M.O. AKINADE v. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTION & ORS
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of December, 1998
ALOMA MARIAM MUKHTAR Justice of The Court of Appeal of Nigeria
MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
- NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTION (N.A.S.U)
2. I.A. ADETAYO (President)
3. E.U. IJEH (General Secretary)
4. GANI ALADE (National Trustee)
5. P.S. OKAEME (Deputy President)
6. R.O. ENE (Deputy President)
7. E.O. NWANGBAKOR (Deputy President)
8. T.O. OGUNSINA (Deputy President)
9. FRANK THOMPSON (Deputy President)
10. S.O. OWOEYE (Member)
11. O.A. KALU (Member)
12. V.O. ENABAKHARE (Member)
13. F.N. ARIWA (Member)
14. LADI ILIYA (Member)
15. ASAOLU (Deputy President)
16. I.M. TAKOR (Member)
17. CHIEF I.O. BABARINSA (Director of Finance)
(For themselves and on behalf of Finance and General Purpose Committee of NASU)Respondent(s)
OKUNOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Oyo State High Court holden at Ibadan delivered by Lekan Lajide J. on 29/6/93, in which the defendants/respondents objection in limine challenging the jurisdictional competence of the High Court to hear and determine the plaintiffs/appellant’s action was upheld.
The facts of this case briefly put were as follows:
Sometime in April, 1978. the plaintiff/appellant was appointed the Deputy General Secretary of 1st defendant. He served in various capacities and rose to the post of Director of Labour Trade Union Affairs in 1988 which post he held until he was retired on 16/11/92 by the 1st defendant/respondent. The plaintiff on 19/12/92, sued the defendants before the Ibadan High Court claiming that the termination was in breach of the contract of his employment. The plaintiff filed his statement of claim. The defendant on the other hand did not file a statement of defence but rather on 30/12/92, brought an application as a preliminary objection to the plaintiff’s motion on notice for an order of interlocutory injunction filed on 21/12/92, on ground of law to the jurisdiction of the Oyo State High Court. The preliminary objection sought for the following two reliefs:
(1) That the case or the plaintiff be struck out as the Oyo Stale High Court lacks jurisdiction.
(2) That the action he struck out as State High Courts do not have jurisdiction over intra union disputes or trade disputes by virtue of Decree No. 47 of 1992.
The preliminary objection was predicated on the following two grounds:
(1) That the issues as raised by the plaintiff constitute trade dispute in so far as they relate to employment and non-employment of the plaintiff/appellant, the plaintiff/appellant being an employee of 1st defendant/respondent who now stands in the position of an employer.
(2) The issue of malice and bias raised against the 2nd to 17th defendants/respondents as members of the Finance and General Purposes Committee on 14/11/92. were matters and/or dispute arising from the organisation and running of the 1st defendant/respondent a trade union as laid down in the union’s constitution.
Both counsel to the parties presented their arguments on the application. In the end, on 19/6/93 after reviewing the arguments as presented by learned counsel to both parties, the learned trial Judge upheld the defendants’ objection in limine challenging the jurisdictional competence of the High Court to hear and determine the plaintiffs action. The action, according to the learned trial Judge, is by virtue of Decree 47 of 1992, a trade dispute between an employed (the plaintiff) and the employer (1st defendant) upon which the court jurisdiction had been ousted. The action was accordingly struck out for lack of jurisdiction.
