UNIVERSITY OF ADO-EKITI v. DR. GBOYEGA ISIJOLA
(2015)LCN/8057(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of December, 2015
CA/EK/12/2015
RATIO
LEGAL SYSTEM: THE DOCTRINE OF STARE DECISIS; WHETHER THE AUTHORITY OF THE SUPREME COURT OF NIGERIA BINDS ALL PERSON AND AUTHORITIES IN NIGERIA
The authority of the Supreme Court of Nigeria binds all persons and authorities in Nigeria and such authorities include all Courts of law and tribunals in Nigeria. The decision of the Supreme Court is inviolable and it will be impertinent for any Court in Nigeria to refuse or fail to be bound by it. per. AHMAD OLAREWAJU BELGORE, J.C.A.
COURT: JURISDICTION; WHETHER HIGH COURT OF A STATE CAN TRANSFER MATTER TO FEDERAL HIGH COURT WHERE IT HAS NO JURISDICTION TO ENTERTAIN IT
I need not belabour myself on this issue which has been settled by the Supreme Court since 2006 in the case of FASAKIN (Supra). The Supreme Court held in that case that:- On whether High Court of a State can transfer matter to Federal High Court where it has no jurisdiction to entertain it. Section 22(3) of the Federal High Court Act is a saving provision. It saves a matter duly and properly filed in a Court of law from being struck out. Instead of striking out for lack of jurisdiction, Section 22(3) vests in the High Court of a State the power to transfer the matter to the appropriate judicial division of the Federal High Court Act, Cap. 134, Laws of the Federation of Nigeria, 1990, to the extent that it sets out what a State High Court. per. AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF ADO-EKITI – Appellant(s)
AND
DR. GBOYEGA ISIJOLA – Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice of Ekiti State delivered by Hon. Justice C. I. Akintayo on the 25th day of November, 2013.
The Respondent who was the Plaintiff (the ?Respondent?) in the Court below had filed an action against the Appellant who was the Defendant (the ?Appellant?) on the ground that his employment was wrongfully terminated.
In response, the Appellant,on 7th day of February, 2005, filed their statement of defence, denying material facts contained in the Statement of Claim of the Respondent. And on 5th day of May, 2005 the Respondent filed a reply to the Appellant?s Statement of Defence.
However, on 6th day of March, 2013, the Appellant filed a Notice of Preliminary Objection dated 4th March, 2013, challenging the jurisdiction of the Court on the ground that same has been ousted by the provision of Section 254(c) of the 1999 Constitution (Third Alteration) Act, 2010. They prayed the Court to strike out or dismiss the action.
?The Respondent in his reply to the Notice of Preliminary
Objection dated 21st day of May, 2013 and filed on 24th day of May, 2013 opposed the application and submitted that it will be inequitable to strike out the case in the circumstances since the cause of action arose before the amendment to the Constitution.
They further argued that even where the High Court finds that it lacks jurisdiction and the matter falls within the exclusive jurisdiction of the National Industrial Court, the National Industrial Court Act expressly prohibits the striking out of such cases.
In the Ruling of the Court below, the objection of the Appellant succeeded in part. The Court agreed with the Appellant that from the moment Section 254(c)of the 1999 Constitution (Third Alteration) Act, 2010 was signed into law, the jurisdiction of the High Court to adjudicate over matters relating to industrial, trade unions, labour and employer-employee disputes as in the instant case at has been ousted and is now vested in the National Industrial Court.
?But in the place of striking out or dismissing the case as prayed by the Appellant, the Court in its wisdom considered the submissions of the Respondent and the provisions of Section
24(3) of the National Industrial Court Act, 2006 to transfer same to the National Industrial Court.
The Court was of the further opinion that striking out the Respondent?s case in the circumstance will deprive him of his guaranteed right of access to justice without any fault of his.
Dissatisfied with the ruling of the Court below, the Appellant appealed to this Court by a Notice of Appeal dated 9th day of December, 2013 and filed on 12th day of December, 2013 praying this Court to allow the Appeal and set aside the ruling of the trial High Court on the following grounds:
GROUND 1
The lower Court erred in law and came to a perverse decision when it transferred this case to the National Industrial Court after holding that it lacks jurisdiction to entertain same.
PARTICULARS OF ERROR
i. The lower Court lacks the power to transfer the case to the National Industrial Court.
ii. There is no provision in the Rules of the lower Court or any law made by Ekiti State House of Assembly empowering the lower Court to effect the transfer.
iii. The lower Court refused to be persuaded by the decided authorities of Court of Appeal
and the Supreme Court cited to it.
iv. The reason adduced by the lower Court for ordering for the transfer of the case is based on sentiment.
v. The position of the law on the issue of the transfer is clear, lucid and unambiguous.
vi. The proper order to be made by the lower Court ought to be one striking out the case.
GROUND 2
The lower Court erred in law and came to a wrong decision when it transferred this case to the National Industrial Court based on the provisions of Section 24(3) of the National Industrial Court Act, 2006.
PARTICULARS OF ERROR
i. Provisions of Section 24 (3) of the National Industrial Court Act does not support the interpretation ascribed to it by the lower Court.
ii. The conditions precedent to the employment of Section 24 (3) of the National Industrial Court Act are lacking in this case.
