MRS. MATILDA M. NWOBODO V. RIVERS STATE PRIMARY EDUCATION BOARD & ORS.
(2007)LCN/2182(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of January, 2007
CA/PH/226/2001
RATIO
Time without number, judicial officers has been admonished to refrain from assuming jurisdiction in matters outside their jurisdictional competence. The cardinal reason is that it is a monumental waste of precious time and resources. However well the proceedings is conducted, however, brilliant and sound the judgment, it remains a product of an incompetent exercise of no legal value. PER DONGBAN-MENSEM, J.C.A
Thus, the 1st respondent being a Federal Government agency, only the Federal High Court has jurisdiction over it. The learned trial Judge was thus right in declining jurisdiction. Whatever else the said trial court did was an illegal and wasteful exercise. The other issues premised on the decision of the trial State High Court therefore come to no issue, having not been decided by a court of competent jurisdiction. (Refer 1. Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) p.414 2. Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) pg. 377; 3. Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p.1). PER DONGBAN-MENSEM, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
Between
MRS. MATILDA M. NWOBODO Appellant(s)
AND
1. RIVERS STATE PRIMARY EDUCATION BOARD
2. COMMISSIONER FOR EDUCATION, RIVERS STATE
3. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE Respondent(s)
DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Rivers State High Court, Coram Hon. Justice Acho Ogbonna pronounced on the 22nd day of March, 2001 at High Court, Port Harcourt.
In a rather peculiar procedure, the learned trial Judge heard the case fully, after which he declared he lacks the jurisdiction to hear and determine the matter, but also found and pronounced that the appellant was rightly dismissed under the provisions of Decree No. 17 of 1984. The learned Judge then proceeded to dismiss the suit of the appellant, while citing the provisions of Decree No. 17 of 1984 as ousting the jurisdiction of the State High Court to enquire into the matter. The appellant filed four grounds of appeal from which four issues were distilled for determination in this appeal. The two sets of respondents also each formulated four issues for determination.
The issues are hereby reproduced for the ease of reference:
Appellant’s issues:
1. Whether the 1st defendant/respondent is an agency of the Federal Government so as to oust the jurisdiction of lower court to entertain the suit in which the 1st defendant/respondent is a party and in which the 1st defendant/respondent’s executive or administrative action is challenged.
2. Whether from the totality of the evidence adduced before the lower court, the dismissal of the plaintiff/appellant from the Public Service of Rivers State Government was the act of the Military Administrator of Rivers State pursuant to Decree No. 17 of 1984 so as to oust the jurisdiction of the lower court to entertain the plaintiff/appellant’s suit challenging her dismissal from the public service of Rivers State.
3. Whether the learned trial Judge was right in dismissing the suit after holding that he had no jurisdiction to entertain the same.
4. Whether the failure of the 2nd respondent and particularly of the 3rd respondent to contest the appellant’s action in the court below did not amount to an admission, in law, of the appellant’s claim notwithstanding that the 1st respondent, who was not responsible for the alleged dismissal of the appellant from service, contested the appellant’s action in the court below.
1st respondent’s issues:
1. Whether the 1st defendant is not an agency of the Federal Government for the Implementation of the National Primary Education Programmes in Rivers State.
2. Whether from the totality of evidence adduced before the lower court, the dismissal of the plaintiff from the Public Service of Rivers State was not the act of the appropriate authority.
3. Whether the learned trial Judge was not right in dismissing the suit after finding that the law on which the action is based, ousts the jurisdiction of all courts from hearing the matter.
4. Whether the appellant was automatically entitled to judgment, notwithstanding that the learned trial Judge had no jurisdiction over the matter because the 2nd and 3rd respondents did not participate in the trial, without more.
2nd & 3rd respondents’ issues:
1. Whether the 1st defendant is an agency of the Federal Government as to oust the jurisdiction of the court in this action in which the administrative action of the 1st defendant is being challenged.
2. Whether from the totality of the evidence adduced, the dismissal of the plaintiff from the Public Service of Rivers State was an act by the Military Administrator pursuant to Decree No. 17 of 1984 so as to oust the jurisdiction of the court.
3. Whether the learned trial Judge was not right in his dismissal of the suit when he identified that the action was caught by Decree 17 of 1984 and also that the 1st defendant is an agency of the Federal Government.
4. Whether the none participation of the 2nd & 3rd defendants in the proceeding at the lower court entitled plaintiff to judgment without more and, inspite of the lack of jurisdiction on the part of the court.
