UNIVERSITY OF PORT HARCOURT TEACHING HOSPITAL & ORS v. FABIN ONYEMA (2019)

UNIVERSITY OF PORT HARCOURT TEACHING HOSPITAL & ORS v. FABIN ONYEMA

(2019)LCN/12599(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of January, 2019

CA/PH/258/2015

RATIO

COURT AND PROCEDURE: WHAT IS THE APPLICABLE

“In Lagos State Bulk Purchase Corporation v. Purifications Techniques (NIG) LTD (2012) LPELR 20617 the Supreme Court held per MUHAMMAD, JSC that:- ‘The trite position of the law is that in any proceeding the applicable law is the law in force at the time the cause of action arose and not the law at the time the jurisdiction of the Court is invoked?. It is the law that the jurisdiction of a Court is determined by the existing law at the time the cause of action arose and not the existing law at the time the jurisdiction of the Court is invoked’.”PER BITRUS GYARAZAMA SANGA, J.C.A.

JUSTICES

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. UNIVERSITY OF PORT HARCOURT TEACHING HOSPITAL

2. DR. E.O.D. MANGETE

3. MRS. J.O. OBIANIME – Appellant(s)

AND

FABIN ONYEMA – Respondent(s)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):

This appeal is in respect of the Judgment delivered on 4th July, 2011 by G. K. OLOTU J. of the Federal High Court Port Harcourt Judicial Division in Suit No.: FHC/PH/CS/224/2002. By a Further Amended Writ of Summons and Further Amended Statement of Claim dated 18th March, 2005, the Respondent as Plaintiff sued the Appellants as Defendants claiming for the following: –

1: A declaration that the purported termination of the plaintiffs’ contract of employment with the Defendant (which is a dismissal in effect) vide the defendant’s letter dated 8th September, 1997 is unconstitutional, null and void and of no effect whatsoever for being in breach of the Constitution, the rules of fair hearing and Natural Justice and of the plaintiff’s conditions of service with the Defendant.

2: A declaration that the plaintiff is still an employee of the Defendant and that the contract of service between the Defendant and the Plaintiff is still extant and subsisting.

3: An Order that the Defendant shall reinstate the Plaintiff back to his employment as a Senior store Keeper of the Defendant without prejudice to the promotions, rights, entitlements, salaries, advancements and emoluments that would accrue to the Plaintiff during the period of the purported terminated (sic) of employment and an order that the Defendant should pay to the Plaintiffs all his due entitlements and salaries throughout the period of the said purported termination of the Plaintiff’s employment and thereafter.

4: An Injunction restraining the Defendant either by itself or by its servants/agents from further interference with the Plaintiff’s employment with the Defendant.

OR ALTERNATIVELY

5: The sum of N2,000,000.00 (Two Million Naira) only being and representing special and general damages for the unlawful termination of the Plaintiff by the Defendant which in essence is a dismissal.

PARTICULARS OF SPECIAL DAMAGES:

LOSS OF INCOME: –

(i) Basic salary at N1023.66 per month for 21 years 4 months = N262,056.99

(ii) Other entitlements =

(a) Transport allowance N345.00 per month for 21 years 4 months = N88,320.00

(b) Rent allowance at N1228.38 per month for 21 years 4 months = N314,446.28

(d) Meal allowance at N66.00 per month for 21 years 4 months = N16,896.00

(e) Leave allowance at N1228.39 per year for 21 years = N27,024.58

Less half pay for 6 months = N8,486.64

Sub Total = N742,919.58

General damages = N1,257,080.52

Grand Total = N2,000,000.00

6: A declaration that the employment of the Plaintiff having been terminated after the Plaintiff has served the Defendant under a pensionable employment for a period of 13 years and 8 months, the Plaintiff is entitled to the payment of gratuity and pension by the Defendant as well as other accrued rights of the Plaintiff.

7: An Order of this Hononourable Court compelling the Defendant by itself, or by its servants, officials and agents to pay to the Plaintiff pension and gratuity in accordance with the applicable methods of computation of pensions and gratuities as well as other accrued rights of the plaintiff. (pages 132 – 133 of the record of appeal).