In their brief of argument,dated 13th day of April, 2015 and filed on 29th day of April, 2015, the Appellant formulated a sole issue for determination, to wit:
Whether the lower Court, having held that its jurisdiction is ousted by the provisions of Section 254(c)of the 1999 Constitution (Third
Alteration) Act, 2010 was not wrong to have transferred the case to the National Industrial Court?
The crux of the Appellants argument is that, since the trial Court had held that its jurisdiction to entertain the matter has been ousted, it lacks the power to take further actions save to strike out or dismiss same, as to do otherwise is indeed null and void because any decision of a Court without jurisdiction amounts to a nullity.
In support, Appellant cited FASHAKIN FOODS (NIG.) LTD V. MARTINS BABATUNDE SHOSANYA (2006) 10 NWLR (PT.987) 126 @161 F-G, 147 B-D & 156 A-B
They argued that there is nowhere throughout the entire amendment of the Constitution in the Third Schedule where there is a saving provision for pending cases and no Court can import or introduce same, or vest in itself jurisdiction not specifically conferred on it by a Statute or the Constitution, and that the Court in trying to save the cause of the Respondent cannot enact a new law.
In support, reference was made to INEC V. NYAKO (2011) 12 NWLR (PT.1263) 439 @551-552, MOHAMMED V. OLAWUMI (1993) 4 NWLR (PT. 287) SC 254 @277-280 and KLM AIRLINES V. KUMZHI (2004)
8 NWLR (PT.875) 231 @256-257 PARAS H-A
The Appellant concluded by submitting that the provision of Section 24(3) of the National Industrial Court Act, 2006 is not applicable in this case and the trial Court, in the absence of express provision in its Rules and Laws of Ekiti State is unable to effect transfer of this case and can only strike out same.
The Appellant therefore urged this honourable Court to resolve this issue in its favour and upturn the part of the judgment of the lower Court transferring this case to the National Industrial Court.
The Respondent on his part also agrees with and adopted the sole Issue as formulated by the Appellant. In his Respondent?s Brief dated 27th day of August, 2015 and filed on 1st day of September, 2015, relying on Sections 2 & 10(3) of the High Court Law of Ekiti State, it was argued that the Trial Court has the power pursuant to Sections 24(3) of the National Industrial Court Act, 2006 and was right to have transferred the case to the National Industrial Court. Further reliance was placed on the case of BRAITHWAITE V. S.C.B (NIG) LTD where it was held that:
Although a Court which lacks
jurisdiction to try a matter before it will not ordinarily transfer the matter to another Court which has jurisdiction to try the suit, it can however do so where such a Court is imbued with the power of transfer by statute or by rules of Court.
The Respondent also cited cases where the transfer of cases to the National Industrial Court was held valid, they include: JOHN V. IGBO JOHN-EKITI LGA (2013) 7 NWLR (PT.1352) 1, AND N.U.T NIGER STATE V. COSST NIGER STATE (2012) 10 NWLR (PT. 1307) 899
It was further argued that the case of FASHAKIN FOODS (NIG.) LTD V. MARTINS BABATUNDE SHOSANYA (2006) 10 NWLR (PT.987) 126 @161 F-G, 147 B-D & 156 A-B as cited by the Appellant is not relevant to this case as its fact are not similar to this case.
Learned Counsel to the Respondent also submitted that an important reason why the Court cannot strike out the case is that doing so will permanently deprive the Respondent the opportunity to ventilate his grievances for no fault of his, having properly instituted the suit before the lower Court in 2004.
It was finally submitted that the lower Court was correct to bind itself by previous decisions which
informs his decision and is on all fours with the law. This Court is consequently urged to uphold the decision of the lower trial Court in its entirety.
The Appellant argued in the Appellant?s Reply Brief that the Court of Appeal in DR. AKPO MUDIGA-ODJE V. YOUNES POWER SYSTEM NIG. LTD departed from the decisions in JOHN V. IGBO JOHN-EKITI LGA (2013) 7 NWLR (PT.1352) 1, AND N.U.T NIGER STATE V. COSST NIGER STATE (2012) 10 NWLR (PT. 1307) 899 as cited by the Respondents and same cannot override the decision of the Supreme Court in the case of FASHAKIN.
The issue for determination in this appeal is very narrow. This Court is to determine whether the lower Court is empowered to transfer a case or matter to a Court of competent jurisdiction after having ruled that its own jurisdiction has been ousted. The lower Court in its ruling held as follows:-
?From the above provision of the Constitution (Section 254(c)), it is National Industrial Court that has jurisdiction to hear and determine the claimant?s case to the exclusion of any other Court?.
?It was after this ruling that the learned trial Judge transferred the case to the
National Industrial Court for adjudication before that Court in the terms hereinafter appearing:-
In the instant case file the cause of action arose Nine years ago while the limitation period is six years. The Plaintiff?s action was filed within time in 2004.
I am of the firm belief that to strike the plaintiffs case out is to deprived him of his guaranteed right of access to justice without any fault of his.
