AJAH v. C.O.P EBONYI STATE & ORS (2020)

AJAH v. C.O.P EBONYI STATE & ORS

(2020)LCN/14811(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/E/208M/2014

RATIO

JURISDICTION: WHAT DETERMINES JURISDICTION OF THE COURT

The law is trite that the jurisdiction of the Court is determined by the nature of the subject matter, the parties, the territorial limits over which Court can exercise jurisdiction, the composition of the Court and the constitutional provision which established the Court. There must be no feature in the case which prevents the Court from exercising its jurisdiction. See DAIRO V. UNION BANK & ANOR. (2007) LPELR-913 (SC) AT 80 (A-F). SYLVA V. INEC & ORS. (2015) LPELR-24447 (SC) AT 57 (B-E). TSKJ (NIG.) LTD V. OTOCHEM (NIG.) LTD (2018) LPELR-44294 (SC) AT 7-8. In order to determine the nature of the claim, the subject matter of the action and whether the Court has the jurisdiction to entertain the suit, it is the claim as endorsed in the originating process and the statement of claim that the Court considers where the action is commenced by a writ of summons. Where, as in this case, the action is commenced by an originating motion, the Court considers the relief being sought and the affidavit in support of the motion. PER BOLAJI-YUSUFF, J.C.A.

JURISDICTION: WHAT DETERMINES JURISDICTION OF COURT

It is trite that a set of facts may give rise to multiple causes of action but for each cause of action to be heard and determined by the Court, the principal issue or subject matter must be within jurisdiction and competence of the Court. The Court would refuse to exercise its jurisdiction where the ancillary issue over which the Court has jurisdiction is largely depended on the principal issues over which the Court lacks jurisdiction to entertain. PER BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

PAUL O. AJAH APPELANT(S)

And

COMMISSIONER OF POLICE EBONYI STATE 2. O/C SPECIAL ANTI-ROBBERY SQUAD UNIT, EBONYI STATE POLICE COMMAND SARS 3. DR. FELIX O. ANUEBUNWA RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in suit no. HAB/33MC/2013 on 2/12/2013. The appellant was the Provost of the Federal College of Agriculture, Ishiagu, Ebonyi State until he was suspended from that office by a letter dated 19/3/2013 with effect from 22/3/2013. The Appellant was directed by that letter to hand over the affairs of the college to Dr. Felix Anuebunwa, the most senior lecturer in the college pending the determination of his case. By a letter dated 18/4/2013, the Federal Ministry of Agriculture and Rural Development confirmed that the appellant’s suspension took effect from 22/3/2013 and he was directed to comply with the instructions to handover the affairs of the college as contained in the letter of 19/3/2013. The appellant refused to comply with the instructions to handover the affairs of the college as directed, he was issued with two queries. When the appellant persisted in his refusal to hand over particularly the college vehicles in his possession, a request was sent to the Commissioner of Police, Ebonyi

State for assistance to recover the vehicles.

According to the Appellant, the 2nd respondent threatened to seize and detain the official vehicles of the appellant and forced his personal assistant to surrender two of the official vehicles. The appellant then commenced a fundamental right enforcement proceeding by a motion on notice filed on 11/6/2013 and sought for the following relief:
“An order restraining the respondents from subjecting the applicant to multiple harassment and repeated arrest and threats of arrest, detention and seizure of his official vehicle and paraphernalia of office on account of the same complaint arising from his office as the provost of Federal College of Agriculture Ishiagu, Ebonyi State which said complaint is the subject matter of charges nos. HAE/ICPC/1C/2013 AND FHC/MC/36C/2013 pending against the applicant.”

The parties filed and exchanged all necessary processes including affidavit in support, counter affidavits, exhibits attached to the affidavits and written addresses which they adopted as their arguments in support and against the application. The Court below in its considered judgment delivered

by B.A.N. Ogbu, J dismissed the appellant’s application for the following reasons: (1) That the High Court of Ebonyi State has no jurisdiction to entertain the suit. (2) That the appellant failed to establish his entitlement to the reliefs sought.

