IDO LOCAL GOVERNMENT v. HONOURABLE EMIOLA MUSIBAU & ORS
(2019)LCN/12859(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2019
CA/I/16/2013
RATIO
INTERPRETATION: INTERPRETATION OF STATUTE
“In the case of N.D.I.C. VS. OKEM ENTERPRISE LTD & ANOTHER (2004) 10 NWLR PART 880 PAGE 107, it was held among others that:- 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 254(C)(1) of the 1999 Constitution, no Provision of that Constitution shall be capable of undermining the said section.” PER JIMI OLUKAYODE BADA, J.C.A.
JURISDICTION: POWER OF THE COURT
“Jurisdiction is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction is said to be the authority a Court has to decide matters before it. Jurisdiction to a Court of law is equated to blood in a living animal. It is the blood that gives life to the survival of the animal and in this case an action in a Court of law without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility. See the following cases:-ATTORNEY GENERAL ANAMBRA STATE VS. ATTORNEY GENERAL OF FEDERATION (SUPRA).SHITTA-BEY VS. ATTORNEY GENERAL FEDERATION (SUPRA). Where a Court lacks jurisdiction or competence, the entire proceedings is a nullity no matter how well conducted and decided. In MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR PAGE 587…” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
IDO LOCAL GOVERNMENT Appellant(s)
AND
(1) HONOURABLE EMIOLA MUSIBAU
(2) HONOURABLE ADEKUNLE M. SULEIMAN
(3) HONOURABLE OLUSOJI AKINDELE
(4) HONOURABLE OLUSEYI J. COKER
(5) HONOURABLE SULEIMAN AYOADE
(6) HONOURABLE ALABANLA YISAU
(7) HONOURABLE BILIAMINU MURAINA
(8) HONOURABLE NIYI A. YUSUF Respondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Judgment of Oyo State High Court sitting at Ibadan Judicial Division in Suit No.: I/27/06 Between: HONOURABLE EMIOLA MUSIBAU, (2) HONOURABLE ADEKUNLE SULEIMAN, (3) HONOURABLE OLUSOJI AKINDELE, (4) HONOURABLE OLUSEYI J. COKER, (5) HONOURABLE SULEIMAN AYOADE, (6) HONOURABLE ALABANLA YISAU, (7) HONOURABLE BILIAMINU MURAINA and (8) HONOURABLE NIYI A. YUSUF VS. IDO LOCAL GOVERNMENT delivered on the 12TH DAY OF JULY 2012.
Briefly the facts of the case are that the Respondents who were the Claimants at the lower Court filed a Writ of Summons and Statement of Claim against the Appellants i.e. the Defendants at the lower Court and claimed as follows: –
(1)A declaration that the Plaintiffs being former political office holders of the Defendants Local Government from 1999 to 2002 are entitled to be paid by the Defendant severance gratuities and transportation allowances in the manner and on the basis stipulated in the directive/letters of the Revenue Mobilization and Fiscal Commission including the letter dated 21/07/2004 Ref.No: RMC/FEF/20/S8/II/57 and another letter dated 02/02/2005 Ref. No: RMC/FEF/31/I/119 and the 2nd Defendant?s circular letter Ref. No: P.1072/VOL.1/72 dated 30/10/2000 governing the renumeration packages of the Plaintiffs as political office holders at the Local Government Level.
(2) A declaration that the refusal and or neglect of the Defendants jointly severally to pay the Plaintiffs their severance gratuities and transportation allowances in the manner and on the basis stipulated in the directives/letters of the Revenue Mobilization and Fiscal Committee including the letter dated 21/7/2004 Ref. No: RMC/FEF/20/S8/II/57 and another letter dated 2/2/2005 Ref. No: RMC/FEF/31/I/119 and the 2nd Defendant?s circular letter Ref. No: P.1072/VOL.1/72 dated 30/10/2000 in spite of the Plaintiffs repeated demands is wrongful, illegal and legally unjustifiable.