Dissatisfied with this ruling, the plaintiff/appellant hereinafter referred to as the appellant has appealed to this honourable court first on a six grounds of appeal dated 5/8/93 which he proposed to seek leave or court to substitute with another set of six grounds contained in his amended plaintiff/appellant’s brief filed on 13/10/98. However at the hearing of the appeal on 14/10/98 learned counsel to the appellant Chid Richard Akinjide SAN applied to withdraw the appellant’s brief filed on 20/1/95. The application was accordingly granted. The learned SAN thereafter adopted and relied on the amended appellant’s brief filed herein on 13/10/95. Learned SAN declined to seek for leave as indicated on page 10 paragraph 4.1 of the said amended appellant’s brief to abandon grounds 2, 3, 4 and 5 in the original notice of appeal dated 5/8/93 and informed the court that he was leaving the grounds as they are. However, from the six subsisting grounds of appeal the learned SAN in the said amended appellant’s brief filed on 13/10/95 formulated the following four issues for determination in this appeal viz.:
6.1 Whether the defendants, without filing any statement of defence is entitled to raise by way of an application under Order 24 rules 3 and 4 of the High Court (Civil Procedure) Rules 1988 and under the inherent jurisdiction of the court, a preliminary objection to the jurisdictional competence of the court particularly since Order 24 rule I has abolished demurrer and substituted therefore Order 24 rule 2 under which a preliminary point of law can be raised after both statement of claim and statement of defence have been filed without any need to reviving the extinct plea of demurrer which has been buried.
6.2 Whether the matter in issue between the parties as disclosed by the statement of claim is a “trade dispute” within the definition of “trade dispute” as stated in s. 47(i) of Trade Disputes Act or is it a contract of employment asserting contractual right by the plaintiff (employee) against the defendants (employers).
6.3 Whether if the facts as disclosed in the statement of claim were taken as proved or admitted by the defence for the purpose of the application, the defence, nevertheless was entitled to succeed on the two grounds canvassed in their application for preliminary objection.
6.4 Whether where there are conflicting and inconsistent findings, by the learned Judge on the crucial issues of (1) who is employer and (ii) who is employee with reference to their respective contentions on matters in controversy, the integrity of the ruling itself is not seriously undermined, particularly as the plaintiff is entitled to succeed on the balance of probabilities.
The learned counsel to the respondents also formulated another four issues which but for framing and language used boil down to the above issues raised by the appellant in the appellant’s amended brief of 13/10/95. Both learned counsel to the parties filed their respective briefs on behalf of their clients. Both learned counsel to the parties adopted their briefs and went further to address us viva to highlight
some points. Learned counsel to the appellant Chief Richard Akinjide S.A.N. after adopting the aforementioned amended appellant’s brief submitted in respect of issue No. I as per page 13 of the appellant’s brief with emphasis on the 3 authorities cited therein. In the same vein learned S.A.N. with respect to issue No. ii referred to on page 16 of the appellant’s brief where he defined trade dispute in its six forms along with the English authorities. With respect to issue 4 learned S.A.N. observed that the retirement is not of the 1st respondent but of the plaintiff/appellant. He contended that such slip by the learned trial Judge in the ruling was a misdirection which led to a miscarriage of justice. On the doctrine of stare decisis, learned SAN admitted that each division of the Court of Appeal is bound by judgments of the various divisions save in criminal matters where the liberty of the individual is at stake – He cited the British Helicopter’s case. Learned S.A.N. made this additional submission in respect or issue I.
On Udoms case cited On page 7 of the respondent’s brief, the learned S.A.N. submitted that this case dealt with restructuring or trade union which is different from the instant case. He finally urged the court to allow the appeal. He urged the court to remit the case hack to the High Court for accelerated hearing on the merit.
By way of reply learned counsel to the respondents Mr. B.A. Ogunleye who was holding Awodi Adeniran’s brief for the respondents adopted and relied on the amended respondents’ brief filed herein on 1/12/95. Learned counsel to the respondents adopted and relied onl1is argument in respect of all the issues. Learned counsel to the respondents with respect to issue I submitted in relation to definition of trade dispute in the Act commended Udoh’s case on page 6 of the respondents’ brief as very relevant. Learned counsel urged the court to dismiss the appeal.
In his reply, learned S.A.N. submitted that the contract of employment between the appellant and the union was terminated not because appellant was a trade unionist but because he was an employee.
I have considered the submission of both learned counsel to the panics in this appeal both in their briefs and in their oral argument made before us in this appeal vis-a-vis the records and the prevailing law. From the submissions of both learned counsel to the parties, it appears to me that their arguments boil down to the four issues contained in the appellant’s amended brief filed on 13/10/95 supra. I shall now briefly consider these arguments and give my views on them.
