Abraham Eje & Ors V. Hon. Minister, FCT & Anor (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the Ruling of the Federal High Court Abuja Division delivered on the 11th of December 2001.
The Appellants, Abraham Ejeh, Alhaji Issa Ndako, Musa Audu, Saudu Umar Nassarawa, Chigbo R.I., Mbibi L.M and Ukpana E. Isaiah, as Plaintiffs before the Federal High Court filed an action wherein they claimed against the Respondents -The Minister, Ministry of Federal Capital Territory, and the Federal Capital Territory Development Authority jointly and severally as follows:-
(a) A declaration that the 1st defendant did not comply with the provisions of Decree 17 of the 1984 in removing the plaintiffs from office.
(b) A declaration that their removal from office was contrary to the constitution, the FCDA Act, the Civil Service Rules and therefore null and void.
In the ruling delivered on 11/12/01 the lower court held that there was merit in the defendants notice of preliminary objection dated 7th of June 2000 declined jurisdiction and subsequently dismissed the suit.
Being aggrieved by the decision of the lower court the appellants lodged an appeal to this court.
Parties complied with the procedure of appeal as stipulated in the Court of Appeal Rules 2002. Briefs were filed and exchanged. At the hearing of the appeal the appellant relied on the appellant’s brief of argument filed on 28/1/03.
In the brief the appellant distilled two issues for the determination of this court as follows:-
(1) Whether ouster clauses were still applicable in Nigeria courts on the 15th of January 1999 when the appellants appointments were terminated by the Respondents despite the provisions of Article 7 of the African Charter on Human and Peoples Rights and the Authority of Abacha V Fawehinmi (2) Whether it was proper at that stage of the preliminary objection for the learned trial Judge to have delved into deciding the substantive suit.
These two issues flow from the single ground of appeal filed by the appellant on 21/12/01.
The Respondents in the brief of argument filed on 25/6/03 settled a sole issue for the determination of this court as follows:-
(a) The legal position of the African Charter on Human and Peoples Right vis-a-vis the-ouster clauses in the various Decrees of the Military Governments of the Federal Republic of Nigeria
(c) An Order reinstating the plaintiffs to their positions in the service of the 2nd defendant together with their ranks, entitlements, and all allowances without loss of seniority or benefits.
(d) N1 million damages each making a total of N7 million for wrongful dismissal
The brief background of the case is that the appellants were until the 15th of January 1999 employees of the Federal Capital Development Authority in different capacities, holding statutory and pensionable employments. They all enjoyed various promotions and received letters of commendation while in service. The 200 Respondent towards the end of 1998 set up a committee to investigate allegations of irregular allocation of some plots within the Federal capital Territory. The applicants received written instructions to proceed on compulsory leave during the period of investigation. The committee submitted its report to the 1st Defendant on the 31st of December 1998. The appellants were not invited by the committee during the course of the investigation or indicted for any misdeeds in connection with the investigation. The appellants received letters of dismissal from the 1st Defendant on the 15th of January 1999 on the basis of the recommendation of the committee. At the trial court the counsel for the Respondents filed Notice of Preliminary objection on 4/7/2000.
In the objection the Respondents challenged the jurisdiction of the Federal High Court to entertain the suit in, that the alleged cause of action was based on section 1(1) (d) (i) of the Public Officers (Special Provisions) Decree No 17 of 1984 and Section 1 (d) of the Ministry of Federal Capital Territory (Delegation of Powers) Decree No 12 of 1985. The lower court heard submission of the parties in the objection on 26/9/01.
ISSUE ONE
Whether ouster clauses in Nigeria Statutes were still applicable in Nigeria Courts on the 15th of January 1999 when the appellants’ appointments were terminated by the Respondents despite the provisions of Article 7 of the African Charter on Human and Peoples Right on the authority of Abacha v. Fawehinmi.
The learned counsel for the appellant submitted that the learned trial judge completely ignored that ouster clauses are no longer applicable and particularly section 3(3) of Public Officer Special Provisions Act Decree No 17 of 1984. Whereas the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 of the Laws of the Federation of Nigeria 1990, Article 7 (1) (a) gave every individual right to have his cause heard. Previously courts were declining jurisdiction whenever they were confronted with termination of appointment under Decree 17 of 1984 until the decision of the Supreme Court in the case of Abacha v. Fawehinmi 2000 6 NWLR pt 660 pg 228.