(3) An order of the Honourable Court directing the Defendants to pay and or ensure the immediate payment of the Plaintiffs’ severance gratuity and transportation allowance in the manner and on the basis stipulated in the 2nd Defendant’s circular letter Ref.No: P.1072/VOL.1/72 and dated 30/10/2000.
It is on record that by a Notice of withdrawal dated 2nd August, 2006, the Plaintiffs withdrew the suit against the 2nd and 3rd Defendants. They also withdrew their claim for transportation allowances. It is also on record that the Respondents were part of the Plaintiffs’ Ex-Political Office holders between 1999 and 2002 in suit No: I/465/2002 and got Judgment for the payment of transportation allowance against the Oyo State Government.
The learned trial Judge in the present suit in a Judgment delivered on the 12th day of July, 2012 granted the Plaintiffs now Respondents’ Claims.
The Appellant who is dissatisfied with the said Judgment appealed to this Court.
The learned Counsel for the Appellant formulated four issues for the determination of the appeal. The said issues are reproduced as follows: –
(1)Whether the High Court of Oyo State has jurisdiction to hear and determine the Respondents suit as it was constituted and in view of the provision of Section 254(c)(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Distilled from Ground 4).
(2) Whether the Respondents are entitled under and by virtue of the provisions of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc) Act 2002 and Sections 7 and 8 of Constitution of the Federal Republic of Nigeria 1999 (as amended), Circular No. P/072/VOL.1/72 of 30/10/2000 marked Exhibit 2, Circular No. E.909/T2/178 of 26th April, 2006 marked Exhibits 3 and Circular No: RMC/OHC/1/2001 of 7th November, 2001 marked Exhibit 11 to salaries and allowances as provided for in the documents referred to above. (Distilled from Ground 2).
(3) Whether the learned trial Judge took a correct view of the Applications and/or interpretation of the circulars tendered by the Respondents and a right approach to the evidence led by the parties. (Distilled from Ground 1).
(4) The Judgment is against the weight of Evidence. (Distilled from Ground 3).
At the hearing of this appeal on 7/2/2019 the learned Counsel for the Appellant?s stated that the appeal is against the Judgment of High Court of Oyo State which was delivered on 12/7/2012.
The Original Notice of Appeal was filed on 10/9/2013 but it was later amended and an Amended Notice of Appeal was filed on 31/1/2014. The Record of Appeal was transmitted on 16/1/2018 and it was deemed as properly transmitted on 16/3/2018. The Appellant?s Brief of Argument was filed on 19/5/17 and deemed as properly filed and served on 28/5/17.
The learned Counsel for the Appellant adopted and relied on the said brief as his argument in urging that the appeal be allowed.
The Respondents despite being duly served with Appellant?s Brief of Argument and Hearing Notice failed to file Respondents’ Brief of Argument.
I have carefully gone through the issues formulated for the determination of this appeal on behalf of the Appellant and I am of the view that issue No. 1 which is in respect of Jurisdiction will conveniently take care of the appeal. I will therefore rely on issue No. 1 in the determination of this appeal.
ISSUE NO. 1
Whether the High Court of Oyo State has Jurisdiction to hear and determine the Respondents? suit as it was constituted and in view of the Provision of Section 254C(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Distilled from Ground 4).
The learned Counsel for the Appellant submitted that Jurisdiction is said to be the authority of a Court to decide matters before it. He relied on the following cases:-
ATTORNEY GENERAL OF ANAMBRA STATE VS. ATTORNEY GENERAL OF FEDERATION (2007) ALL FWLR PART 379 PAGE 1218 AT 1280 PARAGRAPHS C-E.
SHITTA-BEY VS. ATTORNEY GENERAL OF FEDERATION (1998) 7 SCNJ PAGE 264.
He submitted that Section 254C(1)(k) is a feature that prevents the lower Court from exercising jurisdiction on the case. The coming together of the Plaintiffs with different causes of action under one suit is another feature that did not fulfill a condition precedent to the exercise of jurisdiction.
He went further in his submission that the subject matter in the Respondents claims were connected with salaries and allowances of Ex-Political Office Holders. He contended that pursuant to Section 254C(1)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) only the National Industrial Court has jurisdiction to determine the suit.