The appellant was dissatisfied with the judgment. He filed a notice of appeal containing the following grounds of appeal on 9/12/2013:
GROUND 1-ERROR OF LAW
“The learned trial judge erred in law when he held that the reliefs sought in the suit cannot be determined without a determination of the validity of the suspension of the applicant by the Federal College of Agriculture Ishiagu, Ebonyi State.
GROUND 2 – ERROR IN LAW
The learned trial judge erred in law when he declined to exercise the jurisdiction to enforce the applicant’s fundamental rights.
GROUND 3 – ERROR IN LAW
The learned trial judge erred in law when he dismissed the application on the ground that the applicant was on suspension.”

The record of appeal transmitted to this Court was deemed as properly compiled and transmitted on 29/9/14. The appellant’s brief was filed on 11/11/2014. The 3rd

respondent’s brief was filed on 10/5/16. It was deemed as properly filed and served on 28/11/2017. Appellant’s reply brief was filed on 3/1/18. Hearing Notices were duly served on counsel to both parties. However, when the appeal was called on 21/9/20, neither the appellant’s counsel nor the respondent was in Court. The appeal was therefore treated as argued pursuant to the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016.

The appellant raised the following issues for determination:
1. “Whether the lower Court rightly declined jurisdiction to entertain this suit (Ground 1 & 2).
2. Whether the lower Court rightly dismissed the appellant’s application to enforce his fundamental right (Ground 3).”

The issues raised by the 3rd respondent are the same as the issues raised by the appellant. The 2nd and 3rd respondents did not file any brief. On issue 1, the appellant’s counsel submitted that the National Industrial Court of Nigeria (NICN) is a Court of limited jurisdiction which cannot entertain an action to enforce fundamental right as a cause of action. It is his contention that

since the issue of suspension was already pending at NICN, Abuja and criminal charges were also pending in the High Court of Ebonyi State and Federal High Court of Nigeria, there was no justification for the Court below to hold that there was no way he could entertain the appellant’s application without first resolving the issue of his suspension and his status in the college at the material time.

In response, the respondent’s counsel submitted that the High Court has no jurisdiction to enquire into who was the provost of the college at the material time. He argued that official vehicles and paraphernalia of office are not fundamental rights known to law, they are perquisites attached to an office and using fundamental right proceedings to fight for official privileges amount to over stretching the law. He submitted that the real issue between the appellant and the 3rd respondent revolved around the issue of who occupied the office of the provost of the college at the material time and as such entitled to the official vehicles. The claim for the enforcement of fundamental right is ancillary to that issue. He referred to

TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517.

In his reply to the above submissions, the appellant’s counsel referred to the judgment of the National Industrial Court, Abuja in suit no. NICN/ABJ/79/2013, Dr. O. Ajah, Provost Federal College of Agriculture, Ishiagu V. Prof. B. Y. Abubakar (EXECUTIVE SECRETARY AGRICULTURAL RESEARCH COUNCIL OF NIGERIA) & 2 ORS which according to him nullified his suspension which he claimed had been forwarded but cannot be found in the file.

RESOLUTION
The law is trite that the jurisdiction of the Court is determined by the nature of the subject matter, the parties, the territorial limits over which Court can exercise jurisdiction, the composition of the Court and the constitutional provision which established the Court. There must be no feature in the case which prevents the Court from exercising its jurisdiction. See DAIRO V. UNION BANK & ANOR. (2007) LPELR-913 (SC) AT 80 (A-F). SYLVA V. INEC & ORS. (2015) LPELR-24447 (SC) AT 57 (B-E). TSKJ (NIG.) LTD V. OTOCHEM (NIG.) LTD (2018) LPELR-44294 (SC) AT 7-8. In order to determine the nature of the claim, the subject matter of the action and whether the

Court has the jurisdiction to entertain the suit, it is the claim as endorsed in the originating process and the statement of claim that the Court considers where the action is commenced by a writ of summons. Where, as in this case, the action is commenced by an originating motion, the Court considers the relief being sought and the affidavit in support of the motion.

