LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

MR. INNOCENT PATRICK -VS- RIVERS STATE PRIMARY EDUCATION BOARD

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 24th day of June, 2019             SUIT NO:   NICN/PHC/130/2018

 

BETWEEN:

 

  1. INNOCENT PATRICK —————————————————CLAIMANT

AND

  1. RIVERS STATE PRIMARY EDUCATION BOARD
  2. THE CHAIRMAN, RIVERS STATE PRIMARY EDUCATION BOARD
  3. THE MINISTRY OF EDUCATION, RIVERS STATE
  4. THE COMMISIONNER FOR EDUCATION, RIVERS STATE MINISTRY OF EDUCATION
  5. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE—– DEFENDANTS

 

Representations:

N.E. Ighota for the Claimant

I.P. Mbanofor the 5th Defendant.

 

Ruling/Judgment.

This suit was commenced by a general form of complaint filed on the 15th of November, 2018 along with a statement of fact, witness statement on oath, list of witnesses, list of documents to be relied upon and copies of the documents.

Arising from the said complaint and statement of fact, the Claimant claims against the Defendants the following reliefs to wit:

  1. An Order for immediate payment to the Claimant of the sum of N245,157,57k. (Two Hundred and forty Five Thousand, One Hundred and Fifty Seven Naira, Fifty Seven kobo) as unpaid salaries per month from the 16th day of February, 2014 till the date judgment is delivered pursuant to the Consent Judgment of the River state High Court reinstating the Claimant to salary Grade level 15. Step 8 in the service of the 1st, 2nd and 3rd
  2. An Order for payment to the Claimant the sum of N245,157,57k. (Two Hundred and Forty Five Thousand, One Hundred and Fifty Seven Naira, Fifty Seven kobo) salaries per month from the date judgment is delivered until the Claimant statutory retirement from the service of the 1st , 2nd and 3rd  Defendants in accordance with the Rivers State Civil Service Rules.

In reaction to the claims, the 5th  Defendant on the 27th of March, 2019 filed a notice of preliminary objection pursuant to section 254C(1) of the Constitution of Federal Republic of Nigeria and section 2 of the Public Officers Protection Act.

Arising from the notice of preliminary objection, the 5th Defendant is praying this court for:

  1. AN ORDER dismissing this suit for want of jurisdiction as same is incompetent.
  2. AND SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the preliminary objection was brought are as follows:

  1. That a court without jurisdiction to try a matter cannot give a valid judgment.
  2. The High Court of Rivers State lacked jurisdiction to hear and give the consent judgment in suit NO PHC/1653/08 on the 22nd of January 2014 onwhich this action is predicated, in the light of the Constitution of theFederal Republic of Nigeria (Third Alteration) Act 2010 which came into force on the 4th day of March 2011.
  3. That this suit is statute barred and liable to be dismissed as it offends against section 2 (a)of the public officers protection Act 2004 having been initiated more than three months after the cause of action arose either at the High court in 1997 or in the National Industrial court in 2014 when the consent judgment was delivered.
  4. The High Court of Rivers State has no provisions empowering it todeliver judgment in suit NO PHC/1653/08 in 2014 being a labor related matter within the intendment of section 254 of the constitution.
  5. The consent judgment delivered in the High court on which this action is predicated is incompetent, null, and void therefore no proceedings can be founded on it.
  6. Any order of this court, based on suit no PHC/1653/08 is a nullity.
  7. An order of court which is made without jurisdiction can be set aside by a court of concurrent or coordinate jurisdiction.

In support of the preliminary objection, the 5th Defendant filed a 19 paragraphed affidavit deposed to by one Mina Braide and also a written address.

The Claimant responded to the preliminary objection by filing on the 3rd of April, 2019 a 12 paragraphed counter affidavit deposed to by one Noel Ighota and also a written address.

