NIGERIAN POSTAL SERVICE V. MRS. KEHINDE ADEPOJU
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2002
MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria
PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria
WALTER SAMUEL ONNOGHEN Justice of The Court of Appeal of Nigeria
NIGERIAN POSTAL SERVICE Appellant(s)
MRS. KEHINDE ADEPOJU Respondent(s)
AMAIZU, J.C.A. (Delivering the Leading Judgment): The plaintiff’s claims as set out in the writ of summons are as follows:
“1. A declaration that the defendant’s letter reference No. APM/KWT/14/3A/Vol. IV of 31st May, 1994, purporting to dismiss the plaintiff is illegal, unfair, wrongful, null and void.
2. An order re-instating the plaintiff to her position as a mail porter and payment of her salaries and entitlements from 1st June, 1994.”
Briefly, the facts which gave rise to the above claims are as follows –
The plaintiff who was in the employment of the defendant was dismissed from service, for misconduct. It was alleged that the plaintiff and other members of the staff tampered with the mails that were in their respective possession. Some of the affected staff admitted committing the offence alleged against them, and pleaded for leniency. The plaintiff denied the allegation in her reply to a query given to her. In the course of investigating the allegation, the defendant constituted a disciplinary committee. The plaintiff appeared before the said committee. Following the recommendation of the Committee, she was dismissed. She then instituted an action against the defendant in the Kwara State High Court, seeking the above reliefs.
Pleadings were duly filed and exchanged by the parties. At the trial, the plaintiff gave evidence, in support of her claims. She did not call any witness. The defendant, on the other hand, called three witnesses. At the end of the trial, the learned trial Judge, after considering the issues raised by the parties gave judgment as follows:
“I have considered the entire circumstances of this case, and in particular the fact that the defendant had not been able to prove the act culminating in the alleged misconduct against the plaintiff before this court, and having found that the dismissal of the plaintiff is wrongful, I am of the view that the justice of this case would be met if I order that the plaintiff be re-instated to her position as mail porter in the employment of the defendant immediately, and I so do. The plaintiff in addition shall be paid all her salaries and other entitlements with effect from the 1st day of June, 1994, till date.”
Dissatisfied with the above judgment, the defendant now the appellant, filed eight grounds of appeal from which it distilled three issues for determination. The issues are –
1. Whether the Kwara State High Court has jurisdiction to entertain and determine the respondent’s case against the appellant?.
2. Whether from the pleadings and the evidence before the lower court the dismissal of the plaintiff vide a letter dated 31st day of May, 1994, was wrongful and unconstitutional, illegal as found by the trial court?.
3. Whether the respondent is entitled to an order of re-instatement?.
The learned counsel for the plaintiff, now the respondent, adopted the above three issues distilled by the appellant for determination in its brief of argument.
Before us, Jacobs, Esq., of counsel, referred to a motion on notice dated 22nd day of May, 2001, filed by the appellant. The motion seeks five reliefs. Some of the reliefs are –
“(1) An order granting leave to the applicant to raise and argue as fresh points or issue of law contained in the proposed grounds of appeal numbers 5 & 6 in the additional grounds of appeal which were not raised or canvassed in the court below.
(2) An order granting leave to the appellant to amend the grounds of appeal by filing additional grounds of appeal as per Schedule One to this application.
(3) An order permitting the appellant to amend the notice of appeal to incorporate the amended grounds of appeal as stated in the schedule below.”
As Otaru, Esq., of counsel, did not oppose the application, it was granted. Thereafter, the learned counsel for the parties adopted their respective briefs of argument, including the reply brief. Both learned counsel in addition made additional submissions which I will refer to later.
Arguing issue one, Jacobs, Esq., of counsel, referred to the averment in paragraph 2 of the statement of claim. It reads –
“The defendant is a Federal Statutory Body with offices in all parts of Nigeria including Ilorin, where the plaintiff served the defendant”.
