COUNCIL, FEDERAL POLYTECHNIC, MUBI & ANOR v. MR. PWADY. P. DINGOLI
(2014) LCN/7023(CA)
RATIO
JURISDICTION: WHETHER INSTITUTIONAL AMENDMENT OF THE CONSTITUTION PENDING A CASE IN COURT WOULD VITIATE A COURT’S JURISDICTION
At this juncture, I consider it necessary to consider the position of the apex court in situations of this nature. The position of the apex court is to the effect that where a case is pending and actual hearing or trial had not commenced as at the date of the amendment, then it will be affected by the amendment. Conversely put, if hearing or trial had commenced before the amendment, then the case will be regarded as part heard and it will not be affected by the amendment.
In Olutola V University of Ilorin (supra), 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 appellant’s 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 be 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.”…
The constitutional amendment to section 254 became effective on 4th March, 2011. As at 10th May, 2011 when the case was adjourned to 24th May, 2011 hearing had not commenced on the Originating summons. In fact on the 24th May, 2011, it was only a motion for amending the Originating summons was moved and granted. See pages 222 to 230 of the record. It is therefore glaringly clear that as at the effective date the constitutional amendment came into operation, actual hearing had not commenced in the action. As at 10th May, 2011 when the case was adjourned to 24th May 2011 for a motion to amend the Originating Summons, the court was long before then divested of jurisdiction since 4th March, 2011. On the authority of Olutola V University of Ilorin (supra), Osakue V FCE (Tech) Asaba (supra) and Obiuweubi V CBN (supra), the lower court was long divested of jurisdiction before actual hearing commenced. Per Adamu Jauro, J.C.A