On a careful examination of the relief sought by the appellant, the affidavit in support of the application and the exhibits attached thereto, there is no doubt that the cause of action arose from a dispute relating to the suspension of the appellant from the office of the Provost of the Federal College of Agriculture, Ishiagu and whether he is entitled to retain and enjoy the properties of the college in his possession and/or the privileges attached to the office. Although cleverly woven around fundamental right, it is not an issue of fundamental right. Grounds 9-16 upon which the relief is sought as stated in the statement in support of the application are as follows:
9. “That despite the pendency of the above-named charges against the applicant, the 2nd respondent has arrested

the applicant’s official driver Mr. Eze Ihanacho and detained him on the insistence of the 3rd respondent. He was arrested on 8/5/13 and released on 9/5/13 and re-arrested on 6/6/13. They are currently looking for his personal assistant Akubuike Eluwa, his wife Mrs. Mabel Ajah.
10. That the essence of the harassment is to force the applicant to surrender all Government’s properties under his custody since he is under suspension (to the 3rd respondent).
11. That the purported suspension letter is being contested by the applicant at the National Industrial Court Abuja in suit no. NICN/ABJ/79/2013 filed on the 9th day of April, 2013.
12. That the respondents were served letter of 9th May, 2013 addressed to the Inspector-General of Police, Abuja through the Commissioner of Police, Abakaliki captioned suit no. NICN/ABJ/79/2013 – (DR. PAUL O. V. PROF. B. Y. ABUBAKAR) flagrant disregard for due process of law and abuse of police powers.(sic)
13. That the 2nd respondent continued harassing and intimidating the provost and his assistants on daily basis despite the pendency of these two charges and the suit at the National

Industrial Court.
14. That the 2nd respondent has continued to threaten to arrest the applicant on account of the same complaint subject matter of the charges against him at the High Court.
15. That the 2nd respondent has threatened to seize and detain the official vehicle of the applicant which he is entitled to as the Provost of the Federal College of Agriculture Ishiagu.
16. That the applicant is the substantive Provost of the Federal Collage of Agriculture Ishiagu and by virtue of that office is entitled to his official vehicle and other paraphernalia of office.”

See also paragraphs 3(i)-3(q) of the affidavit in support of the application where the same statements were made under oath.

The Court below at page 172 of the record considered the subject matter of the suit, the nature of the relief sought and the provisions of Section 251(1) (P) of the Constitution (as amended). The Court held as follows:
“In the instant suit, the sole relief claimed by the applicant is an injunction affecting the validity of the executive or administrative decision or action of the respondents especially the 3rd respondent (the acting

Provost of the college) to recover the vehicles and other paraphernalia attached to that office which are still in the custody of the applicant. This Court would lack the jurisdiction to hear an injunction that would affect such an administrative or executive decision. Even the interpretation and application of the 1999 Constitution (as amended) Section 318(3) thereof may be resolved in order to decide whether a substantive provost of the college in issue still exists in view of the appointment of the 3rd respondent as the acting provost of the college now. These are the principal issues that must be resolved before the sole relief of the applicant would be resolved one way or the other.
It is trite that a set of facts may give rise to multiple causes of action but for each cause of action to be heard and determined by the Court, the principal issue or subject matter must be within jurisdiction and competence of the Court. The Court would refuse to exercise its jurisdiction where the ancillary issue over which the Court has jurisdiction is largely depended on the principal issues over which the Court lacks jurisdiction to entertain. Therefore, the holding

of the Court is that it has no jurisdiction to entertain the applicant’s suit and it is hereby struck out. The issue no. 1 is resolved in favour of the respondents.”