The plaintiffs action/suit is hereby transferred to the National Industrial Court, Akure Division for adjudication and determination.
The lower Court hinged its decision to transfer the case on the National Industrial Court Act, 2006 and the decision of this Court, per OKORO, JCA, in JOHN V. IGBO EKITI LGA (2003) 7 NWLR (Pt. 1352), at 14 where his lordship had held that the Court before which the action was instituted before the exclusive jurisdiction was conferred on the National Industrial Court by the Constitution was empowered by Section 24 (3) to transfer the action to the National Industrial Court.
It is this stand of the lower Court that is being challenged in this appeal upon a two-ground
notice of appeal from which a sole issue has been distilled for determination. Both parties agree with the sole issue as formulated by the appellant.
I have gone through the entire provisions in the Constitution relating to the National Industrial Court as provided in Section 254(c) (Third Alteration) and cannot find a saving provision in respect of the actions instituted before the Courts having jurisdiction prior to the enactment of the Third Alteration.
The learned trial Judge was right, as conceded by the parties hereto, in holding that the jurisdiction of his Court had been ousted by the provisions of Section 254(c) of the Constitution of the Federal Republic of Nigeria, as amended. He, however, seemed to have ignored all the authorities cited before him including FASAKIN FOODS (NIG.) LTD. V. MARTINS BABATUNDE SHOSANYA (2006) 10 NWLLR (Pt. 987) 126 at 161, a Supreme Court authority. He, instead, preferred to rely on a Court of Appeal decision, for OKORO, JCA in JOHN V. IGBO EKITI L. G. A. (Supra) which with all respect was decided per incuriam.
The authority of the Supreme Court of Nigeria binds all persons and authorities in Nigeria and
such authorities include all Courts of law and tribunals in Nigeria. The decision of the Supreme Court is inviolable and it will be impertinent for any Court in Nigeria to refuse or fail to be bound by it. FASAKIN is one such decision of the Supreme Court of Nigeria which no Court in Nigeria by the doctrine of stare decisis can choose not to follow on the issue of transfer of a case from one Court to another.
I need not belabour myself on this issue which has been settled by the Supreme Court since 2006 in the case of FASAKIN (Supra). The Supreme Court held in that case that:-
?On whether High Court of a State can transfer matter to Federal High Court where it has no jurisdiction to entertain it. Section 22(3) of the Federal High Court Act is a saving provision. It saves a matter duly and properly filed in a Court of law from being struck out. Instead of striking out for lack of jurisdiction, Section 22(3) vests in the High Court of a State the power to transfer the matter to the appropriate judicial division of the Federal High Court Act, Cap. 134, Laws of the Federation of Nigeria, 1990, to the extent that it sets out what a State High Court.
Section 22(3) of the Federal High Court should do if the State High Court is of the view that cause or matter should have been initiated in the Federal High Court and not in a State High Court, is clearly not conformity with Section 239 of the 1979 Constitution, which vested such legislative authority on the State House Assembly. But if a State House of Assembly considers it desirable, it can adopt the provision. Lagos State House of Assembly not having done so, the provision is inapplicable in the High Court of Lagos State.
The provision of Section 24(3) of the National Industrial Court Act are in Parimateria with the provisions of Section 22(3) of the Federal High Court Act considered in FASAKIN (Supra).
Neither the Ekiti State High Court Law nor its rules of procedure has a similar provision because the Ekiti State House of Assembly has not enacted any such provision. The learned trial Judge laboured in vain to rewrite the law which is not part of his function. He turned a blind eye to the clear provisions of Section 24(3) of the National Industrial Court Act by choosing to apply the first part or segment of the Section and ignoring the
second segment which requires State High Court to have a corresponding provision, in either its law or its rules of procedure. He also jettisoned the decided cases of both this Court and the Supreme Court which are not in accord with his sentiment.
I hold that the Ekiti State High Court, having no saving provision, corresponding to Section 24(3), National Industrial Court Act in either its law or its rules of procedure, lacks the jurisdiction to transfer a case or matter to the National Industrial Court as he purported to have do in the instant case. The transfer made of Suit No. HAD/62/2004 by H. I. AKINTAYO, J. to the National Industrial Court on the 25th day of November, 2013 having been made without jurisdiction is hereby set aside.
The sole issue in this appeal is resolved in favour of the appellant. This appeal succeeds and it is hereby allowed.
The decision of the Ekiti State High Court in Suit No. HAD/62/2004 transferring the case to the National Industrial Court, Akure Division on the 25th day of November, 2013 is hereby set aside and the suit is hereby struck out.
?No cost is awarded.
FATIMA OMORO AKINBAMI, J.C.A. :
I had the privilege of reading in draft the lead judgment prepared by my learned brother, Ahmad Olarewaju Belgore, JCA and I am in complete agreement with the conclusions in relation to the issues for determination of the appeal.
?I also set aside the decision of the Ekiti State High Court in Suit No.: HAD/62/2004 and also strike out the suit. I abide by the consequential orders.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances
Adeola Omotunde, Esq.For Appellant
AND
Ayodeji Esan, Esq.For Respondent
