INTEGRATED DATA SERVICES LTD V. MR. OLAJIDE O. ADEWUMI (2013)

INTEGRATED DATA SERVICES LTD V. MR. OLAJIDE O. ADEWUMI

(2013)LCN/6342(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of June, 2013

CA/B/205/2001

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

INTEGRATED DATA SERVICES LTD. Appellant(s)

AND

MR. OLAJIDE O. ADEWUMI Respondent(s)

RATIO

WHETHER OR NOT LEAVE O COURT IS REQUIRED TO BRING UP A POINT OF JURISDICTION FOR THE FIRST TIME ON APPEAL

On the issue of the need to ask for leave of the Court of Appeal or the Supreme Court before bringing up a point of jurisdiction for the first time on appeal, I agree with both learned counsel that the authorities are now united on the principle that where the issue raised for the first time on appeal is one of jurisdiction, the appellant need not seek leave to raise it. In Obiakor & Anor v. The State (2002) 10 NWLR Pt. 776 Pg. 612 at 626, Kalgo JSC held as follows:
“Without necessarily citing any authority for now, the general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts, whether that issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised pertains to issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time.” PER OGUNWUMIJU, J.C.A.

WHETHER OR NOT A SPECIFIC LAW MADE ON AN ISSUE OVERRIDES GENERAL LAW MADE ON THE SAME ISSUE

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice S. O. Elaiho of the High Court of Edo State delivered on 20/4/2000. The facts that led to this appeal are as follows:-
The Plaintiff who is now the Respondent filed a writ of summons issued on 3/7/1995 against the Defendant now Appellant claiming the following reliefs:
(1) A declaration that the termination of the plaintiff as contained in the defendant’s letter IDSL/PF.C.15201 dated 31st August 1994 is void and of no effect whatsoever being a breach of natural justice, a breach of S.33 of the 1979 Constitution guaranteeing fair hearing to the plaintiff, and a breach of the conditions for termination as laid down in Employee’s Handbook (junior staff) made pursuant to S.4(1) of Cap 320 1990 Laws of the Federation as amended.
(2) An order setting aside the letter and its contents IDSL/PF.C. 15201 dated 31st August 1994.
(3) An order reinstating the plaintiff as an employee of the defendant with all rights and privileges of a confirmed staff.
(4) An order that he be given all promotions and incremental credits/salaries accruable since 31st August 1994.
(5) Any other relief.
Pleadings were duly filed and exchanged, evidence led and closed on either side.
After the addresses of counsel, the lower court delivered judgment on 20/4/2000 in favour of the Respondent.
The Respondent as Plaintiff at the trial court argued that he was not given a fair hearing by the Appellant as Defendant before his employment was terminated. His case was that allegations bordering on criminality were leveled against him by the appellant in that he was accused of fraud and dishonestly and receiving income not due to him. The appellant’s defence was that the respondent was never accused of offences bordering on criminality and that as a junior staff his employment was not one of statutory flavour and he was not entitled to the reliefs he claimed.
The trial judge found in favour of the respondent and granted all the reliefs claimed. Dissatisfied with that judgment, the appellant filed two NOTICES OF APPEAL, both within time on 15/5/2000 and 27/6/2000 respectively. The appellant rely on the notice of appeal filed on 15/5/2000 and the additional grounds of appeal allowed on 30/6/2005.
In the brief settled by A.P.A. Ogefere dated 18/7/2005 and deemed filed on 25/2/2008, the learned appellant’s counsel identified the following issues for determination.
(1) Whether a trial court had jurisdiction to entertain, try and deliver judgment in this suit on 20th April 2000 in view of S.231(1) C.F.R.N 1979 as amended by Decree 107 of 1993 and S.251(1) C.F.R.N. 1999.
(2) Whether the action was not statute barred by S.2(a) of the Public Officers Protection Act Cap. 379 L.F.N. 1990 and the judgment delivered per incurian the Supreme Court decision in Aliyu v. J.S.C. Kaduna State & Anor. (1998) 64 L.R.C.N. 5044.
(3) Was the trial court right in holding that the respondent’s employment was one with statutory flavour?
(4) Was the termination of the respondent’s employment in accordance with the conditions of employment a violation of respondent’s right to fair hearing?
(5) Whether the plaintiff/respondent pleaded and proved any unlawful breach of his applicable conditions of employment in the termination of his employment by his employer, the appellant.
(6) Whether the various findings of the trial court made without pleadings and requisite evidence not occasion miscarriage of justice warranting the setting aside of the judgment of the lower court.