Since jurisdiction is the basis or adjudication in any matter. I will first of all deal with the issue – of jurisdiction contained in issue No.1. It is the outcome of this issue that will determine whether or not other issues will he considered. In this regards it is necessary to restate the said issue which goes thus:
1. Whether the defendants, without filing any statement of claim, is entitled to raise by way of an application under Order 24 rules 3 and 4 of the High Court (Civil Procedure) Rules 1988 and under the inherent jurisdiction or the court, a preliminary objection to the jurisdictional competence or the court particularly since Order 24 rules I has abolished demurrer and substituted therefor Order 24 rule 2 under which a preliminary point of law can be raised after both statement or claim and statement or defence have been filed without any need to reviving the extinct plea of demurrer which has been buried.
On this issue learned counsel to the appellant at page 13 of the amended appellant’s brief submitted that the learned trial Judge erred in law in his ruling dated 29/6/93 when he held that the defence needed not file a statement of defence to raise objection to the jurisdictional competence of the court since by such ruling the court was resurrecting demurrer which was specifically abolished in the mandatory provision of Order 24 rule I of the High Court (Civil Procedure) Rules hut points or law (such as the defence wishes to canvass) are allowed to be raised in the statement of defence by virtue or Order 2 of the same Order 24. In support of this contention learned S.A.N. cited the following two Supreme Court cases viz.:
Lasisi Fadare & ors v. A-G of Oyo State (1982) 4 SC 1; Madu v. Onanoju (1986) 3 NWLR (pt.26) 23 and the court of Appeal decision (Ibadan Division) in the Provisional Council Ogun State University & Anor v. Iyabode Alani makinde (1991) 2 NWLR 613.
Learned S.A.N. submitted that the ruling of the learned Judge of the court below is contrary to the decision in the above three cases which are all binding on him by the English legal principle of judicial precedent.
The learned S.A.N. further submitted that under the common law doctrine of judicial precedent which had been absorbed into the Nigerian legal system where there are conflicting decisions of the House of Lords, the lower courts are entitled and bound to follow the latter decisions. Learned counsel extended the same principle to Supreme Court decisions both being apex courts in the two jurisdictions, Learned S.A.N. cited as authority for this principle the House of Lords’ decision in Moodie v. Inland Revenue Commissioner (1993) 1 WLR 266 or (1993) 1 All ER 49.
By way of reply, learned counsel to the respondents Mr. B.A. Ogunleye at 8 pages 7-10 of the respondents’ brief referred on this issue to the 1977 decision of the Supreme Court in Bambe & ors v. Adetunji Aderinola & ors. (1977) 1 SC 1 pp. 5-7 where the apex court held thus:
“The main points canvassed before us on behalf of the appellants posed the following question. Was the learned trial Judge right in the view he has taken that the application was in the nature of a demurrer, and that by virtue of Order 22 rule I, it could not he allowed until pleadings were completed?
The word “demurrer” came from the Latin word “demorari” meaning to “wait” or “stay”. Before demurrer was abolished, one of the methods of fighting an opponent’s pleading was demurrer.
The party who demurred would not proceed with his pleading, having but raised a point of law as to whether any case had been made out in his opponent’s pleading for him to answer awaited the decision on that point.
Order 22 rule I has, in clear term, abolished demurrer, and, at the same time, rules 2 to 4 which we now reproduce, make adequate provisions for proceedings in lieu of demurrer:
‘2. Any party shall be entitled to raise by his pleadings any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall he disposed or by the judge who tries the cause at or after the trial.
3. If in the opinion of the court or a Judge in chambers, the decision of such point of law substantially disposed of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as may he just.
4. The court or a judge in chambers may order any pleading to be struck out, on the around that it discloses no reasonable cause of action or answer, and in any case or in case of the action or defence being shown by the pleadings to be frivolous or venatious, the court or a judge in chambers may order the action to he stayed or dismissed or judgment to he entered accordingly, as may he just.’
I’m construing the provisions of rule 1, it will be wrong to ignore the provisions of rules 2 to 4. Order 22 is similar to Order 25 of the rules of the Supreme Court applicable in England in 1963.
