YUSUF ABDULMARUF v UNION BANK OF NIGERIA
(2014)LCN/7358(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2014
CA/IL/66/2013
RATIO
COURT: JURISDICTION; WHAT MUST BE LOOKED AT TO DETERMINE THE JURISDICTION OF A COURT, THE LAW APPLICABLE TO CAUSE OF ACTION AND THE JURISDICTION OF THE INDUSTRIAL COURT
I must agree with the Learned Counsel for the Appellant that, ordinarily it is the claimant not the defence which is to be looked at to determine the jurisdiction. This principle of law is correct. I also agree with him that at the time this matter was instituted the law in force and applicable was 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly Sections 5 and 6 therein. These two Sections did not then provide, or established the National Industrial Court talk less of its jurisdiction over matters such as in this case. Still on law applicable to cause of action, and the law applicable to determine jurisdiction of Court, the Supreme Court in Olutola Vs. UNILORIN (Supra) held that:
“The law which supports a cause of action is not necessarily co-existence with the law which confers jurisdiction on the Court which entertains the suit founded on that cause of action. “The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the Court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard”.
Furthermore, the Court stated:
“In the instance it was puerile for the Appellant to argue as he did that the cause of action arose when the State High Court had jurisdiction over the matter, regardless of the fact that when the action was heard the Court had been divested of such power by reason of the amendment of Section 230(1) of the 1979 Constitution…”.
However, the said Industrial Court becomes the creature of the said Constitution and vested it with exclusive jurisdiction over matters such as the one in the present case i.e. “trade dispute”. See Third Alteration Act 2010 of the Constitution of the Federal Republic of Nigeria L999. That with effect from 4/3/2011 when the said Constitution was altered regarding the establishment of the Industrial Court and its exclusive jurisdiction, the jurisdiction of the trial Court in this matter has been ousted. It is important to note that where provision of the Constitution ousted jurisdiction of the Court, that Court must be bound by it. See Aderemi Dada Olutola Vs. Univ. of Ilorin (2004) 18 NWLR (Pt.905) 417 at 458, otherwise the judgment by it is a nullity. Similarly, where the jurisdiction is ousted during pendency of the action, further hearing thereafter is null and void. See also S.P.D.C. Ltd vs. Hellelu A. Bukuma Fishermen Society Ltd. (2001) FWLR (Pt.70) 1507 at 1516 Paras. A – C.
per. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
YUSUF ABDULMARUF – Appellant(s)
AND
UNION BANK OF NIGERIA – Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kwara State High Court (herein referred to as the trial Court) sitting in Ilorin Judicial Division and delivered on 20/12/2012.
The Brief facts of the case is that, the Appellant (as plaintiff) before the trial Court was an employee of the Respondent (as Defendant) before the trial Court) since 1990 as a clerk. He rose to the status of Officer II and was confirmed a permanent staff of the Respondent. The Respondent is a Financial Institution carrying on banking operation under the Banking Laws of Nigeria.
Sometime in May 2004, the Appellant was arrested and arraigned before Chief Magistrate Court, Ilorin for an offence of negligent conduct and was consequently interdicted.
After thorough investigation, the Director of Public Prosecution (D.P.P.) issued a legal advice exonerating the Appellant of the offence of negligent conduct against him and Magistrate Court acting on the advice discharged and acquitted the Appellant. Consequent upon this, the Appellant wrote a letter to the Respondent for re-instatement to his former position but the Respondent refused, rather the Appellant was dismissed from the Respondent’s service for gross-misconduct contrary to the terms of his employment.
Appellant being aggrieved brought action at the trial Court claiming the following reliefs:-
i. A declaration that the dismissal of the Claimant by the Defendant vide a letter dated 20th March, 2006 is illegal, unconstitutional, null, void and violation of his fundamental right of fair hearing.
ii. A declaration that the dismissal of the claimant retrospectively by the Defendant vide a letter dated 20th March, 2006 is illegal, unconstitutional, null and void and of no effect.
iii. A declaration that the employment of the claimant with the Defendant is still subsisting.
iv. AN ORDER directing the Defendant to reinstate the claimant to his position as Officer II with all his rights, privileges attached thereto.
v. AN ORDER of Court that the claimant is entitled to be paid arrears of his monthly salaries, allowances and other entitlements with effect from January, 2006 until the date of judgment in this case.
vi. ALTERNATIVELY AN ORDER directing the defendant to convert the claimant’s dismissal to retirement and to be paid all his benefits and entitlements.