(7) Was the trial court right in implanting reasons for the termination of the plaintiff’s employment without any express pleading and proof by the parties at the trial?
On 18/4/2008, the respondent filed a brief settled by A.N.A. Igbinovia Esq. The said brief was deemed filed on 22/9/2008. The learned respondent’s counsel did not specifically itemize the issues for determination from his own perspective and the impression from the brief is that the respondent’s counsel has relied on the issues as identified by appellant’s counsel. With the greatest respect, I find the issues as identified by the learned appellant’s counsel unnecessarily prolix and repetitious. I am at liberty to rephrase the issues for determination. Issues one and two can be rephrased and I hereby rephrase them as follows:
1. Whether the State High Court had jurisdiction to determine this action and if the answer is YES, whether the action is not in any event statute barred.
Issues 3, 4 and 5 as identified by the appellant’s counsel for determination can be rephrased thus:
2. Whether the employment of the respondent was unlawfully terminated by the appellant or not.
3. Whether the trial court made appropriate findings based on the pleadings before the court.
In view of the concession from page 10 of the Respondent’s brief particularly from paragraphs 11 et al agreeing that the trial court had no jurisdiction to determine the action, this appeal will be determined on the first issue alone.
ISSUE ONE
On this issue, learned appellant’s counsel argued that at the time of filing the writ of summons on 21/6/1995 the Constitution of the Federal Republic of Nigeria, 1979 (Suspension & Amendment Decree No. 107 of 1993 was in effect. By the combined effect of S.1(2)(3), 2nd Schedule, a new subsection was added to S.230 of the C.F.R.N. 1979. That new S.230(1)(n)(p)(q) & (r) deprived the High Court of jurisdiction to entertain any matter relating to any administrative decision of any Agency of the Federal Government. S.32 of the N.N.P.C. Act Cap 320 L.F.N. 1990 defined the Appellant as inclusive of it subsidiaries. Paragraph 2 of the statement of claim pleaded that the defendant is “a subsidiary of Nigeria National Petroleum Cooperation” and was admitted by the defendant.
Counsel argued that the 1999 Constitution reenacted the said provisions in S.251(1) @ by stipulating that only the Federal High Court has jurisdiction to determine any case involving the Federal Government or any of its agencies. He cited SPDCNL v. Tiebo VII & Ors. (2005) 9 NWLR Pt. 931 Pg. 439 at 459-460. He urged this court to strike out the suit for want of jurisdiction.
Learned appellant’s counsel argued that the action is statute barred by virtue of S.2(a) of the Public Officer’s Protection Act. He argued that the respondent’s appointment was terminated on 31/8/1994 by Exhibit P while he filed his action on 21/6/1995, a period of over nine months contrary to the statutory provisions of the Public Office’s Protection Act. Learned counsel cited ACB Plc v. Nbisike (1995) 8 NWLR Pt. 616 Pg. 725 at 745; Calabar Cement Co. Ltd. V. Daniel (1991) 4 NWLR Pt. 188 Pg.750 at 759; Aliyu v. JSC, Kaduna & Anor. (1998) 64 LRCN Pg. 5044; Adefarasin v. Egbe (1985) 1 NWLR Pt. 3 Pg, 549 at 569. Learned appellant’s counsel urged this court to dismiss the suit at the trial court and to hold that the judgment was given per incuriam. Learned Respondent’s counsel replied that the issues of jurisdiction and competence of the suit were not raised by the appellant at the trial court and the trial court never pronounced on it. Counsel submitted that they are fresh issues for which leave must be first sought and obtained. Counsel cited the following cases:
(1) Abaye v. Ofili (1986) 1 NWLR Pt. 15 Pg, 134 at 144-145;
(2) Salatu v. Shehu (1986) 1 NWLR Pt.15 Pg. 198 at 202-203;
(3) Fadiora v. Gbadebo LRN 97 at 108-109.
On the issue of statute bar, learned Respondent’s counsel submitted in reply that by virtue of the pleadings, the evidence led by the parties and the findings of the trial court, the appellant is a creature of statute, that is the NNPC Act, and that it is the provisions of that Act that shall govern the issue of statute bar or limitation and not the provisions of the Limitation Act. He argued that the writ was filed on 21/6/1995, issued on 31/1/1995 whereas the respondent’s appointment was terminated on 31/8/1994. He submitted that S.12(1) of the NNPC Act which provides for the limitation period to bring an action stipulated twelve months and that this suit on appeal can be initiated within twelve months. Counsel made a distinction between the date the writ was filed which was 21/6/1995 and the date the writ was issued which was 3/7/1995. By simple arithmetic deduction, the suit was filed within a year in compliance with the NNPC Act and is thus competent. Counsel conceded that the determination of whether a right of action had been extinguished by statutory limitation does not admit of sentiments. He cited the following cases.