Arising from the written address of the 5th Defendant, counsel to the 5th Defendant, I.P. Mbano, Esq formulated three issues for determination to wit:

  1. WHETHER THE HIGH COURT OF RIVERS STATE HAS JURISDICTION TO HEAR AND DETERMINE THE CLAIMS IN THIS SUIT, IN THE LIGHT OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (THIRD ALTERATION) ACT 2010 WHICH CAME INTO FORCE ON THE 4TH DAY OF MARCH 2011. AND IF NOT THEN WHETHER ANY PROCEEDINGS IN THE INSTANT COURT CAN BE FOUNDED ON THE SAME JUDGEMENT.
  2. WHETHER IN THE LIGHT OF THE PUBLIC OFFICERS PROTECTION ACT 2004 THE CLAIMANT’S ACTION AGAINST THE 5TH DEFENDANT/APPLICANT IS NOT STATUTE BARRED AND LIABLE TO BE DISMISSED HAVING BEEN COMMENCED MORE THAN THREE MONTHS AFTER THE CAUSE OF ACTION AROSE.
  3. WHETHER AN ORDER/JUDGMENT MADE WITHOUT JURISDICTION CAN BE SET ASIDE BY ANOTHER COURT OF CONCURRENT OR COORDINATE JURISDICTION

In arguing issue one, counsel contended that the absence of jurisdiction at the High Court is fatal to the instant suit. She added that the issue of jurisdiction can be brought at any stage and it cannot be premature to seek to dispose of a matter by way of preliminary objection raised in respect of the jurisdiction of the court at the first opportunity especially where same would prevent the need to call evidence. Counsel cited the cases of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693and State v. Onagoruwa (1992) NWLR (Pt. 221)33.

Counsel further cited the provision of section 254C (1) of the Constitution of Federal Republic of Nigeria as altered in 2010 and contended that the provision vests exclusive jurisdiction of the National Industrial Court in respect of civil causes and 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 which is the suit of the Claimant at the High Court.

Counsel contended that in the instant case which was instituted in 2008 at the time which the High Court had jurisdiction but by 2011, the National Industrial Court was vested with jurisdiction while the consent judgment entered by the Court was in 2014 and therefore the High court no longer had jurisdiction. Counsel considered the entry of consent judgment as a trial which occurred after the amendment of the Constitution in 2010 had conferred exclusive jurisdiction on the National Industrial Court.  She cited the cases of Olutola v Unilorin (2004) 18 NWLR PT. 905 P.416 and Osakue v Federal College of Education(Technical) Asaba (2010) 10 NWLR PT 1201 PAGE 1 ® 32-33 Paras G-D.

Counsel urged the court that in view of the plethora of authorities cited, the Claimant’s suit be struck out since the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 made no special provision for cases already pending in Court on its effective date of the 4th day of March, 2011.

Counsel added that jurisdiction is the life blood of every matter and that the consent judgment entered was void as it is made without jurisdiction.

With regards to issue two, counsel submitted that when a statute provides for the institution of an action within a prescribed period, proceedings shall not be allowed to be instituted after the time allowed or stipulated by the statute. She added that any action that is instituted after the prescribed period by statute is completely barred as the right of the claimant to commence the action is extinguished by law. Counsel cited the cases of Obiefuna v Okoye (1961) 1 SCNLR 144, Egbe V Adefarasin,  Fadare V Ag Oyo State (1982) 4 S.C.

Counsel contended that the Public Officers Protection Act removes the right of action because the cause of action in the suit at the high court arose in 1997 while this suit was instituted in 2008 in view of failure to institute same within three months. Counsel contended that the proper order to be made when the court finds that it lacks jurisdiction is an order of dismissal. Counsel cited the case of Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 584) and OLAGUNJU & ANOR V. POWER HOLDING CO. OF NIG. PLC (2011) LPELR-SC.140/2004

Counsel added that the case of Ibrahim v. J.S.C. is on all fours with the instant suit.

With regards to issue three, counsel posited that the law is trite that a court of concurrent or coordinate jurisdiction can set aside the judgment or order of another court in circumstances where the court lacks jurisdiction to entertain the action. She cited the case of Offodile v. Egwuatu (2006) 1 NWLR (Pt.961) 421.

Counsel added that where the court lacks jurisdiction to entertain the action or is affected by debilitating defects that go to the root of jurisdiction it is liable to be set aside. Counsel posited that the rationale for the above decision is that service of court process, fraud and jurisdictional issues are issues the courts consider quite fundamental, therefore, a court can set aside the judgment of another court of equal powers based on these grounds. Counsel cited the case of MGBOJI & ORS v. AJUZIEOGU & ORS (2016) LPELR-40079(CA) pg 40.

