DAVID MUSA MSHELIA v. BANK OF AGRICULTURE LIMITED (2016)

DAVID MUSA MSHELIA v. BANK OF AGRICULTURE LIMITED

(2016)LCN/8127(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of January, 2016

CA/J/191/2014

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION

Issue concerning exercise of jurisdiction by the Courts is radically and fundamentally important and the same can be raised at any stage, anytime and howsoever even on appeal. Labiti V. Anretiola (1992) 8 NWLR (Pt. 258) 139; Obada Vs. Millitary Governor Kwara State (1990) 6 NWLR (Pt. 157) 482; Kotoye Vs. Saraki (1994) 7 NWLR (Pt. 357) 414. Issue of jurisdiction or lack of it can also be raised by the Courts suo motu as done in this instant appeal. See: Emigwu V. Oketi (2000) 3 NWLR (Pt. 620) 620; Awuse V. Odili 2004 FWLR (Pt. 193) 325; Buhari V. Obasanjo (2003) 17 NWLR Pt. (Pt. 550) 423, 474 ? 475; Olatunji Vs. Olakunde (2011) LPELR ? 4734 (CA) per. SAIDU TANKO HUSSAINI, J.C.A.

PRACTICE ANS PROCEEDINGS; WHEN IS A COURT BOUND TO PUT AN END TO A PROCEEDINGS

A Court is not only entitled but bound to put an end to proceedings if at any stage and by any means, it becomes manifest that they are incompetent. It can do so of its own initiative. See: Attorney- General Anambra State Vs. Okeke (2002) 12 NWLR (Pt. 782) 575 or (2002) 5 SC (Pt. 11) 58. per. SAIDU TANKO HUSSAINI, J.C.A.

COURT: JURISDICTION; THE EXCLUSIVE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT TO ENTERTAIN AN EMPLOYMENT OR LABOUR RELATED ISSUE
The claim is thus an employment or labour related issue which only the National Industrial Court has exclusive jurisdiction to entertain, by virtue of the Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010.
Section 254 C (1) (a) (b) of the 1999 Constitution (as amended) provides thus:-
254 C-(1) Notwithstanding the provisions of Section 251, 257 272 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, employment, worker and matters incidental thereto or connected therewith;
(b) Relating to, connected with or arising from factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or laws”
By reason of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, the National Industrial Court is with effect from the 4th day of March, 2011, the only Court vested with jurisdiction to entertain labour and employment related issues or matters to the exclusion of all or any other Court and indeed matters listed in Section 254 C (1) (a)-(m) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). per. SAIDU TANKO HUSSAINI, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF AN APPELLATE COURT TO STRIKE OUT THE CASE BEFORE THAT LOWER COURT AND DECLARE THE WHOLE PROCEEDINGS A NULLITY AB INITIO WHERE IT IS SATISFIED THAT THE LOWER COURT HAS NO JURISDICTION

Where the appellate Court (as in this case) is satisfied that a Lower Court which tried a case has no jurisdiction to try the case which came to it on appeal, the proper order the appellate Court should make is to allow the appeal, strike out the case before that Lower Court and declare the whole proceedings a nullity ab initio. I am well guided by decisions in Lakanmi V. Adene (2003) 10 NWLR (Pt. 828) 353 or (2003) 4 SC (Pt. 11) 92; Wilson V. Attorney ? General Bendel (1983) 1 NWLR (Pt. 2) 572; Savannah Bank Ltd V. Pan Atlantic (1987) 1 NWLR (Pt. 44) 212. Sule Vs. Nigeria Cotton Board (1985) 2 NWLR (Pt. 5) 17; Nwosu Vs. Imo State Environmental Sanitation Kathy (1990) 2 NWLR (Pt. 135) 688. per. SAIDU TANKO HUSSAINI, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

DAVID MUSA MSHELIA Appellant(s)

AND

BANK OF AGRICULTURE LIMITED Respondent(s)

SAIDU TANKO HUSSAINI, J.C.A.(Delivering the Leading Judgment):
The Appellant was the Plaintiff at Federal High Court sitting in Gombe. He had approached the said Court where he instituted action against the Respondents, as defendants. Until his suspension and eventual dismissal on 20th June, 2011 the Appellant was a staff of the Respondent and had served in different capacities.