The facts of the case are rather scanty as to the nature of the employment of the appellant with the 1st respondent. Paragraph six of the statement of claim however, states that:
“In 1977, plaintiff was appointed Headmistress of the State Primary School Amaigh, Mile 11 Diobu, Port Harcourt.”
By the general averments in the statement of claim, it appears the appellant has always been an employee of the Primary School Education Authority, by whatever nomenclature described. Her first appointment as “a qualified teacher” was with the Anglican Mission from 1962 until the outbreak of the Nigerian civil war.
One of the four issues formulated for determination in this appeal, is the issue of the jurisdiction of the trial court to determine the suit of the appellant. The determination of this issue turns on the thorny question of whether the 1st defendant is an agent of the Federal Government or of the State.
It is not denied by any of the parties that the National Primary Commission Act, Cap. 271, Laws of the Federation of Nigeria, 1990 or Decree No. 96 of 1993 is relevant in the matter under consideration.
A motion was taken out at the trial court challenging the jurisdiction of the Court under the provisions of section 220(1)(g)(s) of the 1979 Constitution as amended by Decree 107 of 1993 on the grounds that the 1st respondent is an agency of the Federal Government and only the Federal High Court has jurisdiction to determine a suit involving it.
The learned trial Judge upheld the argument and declined jurisdiction upon the said provisions. The appellant’s learned counsel challenges the decision of the trial court declining jurisdiction on the ground that the 1st respondent is not an agent of the Federal Government but that of the State and therefore, the State High Court has the jurisdiction to try and determine the appellant’s suit. Conversely, the two sets of respondents maintain that by the provisions of section 7(1)(a-n) of the National Education Commission Decree of 1993, the 1st defendant is an agent of the Federal Government and carries out its functions on behalf of the Federal Government as an agent.
It is the submission of each learned counsel on behalf of the 1st and 2nd and 3rd respondents respectively, that the various states Primary Education Boards are established by the Federal Government to function uniformly as its agents.
It appears a consideration of the provisions of the Act/Decree establishing the National Education Board will put paid to this thorny issue.
Section 1(1) of the National Primary Education Commission Decree, 1993 establishes the Commission. Section 1(2) states that the Commission be based in and be supervised by the Federal Ministry of Education.
Section 2(1) sub (a-h) provides for the membership of the Commission which includes five members from the State and FCT on a rotational basis.
Section 3(1)(a) states that the functions of the Commission shall be to:
“(a) prescribe the minimum standards of Primary Education throughout Nigeria”.
By section 6(3), the Commission has the responsibility to disburse funds to the State Primary Education Board.
It is equally instructive that by the provisions of section 7(1)(c), the function of State Primary Education Board includes the “posting and deployment of staff including inter-state transfer”.
Now, in a Federal Republic, only an agency of the Federal Government can have powers to effect inter-state transfers. This therefore should lay to rest, the controversy as to whether the 1st respondent is a State or Federal Agent.
Further, the appellant placed no evidence whatsoever to establish who her employers are other than the 1st respondent.
By her pleading, the Primary Education Board employed her. All other details are those of her numerous postings, acquisition of additional education and promotion or demotions.
Thus, the 1st respondent being a Federal Government agency, only the Federal High Court has jurisdiction over it. The learned trial Judge was thus right in declining jurisdiction.
Whatever else the said trial court did was an illegal and wasteful exercise. The other issues premised on the decision of the trial State High Court therefore come to no issue, having not been decided by a court of competent jurisdiction.
(Refer 1. Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) p.414
2. Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) pg. 377;
3. Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p.1).
Time without number, judicial officers has been admonished to refrain from assuming jurisdiction in matters outside their jurisdictional competence. The cardinal reason is that it is a monumental waste of precious time and resources. However well the proceedings is conducted, however, brilliant and sound the judgment, it remains a product of an incompetent exercise of no legal value.
Having determined that the 1st respondent is a Federal Government Agency, it follows that by the provisions of Decree No. 107, the jurisdiction of the State High Court is ousted (Refer: Shell Petroleum Development Co. (Nig.) Ltd. v. Isaiah (2001) 11 NWLR (Pt. 723) p.168).
The suit of the appellant which clearly challenges the action of the 1st respondent can only be adequately determined in the Federal High Court.
Accordingly, this appeal is without merit and is hereby dismissed. I make no order as to cost.
M. D. MUHAMMAD, J.C.A.: I have been obliged the lead judgment of my learned brother Dongban-Mensem, J.C.A.
I agree that the appeal has no merit and dismiss same on the basis of the reasons advanced in the lead judgment. I make no order as to cost also.
