when the appointment of the appellant was terminated. The appellant sought redress at High Court in Asaba in 1992. The court commenced trial in the action in 1994. Decree 107 became operative in November, 1993. The law applicable to the cause of action and that applicable to determine the jurisdiction of the court in this case conspicuously differ. It is however apparent that by the time the case of the appellant was heard in 1994, the State High Court had been divested of jurisdiction.”
The legal position stated in the two earlier cases was re-affirmed by the apex court in the case of Isaac Obiuweubi V Central Bank of Nigeria (2011) 3 SCNJ 166. My lord Rhodes-Vivour, JSC on page 191 stated thus:
“For the Federal High Court to have jurisdiction the suit must be filed on or after 17th November, 1993. All cases filed in the State High Court before 17th November, 1993 but in which trial had not commenced as at 17th November, 1993 shall be heard by Federal High Court. See Olutola V University of Ilorin (2004) 18 NWLR (pt. 905) 416, Osakue v. FCE (2010) 2-3 S.C. (pt.111) 158.
In this case, the appellant’s cause of action arose on the 30th of October, 1987 when the appointment was terminated by the respondent. The appellant sued the respondent at the Lagos High Court in 1988. As at today, twenty three years thereafter trial has not commenced in the State High Court. Legislation applicable to the cause of action and that applicable to the jurisdiction of the court in this case are so obviously different. When this case would eventually he heard the State High Court would have been divested of jurisdiction.”
In his concurring judgment in the same case, His lordship, Galadima JSC on page 207 had this to say:
“In the instant case, the appellant’s cause of action arose on 30th October, 1987, when his appointment was terminated by the respondent. He sued the respondent at the Lagos High Court in July 1988. As at today, it is over twenty-two years since the appellant commenced his action in the State High Court. But the two courts below found that the proper court vested with jurisdiction to hear and determine the appellant’s case is the Federal High Court. The reason is simple. Trial in the case before the Lagos State High Court had not commenced before Decree No. 107 of 1993 came into force in 1993. That court may have jurisdiction to entertain the suit at the time the cause of action founded on that suit arose, but at time of actual trial it is divested of that jurisdiction.”
See also Council Federal Polytechnic Mubi & Anor V Dingoli CA/YL/37/2012 delivered on 26th March, 2014. The Federal High Court, clearly had no jurisdiction as at the time it heard the matter.
The issue of jurisdiction is very fundamental and it is the centre pin upon which the entire litigation hinges upon, hence it can be raised at any stage either by the parties or court. See Oyakhire V State (2006) 15 NWLR (pt. 1010) 15, Omaghomi V Nigerian Airways Ltd (2006) 16 NWLR (pt.1011) 310. Being a threshold issue, it is fundamental to the exercise by the court of the powers conferred on it by section 6(6) (a) of the 1999 Constitution (as altered). Consequently, any adjudication done without jurisdiction is a nullity no matter how well conducted. See Equity Bank of Nigeria Ltd V Halilco (Nig) Ltd (2006) 7 NWLR (Pt.980) 568 at 586, NDIC V CBN (2002) 7 NWLR (Pt.766) 272. Consequently, the proceedings of the lower court and the judgment are hereby struck out. The appeal has no legs to stand on and is also struck out.
For the above and fuller reasons contained in the lead judgment, which I adopt as mine, I join my brother in striking out the appeal and abide by the order as to no costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. It has dealt extensively and indeed exhaustively with the issue of jurisdiction as affecting the competence or otherwise of the Federal High Court Yola in its hearing and determination of the Suit No: FHC/YL/CS/3/2011: Musa Ismail Maigana V. Industrial Training Fund & Anor filed by the Appellant as Plaintiff against the Respondents as Defendants.
At the hearing of the appeal, this Court raised suo motu the issue of the legal effect of the 3rd Alteration Act 2010 to the Constitution of Federal Republic of Nigeria 1999 as amended introducing a new Section 254(c)(i)(a) vesting original exclusive jurisdiction on the National Industrial Court on all matters inter alia relating to or connected with employment or arising from conditions of service. Both counsel duly addressed the Court on this issue of jurisdiction raised suo motu.
By the endorsement on the claims of the Appellant as Plaintiff challenging his dismissal from service by the Respondent as Defendant before the Court below, undoubtedly the principal claim of the Appellant was one touching on the terms and conditions of his employment with the Respondent. The claims of the Appellant thus clearly falls within the provision of Section 254(c)(i)(a) of the Constitution of Federal Republic of Nigeria as amended.