The Court predicated its decision that the High Court of Ebonyi State lacked the jurisdiction to entertain the appellant’s application on Section 251 (1) (P) of the Constitution which provides that notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters relating to the administration or the management and control of the Federal Government or any of its agencies. However, since the complaint of the respondent for which he is seeking redress by way of the enforcement of his fundamental right relate to his employment, the relevant provision of the Constitution which the Court ought to have considered is Section 254 C (1) (a), (d) and (k) of the Constitution as amended by the Constitution of the Federal Republic of Nigeria (Third Alteration Act 2011, No 3)

which provides that:
254C- (1) “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 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 incidental thereto or connected therewith;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other

entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the federation and matters incidental thereto;”
It is clear from the plain words of the opening paragraph of Section 254 C (1) of the Constitution that the NICN has the exclusive jurisdiction over all matters or dispute relating to employment irrespective of whether the employer is the Federal Government of Nigeria or any of its agencies or a private person or a corporation. The section starts with the words “Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this constitution”. The use of those words puts it beyond any doubt that the provisions of Section 251, 257, 272 or any other provision of the Constitution are not applicable to matters and causes relating to employment and have no effect on the exclusive jurisdiction of the NICN to adjudicate on those matters and causes. In LADOJA V. INEC (2007) LPELR-1738 (SC) AT 64-65 (A-F), the Supreme Court per Aderemi, JSC explained the effect of the use of the words “Notwithstanding anything to the contrary contained in this

Constitution” as follows:
“Section 251 of the Constitution aforesaid starts with the words “Notwithstanding anything to the contrary contained in this Constitution”, that word “Notwithstanding” has been judicially: defined by this Court in the case of NDIC v. Okem Ent. Ltd. & Anor. (2004) 10 NWLR (Pt. 880) 107 when at pages 182/183 it was said: “As has been observed, Section 251(1) of the 1999 Constitution begins with “Notwithstanding anything to the contrary to this Constitution while Section 272(1) is specifically made “subject to the provisions of Section 251.” When the term “Notwithstanding” is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of the Constitution shall be capable of undermining the said section.”
Section 254 C-(1) and (d) makes it clear that the NICN shall exercise jurisdiction to the exclusion of any other Court in civil causes and matters relating to or connected with any

dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine. Even if the contention of the appellant that his claim is for an enforcement of his fundamental rights guaranteed under Chapter IV of the Constitution is correct but it is not, the Court that is vested with the jurisdiction to entertain the matter is the NICN and not the Federal High Court of Nigeria as held by the Court below because the alleged infringement of his fundamental right relate to and is entirely connected with his employment.
The law is settled that once the decision of the Court below is found to be correct, an appellate Court will not set aside or reverse the decision merely because the Court arrived at the decision from a wrong reason. An appellate Court is concerned with whether the decision reached by the Court below is correct and not whether the reason for the decision is correct. See MTN V. CORPORATE COMMUNICATION INVESTMENT LTD. (2019) LPELR-47042 (SC) AT

18-19 (F-B). Though the Court arrived at the decision that the High Court of Ebonyi State has no jurisdiction by virtue of Section 251(1) (P) of the Constitution which gives the Federal High Court exclusive jurisdiction over civil causes matters relating to or concerning the administration or the management and control of the Federal Government or any of its agencies rather than Section 254 C-(1) of the Constitution which confers exclusive jurisdiction on civil causes and matters relating to or connected with employment or Section 254 C-(1) (d), the conclusion of the Court that it has no jurisdiction to entertain the appellant’s suit is correct and cannot be disturbed.
Having found that the Court has no jurisdiction, the consideration of the application on merit and the dismissal of same by the Court below is null and void being a decision reached without jurisdiction.

In conclusion, this appeal fails and it is hereby dismissed. However, the order of dismissal made by the Court below is hereby set aside. In its place, the appellant’s application is hereby struck out. Parties shall bear their respective costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I shall equally dismiss this appeal.
I adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA, just delivered. I am in total agreement with the decision reached and the reasoning behind the decision.

For the above reasons and of course the detailed ones adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.

Appearances:

…For Appellant(s)

…For Respondent(s)