It was submitted by the learned counsel that the averment is an admission by the respondent that the appellant is an agency of the Federal Government. Consequently, only a Federal High Court has the jurisdiction to hear the case under section 230(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.
The learned counsel reminded the court that the Nigerian Postal Services is established under section 1 of the Nigerian Postal Services Decree No. 41 of 1992. It is the submission of the learned counsel that under the provisions of the Decree, the appellant is an organ of the Federal Government through which that Government carries out its function of regulating postal services.
The learned counsel then referred to a number of cases, which support his view that statutory bodies established by the Federal Government are agencies of the Federal Government. The first case is the University of Abuja v. Professor Ologe (1996).4 NWLR (Pt. 445) 706 at 725. In that case Oguntade, JCA held that –
“there can be no doubt from a close perusal of section 230(1)(q)(r) and (s) of Decree No. 107 of 1993 that the intention of the law maker is to confer jurisdiction upon the Federal High Court over the suits concerning the Federal Government in respect to its functions and all the organs it uses for the performance of such functions.
It seems to me that the use of the expression “any of its agencies” in Decree No. 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions. When viewed in this light, it is easy to eliminate all the technical arguments as to whether agency is a derivative of agent and vice versa”.
At page 722 of the report of that case, Orah, JCA also held that:
“The action before the lower court is proceedings for declaration that the letter of suspension by the University is illegal and void. That action is well within the ambit provision of section 230(1)(q) of the 1979 Constitution (Suspension & Modification) Decree No. 107 of 1993”.
The second case is Akegbejo v. Ataga (1998) 1 NWLR (Pt.534) 459.
In that case, the appellants who were in the employment of the Nigerian Institute For Oil palm Research (NIFOR) were aggrieved by the mass termination of their employment and the quit notice served on them. They sued NIFOR and its officials claiming inter alia a declaration that the termination of their employment was wrongful and that they were still employees of NIFOR.
Akintan, JCA at pages 467 – 468 of the report held that –
“the claim therefore comes within what can only be exclusively adjudicated upon by the Federal High Court by virtue of the aforementioned section 230(1)(q) & (s) of the 1979 Constitution as amended by Decree No.107 of 1993”.
Rowland, JCA at page 469 of the same report held that –
“There is no doubt that the claim falls within the purview of what can only be exclusively adjudicated upon by the Federal High Court by virtue of section 230(1)(q) & (2) (sic) of the 1979 Constitution as amended by Decree No. 107 of 1993”.
The other authorities referred to by the learned counsel are Adebileje v. NEPA (1998) 12 NWLR (Pt. 77) 219 at 227 – 229 Ali v. C.B.N. (1997) 4 NWLR (Pt. 498) 192 NNPC v. Okwor (1998) 7 NWLR (Pt. 559) 637 University of Ilorin v. Olutola (1998) 12 NWLR (Pt.576) 72 Sudan Airways Co. Ltd. v. Abdullahi (1998) 1 NWLR (Pt. 532) 156 Egypt Air v.Abdullahi (1997) 11 NWLR (Pt. 528) 179.
The learned counsel also reminded the court that the respondent prayed the lower court to determine the issue of whether her dismissal was constitutional or not as it affects her right of fair hearing. In the counsel’s view, the determination of that issue led the Kwara State High Court to interprete the Constitution, thus violating the provisions of section 230(1)(s) of the 1979 Constitution as amended by Decree 107 of 1993. He urged the court to declare the decision of the Kwara State High Court a nullity. He relied on – Madukolu v. Nkemdilim (1962) 2 SCNLR 341University of Ilorin v. Olutola (1998) 2 NWLR (Pt. 576) 72 at 78. A.-G., Federation v. Sode (1990) 1 NWLR (Pt. 128) 500, Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.
Finally, Jacobs, Esq., of counsel, submitted that from the above cases it is clear that –
(1) the appellant herein was right in raising the issue of jurisdiction before this court.
(2) the entire proceedings conducted by the Kwara State High Court was a nullity.