(1) Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) Pg. 649 at 659;
(2) Chigbu v. Tonimas Nig. Ltd. & Anor. SC (2006) 138 LRCN 1551 at 1562 G-JJ, 1563, 1565, 1566 A-U;
(3) Akibu v. Azeez SC (2003) 107 LRCN 925 at 948;
(4) Julius Berger Nig. Plc.V. R. I. Omoigui SC (2001) 88 LRCN 2328 at 2335 C-H, 2338 G-J, 2339 A-F;
(5) Araka v. Ejeagwu SC (2000) 82 LRCN 3406 at 3427 F-H, 3441 H – I, 3442A-G, 3449 E-G, 3454 A-D.
On the second leg of this issue, learned respondent’s counsel conceded that by the provisions of the Constitution (suspension and modification) Decree No. 107 of 1993 (Decree 107), it is indeed the Federal High Court that had jurisdiction in this matter. In paragraphs 10-12 of the Respondent’s brief from Pg. 10-11, the Respondent’s counsel conceded that a mistake was made by counsel in filing the suit at the State High Court. Counsel argued that when a court lacks jurisdiction to adjudicate on a matter, the proper order to be made is one striking out the suit unless there are constitutional and statutory provisions to the contrary. Counsel cited Madukolu v. Nkemdilim (1962) 1 All NLR Pt. 4 Pg.587 at 595; (Reprints) 581 at 589, 590; Akinbobola v. Plisson Fisko Nig. Ltd (1991) 1 NWLR Pt. 167 Pg. 270 at 279 A-B, 285 F-G, 288 F-G; Mokelu v. Federal Commissioner for Works and Housing (1976) 1 All NLR Pt.1 Pg.276 at 283 (Reprints) Pg. 224 at229; Mokelu v, Federal Commissioner for Works and Housing supra, Pt. 1 Pg. 276 at 282, 283 (Reprint) Pg. 224 at 228, 229; A.M.C. v. NPA (1987) 1 NWLR Pt. 51 Pg. 475 at 489, 492, 498, 499, 504.
Learned Respondent’s counsel referred us to S.22(2), 22(3) of the Federal High Court Act, Cap. 134 LFN 1990, Sections 230(2), 231(1), 274 of the 1979 Constitution of Nigeria as amended. Also S.10(2) of the Bendel State (defunct) High Court Law, Cap 65 Laws of Bendel State of Nigeria 1976 (BSLN 1976) applicable in Edo State of Nigeria and S.16, Court of Appeal Act, Cap 75 LFN 1990, now section 15, Court of Appeal Act 2004, Cap C36 LFN 2004, Counsel submitted that a careful and cumulative reading of these provisions makes sit abundantly clear that the order this court ought to make is an order of transfer of this suit now on appeal to the Benin Judicial Division of the Federal High Court being the forum competent for determination on the merits.
Learned counsel urged vigorously the view that the proper order for this court to make is to transfer the case from the State High Court to the Federal High Court. He also relied on Order 24 Rules 2 and 3 of the Bendel State High Court Rules 1988 then applicable to Edo State and S.10 of the Bendel State High Court Act and S.16 now S.15 of the Court of Appeal Act to convince us of the wisdom and our inherent powers to order transfer of this case to the Federal High Court, Benin.
The concession by the learned Respondent’s counsel in his brief to the effect that as at the time the action was instituted, the State High Court had no jurisdiction to try the matter has narrowed down considerably the issues in controversy in this appeal. We have been asked not to strike out the suit as we should for lack of jurisdiction by the trial court, but to transfer the suit by using our powers under S.15 of the Court of Appeal Act. The learned appellant’s counsel in the reply brief on this point argued that the invitation to transfer the case to the Federal High Court is not proper in accordance with the law, practices and rules of this court. The jurisdiction of both the Federal High Court and Edo High Court in this matter are constitutional, being covered by provisions of the Constitution of the Federal Republic of Nigeria, 1999. There is no constitutional power for the Edo State High Court to transfer any matter filed in its registry to the Federal High Court. He cited S.272 of the 1999 Constitution.
There is no doubt that the Respondent’s brief read more like the Appellant’s brief. As he made the points, he also conceded the law in favour of the Appellant. On the issue of the need to ask for leave of the Court of Appeal or the Supreme Court before bringing up a point of jurisdiction for the first time on appeal, I agree with both learned counsel that the authorities are now united on the principle that where the issue raised for the first time on appeal is one of jurisdiction, the appellant need not seek leave to raise it. In Obiakor & Anor v. The State (2002) 10 NWLR Pt. 776 Pg. 612 at 626, Kalgo JSC held as follows:
“Without necessarily citing any authority for now, the general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts, whether that issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised pertains to issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time.”