Counsel concluded the address by submitting that this action is incompetent as same is initiated by a consent judgment that is null and void because it was delivered by the High Court without jurisdiction and same is statute barred.

Reacting to the forgoing submissions, Counsel to the Claimant, N.E. IghotaEsq through the written address in support of the counter affidavit in opposition to the preliminary objection formulated two issues for determination to wit:

  1. “Whether the action instituted by the Claimants is statute-barred”.
  2. Whether or not the 5th Defendant/Applicant or any of the Defendants in this suit who are in disobedience of a valid and subsisting Order of Court can be heard to complain about the validity or otherwise of the said Order in this stilt.

In arguing issue one, counsel posited that it is trite that in order to ascertain whether or not an action is statute-barred, this Court is required to examine the Claimants complaint and the statement of facts when the wrongful act was committed and compare with the time in which the action to redress the wrong was filed. Counsel cited the case of MBU V STANBIC I.B.T.C BANK PLC (2016) 12 NWLR (PART 1527) PG. 399 PARA 3.

Counsel further posited that a look at paragraphs 6,7.,10, 11, 12, 13 and 14 of the Claimant’s Statement of facts shows that the Claimant who has been in the employment of the Defendants till date had been denied his salaries and allowances even where his employment is still running without formal/informal termination. Counsel cited the case of BOB-MANUEL V A.G. RIVIRS STATE (2016) 11 NWLR (PT. 1523) PG. 365 PARA I to contend that the statute of limitation does not apply to cases of contracts. He added that the Defendants have not denied that the Claimant is owed salaries till date.

Counsel also contended that the Defendants are not public officers but public offices and as such cannot for whatever reason hide under Public officer Protection Act. He added that assuming without conceding that the Defendants are public officers, they cannot hide under the cover of public officers to commit infractions against others and expect to seek protection under the Act. Counsel cited the case of N.P.A v OKEREKE {2017} 7 NWLR (PT.1564) PG.323 AT 326 PARA.3.

With regards to issue two, counsel submitted that the law is trite that the court will not come in aid of the party in disobedience of a valid and subsisting Court Order and cited the case of UMAR v APC {2018} 18 NWLR (PT.1650) PG 139 AT 145 PARA 9.

Counsel contended that from 2014 when consent judgment was entered, till date, the Defendants neither obeyed the said Order nor file an appeal against same. Counsel posited that this attitude is what the Supreme Court frowned at and held that a party such as the Applicant in this case should not be indulged.

Counsel urged the court to the effect that in line with the aforementioned Supreme Court position, this Court should discountenance the argument of the Applicant in support of their Notice of Preliminary Objection and expressly condemn in the strongest terms the attitude of the Applicant who has acted in disobedience to the Order of Court.

Counsel concluded by urging the court to dismiss the preliminary objection with substantial cost.

 

Upon a careful consideration of the foregoing, I have taken a careful look at the processes filed in commencement of this suit, the notice of preliminary objection, especially the grounds and the affidavit and counter affidavit in support and in opposition.

I have also considered the arguments of counsel to both sides and find consequently that the issues for determination of the Preliminary objection are to wit:

  1. Whether or not this suit is statute barred thereby robbing this court of jurisdiction.
  2. Whether the High Court of Rivers State had jurisdiction to enter consent judgment in suit PHC/1653/08 in the light of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 which came into force on the 4th day of March 2011 and if not, then whether any proceeding in the instant suit can be founded on the said consent judgment.

I must state that issue two is couched from the second issue formulated and argued by counsel to the 5thDefendant  with necessary moderations as this court deems fit.

That said, to address issue one which is predicated on the application of a limitation law, it is imperative to reproduce the limitation law in question as referred to by the Defendant. The said limitation law is the provision of section 2 (a) Public officers Protection Act, Laws of Federation of Nigeria, 2004 which provides thus:

  1. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –

 

(a) the action, prosecution, or proceeding shall not be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

It is instructive to state that the Supreme Court in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS(2015) LPELR-24736(SC) has restated the meaning, purpose and effect of the above provision when it held that:

“The above provision is quite clear and simple. Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See Egbe v. Adefarasin&Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye& 2 Ors.(2004) 13 NWLR (Pt. 891) 572, Egbaigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379. One may wonder why a person’s right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See John Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345. …Per OKORO, J.S.C.