(3) this Honourable Court has the power to set aside the judgment, and, strike out the claim of the respondent.
In his reply, Otaru, Esq., of counsel, submitted that the lower court was clothed with the jurisdiction to hear the suit. He conceded that the Court of Appeal in the following cases –
1. University of Abuja v. Professor Ologe (1996) 4 NWLR (Pt. 445) 706
2 M. M. Ali v. Central Bank of Nigeria (1997) 4 NWLR (Pt. 498) p. 192.
3. Sudan Airways Company Ltd. v. Surajo Mohammed Abdullahi (1998) 1 NWLR (Pt. 532) p. 156, and
4.Egypt Air v. Abdullahi (1997) 11 NWLR (Pt. 528) p. 179;
extensively considered the provisions of section 230(1) of the 1979 Constitution as was amended by Decree 107 of 1993 as it affects the jurisdiction of the State High Courts on matters affecting federal agencies.
He however observed that the cases so considered would only be relevant to the present appeal depending on the status of NIPOST.
He then posed the question, is NIPOST a federal agency or an independent corporate entity created by law?
It is the learned counsel’s view that NIPOST is a creature of statute. In this regard, the learned counsel referred to the Decree that established it; to wit: NIPOST Decree No. 41 of 1992. The learned counsel referred to the several sections of the said Decree.
In particular, he referred to the interpretation section of the Decree wherein the following words were defined, namely “Board” and “Postal Service”. He contended that when the provisions are read together it leaves one in no doubt that NIPOST is a creation of the Statute and is an independent body. Consequently, in the learned counsel’s view, it is not subject to the direct control of the Federal Government as the overall control of NIPOST is vested on the Board.
It is the learned counsel’s view that whether the relationship of agency exists in a particular case depends on the facts of that case. It is submitted that considering all the provisions of the Decree which established NIPOST the facts of the present case are different from the facts of the cases considered by the Court of Appeal which are referred to above. He contended that the provisions of the Decree which established the University of Abuja are not the same as that which established NIPOST.
The learned counsel urged the court to apply the basic principles of interpretation in interpreting Decree No. 41 of 1992. In which case, words used in the statute should be given their ordinary and plain meanings. The court, in the learned counsel’s view, should not import in that statute what is obviously not there. He contended that the word “agency” should not be imported into or inferred from the provisions of Decree No. 41 of 1992. This is because, the Decree is silent on the relationship between NIPOST and the Federal Government. He cited the case of Awolowo v. Shagari (1979) 6 -9SC51 at 90-92.
The learned counsel observed that in the case of Ali v. C.B.N. (1997) 4 NWLR (Pt. 498) p. 182, the court in interpreting the provisions of Decree 107 of 1993, did not consider the relationship between the Central Bank of Nigeria and the Federal Government.
In his view, if the relationship was considered, it would have been seen that the law which established the Central Bank of Nigeria clearly provided an agency relationship between the Federal Government and the Central Bank of Nigeria. He contended that even if NIPOST is a federal agency, it has to be remembered that the redress which was sought by the respondent in the lower court was for specific performance. In that case, in his view, the provisions of Decree No. 107 of 1993 do not apply. The learned counsel referred to part of the judgment of the lower court. It reads –
“The plaintiff’s employment is one whose contract is covered by the Civil Service Rules and the Constitution as such enjoys statutory flavour. In this category where the employer is in breach of the contract of employment in appropriate cases, the court can order specific performance or re-instatement of the employee”.
He observed that the case is not dissimilar to the case of NEPA v. B. Edegbero & Ors. unreported suit No. CA/A/66/97 delivered on the 18th day of July, 2000 where Bulka-Chuwa, JCA held that a State High Court has the jurisdiction to hear cases indicated in the proviso to Decree No. 107 of 1993. He then cited a number of cases including- Ona v. Attanda (2000) 5 NWLR (Pt. 656) 244., Musa & Ors. v. Hashim (unreported Appeal No. CA/A/39/99)
Egbuonu v. Bomu Radio (1997) 12 NWLR (Pt.531) 29, (1997) 12 SCNJ 99 which he claims support his view that the State High Court has the jurisdiction to hear such cases. He urged the court to dismiss the appeal as lacking in merit.