The learned Counsel for the Appellant also submitted that where a Court takes upon itself to exercise a jurisdiction which ordinarily it does not possess, its decision no matter how ably it appears to have been decided amounts to nothing.
He finally urged that the Judgment entered on 12/7/2012 be set aside and to allow the appeal.
RESOLUTION
As I stated earlier in this Judgment, this issue No. 1 is a challenge to the Jurisdiction of the lower Court to entertain the suit.
Jurisdiction is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction is said to be the authority a Court has to decide matters before it. Jurisdiction to a Court of law is equated to blood in a living animal. It is the blood that gives life to the survival of the animal and in this case an action in a Court of law without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility. See the following cases:-ATTORNEY GENERAL ANAMBRA STATE VS. ATTORNEY GENERAL OF FEDERATION (SUPRA).SHITTA-BEY VS. ATTORNEY GENERAL FEDERATION (SUPRA).
Where a Court lacks jurisdiction or competence, the entire proceedings is a nullity no matter how well conducted and decided.
In MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR PAGE 587, It was held among others that a Court is competent when:
(i) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another;
(ii) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) The case comes by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
For a case to be initiated by due process of law as in (c) above, it presupposes that the jurisdiction of a Court to adjudicate in the matter must be determined by the facts placed before the Court and more importantly, by the phraseology of the Plaintiff’s Claims. See the following cases:- ATTORNEY GENERAL ANAMBRA STATE VS. ATTORNEY GENERAL OF FEDERATION (SUPRA) PAGES 1280-1281 PARAGRAPHS E-A. SKENCONSULT NIG. LTD. VS. UKEY (1981) 1 SC PAGE 6. WESTERN STEEL WORKS LTD VS. IRON & STEEL WORKERS UNION OF NIGERIA (1986) 6 SC PAGE 35. ABACHA VS. FAWEHINMI (2000) FWLR PART 4 PAGE 557.
In this appeal under consideration, by paragraphs 1, 2, 6, 7 and 47 of their Statement of Claim (see pages 3-8 of the Record of Appeal) and paragraphs 1,3,4,5,6,7,8 and 14 of the Statements on Oath of each of the Claimants (i.e. the Respondents) admitted that they were former Political Office Holders with the Defendant i.e. the Appellant (see pages 26 to 49 of the Record of Appeal).
Paragraph 47 of the Statement of Claim which was reproduced earlier in this Judgment showed that the claim is for severance gratuities of the Claimants (i.e. the Respondents) which is within the purview of the National Industrial Court in view of the Provisions of Section 254C (1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
By the Respondents’ Claim on their Writ of Summons and the Statement of Claim, the subject matter in the suit is connected with salaries and allowances of Ex-Political Office Holders.
The law is settled that by the Provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) only the National Industrial Court has jurisdiction to determine the Respondents’ suit.
Section 254C(1)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) states as follows:-
Notwithstanding the Provisions of Sections 251, 257, 272 and anything concerned 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
(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances 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.
In the case of N.D.I.C. VS. OKEM ENTERPRISE LTD & ANOTHER (2004) 10 NWLR PART 880 PAGE 107, it was held among others that:-
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 254(C)(1) of the 1999 Constitution, no Provision of that Constitution shall be capable of undermining the said section.
Put in other words ‘Notwithstanding’ used in Section 254C(1) of the 1999 Constitution means that no provision in the Constitution itself or any statute or legislation shall be allowed to prevail over the Provisions of Section 254C(1).
Notwithstanding is a term of exclusion.
The effect of Section 254C(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is to oust the jurisdiction of any other Court to adjudicate on matters listed in the Section.
To show the exclusivity of the National Industrial Court?s Jurisdiction, Section 11(1) & (2) provides that:-
In so far as jurisdiction is conferred upon the Court in respect of causes or matters mentioned in the foregoing Provisions of this Act, the Federal High Court, the High Court of a State, the High Court of Federal Capital Territory, Abuja or any other Court shall to extent that exclusive jurisdiction is so conferred upon the Court, cease to have jurisdiction in relation to such causes and matters.