SAULAWA, J.C.A.: This is an appeal against the decision of the Rivers State High Court, sitting at Port Harcourt, Coram A. A. Ogbonna, J., dated the 22/3/2001. In the court below, the appellant had caused a writ dated 18/4/96, to be issued against the present respondents wherein she claimed the following reliefs:
“1. A declaration that the defendant is not the employer of the plaintiff.
2. A declaration that the plaintiff is an employee of the Rivers State Public Service Commission.
3. A declaration that it is the public commission (sic) that can determine the services or employment of the plaintiff within the precients (sic) of the Civil Service Rules and Regulations.
4. A declaration that the 1st defendant letter dated 23rd January (sic) 1996 purporting to terminate or determine the services of the plaintiff is null and void, the same being ultra its powers (sic) or that of any other person(s).
5. A declaration that the plaintiff was wrongfully dismissed as headmistress special grade.
6. An order of perpetual injunction, restraining the defendants their servants and agents from any further disturbance of the service and employment of the plaintiff.
As borne out by the records of the trial court, the 1st respondent filed a motion on notice dated 25/6/96, challenging the jurisdiction of the lower court to try the case on the ground inter alia-
“9. That the respondent was dismissed pursuant to and in accordance with the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 which empowers the Military Administrator to so dismiss without question.”
However, the said motion on notice was struck out by the learned trial Judge on 18/10/96, on the ground of default of appearance by the 1st respondent/applicant’s counsel. The case was thus set down for hearing. The appellant testified as the only witness for the plaintiff. On the other hand, one witness Mrs. Erefema Graham-Douglas a legal officer, testified for the 1st respondent after the counsel to both sides had addressed the lower court. Thereafter the learned trial Judge delivered judgment on 22/3/01 to the effect, inter alia that-
“I have concluded that the 1st defendant is an agency of the Federal Government and for that reason this court does not have the jurisdiction to hear this case. I have also come to the conclusion that the dismissal of the plaintiff came properly under Cap. 381, Laws of the Federation, 1990 which law ousts the jurisdiction of any court whatsoever to hear a matter concerning the removal or otherwise of a public officer.
From the foregoing, it is ordered that this suit be and it is hereby dismissed for lack of jurisdiction. See page 103 of the record.
Not unnaturally, being dissatisfied with the said decision of the trial court, the appellant has filed this appeal which is predicated on 4 grounds of appeal thus:
“Ground 1
That the learned trial Judge erred in law by holding that he had no jurisdiction to entertain the suit – suit No. PHC/435/96 – on the ground that Rivers State Primary Education Board is an agent of the Federal Government and ought to be sued at the Federal High Court.
Particulars of error
a. …………………
b. ………………….
c. ………………….
Ground 2
That the learned trial Judge erred in law by holding that he had no jurisdiction to entertain suit No. PHC/435/96 on the ground that the wrongful dismissal of the appellant. The subject matter of the suit was valid having been made under Decree No. 17 of 1984.
Particulars of error
a. …………………
b. ………………….
c. ………………….
Ground 3
The learned trial Judge erred in law by dismissing suit No. PHC/435/96 after holding that he had no jurisdiction to entertain the same.
Particulars of error
(a) ……………….
Ground 4
That the learned Judge erred in law by striking out the appellant’s suit on the ground of lack of jurisdiction instead of giving judgment in favour of the appellant in terms of the appellant’s statement of claim by reason of default of pleading on the part of the 2nd and 3rd respondents and by reason of no contest of the appellant’s action at the lower court the 2nd and 3rd respondents.
Particulars of error
a. …………………
b. ………………….
c. ………………….
d. …………………
e. ………………….
Reliefs sought by the appellant
An order setting aside the judgment complained of and for judgment to be entered in favour of the appellant by reason of there being no opposition to the appellant’s suit on the merits.
It’s instructive that briefs have been filed, exchanged and accordingly adopted by parties. In particular the appellant has formulated in the amended brief thereof, four issues for determination thus-
1. Whether the 1st defendant is an agency of the Federal Governent so as to oust the jurisdiction of the lower court to entertain the suit in which the 1st defendant/respondent is a party and in which the 1st defendant/respondent’s executive or administrative action is challenged.
2. Whether from the totality of the evidence adduced before lower court, the dismissal of the plaintiff/appellant from the Public Service of Rivers State Government was the act of the Military Administrator of Rivers State pursuant to Decree No. 17 of 1984 so as to oust the jurisdiction of the lower court to entertain the plaintiff/appellant’s suit challenging her dismissal from the Public Service of Rivers State.
3. Whether the learned trial Judge was right in dismissing the suit after holding that he had no jurisdiction to entertain same.
