SUNDAY AINABEBHOLO v. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY & ORS
(2015)LCN/7819(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of March, 2015
CA/B/383/2012
RATIO
COURT: JURISDICTION; HOW TO DETERMINE WHETHER A COURT HAS JURISDICTION TO ENTERTAIN AND DETERMINE A MATTER OR CAUSE
Indeed, the law is well settled, that in considering whether or not a court has jurisdiction to entertain and determine a matter or cause, both the law in force when the suit was commenced, and the state of law and the current state of the law, at the time of hearing, must amply be considered: OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt. 905) 416 @ 469 – 470 paragraphs H – F. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
ACTION; CAUSE OF ACTION; WHETHER THE SUBSTANTIVE LAW EXISTING AT THE POINT IN TIME A CAUSE OF ACTION ACCRUES GOVERNS THE DETERMINATION OF THE ACTION AND THE COURT CLOAKED WITH THE JURISDICTIONAL COMPETENCE TO ADJUDICATE THE CASE
Undoubtedly, it’s a well settled cardinal principle, that the substantive law existing at the point in time a cause of action accrued governs the determination of the said action vis-‘a-vis the rights and obligations of the respective parties thereto. See AG LAGOS STATE VS. DOSUNMU (1989) 5 NWLR (Pt. 111) 552; ALAO VS. AKANO (1988) 1 NWLR (Pt.71) 431; UWAIFO VS. AG BENDEL STATE (1982) 7 SC 124; ROSSEK VS. ACB LTD (1993) 8 NWLR (Pt.312) 382 @ 474; OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt.905) 416 @ 469 – 470 paragraphs H – F, per Edozie, JSC.
However, the foregoing proposition, notwithstanding. The law is indeed trite, that while the existing [substantive] law at the time a cause of action accrued governs the determination of the action, it is the law [being] in force at the time of the trial of the action based on the cause of action that actually determines the court that is cloaked with the jurisdictional competence to ultimately adjudicate [determine] the case. This distinction was aptly expounded by the Apex Court in a plethora of authorities, the foremost of which was UTIH VS. ONOYIVWE (1991) 1 NWLR (Pt. 166) 166 @ 201, per Bello, CJN (of blessed memory). See also ADAH VS. NYSC (2004) 13 NWLR (Pt. 891) 639 @ 648, per Uwaifo, JSC; OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt. 905) 416 @ 469 – 470 paragraphs H – F, per Edozie, JSC. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
SUNDAY AINABEBHOLO Appellant(s)
AND
1. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY
2. J. U. IDIALU
3. DIRECTOR OF CO-OPERATIVE SOCIETIES, EDO STATE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering The Leading Judgment): The instant appeal is against the ruling of the Edo State High Court, Benin Judicial Division, delivered on October 29, 2012, in Suit No.HEK/52/2000. By the ruling in question, the Lower Court, coram Efe Ikponmwonba, J; struck out the Appellant’s suit for want of jurisdiction.
BACKGROUND FACTS:
The genesis of the present appeal is traceable to September 8, 2000. That was the day the Appellant filed in the court below a Writ of Summons seeking various declaratory and injunctive reliefs against the Respondents. By the endorsement to the writ of Summons and Statement of Claim thereof, the Appellant specifically sought the following reliefs against the Respondents:
a. An order setting aside the findings of the third Defendant panel.
b. An order invalidating the suspension and indefinite suspension order on the Plaintiff.
c. An order reinstating the Plaintiff to his position as Secretary to the First Defendant.
d. An order for payment of the Plaintiff salary and allowances as well as any incrementals from the date of Plaintiff suspension 14th January, 2000, till date of this Courts judgment.
e. An order that the first Defendant convey the 1999 Annual General Meeting.
f. Damages of N12, 000,000 in favour of the Plaintiff for libel committed by the Defendants against the Plaintiff.
g. An order against the Plaintiff for accounts.
h. An order that the second Defendant advertisement for the post of an accountant is in breach of the first Defendant enabling laws and Bye-laws
i. An order against first and second Defendants for the sum of N3, 000,000 being General damages arising from the illegal suspension order placed on the Plaintiff.
j. An order of interlocutory injunction restraining the first and second Defendants and their agents or privy from operating any of the accounts pending the determination of this matter.