Before I deal with the submissions of the learned counsel for the parties, I observe that the issue of jurisdiction was not raised in the court below. It is however accepted that the issue of jurisdiction may be raised at any time during trial, even for the first time, at the Supreme Court. The issue of jurisdiction is of fundamental importance to the validity of a trial. If a court has no jurisdiction to hear a case, the trial is a nullity however well conducted. It is therefore not in doubt that this court can entertain the issue even though it was not raised in the court below.
Having said this, it seems to me that the issue of jurisdiction raised in this appeal calls for the interpretation of section 230(1)(q)(r) and (s) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree 107 of 1993.
The opening paragraph of the section reads –
“Notwithstanding any thing to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of The National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters arising from….”
The general rule for interpreting a statute is that where the words of a statute are clear, a court should give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the Statute itself, or external aid from the statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. Mobil Oil Nigeria Ltd. v. Federal Board of Inland Revenue (1977) 3 SC p. 1.
Applying the above rule of interpretation it is evident that the wordings of the opening paragraph of the section are clear and unambiguous. The provisions intend to give the Federal High Court exclusive jurisdiction in matters specified in the section. The matters so specified include –
“(q) the administration or the management and control of the Federal Government or any of its agencies”.
Thesaurus of English Words and Phrases defines “to administer” as meaning inter alia –
“direct, manage, govern, conduct, guide, steer, pilot etc”.
In my respectful view, the dismissal of the respondent by the appellant is caught by the above definition. Consequently, it is covered by the provisions of section 230(1)(q) above.
It is necessary, in my respectful view, at this point to refer to the relevant provisions of the Constitution for a better understanding of the submissions of the learned counsel. Under the Constitution of the Federal Republic of Nigeria 1979, as amended, the Federal Government has the exclusive right to regulate “Posts, Telegraphs and Telephone”. Pursuant to this power, the Federal Government promulgated Decree No. 41 of 1992. In the said Decree, it established a Board with the responsibility for managing the postal services.
With the foregoing background, it is not difficult to see the linkage between the Federal Government and the Board established by Decree 4 of 1992. After all the Federal Government cannot by itself carry out the functions assigned to it by the Constitution. It has to carry out the functions through bodies like Boards of Corporations etc.
Before us, Otaru, Esq., of counsel, referred to the proviso in section 230(1) of the Constitution. He reminded the court that the Civil Service Rules which regulate the employment of the respondent with the appellant is an enactment. It is his view that as the conditions set down in the rules were not followed by the appellant, it was in order for the respondent to bring the action for redress in the State High Court.
I consider it necessary to reproduce here in extenso the provision of section 230(1)(q)(r) & (s). It reads –
“Notwithstanding any thing to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have & exercise jurisdiction to the exclusion of any other court in civil causes or matters arising from-
(q) the administration or the management and control of the Federal Government or any of its agencies;
(r) subject to the provisions of the Constitution the operation & interpretation of this Constitution as far as it affects the Federal Government or any of its agencies; and
(s) any action or proceeding for a declaration of injunction the validity of any exercise of administrative action or decision by the Federal Government or any of its agencies.
Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this sub-section shall prevent a person from seeking a redress against the Federal Government or any of its agencies in an action for damages injunction, or specific performance where the action is based on any enactment, law & equity”.
Jowitt’s- Dictionary of English Law defines “proviso” as meaning inter alia –
“Provisos are frequently inserted in Statutes e.g. for the purpose of saving existing rights or right of the Crown or generally for exemption from the protection from the operation of the particular Act”.
The authors of Maxwell on Interpretation of Statutes, Eleventh Edition are of the view that it is common learning that the object of a proviso in a Statute is to cut down or qualify some thing which has gone before.