During the trial, the Appellant testified for himself and did not call any other witness. He tendered some Exhibits marked “A” – “U”. The Respondent on the other hand called also one witness and did not tender any Exhibits.
At the close of the case the parties filed and exchanged written addresses which they respectively adopted, and the case was adjourned for judgment.
The learned trial Judge noted in the process of writing his judgment, the issue of jurisdiction on the part of his Court, raised by the Respondent in their address. In accordance with the principle of law, he ought to consider it even though raised at the address stage.
In his considered judgment the learned trial Judge struck out the case for lack of jurisdiction.
Being dissatisfied, the Appellant filed his Notice of Appeal containing five (5) grounds of Appeal on 17/1/2013.
In accordance with the Rules of this Court, parties filed their respective Briefs which were later amended. The Appellant filed his amended Appellant’s brief of argument on 20/3/2014 with the leave of this Court granted on 27/3/2014. On receipt of the Appellant’s amended brief of argument, the Respondent filed the
“Amended Respondent’s brief of Argument” on 31/3/2014 and the Appellant filed the “Appellant’s Reply Brief of Argument” on 11/4//2014.
On 14/5/2014 when this appeal came up for hearing the parties adopted their respective briefs and the Appellant urged this Court to allow the appeal while the Respondent prayed the Court to dismiss the appeal.
Learned Counsel for the Respondent indicated in the Respondent’s amended brief of argument that the Respondent would by way of preliminary objection at the hearing of the appeal pray for the striking out of grounds of appeal Nos. 2 and 3 on the following grounds:-
1. That the two grounds did not arise from the judgment of the trial Court which forms the subject matter of the appeal.
2. That the issues upon which the two grounds were distilled were not canvassed before the trial Court.
3. That the Appellant lacks locus-standi to challenge the constitutionality or otherwise of the National Industrial Court Act 2006 as the Appellant not being a member of the National Assembly that passed the law.
However, when the appeal came up for hearing on 14/5/2014, the Learned Counsel for the Respondent did not move the Court to strike out these grounds of appeal. The preliminary objection is therefore regarded as abandoned. It is accordingly struck out.
The Appellant raised three issues for the determination of this appeal. The issues are:-
1. Whether the trial Court has requisite jurisdiction to hear and determine this case.
2. whether it lacks jurisdiction to declare the N.I.C. Act, 2006 null and void.
3. Whether the trial Court was right to have relied solely on the case of Olutola vs. UNILORIN (2004) 18 NWLR (Pt. 905) at 417 and ignore the case of NUEE Vs. B.P.E. (2010) 7 NWLR (Pt.1194) 538 at 570 H.D.P. Vs. Obi (2011) 11 – 12 S.C.M. (Pt.1) 126 at 136, Eze Vs. A.G. for Abia State (2010) 15 NWLR (Pt.1216) 324 at 355, in arriving at its decision.
4. Whether the trial Court is justified’ in its failure to pronounce on the other issue placed before it after the determination of the issue of jurisdiction.
The Respondent adopts the issues for determination as formulated by the Appellant, except the second part of issue No. 1, which he breaks into two parts as shown above.
Considering grounds of appeal, the issues for determination, as well as the records, the main issue in my view is whether or not the trial Court has jurisdiction to hear and determine the suit in the circumstances of this case. It is clear from the records of this appeal, the subject matter of dispute is the dismissal of the Appellant by the Respondent from his employment – thus “trade dispute”. Therefore I shall consider this appeal on this issue only as it takes care of this appeal.
Learned Counsel for the Appellant in the Appellant’s brief submitted that the trial Court has requisite jurisdiction to hear and determine the case. His reason is that it is the case of the claimant that determines the jurisdiction of the Court.
In other words, it is the claim before the Court that has to be looked at or be examined to ascertain whether it comes within the jurisdiction conferred on the Court or not. He relied on some cases including Gafar Vs. Govt. of Kwara State (2007) 4 NWLR (Pt.1024) 375 at 404 Paras. B, 411, Para. A. It was further submitted that as at the time this matter was instituted, the National Industrial Court was not set out in the list of Courts recognized or created by the 1999 Constitution of the Federal Republic of Nigeria; therefore, it would not have been the Court that has jurisdiction to hear and determine this case since the rights and obligations of parties are determined in the light of the law at the time the cause of action arose. He refers to the case of L.S.B.P.C. Vs. Purification Tech.(Nig.) Ltd. (2013) 7 NWLR (Pt.1352) 82 at 106 – 107 Paras. F – A. He finally urged this Court to allow the appeal and grant the reliefs sought in this appeal.