By the statement of defence thereof, dated 31/3/01, the 1st and 2nd Defendants not only denied the claim, but also counter-claimed against the Plaintiff thus:
(a) The sum of N960,981.95 being the amount owed the 1st Defendant as at 11th December, 2000 and interest at 21% per annum until Judgment is delivered and 10% per annum thereafter until the Judgment sum is paid.
(b) N327,878.24 general damages suffered by the 1st Defendant when the Plaintiff fraudulently obtained an interim injunction freezing the 1st Defendant’s Bank accounts.
The Plaintiff filed a reply to the 1st and 2nd Defendant’s defence, and thereby urged upon the court –
7. …to strike out the counter-claim as it lacks merit and discloses no cause of action as it (sic) frivolous, malicious and vexatious, and the counter/claimer never suffered any loss at all.
On the part thereof, the 3rd Defendant filed a proposed statement of defence dated April 25, 2001.
However, on 18/5/12, a motion on notice was filed by the 1st and 2nd Defendants seeking the following reliefs:
An order of this Honourable Court striking out this suit i.e. Suit No.HEK/52/2000 for lack of jurisdiction.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The said motion was supported by a 8 paragraphed affidavit deposed to by Ramoni Ayoyinusa of Messrs K. O. Obamogie & Co. counsel to the 1st and 2nd Defendants. On the part thereof, the Appellant filed an 11 paragraphed counter affidavit to the said motion.
On 18/01/12, the PW1 testified for the Appellant, and the case was adjourned to 01/3/12 for further hearing. Eventually, the case came up on 18/7/12. That was the day the learned counsel adopted their respective written addresses regarding the said motion. The ruling was reserved and accordingly delivered on 29/10/12, to the conclusive effect thus:
In the instant suit Plaintiff is an employee of the 1st Defendant who is claiming on matters connected to his terms of employment. Learned counsel to the Plaintiff has conceded that this action, though he has divided it into two parts falls under an industrial matter.
The provision of Section 1A of the Trade Dispute Act as amended is meant to oust the jurisdiction of any other court in Nigeria and to confer exclusive power and jurisdiction on the National Industrial Court in such matters.
In the instant case, the claim of the Plaintiff falls squarely and clearly on matters that can be considered as employee and employer dispute. I therefore have no difficulty in holding and agreeing that this matter falls within the purview of the National Industrial Court.
There is nothing to show that this court can transfer a matter to the National Industrial Court, the Sections referred to by learned counsel for the Respondent are not applicable and deal only with the court of a state.
The case is accordingly struck out.
EFE IKPONMWONBA,
JUDGE
29/10/2012.
It is evident from the record of appeal, transmitted in December 2012, that the Appellant’s notice of appeal was filed on 09/11/12 in the court below. The Appellant’s brief of argument was filed on 16/01/13. The 1st and 2nd Respondents’ brief was filed on 03/4/13. While that of the 3rd Respondent was filed on 22/10/14. The Appellant’s reply brief to 3rd Respondent’s brief was filed on 11/3/14.
The Appellant’s brief spans a total of 9 pages. At page 2 of the said brief, two issues have been raised for determination namely:
(1) Whether the trial Judge was right in striking out the entire suit rather than transfer the industrial aspect of the suit to the National Industrial Court pursuant to the clear provisions of Part II, Section II and Part III, Section 24 (3) of the National Industrial Court Act 2006 No. 3 as incorporated into the 1999 Constitution as amended. In other words if the provisions of the National Industrial Court Act 2006 with particular reference to Part II, II and III, 24(3), and (4) are not binding on the State High Courts.
(2) Whether the trial Judge did not err in law in refusing to assume jurisdiction of the libelous aspect of the Suit as expressly conferred on the State High Courts by virtue of Section 272 of the 1999 Constitution as amended.
The Issue No. 1 was distilled from ground 1 of the notice of appeal and canvassed at pages 2 – 6 of the brief. It’s submitted by the learned counsel, that jurisdiction of the court, to determine any suit before it, is very important. See MADUKOLO VS. NKEMDILIM: (1962) SCNLR 341.
Further submitted, that the present suit, “leading to this second appeal”, was properly filed at the Lower Court in the 2000, when the Lower Court was empowered to entertain all civil matters, including industrial matters, as envisaged under Section 272 of the 1999 Constitution, as amended.