 

There is no gainsaying that the said provision applies to public officers, but it is imperative to state that the Defendantsparticularly, 1st to 3rd Defendants and theiremployees are public officers within the meaning and scope of section 18 of the Interpretation Act, Cap 123 LFN, 2004 which defines public officer as:

 A member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public service of a state.

See the case of INEC & ORS V. ORJI & ORS (2009) LPELR-4320(CA); REGISTERED TRUSTEE PPFN V. SHOGHOLA (2004) 11 NWLR (Pt.883) 1 at 20 para C-E.

 

Having said that, what necessarily follows is to determine whether this suit is indeed statute barred. In so doing, I reckon the that the court in the case of AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 laid down the yardsticks to be appliedin determining whether an action is statute barred and they are:

  1. The date when the cause of action accrued;
  2. The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
  3. The period of time prescribed to bring an action to be ascertained from the statute in question.

Before applying the yardsticks, I reckon that counsel to the 5th Defendant contended that the cause of action in this suit arose in 1997 without specifically stating what she considers as the cause of action. Counsel contended that the suit ought to have been instituted within 3 months but the Claimant only filed same in 2008 for the first time at the High Court of Rivers state. Counsel to the Claimant on the other hand contended that the suit is not statute barred as the cause of action is for payment of Claimant’s salaries in view of paragraphs 6,7,10,11,12,13 and 14 of the statement of fact.

In view of the forgoing, it is important to ascertain the cause of action and in the instant suit, as rightly contended by counsel to the Claimant and upon a perusal of the specified paragraphs in addition to the claims of the Claimant as captured in the statement of fact, there is no doubt that the cause of action is one for payment of the Claimant’s salaries. Claimant alleged that the salaries stopped coming forth for him in April 1997 and the Claimant has since then been making effort to get paid and he instituted an action  in the High Court in 2008 wherein consent judgment was entered in 2014 while the instant suit was commenced in November, 2018. The Claimant posited that  his employment has not been terminated and that despite the non-payment of his salaries, he still resumes work at Army Children School.

Without much ado, in view of the facts found in the statement of fact, I must state that claims for salaries for work done are never caught up by statute of limitation. Although statute of limitation have been held to apply in cases of contract of employment, see UNIVERSITY OF JOS v DR. SANI MUHAMMAD ADAM (2015) 5 ACELR 106. Per AlomaMukhtar (CJN as she then was), one of the exception to its application is in cases of unpaid salaries.

With respect to claims for unpaid salaries, the court in the case of Hon. RunyiKanu (JP) &Ors v The Attorney General & Commissioner for Justice, Cross River State &Ors (2013) 32 NLLR (Pt.91) 63 NIC, held that:

“In cases of claims for salary and allowances, the decision of this court in John Ovoh v. The Nigerian Westminster Dredging &Marine Company Ltd and Captain Tony Oghide&Ors v Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v AG, Bayelsa state &Anor (2013) 3 NWLR (Pt.1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme court held that the case for the deprivation of allocation, which the Plaintiff was entitled to every month and same has not ceased, was a situation of continuance of damage or injury which has not ceased’ and so the defence of the Public Officers Protection Act would not avail the 1st Defendant who had raised it”. Per Kanyip. J.

Consequent upon the forgoing, the suit of the claimant for unpaid salaries is not statute barred, therefore the court is not dispossessed of jurisdiction upon this ground of objection and the said ground is consequently discountenanced.

Issue one is accordingly resolved in favour of the Claimant and against the 5th Defendant.

Turning to issue two, I must state that I am not unmindful of the contention of the 5th Defendant that the consent judgment reached in the earlier suit is void in view of the fact that the Court lacked jurisdiction at the time it entered the consent judgment and therefore the present suit should also fail since the instant suit is predicated on the said consent judgment. In this regard, the Claimant’s counsel posited that the instant suit is one for payment of salaries and referred the court to paragraphs 6,7,10,11,12,13 and 14of the statement of fact.