From the foregoing, it is accepted that the proviso in a provision of a law, is a clause of exception or qualification in the Act. It is trite that a proviso speaks the last intention of the legislature in an Act.
A.-G., v. Chelsea Water Works Co. 1731 Fitsy 195.
It is because of this that an Act containing a proviso is not to be construed on its first or enacting part without reference to the “proviso”. It follows in my respectful view, that a section of an Act that contains a proviso must be construed as a whole, each portion throwing light on the rest. It is in that vein that the provision of section 230(1) supra has to be interpreted as a whole.
Before then, it is necessary to identify the problem (mischief) which that section of the Constitution was designed to remedy. It is when the mischief is identified that this court would adopt a construction that will suppress the problem and advance the remedy.
Section 230 of the Constitution of the Federal Republic of Nigeria, 1979 before the amendment reads –
“(1) Subject to the provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree the Federal High Court shall have jurisdiction –
(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly or by Decree, and
(b) in such other matters as may be prescribed as respects which the National Assembly has power to make Laws.
(2) Notwithstanding sub-section (1) of this section, whereby law of any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which sub-section (1) of this section relates, such court shall as from the date which this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers & exercise the jurisdiction conferred upon it by any law”.
It does seem to me that a careful look at the above provision and the new section 230(1)(q)(r) & (s) shows that the legislature intended, by the amendment, to give the Federal High Court the exclusive jurisdiction to hear civil cases affecting the Federal Government and its agencies in matters relating to
“the administration or the management & control of the Federal Government or any of its agencies”.
In that case, in my view, the Kwara State High Court had no jurisdiction to hear the present suit as it affected the administration or the management of an agency of the Federal Government. The issue is therefore resolved in favour of the appellant.
The proceedings before the Kwara State High Court in suit KWS/160/94 are a nullity. The case has to be instituted in a court that has the jurisdiction to hear it.
In the light of my foregoing, it is premature for this court to express any opinion on the remaining two issues. This is to avoid influencing the decision of the court that may hear the case de novo.
In sum, the appeal is meritorious and it is allowed. I make no order as to costs.
OKUNOLA, J.C.A.: I have had the benefit of reading in draft the leading judgment of my learned brother Amaizu, JCA. My Learned brother had succinctly reviewed the facts of this case. He had carefully dealt with the jurisdictional issue raised in this appeal. I agree with his reasoning and conclusion that the Kwara State High Court which heard this case in the lower court lacked the jurisdiction to do so since the instant suit affected the administration or the management of the Federal Government agency.
Consequently, I too hold that the proceedings before the said court in Suit No. KWS/16/94 are a nullity, I agree with my learned brother in the Ieading judgment that the appeal is meritorious and should be allowed.
I too allow the appeal and abide with the consequential orders made in the leading judgment including the order as to costs.
ONNOGHEN, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Amaizu, JCA, just delivered.
The primary issue in this appeal is whether the Kwara State High Court has jurisdiction to entertain and determine the respondent’s case against the appellant having regards to the provisions of section 230 (1)(q)(r) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993. If the answer to this question is in the negative, it means the judgment of the learned trial Judge involved in this appeal is a nullity due to lack of jurisdiction. If that is the case it becomes a mere academic exercise to proceed to determine the other issues to wit, whether from the pleadings and the evidence before the lower court the dismissal of the respondent vide a letter dated 31st May, 1994 was wrongful, unconstitutional and illegal and whether the respondent is entitled to an order of reinstatement. In other words, if the lower court had no jurisdiction to entertain the matter and enter the judgment which it did, then this court, being a court of appeal has no jurisdiction to review the said judgment by going into the merits or otherwise of that judgment which in law is a total nullity. It follows therefore that it is only when the answer to the primary issue is in the positive that it becomes necessary to go further to consider the other two issues raised in this appeal and reproduced earlier in this judgment – the existence of jurisdiction in the lower court is what gives life to the said additional two issues otherwise they are dead.