However, there was a drastic change as regards industrial matters, with the creation and coming into operation of the National Industrial Court. See Section 254 C (1) (a), (b) of the 1999 Constitution of the Federal Republic of Nigeria (Third Amendment) Act No. 3, 2010. It was contended, that the present appeal falls into this Section, as part of it has to do with employment (industrial) issue.
That, having been absorbed by the (1999) Constitution, the National Industrial Court Act, 2006 become an Act which is binding on State High Courts. See Section 316 of NIC, 2006; Part III 24 (3) (4).
Further contended, that where the words of a statute are clear and unambiguous, they should be given their ordinary meanings or effect. See OBUZOR VS. AKE (2009) NWLR (Pt.1125) 388 @ 413 – 414; FRN VS. DARIYE (2011) NWLR (Pt. 1265) 521 @ 548.
It’s posited, that the provisions of Part III, Section 24 (3) & (4) of the NIC Act 2006 were premised on equity, fairness, and justice and to prevent any further delay. And that courts have been enjoined to interprete statutes, rules et al in such a way as to smoothen the wheels of justice, and not to be a clog or a set back to it: OKOTIE-EBOH VS. MANAGER (2005) ALL FWLR (Pt.24) 277 @ 294; UTC NIG. LTD VS. PATOMES (2002) FWLR (Pt.129) 557 @ 1625 F – G.
Equally posited, that the Lower Court has permanently deprived the Appellant the justice of this suit and done him wrong. This court has power to put right the said wrong and error by setting aside the decision of the Lower Court, and transfer the industrial aspects of this suit to the National Industrial Court for continuation of hearing. See UBN VS. OJO (1994) 15 LRCN.
The court is urged to hold that the labour aspect of this suit can be transferred to the NIC.
Under Issue No. 2, it was submitted, that the two principal reliefs in this suit are based on the fact that one issue can lead to any causes of action.
They were consolidated with the libel relief by the Appellant to give time and energy to the court. That, jurisdiction is determined by the constitution or statutes. ALIDU ADA VS. NYSC (2005) 1 FWLR (Pt.247) 795 @ 797; ISAAC OBIUWE UBI VS. CBN (Supra) @ 240 D – E.
Further submitted, that even with the amendment of the 1999 Constitution, the State High Courts were never denied jurisdiction to entertain civil suits as conferred by Section 272, except with reference to labour matters. No court should deny itself of jurisdiction to entertain a suit, unless expressly ousted by legislation. See AG LAGOS STATE VS. AG. FEDERATION (2005) ALL FWLR (Pt.244) 805 @ 87 G – H.
That as at now, there is no legislation ousting or suspending the jurisdiction of the Lower Court from entertaining civil suits including libel, except issues based on Part III 24(3) of NIC Act, 2006. See TUKUR VS. GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; JVC PROFESSIONAL PRODUCTION (UK) LTD VS. FAMUYINDE (2011) ALL FWLR (Pt. 578).
Finally submitted, that the order of the Lower Court striking out the suit is not appropriate, as that would constitute a permanent bar to any attempt by the Appellant to pursue the matter further to its merit. And the attitude of the Lower Court is not in the interest of administration of justice. See LAWAL VS. GOVERNOR OF KWARA STATE (2005) FWLR (Pt. 250) 106 @ 160 paragraphs C – D.
The court is urged to so hold, allow the appeal, and grant the Appellant’s reliefs.
On the other hand, the 1st and 2nd Respondents’ brief spans a total of eight pages. A sole issue has been formulated at page 2 of the said brief, to the following effect:
“Whether the learned trial Judge was not right when he struck out the Appellant’s suit for want of jurisdiction.”
The sole issue is distilled from the two grounds of the notice of appeal.
It was submitted, inter alia, that by the mandatory provisions of Sections 254C(1)(a) (b) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2011, all matters pertaining to master/servant relationship were vested in the National Industrial Court of Nigeria. That, the said Section 254 (1) (a) (b) brought about a fundamental issue in the jurisdiction of the NIC and divested the State High Court, the Federal High Court and the High Court of the FCT of jurisdiction to hear matters pertaining to labour and employment. That, all matters pertaining to labour and employment are now exclusively reserved by the 1999 Constitution, as amended, for the NIC.
That in the instant case, the Appellant sought an escape route and wanted a severance of the suit – with a part being retained by the Lower Court, and the other transferred to the NIC.