It is pertinent in view of the foregoing contention of the 5th Defendant to consider whether this court can determine ‘whether the consent judgment entered by the High Court was with or without jurisdiction’ in view of the fact that the said court is a court of coordinate jurisdiction. In this regard, the Supreme Court had posited in the case of Witt & Busch Ltd. v. D.P.S. Plc. (2007) ALL FWLR (Pt. 382) 1816 at 1836; Paras A – D & F; P. 1842, Paras. G – H (SC) that:

“A court of co-ordinate jurisdiction (generally) has no jurisdiction to set aside the judgment of another court of similar jurisdiction. But where an order of a court is a nullity, such an order would be set aside by another court of similar jurisdiction.” Amanambu v. Okafor (1966) 1 ALL NLR 205; Okorodudu v. Ajuetani (1967) NMLR 282; Wimpey (Nig.) Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324; Orthopaedic Hospital Management Board v. B.B. Apugo& Sons Ltd. (1990) 1 NWLR (Pt. 129) 652.” Per Ogbuagu JSC.

The Court of Appeal made further exposition on similar position when in the case of Inyang v. Chukwuogor (2007) ALL FWLR (Pt. 344) 165 at 184-185, Paras.F – C (CA)  the court held that:

“Every court has an inherent jurisdiction or power to set aside its own judgment or that of another court of coordinate jurisdiction in an appropriate case or ground. Such grounds for setting aside of previous judgment includes: a. Where the judgment was obtained by fraud or deceit either in the court or of one or more of the parties such a judgment can be impeached or set aside by means of an action which may be brought without leave. b. When the judgment is a nullity a person affected by such order is entitled ex debitojustitiae to have it set aside; c. Where it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it; d.Where, in a cross-appeal, the respondent’s cross-appeal was not considered in the judgment; e.Where judgment was given in the absence of jurisdiction; and f. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See Arcon v. Fasasi (No. 4) (1987) 3 NWLR (Pt. 59) 42; Adigun v. Att.-Gen., Oyo State (No. 2) (1987) 2 NWLR (Pt. 56) 197; Bakare v. Apena (1986) 4 NWLR (Pt. 33) 1; Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435, Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Olorunfemi v. Asho (2002) FWLR (Pt. 20) 654, (2002) 2 NWLR (Pt. 643) 143″. Per. Adamu, JCA(emphasis mine).

Consequent upon the foregoing authorities and the fact that the present suit is considered to be predicated on the said consent judgment by the 5th Defendant, I proceed in resolving issue two by determining foremost whether the court that heard the suit filed atthe High Court lacked jurisdiction to do same and what is the implication of such finding on the instant suit.

Arising from the affidavit in support of the preliminary objection, the 5th Defendant posited that trial did not commence in the suit at the High Court until consent judgment was entered in 2014 and by then the Court had been stripped of jurisdiction in view of the coming to force of the Constitution of Federal Republic of Nigeria (Third Alteration) Act 2010 on the 4th of March, 2011. The Claimant did not deny that a suit was instituted at the High Court but contended that the suit instituted in 2008 was premised on reinstatement. The Claimant also stated that trial commenced in the said suit on the 28th of September 2010 after several adjournments for mention.

In resolving the forgoing issues, I must start generally by reckoning that indeed jurisdiction is the life blood of any court sitting to adjudicate over a matter. The court in this regard posited in ARDO & ANOR v. NYAKO &ORS(2013) LPELR-20887(CA) that:

“it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. It has also been held that it is the claim of the Plaintiff, in this case, it is the Statement of Claim and the Reliefs Sought by the Appellant that determine the jurisdiction of the Court. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B – C and Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 76.”Per AGUBE, J.C.A. (Pp. 106-108, paras. E-D).

In view of the foregoing and in view of the grounds upon which the preliminary objection is based and the facts deposed in the affidavit in support and in opposition of the preliminary objection, I must state that  I reckon that the preliminary objection filed by the 5th Defendant challenges not just the jurisdiction of this court, but also the jurisdiction of an earlier court wherein facts leading to this suit was initially filed.

The facts of this suit as stated in the statement of fact is that the Claimant had his salaries and allowances terminated sometime in 1997 by his employers (the 1st to 3rd Defendants) without any form of notice. Consequent upon which he filed a suit at the High Court of Rivers state sometime in 2008 and the Defendants approached him to settle. Consequently, terms of settlement was reached and a consent judgment was entered by the court on 16th February, 2014. Since the judgment, the Claimant was still not paid his salaries and he wants this court to order the payment of the said salaries based on the salary grade level which the Court in the consent judgment directed that he be placed on.

