KADUNA STATE JUDICIAL SERVICE COMMISSION & ANOR v. SANUSI MOHAMMED
(2018)LCN/12216(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/K/307/2017
RATIO
APPEAL: WHERE LEAVE OF COURT HAS NOT BEEN OBTAINED
“With the decision of the Supreme Court in SKYE BANK PLC V. IWU (Supra) the National Industrial Court has been brought down to earth from its supposed high pedestal as regarding appeals, which high pedestal seemed to dress it up in the garb of a final Court in matters that were not fundamental rights matters. With the decision in SKYE BANK PLC V. IWU (Supra), it is now clear that appeals from the National Industrial Court can now lie to the Court of Appeal as of right where an appeal is in respect of criminal matters and fundamental rights cases, and with the leave of the Court of Appeal in all other civil matters where the National Industrial Court can exercise jurisdiction. The appeal here is not in respect of a criminal matter. It is also not in respect of a fundamental rights case. It is therefore one that can only properly lie at this Court with the leave of this Court. That leave having not been sought and obtained, this Court has no jurisdiction to entertain the appeal. A Court has no jurisdiction to hear a purported appeal where leave is required and same has not been sought and obtained. See OLUWOLE V. LADPC (1983) LPELR 2622 (SC).” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. KADUNA STATE JUDICIAL SERVICE COMMISSION
2. ATTORNEY GENERAL,KADUNA STATE Appellant(s)
AND
SANUSI MOHAMMED Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment):
The appeal here is over the compulsory retirement of the Respondent from office by the 1st Appellant for which he sued the Appellants at the National Industrial Court, Kano Division. Here are the facts of the case in a nutshell. The Respondent was originally employed by the Kaduna State Civil Service Commission as an Accountant Grade II by a letter dated 23/2/90.
He rose to the rank of Chief Accountant on salary grade level 13 in 2002. Before then, that is to say, in 2001, the Kaduna State Civil Service Commission requested the Respondent to transfer his service to the Kaduna State Judiciary if he so wished. The Respondent apparently so wished as he applied for a transfer to the Kaduna State Judiciary. The transfer was approved by the Kaduna State Civil Service Commission with effect from 22/10/02. At the Kaduna State Judiciary, the Respondent worked diligently and faithfully and as a result got promoted to the rank of Director of Finance and Supply on Grade level 16. However things took a different direction in his career.
By a circular dated 24/1/2012, Permanent Secretaries and Directors who had served for 8 years in that post were to retire. The Head of Service of Kaduna State forwarded a copy of the circular to the Chairman of the 1st Appellant, the Kaduna State Judicial Service Commission. The Chairman of the 1st Appellant at the time was Hon. Justice R.H. Cudjoe OFR. His Lordship wrote to the Head of Service of Kaduna State reminding/advising him that the Judiciary is an independent arm of Government. The Respondent therefore continued his duties in the service of the Kaduna State Judiciary unperturbed by the circular.
Two years later, the Head of Service of Kaduna State wrote another letter to the 1st Appellant reiterating the policy of the Kaduna State Government as stated in the circular. Again the Kaduna State Judiciary sent a reminder letter to the Head of Service by which it stood its ground and reiterated its independence as an arm of Government. That reiteration notwithstanding, the Kaduna State Judicial Service Commission i.e. the 1st Respondent, in an apparent volte-face under a new leadership, relied on the self-same circular of the Kaduna State Government and advised the Respondent to retire at the end of February, 2015. The Respondents salary and other entitlements were then abruptly stopped.
The Respondent appealed to the 1st Appellant to reconsider its position and even applied to the Kaduna State Civil Service Commission to be re-absorbed in the Kaduna State Civil Service. Nothing came out of his plea to the 1st Appellant and nothing came out of his application to the Kaduna State Civil Service Commission. Aggrieved by the situation he found himself, the Respondent approached the National Industrial Court (the lower Court) and prayed that Court as follows:-
1.Declaration that the defendants continued act of refusal to allow the claimant to work (despite not tendering any letter of retirement and not having reached the retirement age) and continued refusal to pay the plaintiffs salary is wrong and void.
2. Declaration that the circular No. S/KDS/HS/133/VOL. 11/2918 dated 24th January, 2012 titled Tenure of office for Permanent Secretaries and Directors not being law properly enacted by the legislative arm of the government is invalid, unconstitutional, null, void and of no effect and cannot be applied on or against the claimant by the defendants (by the provisions of Section 202 of the Constitution of Nigeria, 1999 as amended).
3. Declaration that the claimant is still an existing staff of the 1st defendant and is still within the employment of the 1st defendant.
4. Declaration that the 1st defendant was not validly and constitutionally constituted when it met and made resolution contained in the letters with Ref No. JSC/C7A/VOL.1/89 dated 3rd February, 2015; Ref No. JSC/C141/VOL. 11/297 dated 13th April, 2015; Ref No. JSC/C74/VOL. 1/112 dated 26th February, 2015 and JSC/C7A/VOL. IV/117 dated 22nd June, 2015 communicated and served on the claimant on various dates advising him to retire, handover his office and stoppage of his salary and related issues.