The Defendants filed an Amended Statement of Defence dated 4th July, 2008, wherein they denied the averments in the Plaintiffs Further Amended Statement of Claim and concluded by pleading thus: –

22: The Defendant maintain that this action is nothing more than a gold digging exercise characterized by bad faith and frivolity which the Court should dismiss with substantial cost.

23: The defendant will avail themselves of all legal and equitable reliefs available to them at the trial of this suit. (pages 193 – 195 of the record of appeal).

Thus pleadings were filed and exchanged. The matter proceeded to hearing. The Plaintiff entered the witness box on 14/02/2006 where he testified as P.W.1 and was cross-examined. Several documents were tendered, admitted in evidence and marked as exhibits through him. He testified as the sole witness for the Plaintiff. The Defendant also called one witness. D.W.1 is Mrs. Boma Joshua Thom-Manuel. She testified on 24th March, 2009, several documents were also tendered, admitted in evidence and marked as exhibits through D.W.1. Thereafter written address were filed and exchanged by counsel as ordered by the learned trial Judge.

Judgment was delivered on 4th July, 2011. In his judgment learned trial Judge disposed of two notices of preliminary objection. The first was raised by the Plaintiff to the Defendant’s motion on notice challenging the jurisdiction of the lower Court while the second is the Defendant’s Notice of Preliminary Objection. After disposing of the said notice of preliminary objection the learned trial Judge then delivered his Final Judgment on the merit of Plaintiff’s claim as follows: –

CONCLUSION

In sum total, I enter judgment for the Plaintiff as per paragraph 31 of his Further Amended Statement of Claim against the Defendant as follows: –

1. Relief 1:

A declaration that the purported termination of the Plaintiff’s contract of employment with the Defendant (which is a dismissal in effect) vide the Defendant’s letter dated 8th September, 1997 is unconstitutional, null and void and of no effect whatsoever for being in breach of the Constitution, the rules of fair hearing and Natural Justice and the Plaintiff’s condition of service with the Defendant.

ORDER

As prayed

2. Relief 2:

‘A declaration that the Plaintiff is still an employee of the Defendant and that the contract of service between the Defendant and the Plaintiff is still extant and subsisting’.

ORDER

As prayed.

3. Relief 3:

‘An Order that the Defendant should reinstate the Plaintiff back to his employment as a Senior Store Keeper of the Defendant without prejudice to the promotions, rights, entitlements, salaries, advancements and emoluments that would accrued to the plaintiff during the period of the purported termination of employment and an order that the Defendant should pay to the Plaintiff all his dues, entitlements and salaries throughout the period of the said purported termination of the plaintiffs? employment thereafter’.

ORDER

As prayed.

4. Relief 4:

‘An injunction restraining the Defendant either by itself or by its servants/agents from further interference with the plaintiff?s employment with the Defendant’.

ORDER

As prayed.

The ALTERNATIVE Reliefs claimed in paragraphs 5, 6 and 7 of Statement of Claim are not necessary in view of the fact that the main claims have succeeded. So they are hereby struck out?. (The judgment is on pages 324 – 353 of the record of appeal).

The Defendants were aggrieved with the decision of the trial Court. Their counsel AKURO R. GEORGE Esq. filed a Notice of Appeal dated 18th February, 2014 containing three grounds of appeal. On 12th February, 2014 this Court granted the appellant an Order extending time to file their Notice of Appeal within 7 days. (pages 355 – 358 of the record of appeal). The Appellants thereafter compiled and transmitted the record of appeal to this Court on 16th July, 2015.

The Appellants’ Brief of Argument prepared by CHIEF AKURO GEORGE Esq. was filed on 14th February, 2017 but deemed as properly filed and served on 9/11/2018. Learned counsel formulated one issue for determination of this Court out of the three grounds of appeal as follows: –

Whether the lower Court has jurisdiction to hear this matter by virtue of Section 6 (6) (1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which came into effect on the 4th of March, 2011. (Ground 1 of the grounds of appeal)

The Respondent’s Brief of Argument was settled by H. D. D. Uwom Esq. It was filed on 16th November, 2017 but also deemed on 9th November, 2018. Learned counsel formulated one issue for the determination of this Court as follows: –