4. Whether the failure of the 2nd respondent and particularly of the 3rd respondent to contest the appellants action in the court below did not amount to an admission in law of the appellant’s claim notwithstanding that the 1st respondent who was not responsible for the alleged dismissal of the appellant from service contested the appellant’s action in the court below.”
On the other hand, the 1st respondent has equally raised four issues in the amended brief thereof for determination, to wit:
“1. Whether the 1st defendant is not an agency of the Federal Government for the implementation of the National Primary Education Programme in Rivers State.
2. Whether from the totality of evidence adduced before the lower court, the dismissal of the plaintiff from the Public Service of Rivers State was not the act of the appropriate Authority.
3. Whether the learned trial Judge was not right in dismissing the suit after finding that the law on which the action is based ousts the jurisdiction of all courts from hearing the matter.
4. Whether the appellant was automatically entitled to judgment, notwithstanding that the learned trial Judge had no jurisdiction over the matter because the 2nd and 3rd respondents did not participate in the trial without more.
On their own part, the 2nd and 3rd respondents have raised four issues in the amended joint brief thereof thus:-
1. Whether the 1st defendant is an agency of the Federal Government as to oust the jurisdiction of the court in this action in which the Administration action of the 1st defendant is being challenged.
2. Whether from the totality of the evidence alluded, the dismissal of the plaintiff from the Public Service of Rivers State was an act by the Military Administrator pursuant to Decree No. 17 of 1984 so as to oust the jurisdiction of the court.
3. Whether the learned trial Judge was not right in his dismissal of the suit when he identified that action was caught by Decree 17 of 1984 and also that the 1st defendant is an agency of the Federal Government.
4. Whether he (sic) none participation of the 2nd & 3rd defendants in the proceeding at the lower court entitled plaintiff to judgment without more and inspite of the lack of jurisdiction on the part of the court.
Instructively, the four issues formulated by the appellant, is the brief thereof are for all intent and purposes, virtually the same with the ones raised in the 1st respondent’s and 2nd and 3rd respondents’ briefs.
The appellant’s issue No.1 is predicated on the learned trial Judge’s holding at page 101 lines 3 to 11 of the record wherein he stated thus:-
I make bold to say that it is specifically provided in the law that the 1st defendant is to act on behalf of the Federal Government in matters relating to primary schools in the State. It was intended to be otherwise the Decree would have provided that each State should promulgate its own law and establish its own Primary Education Board. But that is not the position here. The Federal Government created the 1st defendant in the Decree establishing the Commission. the 1st defendant is intended to act for the Federal Government. I therefore have no doubts in my mind that the 1st defendant is an agency of the Federal Government.
The learned trial Judge’s opinion that he had no jurisdiction to entertain the suit was based on the above observation. The appellant, however, thinks otherwise. It was argued that there is no provision in either the National Primary Commission Act, Cap. 271, Laws of the Federation or Decree No. 96, 1993 specifically providing that the 1st defendant shall act for the Federal Government in matters relating to Primary Schools in the State.
Relying on section 2(1) of Decree No. 107, 1993; section 9(1) of National Primary Education Commission Act, Cap. 271, LFN and the case of Zakari v. IGP (2000) 8 NWLR (Pt. 670) 666, the appellant thus contended that the 1st respondent “is an agency of the Rivers State Government; that the lower court had jurisdiction to entertain suit No. PHC/435/96”.
Contrariwise, the submission of the 1st respondent on issue No. 1 is to the effect inter alia that by virtue of the provisions of sections 1(2), (1)(a), 3, 6, 7 and 8 of the National Primary Education Commission; section 230(1), (q), (s) as amended by Decree No. 107 of 1993, the 1st defendant is an agency of the Federal Government for the purpose of implementing the National Primary Education Programme in Rivers State. Thus, the trial court allegedly lacked the necessary jurisdiction to entertain the suit.
On the other hand, the 2nd and 3rd respondents contended, inter alia, on issue No. 1 that by virtue of the provisions of sections 6 and 7(1)(a) – (h) of Decree No. (96) of 1993, the States Primary Education Boards were established by the Federal Government to function uniformly for it as agents and that-
“It follows therefore that the jurisdiction of the court is ousted as rightly decided by the Judge of the lower court.”