The claim against the Respondent vide the Writ of Summons and the Statement of claim filed on the 16/9/2011 is for:
1. An Order of Court declaring that the Plaintiff was not accorded a fair hearing on the allegations leveled against him.
2. An Order of Court declaring that the dismissal of the Plaintiff was unlawful, unconstitutional, null and void and of no effect whatsoever.
3. An Order of Court for restatement of the Plaintiff to his office and payment of all his salaries, allowances and entitlements including Promotions as a when due.
4. An Order of Court for payment of N10, 000, 000. 00 (Ten Million Naira) exemplary damages against the defendant.

5. N500, 000. 00 general damages and cost of the action.

Pleadings were filed and exchanged. Respondent as Defendant denied the claim vide the amended Statement of defence at page 204 of the record of Appeal to which the Appellant also filed a Reply at pages 270-271 of the same record. Parties on both sides at the hearing called evidence of witnesses and also tendered several documentary evidence as Exhibits. The trial Federal High Court at the close of evidence and address of counsel, in a considered Judgment delivered on the 2nd December, 2013 dismissed the claim. It is against that Judgment and order that the Plaintiff has appealed to this Court on 7(Seven) grounds as per the Notice of Appeal dated and filed on the 28 February, 2014 (Record: pages 312-321).

The record of the trial Court was compiled and transmitted to this Court on the 26th June, 2014 but was deemed as duly filed and served on the 14/5/2015. Thereafter, the parties filed and exchanged their respective Briefs of arguments, the Appellant having earlier sought and was granted leave for extension of time to file his brief of argument. The said brief of argument

deemed duly filed on the 13/5/2015 raised 3 (three) issues for determination of Court namely.
?1. Whether the Lower Court was right in holding that an employer who hires an employee has the right to fire him at anytime in so far as that is done within the four walls of contract of service the employee has no redress in law (Grounds 1 of the grounds of appeal)
2. Whether the learned trial Judged accorded the appellant a fair hearing when he placed the burden of proof solely on the appellant while exonerating the respondent (Grounds 6 and 7 of the grounds of appeal)
3. Whether the appellant had not proved his case for the award of his claims at the Lower Court. (Grounds 2, 3, and 5 the grounds of appeal?.
?
In the Respondents brief of argument filed on the 14/2/2015, 2 (two) issues were distilled for determination of Court thus:
?(i) Whether the conclusion of the Learned Trial Judge that the Plaintiff/Appellant was accorded the right to fair hearing by the Respondent was right or wrong. (Distilled from grounds 2, 3 and of the notice and grounds of

appeal)
(ii) Whether the finding of the Learned Trial Judge that Plaintiff/Appellant failed to prove that his dismissal was unlawful and is not entitle to the Reliefs sought was right or wrong having regard to the pleadings and the evidence led by the Plaintiff/Appellant (Distilled from grounds 1, 4, 6 and 7 of the Notice and Grounds of Appeal)?

The Appellant further filed a reply brief on points of law on the 16/6/2015 in response to the brief filed for the Respondent on the 14/5/2015.
The appeal came up on the 28/10/2015 for hearing and counsel on both side were on hand to adopt their respective briefs of argument. Mr. I. M. Gwani (with Ayuba Adamu for the Appellant) after adopting his brief of argument urged us to allow the appeal, but Mr. H. B. Gbide, who appeared for the Respondent urged us to dismiss the appeal. He had earlier adopted his brief of argument for the Respondent.
?
It was at this point, this Court invited counsel to address us on one fundamental question and that is whether the Federal High Court, the Court which entertained this matter at first instance had jurisdiction to do so as it did?<br< p=””

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Mr. I M. Gwani of counsel in response to the question posed by the Court submitted that as at the 16th September, 2011 when the Writ of Summons in the Suit leading to this appeal was filed at the Federal High Court, the said Court lacked jurisdiction to hear the case by virtue of the 3rd alteration to the Constitution of the Federal Republic of Nigeria, 1999 which confer exclusive jurisdiction to the National Industrial Court.
?
Mr. H. . Gbide of Counsel for the Respondent agrees with that

submission that the Federal High Court did not have jurisdiction to entertain this case on appeal at first instance. Counsel urged us therefore to strike out the Suit at the Federal High Court for want of jurisdiction ab initio.