Whether, as the trial of this case had concluded and the case was at the stage of judgment before an alteration of the law occurred, vide the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, which transferred jurisdiction over labour/employment matters (hitherto exercised by the Court below) exclusively to the National Industrial Court, it was proper or competent for the Court below to have thereafter delivered the pending judgment and concluded this case. (Ground 1)

I will adopt the issue formulated by the Appellant in determining this appeal. Learned counsel to the Appellants submitted while arguing issue 1 that the law is settled that issue of jurisdiction is so fundamental that it can be raised at any stage of a trial or even at appeal. Cited: Elabanjo v. Dawodu (2006) 15 NWLR {Pt. 1001} 76 at 115. That the following are the issues to be determined whether a Court has jurisdiction: –

1: Whether the Court is properly constituted as regards numbers and qualification of its members.

2: Whether the subject matter is within the trial Court’s jurisdiction.

3: Whether the case before the Court is initiated by due process of law upon fulfillment of any condition precedent to the exercise of its jurisdiction.

That the relevant consideration for purposes of this appeal is the second requirement above. That the jurisdiction of this Court is regulated by the 1999 Constitution which under Section 251 made express provisions with regards to the exclusive jurisdiction of the Federal High Court. That the Constitution has been amended now by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which confers jurisdiction exclusively on the National Industrial Court to hear and determine cases relating to labour, employment, welfare of workers etc. Learned counsel quoted the said Section 6 (6) (1) (Supra). That in determining whether or not this Suit is caught up by that law, the Court ought to look at the claims of the Claimant in its entirety. Cited C.G.G. (NIG) LTD v. Ogu (2005) 8 NWLR {Pt. 927} 366 at 381. Learned counsel then quoted the entire claims of the respondent. He then quoted the holding of the apex Court in Osadebay v. A.G. Bendel State (1991) 1 NWLR {Pt. 169} 525 at 557 paragraph G per BELLO C.J.N as follows: –

‘Where the Constitution expressly and in clear and unambiguous terms ousts the jurisdiction of any Court of law from determining a particular issue or question, then the Court is bound to give effect to the ouster’.

Learned counsel submitted in conclusion that ‘the issues canvassed in the writ of summons and statement of claim in the instant case are evidently within the purview of Section 6(6) (1) of the law mention above’. That it is only the National Industrial Court that is vested with the jurisdiction to entertain and determine the issues canvassed in this appeal. That since the Federal High Court is divested of jurisdiction to hear and determine the issues in this suit, then this case is rendered incompetent. That the judgment in this suit was delivered on 4th July, 2011 while the amendment to the 1999 Constitution came into effect on 4th March, 2011. Learned counsel urged the Court to allow this appeal.

In his submission while arguing this issue, learned counsel to the Respondent narrated the history of this suit from the date it was filed via a Writ of Summons on 10th April, 2002 (page 1 of the record of appeal) to the date judgment was delivered on 4th July, 2011 (pages 234 – 353 of the record of appeal). The summary of the submission by learned counsel to the respondent is that this suit was commenced before Federal High Court which had the jurisdiction pursuant to Section 251 (1) (p) and (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which deals with administration, administrative action etc of an agency of the Federal Government. That the said Federal High Court heard the matter and adjourned for judgment.

However, before judgment could be delivered on 4/7/2011, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act came into force on 4th March, 2011.

Learned counsel submitted that the (Third Alteration) Act does not have a retrospective effect. Thus its effect or operation is ‘in futuro’. He cited and quoted extensively from the locus classicus on this issue which is the Supreme Court decision in Orthopaedic Hospitals Management Board v. Mallam Umaru Garba & Ors (2002) LPELR 2775. He buttressed his submission with several authorities of the apex Court which tread the path opened by O.H.M.B v. GARBA (Supra) to support his submission which I will consider in my decision. He urged this Court to resolve this issue in favour of the Respondent and dismiss this appeal for lack of merit.

FINDINGS:

The sole issue canvassed by learned counsel to the Appellant is: –

I have considered the submissions by learned counsel on this issue. The said Section 6 (6) (1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 states as follows: –

Notwithstanding the provisions of Sections 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 cases and matters: –

(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions and service, including health, safety, welfare of labour, employee worker and matters incidental thereto or connected therewith?.