The African Charter is now part and parcel of our municipal law which has given due consideration to any ouster clauses which may have a tendency to water down the rights guaranteed under the said charter. The court in Nigeria will not interpret a statute so as to bring it into conflict with an International Law. Nigeria cannot be different from the other International Communities hence ouster clauses are no longer applicable.
The learned counsel further submitted that the jurisdiction of the courts to give full recognition and effect to the African charter remained unimpaired as at the 11th day of December 2001 when the lower court ruled that it had no jurisdiction to hear the appellants matter because of the provisions of Decree 17 of 1984. The right to be heard is guaranteed under the 1999 constitution by virtue of section 35. The same right is entrenched under Article 7(1) (a) of the African Charter which the lower court denied the appellant. This court is urged to set aside the decision of the lower court which held that its jurisdiction was ousted by Decree 17 of 1984. The learned appellants counsel cited the case of Abacha v. Fawehinmi 2000 6 NWLR pt 660 pg 228.
The Respondent counsel replied in consensus with the appellants counsel that the case of Abacha v. Fawehinmi (Supra) settled the position of the African Charter on Human Rights in the Nigerian Legal Jurisprudence. It is accepted as a law with International flavour and Decree 107 of 1993 or any other subsequent Decree did not repeal or abrogate it. Article 7 of the African Charter provides that:-
Every individual shall have the right to have his cause heard.”
The respondent agrees with the appellant that the conclusion of the lower court that by virtue of Decree No17 of 1984 his jurisdiction to hear and determine the matter before it was ousted is patently wrong.
ISSUE TWO
Whether it was proper at the stage of the preliminary objection for the learned trial judge to have delved into the substantive suit.
The learned counsel submitted on this issue that the learned trial judge was wrong and clearly in error by delving into the substantive suit.
That action was clearly premature and this court is hereby urged to set same aside.
The learned counsel for the respondent did not respond to this issue as even the learned counsel for the appellant emphasised that the only issue for determination in this appeal is issue one.
I have carefully considered the submission of the counsel to the parties in support of the main issue canvassed for determination in this appeal. This issue expressed in plain language is whether as at the 15th of January 1999 when the appellants were dismissed by their employer – Ministry of the Federal Capital Territory as represented by the Hon. Minister Federal capital Territory the ouster clause particularly section 1(1) (d) (I) of the Public Officers (Special Provisions) Decree No17 of 1984 was still applicable in the Nigerian Jurisprudence.
It is however noteworthy that in the Notice of Appeal filed on 21/12/01 on pages 34-35 of the Record of Appeal the appellant had one ground of appeal.
At the hearing of the appeal the appellant raised two issues for determination of this court from that single ground of appeal. It is a time honoured principle that every Issue for determination must be formulated, based upon and related or distilled from a competent ground of appeal. Where an issue does not relate to a ground of appeal it is liable to be struck out or be discountenanced. Lemboye v. Ogunsiji 1990 6 NWLR pt 155 page 210 Olabode v. Anibi 1998 9 NWLR pt 567 pg 559 Animashaun v. University College hospital 1996 10 NWLR pt 476 pg 65
Equally the appellate courts frown at proliferation of issues as such practice confounds, being a ploy that leads to confusion, rather than clarifies matters in controversy” Idika v. Erisi 1988 2 NWLR pt 78 pg 563 at pg 578 Oyekan v. Akinrinwa 1996 7 NWLR pt 459 pg 128 Onyioha v. Ayashe 1996 2 NWLR pt 432 pg 567
The appellant raised one of the issues from the particulars of the grounds of appeal. The Court of Appeal Rules 2002 Order 3 Rule 3 stipulates that “the Notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” The appellant should have filed two distinct heads in the grounds of appeal.
The defendants before the trial court the Hon. Minister Federal capital Territory and Federal Capital Development Authority filed Notice of Preliminary Objection as follows:-
(1) That the alleged cause of action arose based on Section 1(1) (d) (i) of the Public Officers (Special Provisions) Decree No 17 of 1984 and Section 1 (d) of the Ministry of Federal Capital Territory (Delegation of Powers) Decree No 12 of 1985.
(II) That the lower court lacks the jurisdiction to entertain the suit and should therefore dismiss the suit.