I have earlier in this exercise reverted to Plaintiff’s claim in the Writ of Summons and the Statement of claim at paragraph 27 A-E but for reason of emphasis, I seek your indulgence, My Lords to reproduce the claim at paragraph 27 A-C of the statement of claim thus:
“A. AN ORDER of Court declaring that the Plaintiff was not accorded a fair hearing on the allegations leveled against him.
B. AN ORDER of Court declaring that the dismissal of the Plaintiff was unlawful, unconstitutional, null and void and of no effect whatsoever.
C. AN ORDER of Court for the

reinstatement of the Plaintiff to his office and payment of all his salaries, allowances and entitlements including promotions as at when due?
?
The claim is thus an employment or labour related issue which only the National Industrial Court has exclusive jurisdiction to entertain, by virtue of the Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010.
Section 254 C (1) (a) (b) of the 1999 Constitution (as amended) provides thus:-
?254 C-(1) Notwithstanding the provisions of Section 251, 257 272 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, employment, worker and matters incidental thereto or connected therewith;
(b) Relating

to, connected with or arising from factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or laws”
By reason of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, the National Industrial Court is with effect from the 4th day of March, 2011, the only Court vested with jurisdiction to entertain labour and employment related issues or matters to the exclusion of all or any other Court and indeed matters listed in Section 254 C (1) (a)-(m) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

When therefore, the Appellant herein as plaintiff approached the Federal High Court in Gombe and took out a Writ of Summons, on the 16th September, 2011, he was at the wrong venue but the Court nonetheless entertained his claim. Needless to say all proceedings relative to the claim at that Court leading to the Judgment delivered by the Court on 2nd December, 2013 were fundamentally flawed and therefore null and

void. I so declare same as such.

The appeal to this Court all the same succeeds. Where the appellate Court (as in this case) is satisfied that a Lower Court which tried a case has no jurisdiction to try the case which came to it on appeal, the proper order the appellate Court should make is to allow the appeal, strike out the case before that Lower Court and declare the whole proceedings a nullity ab initio. I am well guided by decisions in Lakanmi V. Adene (2003) 10 NWLR (Pt. 828) 353 or (2003) 4 SC (Pt. 11) 92; Wilson V. Attorney ? General Bendel (1983) 1 NWLR (Pt. 2) 572; Savannah Bank Ltd V. Pan Atlantic (1987) 1 NWLR (Pt. 44) 212. Sule Vs. Nigeria Cotton Board (1985) 2 NWLR (Pt. 5) 17; Nwosu Vs. Imo State Environmental Sanitation Kathy (1990) 2 NWLR (Pt. 135) 688.
?
In effect, proceedings leading to the Judgment delivered at the Federal High Court sitting in Gombe on 2/12/2013 in Suit No. FHC/GM/CS/15/2011 being a nullity are hereby struck out and this appeal is allowed.
That is the Judgment and Order.

JUMMAI HANNATU SANKEY, J.C.A.:
I had the privilege of reading in draft the Judgment of my learned

brother, Hussaini, JCA, and I entirely agree with the reasoning and conclusion contained therein.
There is legal consensus that the law in force at the time the cause of action arose governs the law to be applied in the determination of the action, while the law in force at the time of the trial based on the cause of action, determines the Court vested with jurisdiction to try the case.