5. Mandatory order directing the defendants to allow the claimant to continue in his post and status with the 1st defendant, pay all his outstanding salaries and other entitlements without fail.
6. Injunction restraining the defendants from stopping or in anyway howsoever impeding the claimants continuation of his work and salary with the 1st defendant.
7. N500,000.00 general damages against the defendants for their wrongful act and psychological distress suffered by the claimant as a result of the wrongful acts of the defendants.
In their joint Statement of Defence, the Appellants denied most of the averments of the Respondent in his Statement of Claim. The Appellants pleaded that the Respondent was caught by the circular of the Kaduna State Government that required Permanent Secretaries and Directors who have occupied those offices for 8 years, to retire. They also pleaded that the Respondent cannot force himself on his employers.
In his judgment delivered on 29/3/17, Lawani Mani J held that the law is that a public servant can only be validly removed from service if the procedure prescribed by the law is followed and that such a public servant is expected to enjoy the tenure of his office until the age of retirement. The learned trial judge also held that a Public Service Commission cannot terminate the appointment of a Civil Servant without any just cause and without complying with the relevant law and regulations. He further held that neither the Civil Service Commission nor the Judicial Service Commission gave the Respondent fair hearing as required by Rule 26 (1) of the Kaduna State Judicial Service Commission Regulations. He also held that the Appellants act in retiring the Respondent was null and void. He granted all the reliefs sought by the Respondent except relief No. 7.
Upset by the judgment, the Appellants posthaste filed their Notice of Appeal in which they challenged the judgment on the following grounds:-
GROUND ONE
The trial Court erred in law when it held that the Appellants failed to comply with the statutes governing the employment of the Respondent in using circular No. S/KDS/HS/133.VOL. 11/ 2918 dated 24th January, 2012 to retire the Respondent in the Public interest.
GROUND TWO
The trial Court erred in law when it held that the 1st Appellant was not validly and constitutionally constituted when it made resolution in the letter with Ref No. JSC. CJA/VOL.IV/117 dated 22nd June, 2015 communicated and served on the claimant.
GROUND THREE
The learned trial judge erred in law when he held that the Respondent is still an existing staff of the 1st defendant and should be allowed to continue work in his post and to pay him salaries, allowances and entitlements from February, 2015 to the date of judgment and afterwards.
The above grounds were accompanied with particulars.
The parties exchanged Briefs of Argument. The Appellants Brief of Argument was settled by Abdullahi Isiaka Esq of the chambers of the Attorney General of Kaduna State. The Brief of Argument was filed on 25/10/17 pursuant to an order of this Court of 19/10/17 which granted the Appellants an extension of time to file their Brief of Argument out time. The Respondents Brief of Argument was settled by Nureni Jimoh Esq. The Brief was filed on 9/11/17. The Respondent filed a Notice of Preliminary Objection contemporaneously with his Brief of Argument. The Preliminary Objection was argued at page 3 of his Brief of Argument. The Appellants did not file any Reply Brief in answer to the Preliminary Objection.
Before I go on to consider the Preliminary Objection to see if it is capable of disposing of this appeal in limine, I think it is appropriate to state the issues for determination as distilled from the grounds of appeal and as formulated by the parties in this appeal.
On the part of the Appellants, the following three issues were distilled from the grounds of appeal, viz:-
1. Whether having regards to the evidence led at the trial and the circumstances leading to the decision to retire the claimant/Respondent from the employment of the 1st Appellant, the Appellants failed to comply with the statutes governing the employment of the claimant/Respondent in using circular No. S/KDS/HS.133/VOL. 11/2918 dated 24th January, 2012 to retire him in the public interest (GROUND ONE).
2. Whether the learned trial judge erred in law when he held that the 1st Appellant was not validly and constitutionally constituted when it met and made the resolution in the letter with Ref No. JSC/C7A/VOL. IV/117 dated 22nd June 2015 communicated and served on the Respondent (GROUND TWO).
3. Whether the learned trial judge erred in law when he held that the clamant is still an existing staff of the 1st Appellant and should be allowed to continue work at his post and to be paid salaries, allowances and entitlements from February, 2015 to the date of judgment and afterwards (GROUND THREE)
On his part, the Respondent formulated two issues. They are:-
1. Whether the learned trial judge was not right in declaring that the Appellants application of the executive policy to compulsorily retire the Respondent was not in compliance with the Public Service Rules and therefore null and void?
2. Was the learned trial judge wrong in holding that the defendant did not contradict the issues raised by the claimant on the composition of the 1st defendant at time the letter dated the 13th February, 2015 i.e. Exhibit CWK was issued?
I must first consider the Preliminary Objection because it is the determination of the Preliminary Objection that will also detemine whether the appeal should be heard and decided on its merits or whether it should be struck out in limine. The purpose of filing a Preliminary Objection is to bring the hearing of the appeal to an end for being incompetent or for being fundamentally defective. See GARBA V MOHAMMED & ORS (2016) LPELR-40612 (SC).