Further submitted, that it’s unprecedented, inconceivable, and baffling for the Lower Court to embark on the ridiculous exercise of severing the pleadings, with a view to distributing two different causes of action between two courts with different jurisdiction. That Section 316 (5) of the 1999 Constitution does not advance of the Appellant’s cause in this appeal. As that section bears no relevance to the subject matter of the appeal. The court is urged to discountenance same.
It is contended, that the Lower Court, nevertheless does have jurisdiction to hear and determine the part of the suit relating to libel. However, a litigant must approach a court that has full jurisdiction over his matter. See TUKUR VS. GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 @ 540 paragraph A.
Further submitted, it’s incongruous and unknown for the Appellant to ask this court to severe his claim and entertain a part, and transfer another part to a different court. That a party cannot on his own, confer jurisdiction on a court to entertain a matter. Where there is any defect in competence of a court to adjudicate on a matter, the proceedings are a nullity. The proper order to make in the circumstance, is to strike out the matter. See SANUSI VS. AYOOLA (1992) 9 NWLR (Pt.265) 275 @ 301; OLUTOLA VS. UNIVERSITY OF ILORIN (2004) 18 NWLR (Pt.905) 416 @ 469 – 470 H – F; ASAKWE VS. FED. COLLEGE OF EDUCATION (2010) (Pt.1201) 1 @ 43 F – G.
It was urged upon the court to discountenance the Appellant’s argument at pages 6 – 7 of the brief thereof, as the court cannot embark on severance of pleadings for the purpose of distributing the suit between the two different courts, the Lower Court and the National Industrial Court. That, paragraphs i – m at page 5 of Appellant’s brief resorted to sentimental issues which command no place in the administration of justice. See EZEUGO VS. OHANYERE (1978) 6 – 7 SC 171 @ 184.
The court is urged to so hold, and dismiss the appeal.
On the part thereof, the 3rd Respondent has raised a sole issue at page 2 of the said brief to the effect of –
“Whether the learned trial Judge was right when he struck out the Appellant’s suit for want of jurisdiction.”
It was submitted that the Suit – HEK/52/2000 relates to master/servant relationship, which is now reserved for the NIC, vide Section 7(1) of the NIC Act, 2006.
Further submitted, that in ascertaining whether a court has jurisdiction over a cause or matter before it, the court will look at the origination process. In this case, the originating process is the Writ of Summons contained at page 1 – 2 of the Record of Appeal. See AG LAGOS STATE VS. HON. JUSTICE DOSUNMU (1989) 3 NWLR (Pt.111) 55 @.
It was contended, that the claim is in respect of contract of employment, which the Lower Court lacked the jurisdiction to entertain in view of Section 254 (1) (a) & (b) of the Constitution Act, 2011. See OSAKWE VS. FED. COLLEGE OF EDUCATION (2010) 10 NWLR (Pt. 1210) @ 43.
Referring to paragraph 4 of the counter-affidavit of the Appellant contained at page 21 of the Record, it’s posited that the main or principal case was the labour issue, and that that libel was merely an ancillary issue that emanated therefrom. Therefore, the Lower Court could not have severed the claim and entertained a part thereof. See SANUSI VS. AYOOLA (1992) 9 NWLR (Pt. 265) 275 @ 283.
Further contended, that there is nothing to show from the counter-affidavit, that the Lower Court has jurisdiction to transfer a case to the NIC. See paragraphs 4, 5, 6 and 10 of the counter-affidavit; Section 11 (2) of the NIC Act, 2006.
Equally posited, that from the time NIC Act, 2006 came into effect (2006) and delivery of ruling on 18/7/12, it was six years. Thus, the Lower Court righty struck out the case for want of jurisdiction. See MATARI VS. DANGA LADIMA (1993) 3 NWLR (Pt.281) 266 @ 275; EBHODAGHE VS. OKOYE (2005) 1 MJSC 156; NATIONAL BANK (NIG) LTD VS. SHOYEYE (1997) 5 SC 181; INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt.1025) 423.
What’s more, it was contended that there is no provision in the High Court Law of a State for transfer of cases to National Industrial Courts.
Conclusively, the court is urged to dismiss the appeal.
By the reply brief thereof, the Appellant has raised what he termed: “PRELIMINARY OBJECTION/REPLY ON POINT OF LAW:” at page 2. The reply brief exclusively relates to the 3rd Respondent’s brief, most especially as regards paragraphs (i) 2.1; (ii) 3.8; (iii) 3.13; (iv) 3 – 14; (v) 1.17; thereof, respectively.