Section 11(2) provides that:-
Nothing in Subsection (1) of this Section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are part heard before the commencement of this act and any proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate.
Going by the above quoted Section of the National Industrial Court Act which came into being on 18/9/2006, thus by 19/9/2007, all part heard causes or matters ought to have been transferred to the National Industrial Court.
I am of the view that from 19/9/2007, one year after the commencement of the National Industrial Court Act 2006, the lower Court had ceased to have jurisdiction to determine any part heard causes or matters that were subject to the exclusive jurisdiction of the National Industrial Court by virtue of Provisions of Section 11(1) and (2) of the National Industrial Court Act 2006.
It would be recalled that the Third Alteration to the Constitution of the Federal Republic of Nigeria 1999 took effect from 4/3/2011 and made all matters 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, including the issue for determination in the substantive suit before the lower Court now under consideration, a subject of adjudication before the National Industrial Court by virtue of Section 254C(1)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 254C(1)(k) of the 1999 Constitution (as amended) is unequivocal and gives no discretion to the Court as to its interpretation and application.
I am of the view that no other Court other than the National Industrial Court has jurisdiction over the claims of the Respondents.
In this appeal under consideration, it is on record that hearing in this case commenced at the lower Court on 5/3/2012 and Judgment was delivered on 12/7/2012.
The applicable law when the cause of action arose and when the suit was filed in 2006 may have been within the jurisdiction of the lower Court, but with the conferment of exclusive jurisdiction on the National Industrial Court by the Third Alteration Act i.e. the Third Alteration to the Constitution of the Federal Republic of Nigeria which took effect from 4/3/2011, the lower Court lost its jurisdiction.
Therefore, the Judgment delivered in this suit by the lower Court on 12/7/2012 was delivered without jurisdiction.
Consequent upon the foregoing, I am of the view that the Appellant has succeeded on the plea of lack of jurisdiction by the lower Court to entertain this matter.
Where a Court lacks the jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity, irrespective of how well the proceedings was conducted. Once a Court lacks jurisdiction, the matter ends there as the absence of jurisdiction is irreparable in law. The only procedural duty of the Court under such circumstances is to strike out the suit.
See the case of:- UMANAH VS. ATTAH (2006) 17 NWLR PART 1009 PAGE 503 AT 534 PARAGRAPHS D-F.
In the result, I am of the view that the Judgment delivered by the lower Court on 12/7/2012 was delivered without jurisdiction and it is a nullity.
This issue No. 1 is hereby resolved in favour of the Appellant and against the Respondents.
The resolution of issue No. 1 in this appeal in favour of the Appellant has rendered the considerations of the other issues unnecessary; this is because it would amount to an academic exercise.
Where an Appellate Court is of the view that the consideration of an issue is enough to dispose off an appeal, it is under no obligation to consider all other issues formulated by the parties.
See the following cases:-OKOTIE-EBOH VS. MANAGER (2004) 18 NWLR PART 905 PAGE 242.
ONOCHIE VS. ODOGWU (2006) 2 SCNJ PAGE 1.
I am of the view that this appeal has merit and it is hereby allowed.
The Judgment of the lower Court delivered in Suit No.: I/27/06 Between: HONOURABLE EMIOLA MUSIBAU, (2) HONOURABLE ADEKUNLE SULEIMAN, (3) HONOURABLE OLUSOJI AKINDELE, (4) HONOURABLE OLUSEYI J. COKER, (5) HONOURABLE SULEIMAN AYOADE, (6) HONOURABLE ALABANLA YISAU, (7) HONOURABLE BILIAMINU MURAINA and (8) HONOURABLE NIYI A. YUSUF VS. IDO LOCAL GOVERNMENT delivered on 12th day of July, 2012 is hereby set aside for being a nullity.
In its place, the suit before the lower Court which led to this appeal is hereby struck out for being incompetent.
There shall be no order as to costs. Each of the parties are to bear their own costs.