I think I cannot agree more with that submission. It is trite that the National Primary Education Commission, Decree (No. 96) 1993 (supra) has made provisions for the establishment, membership, functions, and structures of (i) The National Primary Education Commission; (ii) The National Primary Education Fund; (iii) The State Primary Education Board; (iv) The Local Government Education Authority and: and (v) The District Education Committee. Section 1(i) and (2) of Decree No. 96. 1993 (supra) is to the effect that-
i) There is hereby established a body to be known as the National Primary Education Commission (in this Decree referred to as “the Commission)
(2) The Commission shall be based in and be supervised by the Federal Ministry of Education. The functions of the commission as provided in the Decree, are to the effect inter alia that:-
3.(1) The Commission shall-
(a) Prescribe the minimum standards of primary education throughout Nigeria;
(b) inquire into and advise the Federal Government on the funding of Primary Education in Nigeria;
(c) receive the National Primary Education Fund as established by this Decree from the Federal Govel11ment and allocate the fund to the Primary Education Board of each State and the Federal Capital Territory, Abuja and to any agency responsible for Federal Government sponsored Special Primary Education projects in accordance with the formula prescribed; in this Decree as the Transitional Council may from time to time prescribe. (Italics added for emphasis).
(d) collate, after consultation with all the State Governments, periodic master plans for a balanced and co-ordinated development of primary education in Nigeria … ;
(e) collate, analyze and publish information relating to primary education in Nigeria:
(f) carrying out a regular personnel audit in each State of the Federation …
Section 6(3) of the Decree is to the effect that-
“6. ……….’
(3) The Commission shall be responsible for disbursing money from the National Fund and shall not, except on the direction of the Federal Governmment disburse money to –
(a) State Primary Education Board, or
(b) through State Education Board to any Local Education Authority.
if it is not satisfied that the money earlier disbursed was applied in accordance with the provisions of this Decree.
On the other hand, section 7 of the Decree provides inter alia that –
7(1) There is hereby established for each State, a State Primary Education Board (in this Decree referred to as “the Education Board”) which shall be charged with the following functions, that is –
(a) management of primary schools in the State;
(b) recruitment, appointment, promotion and discipline of teaching and non-teaching staff on grade level 07 and above.
(c) posting and deployment of staff including inter-State transfer;
(d) disbursement of funds provided to it from both Federal and State sources;
(e) setting up an effective functional supervisory unit;
(f) retirement and re-absorption of teachers;
(g) responsibility for the approval, training and retraining of teaching and non-teaching staff;
(2) Each Education Board shall establish and maintain a separate account into which has to be paid and credited all payments made to it from Federal or State Governments or any other source.
(3) There shall be disbursed from the fund all expenses relating to the management of Primary Education in the State.
By virtue of the provisions of the above section of the said Decree No. 96, 1993, it’s become rather obvious that the 1st respondent was specifically established by the Federal Government as an agency thereof for the purpose of managing Primary Schools in Rivers State. What is more, the phrase as couched in section 3(i)(c) of the Decree to the effect that –
” … and to any agency responsible for Federal Government sponsored special Primary Education projects …. ,
clearly confirms that the 1st respondent is envisaged by the Decree to be an “agency” of the Federal Government within the purview of section 230(1)(q), (r) and (s) of Decree No. 107, 1993 (supra).
In the light of the above postulations, it has become rather obvious that the trial court had no jurisdiction to entertain the instant suit. As authoritatively stated by the Supreme Court –
Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive .”
Jurisdiction is a power clearly visible to all beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.
See Alhaji Zanna Bukar Umoru Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311 per Obaseki JSC. See also Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 in which Belo, CJN (of blessed memory) in his usual erudite characteristics stated, inter alia, thus:
Jurisdiction is blood that gives life to the survival of an action in court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life any attempt to resuscitate it without infusing blood into it would be an abortive exercise.
Thus, in the light of the above postulations, my answer to issue No. 1 is most inevitably in the affirmative.
It was rather unfortunate that the learned trial Judge had proceeded to the hearing of the matter when it was so glaringly obvious that he lacked the jurisdiction. See Awoyemi v. Fasuan (2006) 13 NWLR (Pt. 996) 86 at 119 paragraphs B – C thus-
“A court should take objection where absence of jurisdiction is apparent on the face of the proceedings even though the point is not raised by any of the parties.”
Thus, determining issues 2, 3 and 4 regarding the decision of the lower court would amount to a sheer academic and wasteful exercise. The decision by the trial court on those issues was most undoubtedly null and void having been reached without jurisdiction.
Hence, for the foregoing, I entirely concur with the reasons and conclusions reached in the lead judgment delivered by my learned brother, Dongban-Mensem, J.C.A., that the appeal lacks merit. I accordingly also dismiss the appeal.
I make no order as to costs.
Appeal dismissed.
Appearances
For Appellant
AND
For Respondent