On the applicable limitation law in the circumstances of this case, I am of the view that a specific law made on an issue overrides general law made on same issue. See NDIC v. Okem Enterprises Ltd. & Anor. (2004) 4 SCNJ 244. Thus where there is a specific provision as in this case, it prevails over general provisions on the same subject matter. S. 2(a) of the Limitation Act Laws of the Federation which is a provision of general application cannot be applicable in the face of S.12(a) of the NNPA Act which specifically provides a limitation period to institute a suit against the corporation. Whereas the general law provides a limitation period of three months, the specific legislation applicable to the corporation provides for a limitation period of twelve months.
In the circumstances, the action was not statute barred.
Let me now consider the only issue at stake here since all other opinions go to no issue where there is no jurisdiction. The Respondent’s counsel has conceded that the trial court had no jurisdiction being a state High Court to determine the matter and that the case should be transferred to the Federal High Court which is the court of appropriate jurisdiction.
I am amazed at the convoluted argument of learned Respondent’s counsel. However, counsel was not able to provide this court with any relevant rule of Court or Act of the National Assembly empowering this court to transfer the suit back to the Federal High Court to start de novo. Counsel cited several authorities empowering the Federal High Court to transfer a case before it where the court lacks jurisdiction to the State High Court. I have made a thorough search of the extant Rules of the Federal High Court, Edo State High Court and the Court of Appeal, I cannot find any rule or Act that empowers this court to transfer a case on appeal from the State High Court to the Federal High Court. Fortunately, learned Respondent’s counsel did not pretend to rely on any rule or law in that behalf.
Apart from the fact that this court can only by its powers under S.15 of the Court of Appeal Act grant the powers the High Court could have granted, there is no power in the extant rules of the High Court of Edo State, to transfer a case from its court to the Federal High Court. Being adjectival law, it is the extant rules of procedure that are applicable today to the circumstances of this case. Order 2 r (5(6) and (7) of the Edo State High Court Civil Procedure Rules 2012 makes provision for transfer to another Division of the High Court or the Magistrate Court. In the circumstances, the only recourse available to this court is a strike out of the suit No.B/466/95 instituted at the trial court and also a subsequent strike out of this appeal. The said suit No. B/466/95 is hereby struck out for want of jurisdiction of the State High Court.
Appeal is hereby allowed. The judgment of the Edo State High Court in suit No.CA/B/466/95 is hereby set aside. No order as to costs.

SIDI DAUDA BAGE, J.C.A.: I read in draft the leading Judgment of my learned brother H. M. OGUNWUMIJU, JCA, I agree with all the reasonings and the conclusion reached. The appeal is allowed by me. The Judgment of Edo State High Court in Suit No.HC/B/466/95 is hereby set aside also by me.
I abide by the order as to Costs contained in the leading Judgment.

TOM SHAIBU YAKUBU, J.C.A.: With the advantage of having read the draft of the judgment just delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA, with whom I completely agree, I too allow this appeal.
The judgment of the Edo State High Court of Justice in Suit No.CA/B/466/1995 is ordered as set aside, accordingly.
I abide by the order as to costs contained in the lead judgment.

Appearances

Chief A. P.A. OgefereFor Appellant

AND

A. N. A. Igbinovia with him Miss V. O. AwehFor Respondent