On his side, Learned Counsel for the Respondent held a contrary view and submitted that the trial Court lacks jurisdiction to try this case. His reason was that Section 254(C)(1)(a – k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) exclusively vests jurisdiction on labour matters on the National Industrial Court, with effect from 4/3/2011.
I have painstakingly considered the argument and submissions of Learned Counsel for the Appellant and Learned Counsel for the Respondent in respect of the issue, on whether or not the trial Court has jurisdiction to try the case. I must agree with the Learned Counsel for the Appellant that, ordinarily it is the claimant not the defence which is to be looked at to determine the jurisdiction. This principle of law is correct. I also agree with him that at the time this matter was instituted the law in force and applicable was 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly Sections 5 and 6 therein. These two Sections did not then provide, or established the National Industrial Court talk less of its jurisdiction over matters such as in this case. Still on law applicable to cause of action, and the law applicable to determine jurisdiction of Court, the Supreme Court in Olutola Vs. UNILORIN (Supra) held that:
“The law which supports a cause of action is not necessarily co-existence with the law which confers jurisdiction on the Court which entertains the suit founded on that cause of action. “The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the Court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard”.
Furthermore, the Court stated:
“In the instance it was puerile for the Appellant to argue as he did that the cause of action arose when the State High Court had jurisdiction over the matter, regardless of the fact that when the action was heard the Court had been divested of such power by reason of the amendment of Section 230(1) of the 1979 Constitution…”.
However, the said Industrial Court becomes the creature of the said Constitution and vested it with exclusive jurisdiction over matters such as the one in the present case i.e. “trade dispute”. See Third Alteration Act 2010 of the Constitution of the Federal Republic of Nigeria L999. That with effect from 4/3/2011 when the said Constitution was altered regarding the establishment of the Industrial Court and its exclusive jurisdiction, the jurisdiction of the trial Court in this matter has been ousted. It is important to note that where provision of the Constitution ousted jurisdiction of the Court, that Court must be bound by it. See Aderemi Dada Olutola Vs. Univ. of Ilorin (2004) 18 NWLR (Pt.905) 417 at 458, otherwise the judgment by it is a nullity. Similarly, where the jurisdiction is ousted during pendency of the action, further hearing thereafter is null and void. See also S.P.D.C. Ltd vs. Hellelu A. Bukuma Fishermen Society Ltd. (2001) FWLR (Pt.70) 1507 at 1516 Paras. A – C.
In view of what I said above, and in the final analysis, I am of the view that even though this suit was filed in May 2009, the fact that there is constitutional provision which divested the trial Court’s jurisdiction to deal with it at any point in time during its pendency, will make the trial Court to stay the proceedings. Therefore, the trial Court was right when it strikes out this matter before it for lack of jurisdiction, reason is that whenever it becomes manifest to the Court that it is incompetent to handle a matter the Court is not only entitled but bound to put an end to its proceedings no matter the stage of the case.
Accordingly appeal lacks merit and is hereby dismissed. The judgment of the trial Court dated 20/12/2012 in this case is affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree with the conclusion in the lead judgment delivered by my learned brother, MOHAMMED LADAN TSAMIYA, JCA; which I had read in draft.
The appeal which lacks merit is hereby dismissed. The judgment of the High Court of Kwara State, Ilorin delivered on 20th December, 2012 in Suit No: KWS/92/09 is therefore affirmed.
I make no order as to costs.
MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Mohammed Ladan Tsamiya, PJ. Just delivered.
I agree with the conclusion that the appeal is meritoriously based on the reasons clearly stated in the judgment. The judgment of the trial court dated 20/12/2012 in this case is affirmed.
Appearances
Dr. J. O. Olatoke with him K. A. Aminu (Mrs.) I.V. Ogiemwonyi, T. O. Adeboye, J. O. David and J. O. Oladokun For Appellant
AND
Dr. Shittu A. Bello with him Bisi Atolagbe For Respondent