It has been held by this court in a long line of cases including the following; University of Abuja v. Ologe (1996) 4 NWLR (Pt.445) 706; Ali v. CBN (1997) 4 NWLR (Pt. 498) 192; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459; Adebileje v. NEPA (1998) 12 NWLR (Pt. 577) 219 at 228 – 229; NNPC v. Okwor (1998) 7 NWLR (Pt. 559) 637; I.G.P. v. Aigbiremelen (1999) 13 NWLR (Pt. 635) 447 at 452 – 454; Ompadec v. Ajoku (2001) 8 NWLR (Pt. 715) 379 etc, that the State High Court has no jurisdiction over termination, suspension or dismissal of an employee of the Federal Government or any of its agencies in accordance with the provisions of section 230(1)(q)(r)(s) of the 1979 Constitution as amended by Decree No. 107 of 1993. That point is therefore taken as settled.
That being the case it follows that what needs to be decided while resolving the issue under consideration is whether the appellant is an agency of the Federal Government so as to come under the provisions of the said section 230 (1)(q)(r)(s) supra having regards to the fact that the respondent’s action in the lower court claimed a declaration that her dismissal was illegal and also an order of reinstatement.
Apart from the reasons or the conclusion reached by my learned brother Amaizu, J.C.A., on this life issue, this court, per Uwaifo, JCA (as he then was) held in the case of NDIC v. F.M.B. (1997) 2 NWLR (Pt. 490) 735 at 754, as follows and I quote:
“It seems to me on reading section 230(1)(a) – (s) of Decree No. 107 of 1993 as a whole, it will be more readily appreciated that the intention is to bring litigation in all matters. which in one form or another concern, affect or reflect on the revenue and other fiscal measures of the Federal Government, the running of the Federal Government and its agencies, and of financial institutions, such as banks inter se and inter partes and such other matters coming within or are regulated under the exclusive list of the Federal Government, largely under the exclusive jurisdiction of the Federal High Court. It would be seen that this enactment has essentially brought to an end the high points of the controversy generated by the decision of the Supreme Court in Savannah Bank Ltd. v. Pan Atlantic Shipping Transport Agencies Ltd. (1987) 1NWLR (Pt. 49) 212”. Emphasis supplied by me..
Looking at Item No. 44 on the Exclusive Legislative List attached to the 1979 Constitution, being the relevant Constitution to this case one finds that “Post” and “Telegraph” is listed as one of the exclusive functions of the Federal Government. So applying the authorities to the facts of this case, it is clear and I hereby hold that the appellant have been established by the Federal Government vide Decree No. 41 of 1992 to carry out the function of “Post” in line with Item No. 44 of the Second Schedule Part 1 of the Exclusive Legislative List of the 1979 Constitution is an agency of the Federal Government of Nigeria and thereby covered by the provisions of Decree No.107 of 1993.
In University of Abuja v. Ologe (1996) 4 NWLR (pt. 445) 706 at 725 this court held thus:
“The use of the expression “any of its agencies” in Decree No. 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions.”
This clearly puts the matter beyond doubt that the appellant is an agency of the Federal Government and that the proper court to litigate on the subject matter before the lower court is the Federal High Court, not the State High Court.
I have reached this conclusion despite the argument of learned counsel for the respondent that since the appellant has a board of directors that controls and directs its activities separate and distinct from the Federal Government, it cannot be said to be an agency of the Federal Government. That argument sounds good but in reality it does not deserve any weight in that all other agencies of the Federal Government that have been held to be subject to the provisions of Decree 107 of 1993 do also have board of directors. In any event, these boards are appointed and disciplined by the Federal Government so it is a distinction without a difference.
In conclusion, I agree with my learned brother Amaizu, JCA that there are merits in this appeal and should be allowed. I too allow the appeal and abide by the consequential orders made in the said lead judgment of my learned brother including the order on costs.
Rotimi Jacobs, Esq.For Appellant
Rowland Otaru, Esq.For Respondent