In the Notice of Preliminary objection, the respondent sought to have the appeal struck out on the following three grounds:-
1. The appeal is not on a fundamental right matter and the Appellants ought to but failed to obtain leave to appeal before filing the appeal.
2. The grounds of appeal are basically based on unlawfully retirement of the respondent contrary to the contract of employment with statutory flavor between the parties.
3. The entire appeal is incompetent and the Court lacks jurisdiction to entertain the appeal, the Appellant having failed to obtain leave before filing the appeal.
Looking at the above grounds there is really nothing different between ground 1 and 3 as both grounds of the Preliminary Objection deal with the issue of the failure of the Appellants to seek leave to appeal. As for ground 2 in the Notice of Preliminary Objection, it is not correct that the Appellants appeal is based on the unlawful retirement of the Respondent. The Appellants could not have complained above the unlawful retirement of the Respondent. Their complaint was that the Respondents retirement was lawful contrary to the position held by the learned trial Judge. Ground 2 in the notice of Preliminary Objection is misconceived and is struck out.
In arguing the Preliminary Objection, the Respondents learned Counsel Nureini Jimoh Esq submitted that the appeal not being one on the fundamental rights of the Appellants, same required the leave of this Court before the appeal can be filed. He referred to Section 240 and 243 and (3) and Section 36 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended as well as the case ofSKYE BANK PLC V. VICTOR ANNEMEM IWU (2017) 6 SC PART 1 pg. 1.
He argued that it is trite law that where leave to appeal is a condition precedent for the exercise of a right to appeal and that condition precedent has not been fulfilled, there is no appeal. He submitted that since the required leave was not sought and obtained, the Notice of Appeal is null and void and of no effect and that the appeal should be struck out.
As I earlier mentioned in this judgment, the Appellants did not respond to the Preliminary Objection.
The approach to be taken by the Court of Appeal with regard to appeals from the National Industrial Court was hitherto not very clear and a pronouncement was eagerly awaited from the Supreme Court being the apex Court to clarify the situation and lay it to rest once and for all. That has n been done in the case of SKYE BANK PLC V. IWU (2017) 16 NWLR PART 1590 p. 24 which was also cited by the Respondents learned Counsel. In that case the majority view of the Supreme Court, Kumai Bayang Akaahs dissenting, was expressed by Nweze JSC at p. 105 106 of the law report where his Lordship stated thus:-
appeals lie from the trial Court to the lower Court as of right in criminal matters [Section 254 (1) (5) and 6] and fundamental rights cases [Section 243 (2)] and with the leave of the lower Court in all other civil matters where the trial Court has exercised its jurisdiction, Section 240 read conjunctively with Section 243 (1) and (4).
Agreeing with the above view, Kekere-Ekun JSC stated at p. 147 thus :-
“upon a holistic interpretation of Section 240 243 (1) and (4) of the 1999 Constitution as amended, all decisions of the National Industrial Court are appealable to the Court of Appeal as of right in criminal matters [Section 254 (5)and (6) and fundamental rights cases and with leave of the lower Court in all other civil matters where the National Industrial Court has exercised jurisdiction.
With the decision of the Supreme Court in SKYE BANK PLC V. IWU (Supra) the National Industrial Court has been brought down to earth from its supposed high pedestal as regarding appeals, which high pedestal seemed to dress it up in the garb of a final Court in matters that were not fundamental rights matters. With the decision in SKYE BANK PLC V. IWU (Supra), it is now clear that appeals from the National Industrial Court can now lie to the Court of Appeal as of right where an appeal is in respect of criminal matters and fundamental rights cases, and with the leave of the Court of Appeal in all other civil matters where the National Industrial Court can exercise jurisdiction.
The appeal here is not in respect of a criminal matter. It is also not in respect of a fundamental rights case. It is therefore one that can only properly lie at this Court with the leave of this Court. That leave having not been sought and obtained, this Court has no jurisdiction to entertain the appeal. A Court has no jurisdiction to hear a purported appeal where leave is required and same has not been sought and obtained. See OLUWOLE V. LADPC (1983) LPELR 2622 (SC).
This appeal is therefore incompetent and is accordingly hereby struck out.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading the draft copy of the judgment just delivered by my lord, OBIETONBARA, DANIEL-KALIO, J.C.A. The law is trite, where leave of Court is required to appeal against a judgment of any Court, same must be sought and obtained, before there can be a valid approval to the appellate Court. For the reasons alluded to in the leading judgment, and the conclusion arrived at therein, I agree the appeal is incompetent, and it is hereby struck out accordingly.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the judgment of my learned brother, Obietonbara Daniel-Kalio, JCA.
I agree with him that the Appellant required leave of the lower Court to have filed the Notice of Appeal herein, and having failed to do so the appeal is incompetent and rightly struck out.
Appearances:
Abdullahi Isiaka, Esq. For Appellant(s)
Nureni Jimoh, Esq.For Respondent(s)