From the outset, it was submitted thus:
It is worthy to note that the 3rd Respondent never filed any application nor responded to the ones served on it by the Appellant including the written addresses in the Lower Court. It is therefore our submission that having failed to file or respond to the process served on it in the Lower Court, it cannot rely on the 1st and 2nd Respondents’ addresses to address this honourable court. However should my Lords hold that the 1st and 2nd Respondents’ processes before the Lower Court can be relied on by the 3rd Respondent to address their Lordships, it is therefore my submissions on point of law as follows:
Conclusively, the Appellant urged upon the court thus:
“to do justice to this Appeal by allowing it.”
I have amply considered the submissions of the learned counsel, contained in the respective briefs of argument thereof vis-‘a-vis the record of appeal. I am of the view, that the issues raised in the respective briefs of the learned counsel are not mutually exclusive.
However, I have deemed it apt to adopt the two issues, mutatis mutandi, raised in the Appellant’s brief for the determination of the appeal.
ISSUE NO. 1:
The Issue No. 1 raises the question of whether or not the Lower Court was right in striking out the entire suit rather than transferring same to the National Industrial Court.
The respective parties are id idem, that the instant case raises the issue of jurisdiction. It is a trite and well settled principle, that the issue of jurisdiction is not merely important, but rather fundamental in the administration of justice. See MADUKOLU VS. NKEMDILIM (1962) SCNLR 341.
As copiously alluded to above, the instant suit (HEK/52/2000) was filed on Sept 8, 2000. As at that time, the National Industrial Court did not come into being. Undoubtedly, the National Industrial Court came into being pursuant to the enactment of the National Industrial Court Act, 2006. See Section 1 of the Act. And by virtue of Section 11 (1) of the Act, the NIC has been conferred with the following exclusive jurisdiction:
Section 11 of the NIC Act, 2006 (Supra) provides that –
(1) In so far as jurisdiction is conferred upon the court in respect of causes or matters mentioned in the foregoing provisions of this Act, the Federal High Court of the Federal Capital Territory, Abuja, to extent that exclusive jurisdiction is so conferred upon the court, cease to have jurisdiction in relation to such causes and matters.
However, notwithstanding the provisions of Section 11 (1) (Supra), it is unequally provided under Subsection (2) of Section 11 of the Act thus:
(2) Nothing in subsection (1) of this Section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and mattes which are part-heard before the commencement of this Act and any proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act shall abate.
It is so obvious, from the Record of Appeal, that the last process that was filed prior to the enactment of the NIC Act, 2006 was the 3rd Defendant’s proposed Statement of Defence, dated 25/4/2001. See pages 15 – 16 of the Record. As at that date (25/4/01), hearing in the suit was not commenced. No single witness had so far testified in the case. Therefore, in my view, the suit could not rightly be considered as part-heard cause or matter within the purview of the provision of Section 11 (2) of the NIC Act, 2006 (Supra).
Hearing of the case was commenced on January 18, 2012. See pages 23 – 24 of the Record. Thereafter on 08/5/12, the 1st & 2nd Respondents’ filed the vexed Motion on Notice seeking to strike out the suit on ground of lack of jurisdiction. See pages 17 – 20 of the Record. The Appellant’s counter affidavit to the said Motion on Notice was dated and filed on 15/6/12. See pages 21 – 22 of the Record.
Consequent upon which the learned counsel adopted their respective written addresses on 18/7/12. See pages 24 – 35 of the Record. Thus, resulting in delivering the vexed ruling on 31/10/12 in the Lower Court. See pages 34 – 39 of the Record.
Thus, as alluded to above, hearing of the suit did not commence until on January 18, 2012. That was indeed the very day that the only PW1, one OKUNALABA testified. So, even where hearing has commenced (with at least one witness testifying), the suit ought not to have remained on the cause list of the Lower Court been one year after the commencement of the NIC Act, 2006 (on 18/9/2006). Thus, by 19/9/2007, all part-heard causes or matters ought to have been transferred to the NIC.
It is my considered view, that from the 19/9/2007, one year after the commencement of the NIC Act, 2006, the Lower Court had ceased to have jurisdiction to determine any part-heard causes or matters that were subject to the exclusive jurisdiction of the NIC, by virtue of the provisions of Section 11 (1) and (2) of the NIC Act, 2006 (Supra).