Section 254C (1) of the 1999 Constitution (as amended) has undoubtedly pruned down the expansive jurisdiction of the Federal High Court by stripping it of its vires to entertain, inter alia, matters relating to or connected with labour and employment. See Keystone Bank Ltd V Oyewale (2014) LPELR-23612(CA); Olufunsho V GSDI Ltd (2013) 8 WRN 36 at 54; & Obiuweubi V CBN (2011) 7 (Pt. 1247) 465 at 495.

The law is settled that where there is a change to the law governing the jurisdiction of a Court, the law shall have effect on all matters pending in that Court except those in which trial has commenced, and especially so on those matters filed thereafter, as in the instant case. See Osakue V Federal College of Education (2010) 10 NWLR (Pt. 1201) 1; Olutola V University of Ilorin (2004) 18 NWLR (Pt. 905) 416.

The record before the Court discloses that the suit before the Lower Court commenced on 16-09-11. The Federal High Court had however lost its vires to hear and determine matters relating to labour and employment to the National Industrial Court vested with jurisdiction to entertain such matters, since 04-03-11, when the amendment to the 1999 Constitution, as per the 3rd Alteration Act, came into effect. Therefore, everything that was done by the learned trial Court in the case from its inception was an exercise in futility. It is no wonder that both learned counsel representing the parties before the Court are ad idem that the Lower Court lacked jurisdiction when it purported to hear and determine the suit before it.

I therefore agree that it is not necessary to consider the other issues raised in the Briefs of arguments of the parties in this Appeal since the absence of jurisdiction has effectively drained the life-blood from the Appeal.
The Appeal therefore succeeds on this preliminary issue and is hereby allowed. I abide by the consequential orders made in the lead Judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.:
I read in advance a draft copy of the judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA., and I am in complete agreement with the reasons and conclusions reached therein.
?
This Court had raised suo motu at the hearing of this appeal on 28/10/2015 the issue whether the Court below, the Federal High Court had the jurisdiction to hear and determine the claims of the Appellant against the Respondent bordering on employer ? employee relationship in the light of the Third Alteration to the Constitution of Nigeria 1999 as amended?

In law, it has long been established and well settled that it is the claims of the Plaintiff or Claimant that denotes and determines the jurisdiction of the Court with the requisite vires to hear and determine the claims.

In this vein, the question of jurisdiction is a fundamental and threshold issue and in the absence of which there can be no validity in any proceedings and or judgment and thus can be raised at any stage of the proceedings even for the first time on appeal by any of the parties or even suo motu by the Court as was done by this Court in this appeal. Once

the issue of jurisdiction is raised, who or when or how it was raised is of no significance and should ordinary not give the Court any concern, it must be considered and resolved first since it is indeed the epicentre of the entire litigation process and thus goes to the competence of the Court to adjudicate over a cause or matter placed before it. See Omaghoni V. Nigerian Airways Ltd. (2006) 16 NWLR (Pt. 1011) 310. See also Equity Bank of Nigeria Ltd. V. Halilco Nig. Ltd (2006) 7 NWLR (Pt. 980) 568; NDIC V. CBN (2002) 7 NWLR (Pt. 766)272; Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Adeyemi V. Opeyori (1976) 9 ? 10 SC 31; Onuorah V. KPRC (2005) NWLR (Pt. 921) 393.
?
The subject matter of the claim of the Appellant as Plaintiff before the Court below was one clearly touching on the employment relationship between the parties, employer and employee, and thus squarely falls within the extant provisions of Section 254(C)(1)(a) ? (b) of the Constitution of Nigeria 1999 as amended which unambiguously confers both original and exclusive jurisdiction on the National Industrial Court of

Nigeria to hear and determine all such claims to the exclusion to all other Courts in the land.
?
In the light of the above few comments of mine and the more detailed reasons given in the lead judgment, I too hold that the Court below lacks the jurisdictional competence to hear and determine the claims of the Appellant against the Respondent. I too allow the appeal and shall abide by the consequential orders made in the lead judgment.

Appearances

I. M. Gwani, Esq. with him, Ayuba Adamu, Esq.For Appellant

AND

H. B. Ghide, Esq.For Respondent