In law, a Court is competent to hear and determine a matter before it when and only when all the conditions precedent and prerequisite to the exercise of jurisdiction are fulfilled. These conditions precedent, as have been commonly identified over the years in a long line of decided cases, includes inter alia that the subject matter of the suit is within the jurisdictional competence of the Court. See Okereke V. Yar’Adua (2008) All FWLR (pt. 430) 25 @ Pp.636 -637; Madukolu V. Nkemdilim (1962) 2 All NLR 581; Onuorah V. K.P.R.C. Ltd. (2005) All FWLR (pt. 256) 1; Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724.
The issue bordering on the jurisdiction of the Federal High Court Yola was raised suo motu by this Court when it became apparent to the Court at the hearing of the Appeal that neither the Parties through their respective counsel nor the Court below had averted their minds to the issue of the legal effect of the amendment of the Constitution of Federal Republic of Nigeria 1999 as amended by the 3rd Alteration Act 2010, which came into effect on 4/3/2011, on the jurisdiction of the Court below to hear and determine the claims of the Appellant touching on a subject matter clearly covered by section 254(c)(i)(a) of the said Constitution.
The law is and has always been that jurisdiction is the very basis and life blood of every matter or cause in our Courts with which a Court tries or hears a case, be it trial Court or Appellate Court. Without jurisdiction, it is certain in law, any such trial or hearing is nothing but a nullity. It is thus a threshold issue which can be raised at any stage of the proceedings and even for the first time on appeal. Once it is raised, the Court is under a duty and indeed an obligation to consider it first and resolve it one way or the other. See Madukolu V. Nkemdilim (Supra) at 581; Essien V. Essien (2010) All FWLR (Pt. 523) 1192; Onuorah V. K.P.R.C. (supra) @ P.1; Balogun V. Ohiwhere (supra) @ P.1724.
The importance of the above procedure by which the Court first determines if it has the jurisdiction to hear and determine a matter placed before it or not is underscored by the position of the law that any judicial proceedings and decision reached without jurisdiction is a complete nullity. It is simply a farce and of no legal validity regarding the rights and obligations of the parties as to the merit of the matter placed before the court, regardless of how well the proceedings was conducted or how logically sound was the judgment emanating therefrom. See Western Steel Works Ltd. V. Iron & Steel Workers Union (1986) 2 NSCC (vol.17) 786 @ P.798.
Now, who can raise the issue of jurisdiction has long been well settled in our law. Being a threshold issue, it can be raised either by the parties or by the Court suo motu. Regrettably, in the instant case, neither the Parties through their Counsel nor the Court below raised the issue of jurisdiction throughout the proceedings leading to the eventual delivery of the judgment now being appealed against on 1/7/2013.
It is the above scenario, which appears to me to be a sheer waste of precious and scarce judicial time by the Court below that had necessitated my contribution to the lead judgment to bring to the fore the need for Courts to avoid needless proceedings leading to invalid judgments when a simple check on whether a matter placed before it is within the confines of its jurisdictional limit can save both the tax payers’ money and the precious judicial time most needed to be expended on other competent matters pending before the Courts.
By reason of the above, the Court below had without satisfying itself first of its jurisdiction over the subject matter of the claims of the Appellant, proceeded through the entire process of hearing and determination of the matter on the merit without first ascertaining and satisfying itself of its jurisdictional competence in view of the clear and unambiguous provision of Section 254(c)(i)(a) of the said Constitution.
In the circumstances of this appeal therefore, as touching on the entire proceedings and judgment of the Court below, it is my view that the entire proceedings and the judgment delivered therein by the Court below was simply a wild goose chase by the Court below, which had done so without any iota of jurisdictional competence so to do and all to no avail. What a colossal waste of the precious and scarce judicial time by the Court below embarking on what has now turned out to be a needless, fruitless and completely unnecessary journey to no avail. I say no more.
I now come to the salient question of the proper order this Court ought to make having come to the finding that the Court below lacked the jurisdiction, when it assumed jurisdiction to hear the claims of the Appellant on 12/7/2011, by which date the 3rd Alteration Act 2010 had long gone into effect on 4/3/2011 divesting all other Courts in the land and vesting original exclusive jurisdiction on the National Industrial Court over the subject matter of the claims of the Appellant.
On the Record of Appeal, it is not in doubt that as at 4/3/2011, the Suit was not part heard having been transferred from the Federal High Court Maiduguri to the Federal High Court Yola to be heard de novo. The hearing of the case by the Court below eventually commenced de novo on 12/7/2011, much after the commencement date of 4/3/2011 for the 3rd Alteration Act 2010.