What’s more, by virtue of the provisions of Section 254 (1) (a) & (b) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2011, the fact that the Lower Court has no jurisdiction to entertain the Suit in question, most especially regarding employment is no longer in doubt. The said Section 254 C(1) (a) & (b) provides thus:
Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:
(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the condition of service, including health, safety, welfare labour, employee, worker and matters incidental thereto or connected with.
Thus, consequent upon the foregoing explicit provisions of Section 254C (1) (a) (b) of the Federal and State High Courts have been effectively and unequivocally divested of any jurisdictional competence to entertain and determine matters stipulated therein. Undoubtedly, such civil causes and matters stipulating under Section 254 C (1) (a) (b) (Supra) have now become subject to the exclusive jurisdictional competence of the NIC. See OSAKWE VS. FEDERAL COLLEGE OF EDUCATION (2010) 10 NWLR (Pt.1210) 1 @ 43.
The Appellant has deposed in paragraph 4 of the counter affidavit thereof to the effect thus:
4. That in specific response to paragraph 5 of the affidavit in support of motion, the entire suit is not purely an industrial matter or master/servant relationship as part of the suit also has to do with libel.
Thus, it would be highly preposterous for the Appellant to assume, as he did, that the Lower Court would sever the Appellant’s claim with a view to transferring the aspect of the labour to the NIC, and proceeding to entertain and determine the ancillary libel claim. Undoubtedly, the Lower Court has no jurisdictional competence to sever the claim, with a view to transferring a part, and determining a part thereof. See SANUSI VS. AYOOLA (1992) 9 NWLR (Pt.265) 275 @ 283.
In my view, the Lower Court rightly struck out, albeit belatedly, the suit on the ground that it no longer had jurisdiction to proceed to determine same having regard to the provision of Section 11 (2) of the NIC Act, 2006 (Supra):
(2) Nothing in Subsection (1) of this Section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or the Federal Capital Territory, Abuja to continue to hear and determine causes and matter which are part-heard before the commencement of this Act and any proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate.
From the 08/9/2000, when the Writ of Summons was filed, to 31/10/12, when the vexed ruling was delivered by the Lower Court, it was certainly more than twelve years time. It is trite, that parties on their own accord cannot confer jurisdictional competence upon a court to hear and determine a matter or cause. Where, therefore, there is an apparent defect in competence of a court to adjudicate on a matter, any proceedings that may have been embarked upon by the court tantamount to a nullity, and liable to be set aside. Thus, in such circumstance, as in the present case, the most appropriate order for the court to make is to strike out the matter. SANUSI VS. AYOOLA (1992) 9 NWLR (Pt.265) 275 @ 301.
Indeed, the law is well settled, that in considering whether or not a court has jurisdiction to entertain and determine a matter or cause, both the law in force when the suit was commenced, and the state of law and the current state of the law, at the time of hearing, must amply be considered: OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt. 905) 416 @ 469 – 470 paragraphs H – F.
In the instant case, the Lower Court was right, albeit belatedly, when it struck out the suit on the ground that it lacked jurisdiction to hear and determine the employment (labour) matter. See MATARI VS. DAN GALADIMA (1993) 3 NWLR (Pt.281) 266 @ 275; EBHODAGHE VS. OKOYE (2005) 1 MJSC 156; NATIONAL BANK (NIG) LTD VS. SHOYEYE (1997) 5 SC 181; INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt.1025) 423; PLATEAU STATE OF NIGERIA VS. AG FEDERATION (2006) 3 NWLR (Pt.967) 346 @430 paragraphs B – C, OSAKWE VS. FEDERAL COLLEGE OF EDUCATION, ASABA (2010) 10 NWLR (Pt.1201).
Most especially in the case of OSAKWE VS. FCE, ASABA (Supra), it was aptly held at 43 F – G, inter alia, thus:
The appellant sought redress at the High Court in Asaba in 1992. The court commenced trial in the action in 1994. Decree 107 of 1993 became operative in November, 1993. The law applicable to the cause of action and that applicable to determine the jurisdiction of the court in this case copiously defer. It is however apparent that by the time the case of the appellant was heard in 1994, the State High Court had been divested of jurisdiction.
In the circumstance, the Issue No. ought to be, and same is hereby resolved against the Appellant in favour of the Respondents.