In the considered Ruling of the lower court after hearing counsel on the objection the court adverted its mind to the trite principle of law that it is the plaintiffs’ case which determines the jurisdiction of court. The learned trial court examined the letter of dismissal written to each of the appellant. I shall restate the letter received by an appellant which reads:-MFCT/PM/2/S.33/VOL.1/17
15th January 1999
Isa .A. Ndako
Deputy Director
Development Control
FCT-Abuja
U.F.S
Director of Land, Planning & Survey
Dismissal from the Service of the Ministry of the Federal capital Territory and for Federal Capital Development Authority
- In the powers conferred on me by section 1(1) (d) (I) of the Public Officers (Special Provisions) Decree No 17 of 1984 and section led) of the Minister of the Federal Capital Territory (Delegation) of Powers) Decree No 12 of 1985- Major General Maman T. Kontagora (RTD) Minister of the Federal Capital Territory Abuja do hereby dismiss you from the service of the Ministry of the Federal Capital Territory and or the Federal Capital Development Authority as the case may be with immediate effect and in the public interest .
- I wish you the best of luck in your future endeavours.
Sgn
Mamman J. Kontagora
Major-General
Hon. Minister, FCT
At the conclusion of the ruling the learned trial judge held that By the express provision of section 18@& (d) of the Federal Capital Territory Act Cap 128 Laws of the Federation, and the powers vested in the President by section 1(1) (d) (i) of the Public Officers (Special Provisions) Act the Honourable Minister FCT was empowered by the above provisions to exercise the power exercisable by the President under the Public Officers (Special Provisions) Act. See Nwosu v. Imo Environmental Sanitation Authority 1990 2 NWLR pt 135 pg 688; NEPA v. Ugbaja 1998 5 NWLR pt 548 pg 106.
The learned counsel for the plaintiffs had referred to the case Abacha v. Fawehinmi 2000 6 NWLR pt 660 pg 228 and the provisions of Article 7 paragraph 1 of the African Charters on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of Federal Republic of Nigeria 1990. I do not think that they will avail the plaintiffs.
It is my humble view that there is merit in the defendants notice of preliminary objection dated 7th June 2000. The preliminary objection succeeds and the plaintiffs’ suit is hereby dismissed.”
Both counsel to the appellants and respondents in this appeal unanimously faulted the learned trial judges reasoning and conclusion on the case of Abacha v. Fawehinmi (Supra) and Article 7 paragraph 1 of the African Charter on Human and Peoples Rights(Ratification and Enforcement) Act cap 10 LFN 1990.
Contrary to the conclusion of the learned trial judge in the ruling it is their contention that the case of Abacha v. Fawehinmi (Supra) amplifying the African Charter emphasized the position of the prevailing law, in that ouster clauses in the various Decrees are no longer operative, in the Nigerian Courts.
Every individual shall have the right to have his cause heard particularly the right of an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.
I agree with the view of both learned counsel and I wish to add that the decision of the Supreme Court in the case of Abacha v. Fawehinmi 2000 6 NWLR pt 660 pg 228 is a major landmark on ouster clauses in the Nigeria jurisprudence. Before then the courts generally declined jurisdiction each time they are to adjudicate on cases of termination of appointment of those affected by Decrees particularly Decree No 17 of 1984. The public Officer Special Provision Act section 3(3) reads:-
“No civil proceedings shall lie or be instituted in any court or on account of or in respect of any act, matter or anything done or purported to be done by any person under this act or if any such proceedings have been or are Instituted before on or after the making of this Act, the proceedings shall abate, be discharged and made void.”
There is usually a history behind any major legislation in this Country particularly as it affects dispensation of justice and the Rule Law. Maintenance of the Rule of Law is the bedrock of any democratic society. For any society to be called a free society it must enjoy an unimpeded operation of the Rule of law.
With the Nigeria judiciary things have not been smooth sailing in the journey of the political emancipation of this country. During the era of military dictatorship not only were Decrees with ouster clauses promulgated, the question of the Rule of law and observance of Human and Peoples Rights were slaughtered on the altar of Military Tribunals and Task Forces devised as a means of operating a rival judicial machinery.
Not only the judiciary but also members of the bar were arbitrarily detained, arrested and imprisoned without trial for writing letters on behalf of their clients to government parastatals.
The military governments often used ouster clauses and retroactive laws to deprive the courts of their judicial powers of review. The excruciating experience of the courts was summed up aptly by the courts in the interpretation of ouster clauses as in the case of:- Governor of Lagos State v. OJukwu 1986 NWLR pt 18 pg 621 Eso JSC (Retired) said:-
“By virtue of the Constitution (Suspension modification) Decree N0 1 of 1984 a good number of the provisions in the Constitution were suspended. Indeed what was left was what has been permitted by the Federal Military Government to exist. All provisions relating to the judiciary were saved. Section 6 of the Constitution, the most important provision in so far as the institution known as the judiciary’s concerned which vests in courts the judicial powers of the Federation was left extant.”