This legislation came into force on 4th March, 2011. The judgment of the Federal High Court in this suit was delivered on 4th July, 2011. Learned counsel to the appellant is contending that in view of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 which comes into force on 4th March, 2011, the judgment delivered by the trial Court on 4th July, 2011, was without jurisdiction and should be nullified by this Court.

As rightly submitted by learned counsel to the respondent the submission by learned counsel to the appellant is a misconception of the position of the law mainly because the said Third Alteration Act does not have retrospective effect. Since this suit was filed on 10th April, 2002 before coming into effect of the Third Alteration Act on 4th March, 2011 the said legislation has no binding effect on this suit. In other words all the rights acquired and proceedings already commenced prior to the Third Alteration Act, 2010 remain and could continue unaffected by the said alteration. Section 6(1) of the Interpretation Act provides thus: –

6(1): The repeal of an enactment shall not: –

a; revive anything not in force or existing at the time when the repeal takes effect;

b; affect the previous operation of the enactment or anything duly done or suffered under the enactment;

c; affect any right, privilege, obligation or liability accrued or incurred under the enactment;

d; affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;

e; affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.

That is why the Supreme Court held in Orthopaedic Hospitals Management Board v. Mallam Umaru Garba & Ors (2002) LPELR 2775 while pronouncing on Section 6(1) of the Interpretation Act per MUHAMMED, JSC on page 14 thus: –

‘As is clear from the provisions of Section 6(1) (c) of the Interpretation Act, any right, privilege or obligation accrued to an individual shall not be affected by the repeal of an enactment, it is clear from the wordings of the Interpretation Act that legal proceedings may be continued as if the enactment has not been repealed’.

The learned law Lord held further as follows: –

‘I shall add that a right in existence at the time a new law is passed transferring jurisdiction of a Court to another Court will not be lost. In the case in hand, the Kano State High Court was about to deliver its judgment when the new law was passed ordering that all cases dealing with the administration or management and control of the Federal Government or any of its agencies shall be within the exclusive jurisdiction of the Federal High Court… Since there was no provision in Decree No. 107 of 1993 that pending cases in the State High Courts shall abate with effect from the date the new Decree took effect, the decision of the Kano State High Court in the appellant’s case is valid and not void. Before the law was passed it was a right which the parties acquired and it cannot be taken away? There is no doubt that the Decree had no retrospective effect as it was a constitutional amendment which was not declared to take effect retrospectively’.

In Lagos State Bulk Purchase Corporation v. Purifications Techniques (NIG) LTD (2012) LPELR 20617 the Supreme Court held per MUHAMMAD, JSC that:-

‘The trite position of the law is that in any proceeding the applicable law is the law in force at the time the cause of action arose and not the law at the time the jurisdiction of the Court is invoked?. It is the law that the jurisdiction of a Court is determined by the existing law at the time the cause of action arose and not the existing law at the time the jurisdiction of the Court is invoked’.

Upon considering the provision of Section 6(1) of the Interpretation Act and the holding by the Supreme Court on this issue the only answer to the issue formulated by the appellant is that the lower Court has jurisdiction to hear this suit since the provision of Section 6 (6) (1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 has no retrospective effect. The law that determined the jurisdiction of the lower Court in respect to this suit is the law existing at the time cause of action arose which is 10th April, 2002.

This appeal is therefore dismissed for lack of merit. The judgment of the lower Court delivered on 4th July, 2011 is affirmed. Cost of N100,000.00 awarded against the 1st Appellant in favour of the Respondent.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, Bitrus Gyarazama Sanga, JCA.

I agree with the learned Justice that this appeal is devoid of merit and therefore should be dismissed and it is so dismissed. I also affirm the judgment of the lower Court delivered on 4th July, 2011.

I abide by the consequential orders regarding costs as made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the lead Judgment just delivered by my Learned brother, Bitrus Gyarazama Sanga, J.C.A.

I agree that the appeal lacks merit and I accordingly dismiss same and abide by all the consequential Orders including the Order for cost.

Appearances:

E. A. ANIKA,ESQ.For Appellant(s)

T. A. WEKULOM, ESQ.For Respondent(s)