ISSUE NO. 2:
The second issue raises the question of whether the Lower Court was in error in law when it refused to assume jurisdiction of the libelous aspect of the suit, as expressly conferred thereupon by virtue of Section 272 of the 1999 Constitution, as amended.
In my considered view, having already resolved the Issue No. 1 against the Appellant, there is no gainsaying the fact, that the Issue No. 2 must equally be resolved against them, for some obvious reasons.
As alluded to above, by the mandatory provisions of Section 254 C (1) (a) (b) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2011, all matters pertaining to master/servant relationship have been vested in the National Industrial Court. The said Section 254 C (1) (a) is most particularly to the following effect:
Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:
(a) Relating to or connected with any labour, employer, trade unions, industrial relations and matters arising from work place, the condition of service, including health, safety, welfare of labour employee, worker and matters incidental thereto or connected with.
Thus, by virtue of the foregoing provisions of Section 254 C (a) (b) (Supra), all matters regarding labour and employment have become exclusively reserved by the constitution for the National Industrial Court. In other words, the National Industrial Court is by the said provisions vested with the exclusive jurisdictional competence to entertain and determine all matters pertaining to labour and employment.
Having amply considered the Writ of Summons, the endorsement thereto, the entire 42 paragraphed statement, contained at pages 1 – 2, and 4 – 9 of the Record of Appeal, there is every cogent reason for me to uphold the finding of the Lower Court at page 39 of the Record of Appeal, to the following conclusive effect:
In the instant case, the claim of the Plaintiff falls squarely and clearly on matters that can be considered as employee and employer dispute. I therefore have no difficulty in holding and agreeing that this matter falls within the purview of the National Industrial Court.
The aspect of libel, vehemently agitated upon by Appellant’s learned counsel, are based on paragraphs 29, 37, and 42 (f) of the Statement of Claim, contained at pages 4 – 9 of the Record of Appeal, viz:
29. That the entire report released by the third Defendant on the crisis in the first Defendant and titled “Investigation into Alleged Conflict Between the Executive Committee and some Members of Staff of Edo State University Workers M.P.C.S. LTD EKPOMA – GOVERNMENT’S VIEW ON THE MATTER” be set aside as the conclusion were bias, tainted with malice, prejudicial to the Plaintiff interest, libelious and a breach of the Plaintiff’s fundamental right to fair hearing as enshrined in the constitution of the Federal Republic of Nigeria.
37. The second Defendant’s allegation that the Plaintiff was “fraudulently enjoying ……… credit” is not only malicious but libelious as the statement imputed criminal conduct on the part of the Plaintiff and it was intended to make the shareholders of the first Defendant, the third Defendant and her agents, other people who had high regard as to the Plaintiff credit and reputation to look down on him as a dishonest person, a liar, untrustworthy and infact a common thief. This libelious conduct of the first and second Defendant has greatly injured the reputation and good name of the Plaintiff and the Plaintiff shall at the trial ask the Court to award damages amounting to N12,000,000 against the first, second and third Defendants for injury to reputation and credit.
42. WHEREOF THE PLAINTIFF CLAIM AS FOLLOWS:
…
(f) Damages of N12,000,000 in favour of the Plaintiff for libel committed by the Defendants against the Plaintiff.
It is obvious from the said paragraphs 29, 37, and 42 (f) of the Appellant’s Statement of Claim, that the claim for libel stemmed exclusively from the Industrial dispute between the employer and employee i.e. the Appellant and the 1st Respondent. Therefore, the issue of libel cannot reasonably be divorced or severed from the entirety of the industrial dispute between the respective parties.
Undoubtedly, it’s a well settled cardinal principle, that the substantive law existing at the point in time a cause of action accrued governs the determination of the said action vis-‘a-vis the rights and obligations of the respective parties thereto. See AG LAGOS STATE VS. DOSUNMU (1989) 5 NWLR (Pt. 111) 552; ALAO VS. AKANO (1988) 1 NWLR (Pt.71) 431; UWAIFO VS. AG BENDEL STATE (1982) 7 SC 124; ROSSEK VS. ACB LTD (1993) 8 NWLR (Pt.312) 382 @ 474; OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt.905) 416 @ 469 – 470 paragraphs H – F, per Edozie, JSC.