It is trite law that the statement of claim (facts) is the appropriate process to be considered in the determination of whether a court possesses or lacks jurisdiction. It was held in the case of Agi v Eno (2010) 5 NWLR (Pt. 1188) Page 626 at Page 647 Para B-C per Ngwuta JCA (as he then was) that it is the cause of action, as determined from the originating process and statement of claim, that is relevant for the determination of whether a suit is time barred. A court cannot go outside the originating process and determine the accrual of the cause of action. It was similarly held in the case of Egbe v Adefarasin (1987) LPELR 1032, cited by the 3rd Respondent’s Counsel, per Oputa JSC at Page 32 Para C that one determines the period of limitation by looking at the Writ of Summons and the Statement of Claim.” Per ADEFOPE-OKOJIE,J.C.A. (Pp.26-27,paras.E-A) See also the case of INEC V. OKORONKWO(2009) LPELR-4321(CA). Hence, it is within the frame of the statement of fact that the jurisdiction of the instant suit will be based.

 

The resolution of the forgoing contention rests upon the determination of whether the High court had jurisdiction at the time it entered the said consent judgment. In doing so, the position of the Supreme court in SPDC v. ANARO & ORS (2015) LPELR-24750(SC) is authoritative as the court held that:

“Courts are creations of statute and it is well settled that it is the statute creating the court that specifies its jurisdiction. The court’s jurisdiction may also be limited or expanded by statute. For a suit to be competent, the plaintiff’s claims must fall within the jurisdiction conferred on the court by the relevant statute. It is equally well settled that the law applicable in respect of a cause of action is the law in force at the time the cause of action arose. However, the law in force at the time the cause of action arose does not necessarily determine the jurisdiction of the court at the time that its jurisdiction is invoked. In other words, the State High Court may have jurisdiction to entertain the suit at the time the cause of action arose and yet it might be divested of such jurisdiction at the time of the actual trial. See: Olutola Vs. University of Ilorin (2005) ALL FWLR (Pt.245) 1151 @ 1189 E; ObiuweubiVs CBN (2011) 7 NWLR (1247) 465 @ 495 C-D; Goldmark (Nig) Ltd. VsIbafon Co. Ltd. (2012) 10 NWLR (Pt.1308) 291 @ 358 D-E.”Per KEKERE-EKUN, J.S.C. (Pp. 63-64, paras. E-B).

The exposition made by the court in OBIUWEUBI V. CENTREL BANK OF NIGERIA (2011) 7 NWLR 465is also illuminating as the court held that:

“the law in force at the time cause of action arose governs determination of the Suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990) if trial commences before 1993 the court to try, the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court…”Per Rhodes-Vivour, J.S.C. (Pp. 24-25, paras. G-F).

While it is needless to state that arising from the Third Alteration to the 1999 Constitution of Federal Republic of Nigeria, the National Industrial Court of Nigeria became the court with exclusive jurisdiction to entertain labour matters, it is needful to state that the effect of the foregoing authorities of the apex court is that if by 4th March 2011, the suit at the High Court was at the stage of trial, the High Court would continue to have jurisdiction but if not, the High Court would have been divested of jurisdiction from the 4th of March, 2011 and anything done subsequently would be without jurisdiction. In view of this analysis, the question that arises is what is a ‘trial’ for the purpose of determining whether a High Court can continue with a suit which it no longer has jurisdiction to entertain?

The Supreme Court provided the meaning of trial in BORNU HOLDING V. BOGOCO S.C (1971) All N.L.R 325when it held that:

“A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested.” Per Lewis, J.S.C (P. 9, paras. A-C).

The foregoing in other words means the calling of witnesses and subjecting them to examination or any other opportunity for the court to evaluate evidence in support of a case. Such situation perhaps never occurred in the suit at the high court prior to the day consent judgment was entered and therefore it means that as at 4th March, 2011 when the Constitution of Federal Republic of Nigeria (Third Alteration Act) 2010 came into force, the suit at the High Court was not at the stage of trial, hence, the High Court had been divested of jurisdiction and the eventual consent judgment entered by the court was null and void and of no effect whatsoever and I so hold.

With regards to the instant suit, what is then the effect of the finding thatthe High Court had been divested of jurisdiction as at 2011 and that the eventual consent judgment entered by the court in 2014 was of no effect whatsoever?