In the case of Nwosu v. Imo State Environmental Sanitation Authority and ors 1990 2 NWLR pt 135 pg 688 at 727 Alfa Belgore CNJ (Retired) said:-
“Similarly as in military regimes, decrees of the Federal Military Government clearly Dust the courts jurisdiction there in no dancing round the issue to found jurisdiction that has been taken away. Lawyers trained and grouped under the motion of civil liberty frown on ouster provisions in any act of parliament so do judges of similar background. But it must be remembered that Armed Forces Ruling Council is not a Parliament either does it pretend, to be one. We have lived with their Decrees whether by the Supreme Military Council or Armed Forces Council in fact nomenclature is not relevant for long now that there should be no doubt as to the meaning of their ouster provisions.”
In the case of Wang Ching Yao v. Chief of Staff Supreme headquarters 1986 LRC Constitutional Law 319 or suit MI/105/84 delivered on 28th of May 1984 Ademola JCA in the interpretation of the combined effect of the Federal Military Government Supreme and Enforcement of Powers Decree No 13 of 1984 and the State Security Detention of persons Decree No 2 said:-
“In matters of civil liberties in Nigeria, the courts must now blow muted trumpet.”
The military authority promulgated Decrees to suspend certain aspects of the Constitution to oust the jurisdiction of the courts in certain matters like Decree 17 of 1984 and to assert the superiority of the Decrees like Decree No 1 of 1984 as amended by Decree 107 of 1993.
The courts expressed their opinion on ouster clauses in cases like –
Labiyi v. Anretiola 1992 8 NWLR pt 258 pg 139 NEPA v. Ugbaja 1998 5 NWLR pt 548 pg 106
Adamolekun v. Council of University of Ibadan 1968 NMLR pg 253
Military Gov of Ondo State v. Adewunmi 1988 3 NWLR pt 82 pg 280
Osadebay v. A.G Bendel State 1991 1 NWLR pt 169 pg 525
The hierarchy in order of superiority of laws in Nigeria as on the 31st of December 1994 runs as follows:-
(1) Constitution (Suspension and Modification) Decree 1984
(2) Decrees of the Federal Military Government
(3) Unsuspended provisions of the Constitution 1979
(4) Laws made by the National Assembly before 31/12/83 or having effect as if so made
(5) Edicts of the Governor of a State
(6) Laws enacted before 31st December 1983 by the House of Assembly of a State or having effect as if so enacted.
As rightly held by the lower court the jurisdiction of the court to hear a matter is invariably determined by the plaintiffs claim.
A.G Anambra State v. A.G Federation 1993 6 NWLR pt 302 pg 629 Adeyemi Opeyori 1976 9-10 SC 31 Oloriode v. Oyebi 1984 1 SCNLR pg 390 A.P.C. Ltd V NOIC (NUB) Ltd 2006 15 NWLR pt 1002 pg 404 Onwudiwe v. FRN 2006 10 NWLR pt 988 pg 382 Trade Bank Plc v. Beni Inx Nig Ltd 2003 9 NWLR 825 pg 416 Babale v. Abdulkadir (1993) 7 NWLR pt 281 page 253 O.H.M.B. v. Garba 2002 14 NWLR pt 788 pg 538
In delving into the appellants claim before the lower court it revealed that their letters of dismissal were issued on the 15th of January 1999. That was the date of the event or occurrence which gave them a right of action. In other words their cause of action accrued on the 15th of January 1995. It is the law in existence at the time their cause of action accrued that will determine the jurisdiction of the court and be applicable to their suit. As at the time the appellants suit was filed at the Federal High Court on14/4/99 the operative laws are:-
(a) The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 LFN 1990 based on the African Charter on Human and Peoples rights now incorporated into our domestic laws
(b) The 1999 Constitution.
I owe it a duty to give a summary of the legal history of the legislation, African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990. Nigeria is a party to the International bill of rights, which is an umbrella, underneath it are the universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. She is also a party to the African Charter on Human and Peoples Rights, Convention on the Elimination of all forms of Racial Discrimination etc. The country is obliged under Article 26 of the Vienna Convention on the Law of Treaties of 1969 to perform the obligations assumed under treaties in good faith.