However, the foregoing proposition, notwithstanding. The law is indeed trite, that while the existing [substantive] law at the time a cause of action accrued governs the determination of the action, it is the law [being] in force at the time of the trial of the action based on the cause of action that actually determines the court that is cloaked with the jurisdictional competence to ultimately adjudicate [determine] the case. This distinction was aptly expounded by the Apex Court in a plethora of authorities, the foremost of which was UTIH VS. ONOYIVWE (1991) 1 NWLR (Pt. 166) 166 @ 201, per Bello, CJN (of blessed memory). See also ADAH VS. NYSC (2004) 13 NWLR (Pt. 891) 639 @ 648, per Uwaifo, JSC; OLUTOLA VS. UNILORIN (2004) 18 NWLR (Pt. 905) 416 @ 469 – 470 paragraphs H – F, per Edozie, JSC.
In the circumstance, the Issue No. 2 is hereby resolved against the Appellant, in favour of the Respondents.
Hence, having effectively resolved the two issues against the Appellant, there is every cogent reason for me to hold, that the instant appeal is unmeritorious, and it is hereby dismissed by me. The ruling of the Edo State High Court, holden at Benin City, delivered on the 29/10/2012 in the said Suit No. HEK/52/2000, by Efe Ikponmwonba, J; is hereby affirmed.
There shall be no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have been privileged to read in advance the lead judgment just delivered by my learned brother I. M. M. SAULAWA JCA. I am in full agreement with the reasoning and conclusion reached therein.
My learned brother has laid down the law in very clear and unambiguous terms. The issues herein have also been eloquently and completely marshalled to the extent that I have indeed nothing more useful to add. I hereby reiterate the fact that this appeal is lacking in merit and is hereby also dismissed by me.
Accordingly, and in consequence, the Ruling of the Edo State High Court delivered on the 29th day of October, 2012 in Suit No.HEK/52/2000, by Efe Ikponmwonba, J. is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: Jurisdiction is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline and livewire of all proceedings in a court or tribunal. It is the spinal cord of a court of law: A – G OYO STATE vs. NLC (2003) 8 NWLR (Pt.821) 1 at 26. Where jurisdiction is lacking the entire proceedings are a nullity, however well conducted: ROSSEK vs. ACB (1993) 8 NWLR (Pt.312) 383 at 437C – G and 487G – H and MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13.
From the Records of Appeal, it is clear that the Appellant’s action before the Lower Court was in respect of an employment relationship. By section 11 of the National Industrial Court Act 2006, exclusive jurisdiction was vested in the National Industrial Court to hear causes and matters arising from employment relationships. However, the saving provision was that part-heard matters pending at the Federal High Court and State High Courts in respect of causes and matters bordering on employment relationships were to continue and be determined or concluded with one year of the commencement of the National Industrial Court Act 2006, after which the actions shall abate.
As at the commencement date of the National Industrial Court Act, 2006, the Appellant’s case was not part-heard before the Lower Court. Indeed hearing did not commence in the Appellant’s case at the Lower Court until January 18, 2012, which was several years after the Lower Court had been divested of jurisdiction to entertain the case by the provisions of Section 11 of the National Industrial Court Act, 2006.
The fundamental nature of jurisdiction and the effect of proceeding where a court lacks jurisdiction is such that that the jurisdictional question has to be determined at the earliest opportunity. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (Pt.84) 508 at 520:
“If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the court and to the parties to do so.”
It was a waste of time for the Lower Court to have started hearing in the matter in the first place. Happily, however the Lower Court expounded its jurisdiction by correctly declining jurisdiction to entertain the matter, albeit, a little late in the day. It is for the foregoing reasons and the detailed and fuller reasons contained in the lead judgment of my learned brother, Ibrahim Mohammed Musa Saulawa, JCA, which I had the benefit of reading in draft that I agree that this appeal is devoid of merit. The decision of the Lower Court in suit No.HEK/52/2000 delivered on the 29th October, 2012 declining jurisdiction to entertain the Appellant’s case is hereby affirmed. Accordingly I also dismiss the appeal and abide by the order as to costs made in the lead judgment.
Appearances
B. O. AINABEBHOLOFor Appellant
AND
K. O. Obamogie Esq. with B. O. Okoduwa, P. Y. Musa, S. E. Oyamendan for the 1st and 2nd Respondents.
Mrs. F. I. Monyei, D.C.R.C., Min Of Justice, with F. N. Edokpolor ACSC, for 3rd Respondent.For Respondent