Order 22 not only abolishes demurrers but substituted a more summary process for getting rid of pleadings which show no reasonable cause of action. (1963 the Annual Practice page 571).As the objection taken in the instant case, if upheld, dispose of the whole action, we are of the view that it comes within the ambit of Order 22. We find ourselves unable to support the view expressed by the learned trial Judge that the objection was premature.
In order to save time and expense, we will now proceed to consider the application on its merits instead of remitting it to the lower court.”
Learned counsel to the respondents submitted that Order 22 rules 1-4 considered in the above has the same wordings as Order 24 rules 1-4 and as such the Supreme Court was in effect considering order 24 rules 1-4. Learned counsel to the respondents therefore contended that the learned trial Judge was right in taking the preliminary objection at that stage before the filing or the statement of defence.
On the call on this court by learned counsel to the appellant to depart from Supreme Court Bambe’s decision and follow the latter judgments of the apex court and the Court of Appeal, learned counsel to the respondents submitted at pages 9 & 10 of the respondents’ brief that the ratio decidendi in Bambe’s case is different from those in the latter Supreme Court decisions. The decision was that once a preliminary objection will dispose off a case, it is a waste of time remitting it back for trial and the appellate court will itself dispose or the appeal. Learned counsel to the respondents submitted further that any statement reasoning or opinion or the Supreme Court outside the issue in these cases are not the ratio decidendi of the cases; hence the Court or Appeal is not bound to follow them in preference to Bambe’s case. Learned counsel submitted that the Supreme Court reflected the decision in Bambe’s case in Western Steel Works Ltd and Anor v. Iron & Steel Workers’ Union of Nigeria delivered in 1986 and 1987 respectively.
I have considered the arguments of both learned counsel to the parties on this issue of jurisdiction vis-a-vis the records and the prevailing law. The arguments of both learned counsel to the parties can be narrowed down to whether the ratio in 1977 Bambe’s case and the latter decisions based on them have the same ratio.
To find out the ratio in both set of Supreme Court decisions it is necessary to summarise the decisions particularly since Bambe’s case had been reviewed supra.
In Madu’s case, the Supreme Court held:
“All application under Order 22 rule 22 of the High Court (Civil Procedure) Rules of Lagos State envisages a situation where both parties have filed their pleadings and thus joined issues, thus the defendant cannot without having filed his defence, bring an application under the rule to have the claim against him struck out from the suit.”
In Lasisi Fadare and another, the Supreme Court held:
“Order 22 rule 1 of the Civil Procedure Rules of Western Nigeria abolished this procedure and substituted order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed. Such an application may lead to the dismissal of the suit as happened in t he instant case. If on the other hand it fails, the action will proceed to trial, issues having been already joined in the pleadings.”
In the Ogun State University case, on similar issues, the court of Appeal held unanimously:
“To allow the appellant to raise the objection to the competence of the court as herein desired before a statement of defence is filed will be tantamount to reviving the extinct plea of demurrer which has been buried. Demurrer has been expressly abolished in Ogun State. The appellant’s application was in the nature of demurrer not permitted by the Ogun State High Court (civil Procedure) rules 1987. I am therefore convinced that the learned counsel for the appellants was clearly in error in the procedure he has adopted. The court is bound by the decisions in Fadare and Onanoju cases referred to above.”from the above reviewed Supreme Court judgments it is clear that the ratio in Bambe’s case supra is opposite those in the latter Supreme Court cases – whereas the former dealt with where the defendant without having filed his statement of defence, brought an application under the rule to have the claim against him struck out which application was granted, the latter on the other hand stood firmly on the principle that Order 22 rule 1 of the High Court (Civil Procedure Rules) abolished the plea of demurrer and substituted Order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed which application may lead to the dismissal of the suit. The latter judgments firmly laid down the principle that preliminary point or law could he raised only after pleadings have been filed and exchanged between the parties. With these two divergent set of judgments from the apex court it is necessary to consider which one should he followed. Bambe was decided in 1977. Fadare was decided in 1982.