In this regard I must state that I am not unmindful of the fact that the Claimant’s counsel posited that the suit before this court filed on the 15th of November, 2018 is for payment of salaries. The said salaries was however demanded pursuant to the consent judgment entered by the High Court on the 16th of February, 2014 as earlier found.

It is in fact pertinent that I reproduce once again the Claims of the Claimant which reads:

  1. An Order for immediate payment to the Claimant of the sum of N245,157,57k. (Two Hundred and forty Five Thousand, One Hundred and Fifty Seven Naira, Fifty Seven kobo) as unpaid salaries per month from the 16th day of February, 2014 till the date judgment is delivered pursuant to the Consent Judgment of the River state High Court reinstating the Claimant to salary Grade level 15. Step 8 in the service of the 1st, 2nd and 3rd
  2. An Order for payment to the Claimant the sum of N245,157,57k. (Two Hundred and Forty Five Thousand, One Hundred and Fifty Seven Naira, Fifty Seven kobo) salaries per month from the date judgment is delivered until the Claimant statutory retirement from the service of the 1st , 2nd and 3rd  Defendants in accordance with the Rivers State Civil Service Rules.

It is manifest to all and sundry that arising from the claims sought by the Claimant, particularly relief (i), the salaries requested to be paid are to commence on the date of delivery of the consent judgment which is 16th day of February, 2014 and based on the grade level pronounced in the said judgment. The Claimant specifically wants the judgment of this court to be pursuant to the said consent judgment.

Consequently, should the court proceed to determining the instant suit, the decision of this court will be a nullity as it is trite that the court cannot place something on nothing, except that it will collapse.See UAC v. Mcfoy (1962) A.C.152.

Consequent upon the foregoing, this court comes to the irresistible conclusion that the lack of jurisdiction by the High Court prior to the entry of consent judgment for the parties, a judgment which the Claimant predicates his present claim before this court, impinges on the jurisdiction of this court.

For want of clarity, I must state that the impracticability of this court to grant the claims sought by the Claimant in view of its predication on the consent judgment entered without jurisdiction presents a feature in the instant case which prevents the court from exercising its jurisdiction. The court in the case of UMOH & ANOR V. AKPAN & ORS(2011) LPELR-5045(CA)held that:

“It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent, to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived of in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See the following cases:- Umanah v. Attah (2006) 17 NWLR (pt. 1009) 503- Madukolu v. Nkemdilim (1962) 1 All NLR 587- Skenconsult v. Ukey (1981) 1 SC 6- Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (pt. 521) 388- Magaji v. Matari (2000) 5 SC 46- Aloa v. African Continental Bank Ltd (2000) 6 SC (pt. 1) 27- Galadima v. Tambai (2000) 6 SC (Part 1) 196- Araka v. Ejeagwu (2000) 12 SC (pt. 1) 99- Lufthansa Airlines v. Odiese (2006) 7 NWLR (pt. 978) 39.”Per NDUKWE-ANYANWU, J.C.A.(Pp. 7-8, Paras. B-A)

Consequent upon the foregoing finding that this suit possesses a feature which prevents the court from exercising jurisdiction, issue two is irresistibly resolved in favour of the 5th Defendant to the effect that the determination of this suit is dependent on the consent judgment earlier entered in suit PHC/1653/08 and this court cannot proceed in determining the claims before this court in view of the status of the Consent judgment entered without jurisdiction.

I must however make it abundantly clear that this ruling is not for the purpose of setting aside the consent judgment as such application was not presented before this court, the extent of this ruling is simply to determine the status of the consent judgment in relation to the instant suit in view of the claims made before this court.

That said, where the court finds that it lacks jurisdiction to hear and determine a suit, the proper order the court should make is an order striking out the matter. See W.A.E.C v. Adeyanju (2008) 9 NWLR (Pt.1092) 270 at 296, paras. C-D (SC).

 

In the final analysis, I find the preliminary objection raised by the 5th Defendant is upheld in part and the court holds that it has no jurisdiction to entertain the instant suit as presently constituted. Consequently, this suit is accordingly struck out due to lack of jurisdiction.

I make no order as to cost.

 

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.

 

admin

Website:

Related Story