Appeal allowed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA gave me the privilege of reading in advance the judgment just delivered.
The jurisdiction of the Court below to entertain the complaint of the Respondents was exhaustively considered and determined by my learned brother. I am in agreement with my learned brother, for the reasons ably stated in the lead judgment that the judgment delivered by the trial Court on the 12/7/2012 was without jurisdiction and therefore invalid.
This appeal therefore succeeds and is hereby allowed. I abide by the consequential orders made in the lead judgment including the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the lead Judgment just delivered by my learned brother JIMI OLUKAYODE BADA, JCA. I agree with the reasoning and conclusion reached therein.
It is settled law that prior to the initiation of an action the litigant must first ascertain the Court seised with the requisite jurisdiction to entertain same as no Court may hear and determine a claim brought before it unless it has been empowered to do so constitutionally or by an enabling statute. See GARBA VS MOHAMMED & OR (2016) LPELR 40612 AT 40-41 PARAGRAPHS F – D; ADAH VS. NATIONAL YOUTH SERVICE CORP (2004) LPELR 69 AT PARAGRAPHS – D; MUSTAPHA VS. GOVERNOR OF LAGOS STATE (1987) LPELR – 1931 AT 68 PARAGRAPHS C; LEKWOT& ORS VS J. T. ON & C.D. IN KADUNA STATE & ANOR (1997) LPELR 1778 14 PARAGRAPH A.
Jurisdiction is thus a condition precedent to the hearing and determination of a cause or matter by a Court of law.
In ATOLAGBE & ANOR VS. AWUNI & ORS (1997) LPELR – 593 AT 28 -29 PARAGRAPHS F – B, the Supreme Court per Mohammed JSC held:
“Condition precedent has been defined in the English Supreme Court Practice (White Book) 1991 Edition in order 18/7/10 thus:
“Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action, there is yet something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provisions of some statute or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law”.
See also SHELIM & ANOR VS. GOBANG (2009) LPELR – 3043 AT 26 PARAGRAPHS B – C; SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT. 116) 387 AT 422; UGWUANYI VS. NICON INSURANCE PLC. (2013) 17 NWLR (PT. 1382) 126 AT 147 PARAGRAPHS D – H.
While it is trite that a Court of law must first be seised with jurisdiction to entertain a cause or matter, such jurisdiction must subsist throughout the proceedings and until judgment is delivered. Jurisdiction may be likened to air that sustains a human being. To remain alive a human being must be oxygenated. He ceases to be alive without oxygen. In the same way a Court of law ceases to have jurisdiction in a pending matter where the law removes same.
The suit the subject of this appeal was instituted in the year 2006 prior to the amendment of the 1999 Constitution of the Federal Republic of Nigeria. At that time, the lower Court had jurisdiction to entertain the claim sought by the respondents. However, during the pendency of the sult, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act No.3, 2010 with a commencement date of 4th March 2011 came into being. The provision of Section
254(c)(1)(k) of 1999 Constitution came into force. It provides thus:
“254(C)(1)
Notwithstanding the provision 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
(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”.
The claim of the Respondents who were the Claimants at the lower Court is for payment of severance allowance and gratuity amongst others. This is without any iota of doubt a cause within the exclusive jurisdiction of the National Industrial Court. Consequent upon the amendment of the 1999 Constitution (supra) the lower Court ceased to have jurisdiction over the respondent’s Claim before it. As stated in the lead judgment, the lower Court did not have jurisdiction on the matter as at 12th July 2012 when it delivered its judgment. The judgment was delivered in contravention of Section 254(c)(1)(k) of the 1999 Constitution (supra) and Section 11(2) of the National Industrial Court Act, 2006.
It is for the above and the fuller reasons and exposition in the lead judgment that I too find merit in this appeal and allow same. I abide by the consequential orders including that as to costs made by my learned brother.
Appearances:
MRS. ADEBOLA ADEYEMO
For Appellant(s)
NO LEGAL REPRESENTATION for the Respondents despite being served with hearing notice on 25/1/2019.
For Respondent(s)