Onanoju was decided in 1986 while Ogun State University’s was decided in 1991.
Having considered the arguments of both learned counsel to the parties on this issue and applying the common law doctrine of stare decisis (pudicial precedent) as applicable in the English and Nigerian jurisdictions where there are conflicting decisions of the House of Lords, the lower courts are entitled and hound to follow the latter decisions, The House of Lords is the apex court in England just as the Supreme Court is the apex court in Nigeria. This principle of stare decisis received judicial confirmation in a recent decision of the House of Lords in Moodie v. InlandÂ Â Revenue Commissioner (1993)1 WLR 266; (1993) 1 All ER 49. The position in Nigeria as at today even though the Supreme Court has a great respect for its previous decision, it would depart from such a decision whenever necessary in the interest of justice as it had done in the 3 latter judgments after Bambe’s. See also the Johson v. Lawanson (1971) All NLR 56; Stanley Idigun Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383; (1993) 9 SCNJ. The former West African Court of Appeal reflected the same policy in Motayo v. Commissioner of Police 13 WACA 114 p.116. I have also considered the arguments or both learned counsel on thee doctrine of stare decisis (Judicial precedent) with respect to the Court of Appeal, since there is no provision in the rules governing precedent, the practice of the Court of Appeal of England commends itself to us, That practice is laid down in the English case of Young v. Bristol Aeroplane Co. (1944) KB 718. Applying the principle in this case to the Court of Appeal here in Nigeria, the court here is bound by its previous decisions save it will decide which of its two conflicting decisions it will follow, it is bound to refuse to follow a decision of its own which though not expressly overruled cannot, in its opinion, stand with a decision of the Supreme Court in Nigeria the court is not bound to follow a decision of its own if it is satisfied that the decision is given per incuriam. With respect to criminal appeals, the Court of Appeal will follow the practice of the criminal division of the Court of Appeal of England. That division is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam set.: R. v. Taylor (1950) 2 KB 568. From the foregoing authorities. I hold that this court should follow the decisions of the Supreme Court in Fadare and Onanoju cases supra rather than Bambe’s. In the same vein the court is also bound by its previous decision in Ogun State University case and a recent decision of this division of the court in Alh. Rusheed Adeoye Adesanya & anor v. Alh. Rabiu Adekola Olayemi in the unreported appeal No. CA/I/67/95 dated 24/11/98. The bottom line is that no matter the situation, the applicable rule of court must be observed. See Dada v. Ogunsanya (1992) 5 NWLR (Part 252) part 754; Co-Operative and Commerce Bank (Nig.) Ltd. v. A-G., Anambra State & anor (1992) 8 NWLR (Pt.261) 528. Consequently, since the defendant had not filed a statement of defence in the court below, by Order 22 rule 2 of the High Court (Civil Procedure) Rules a preliminary point of law (or objection) could not be raised by them. In the circumstance I hold that the learned trial Judge erred in law in his ruling when he held that the defence needed not file a statement of defence to raise objection to the jurisdictional competence of the court. This issue is resolved in favour of the appellant. This court lacked jurisdiction to entertain the preliminary objection of the defendants since the defendants had not filed the statement of defence. This issue disposes of all the issues in this appeal.
In the result, this appeal succeeds and it is allowed on the issue of jurisdiction.
Consequently, the decision in the ruling of the Oyo State High Court holden at Ibadan delivered by Lekan Lajide J. in suit No.1/1245/92 on 29/6/93 is a nullity for lack of jurisdiction. It is accordingly set aside. In its place, accelerated hearing of the case on its merit, after pleadings had been filed and exchanged by the parties, is hereby ordered. Since this case is proceeding to trial I shall not comment on other issues raised in this appeal. Costs of N1,000.00 is awarded against the defendants/respondents and in favour of the plaintiff/appellant.
MUKHTAR, J.C.A.: I agree.
ADAMU, J.C.A.: I agree.
Chief Richard Akinjide, S.A.N. For Appellant
- A. Ogunleye (holding Awodi Adeniran’s brief) For Respondent