In my view, therefore, trial having not commenced de novo before the Court below as at 4/3/2011, upon the coming into effect of the 3rd Alteration Act 2010, the Federal High Court Yola became divested of any power or jurisdiction to hear and determine Suit No. FHC/YL/CS/3/2011: Musa Ismail Maigana V. Industrial Training Fund & Anor when it proceeded to hearing the suit on 12/7/2011 and delivered its judgment on 1/7/2013 without any iota of jurisdiction having lost the power so to do on 4/3/2011. See Isaac Obiuwenbi V. CBN (2011) 7 NWLR (Pt. 1247) 465 @ Pp. 511 -512; O.H.M.B. V. Garba (2002) 14 NWLR (Pt. 788) 538; Are V. A.G. Western Region (1960) SCNLR 224.
In their additional authority and further written submissions filed on 7/5/2014, learned Counsel to the Appellant H. Maidawa Esq., had drawn the attention of the Court to an earlier decision of this Court per J.O. Bada, JCA in N.U.T. Niger State V. Cost Niger State (2012) 10 NWLR (Pt. 1307) 89 @ 111 -112 and urged the Court, rather than striking out the claims of the Appellant before the Court below if it finds that it was incompetent, but to order its transfer to the National Industrial Court by virtue of Section 22(3) of the Federal High Court Act.
I have calmly considered the above submission and taken time to read through the law report of the decided case as relied upon by Counsel. Be that as it may, the law is very well settled that where a Court finds that it has no jurisdiction, the proper order, and if I may add the only permissible order it can make legitimately, is to strike out the matter. In law nothing more, nothing else and nothing less is expected and required of such a Court. It lacks completely the power, as urged upon us by the Appellant’s Counsel, to transfer such a case and cannot indeed order a transfer in the circumstances in which it has no jurisdiction over the claims before it. See Fasakin Foods Nig. Ltd V. Martins Babatude Shosanya (2006) All FWLR (Pt. 320) 1059 @ P.1077; Okoye V. Nigerian Construction and Furniture Co. Ltd. (1991) 7 SCNJ (Pt. 11) 365; NEPA V. Edegbenro (2002) 12 SCNJ 173; Arjay Ltd. V. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577; Lakanmi V. Adene (2003) FWLR (Pt. 163) 24.
To bring home this point very poignantly, on the duty of the Court where it finds that it has no jurisdiction, let me call to remembrance the illuminating words of Ogbuagu, JSC (as he then was) in Fasakin Foods Nig. Ltd. V. Martins B. Shosanya (Supra) @ P. 1077 thus:
“If the trial Court acted under the said invalid Act, it was not right having regard to the said provision of S. 22(3) of the 1979 Constitution. 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 proceedings. It does not transfer and cannot transfer…………….. So the trial Court’s jurisdiction was limited to just striking out the suit in the circumstances.”
I have no doubt in my mind that the Appellant’s Counsel’s contentions, relying on the earlier decision of this Court in NUT Niger State V. Cosst Niger State (Supra) @ P.111, was a brilliant one but in the face of the Supreme Court decision in Fasakin Foods Nig. Ltd. V. Martins Shosanya (supra) @ P.1077, a decision with which this Court is bound and must bow to under the age long principles of stare decisis, I am not persuaded by the contention of the Appellant’s counsel as urged upon this Court. I am rather inclined to tow the position of the Supreme Court and to hold firmly that the proper order to make in the circumstances of this appeal is one of striking out both the appeal and the Appellant’s Suit and not to transfer it to any other Court, including the National Industrial Court. See Amimike Investment Ltd. V. Ladipo (2008) 45 WRN 92 @ P.97 where the Court stated thus:
“Where a Lower Court in the judicial hierarchy is called upon to interpret the provision of a Statute which provision had already been interpreted by a higher Court in the hierarchy, the former’s task is made easier since by the doctrine of stare decisis the lower Court must abide by the interpretation given by the superior Court in the earlier case.”
– See also Odugbo v. Abu (2001) 10 NWLR (Pt.732) 45.
It is in the light of the above and the fuller reasons eloquently given in the lead judgment of my learned brother Jimi Olukayode Bada JCA, that I too hereby hold that the appeal is incompetent and consequently hereby struck out. The Appellant’s Suit No.FHC/YL/CS/3/2011: Musa Ismail Maigana v. Industrial Training Fund & Anor, before the Court below being incompetent too is hereby also struck out.
I too make no order as to cost.
Appearances
Mr. Hassan G. Maidawa with him is Miss. H. A. NgbaleFor Appellant
AND
Mr. S. WilsonFor Respondent