The International treaty entered into by Nigeria in the Human and Peoples Rights have now being enacted into our municipal laws by the Act of the National Assembly as the African Charter on human and peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria. The African Charter having become part of our laws, our domestic courts have the jurisdiction to construe and apply same. Any citizen who feels that his rights as guarantee and protected by the charter have been violated can obtain redress in our domestic courts. The rights and obligations contained in the charter are not new to Nigeria as most of the rights and obligations are already enshrined in our constitution vide chapter 4 of 1979 Constitution and 1999 Constitution. The Nigerians Courts will not construe a statute so as to bring it into conflict with International law pg 489
Since the return to civil rule, the courts in Nigeria have had no difficulty in exercising their powers to enforce the constitutional rights of individuals against government agencies, against other individuals as opposed to the case during the Military era when such powers were drastically curtailed by ouster clauses Ezeoukwu v. Ezeonu 1991 6 NWLR pt 200 pg 708 Onwo v. Oko (1996) 6 NWLR pl 406 pg 504 Ogugu V State 1984 9 NWLR pt 366 pg 1 at pgs 26-27 All our superior courts of records have jurisdiction over cases in breach of fundamental rights (Vide Section 46 of the 1999 Constitution.) The Constitution is the Supreme Law of the land, the grundnorm. It has vested the power of judicial review in the courts which it has created. See section 6(6) of the 1979 Constitution. Any act of government or any law that contravenes the Constitution will in appropriate cases be declared null and void to the extent of its inconsistency. A.G Bendel State V A-G Federation and 18 others 1981 3 NCLR 1
Section 4 (8) of the 1999 Constitution provides that save as otherwise provided by this Constitution the exercise of legislative powers by the National Assembly or a House of Assembly shall not enact any law that ousts or purport to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
This exactly is the song in the case of Abacha v. Fawehinmi (Supra) that Nigerian courts in accordance with the Constitution no longer has any draconian laws which will curtail or fetter their power of adjudication over the rights and obligations of its citizens.
I have to go out of my way to supply this legal history as a means of information as I am taken aback, or it strikes me as odd, and I feel rather embarrassed that any judicial officer will hide under a military decree to deprive itself of jurisdiction in an event which occurred on the 15th of January 1999under the 1999 Constitution. The issue of the dismissal of the appellants under their purported letter of dismissal is one of the reliefs to be adjudicated upon by the lower court in the substantive suit.
As observed by the appellant a court has a duty to refrain from making any pronouncement on the substantive matter when determining interlocutory application. The lower court invoked the powers of the 1st Respondent under section 18(d) of the Federal Capital Territory Act Cap 128 Laws of the Federation of Nigeria and capitalised on that law to decline jurisdiction under Section 3 (3) of Decree No 17 of 1984.
Republic bank v. CBN 1998 13 NWLR pt 581 pg 306 Shell Development Co (Nig) Ltd v. Onu 1998 9 NWLR pt 567 pg 572 Onwuegbu v. Ibrahim 1997 3 NWLR pt 491 pg 110
Third Eye Communications Ltd V Ishola 1999 2 NWLR pt 592 pg 549
Akuma Ind Ltd v.Ayman ENT Ltd 1999 13 NWLR pt 633 pg 68 A citizen right of access to court in a democratic society which upholds the Rule of Law is guaranteed by the Constitution and Statutes.
A court of law must always ensure that it does not shut a litigant from pursuing its cause of action which is properly brought before it.
Under the military regime, the provisions of any decree are superior to the unsuspended provisions of the Constitution. By virtue of Section 315 of the 1999 Constitution, all Decrees promulgated by the Federal Military Government are now Acts, being existing laws. Any Decree which is regarded as an existing law will be assimilated into the category of Acts or Laws passed by the National Assembly which cannot be superior to the Constitution.
Labiyi v. Anretiola 1992 8 NWLR pt 258 pg 139 A.G Ondo State v. A.G Federation 2002 9 NWLR pt 772 pg 222
Where a court is called upon to interpret the provision of a statute that seeks to regulate access to court it should only take a decision only after it has convinced itself that the provisions is only an obstacle to that peculiar action as distinct to being an obstacle to the right of access of the litigant to seek redress in court in the action. An enactment will infringe the Constitutional provisions vesting judicial powers in the court by virtue of Section 6(6) if it has:-
(a) Provided for sharing the judicial powers with any other body other than the courts in which it is vested by the Constitution.
(b) Purported to remove judicial powers vested in the court or redefine it in a manner as to whittle it or
(c) Limit the extent of the power vested or conferred on the court.
NNPC V Fawehinmi 1998 7 NWLR pt 559 pg 598
I agree without reservation with the submission of the appellant and respondent that the view expressed by the court as regard accessibility to court to vent grievance where the rights and obligations of citizens are infringed or threatened based on the African Charter is as expressed in the case of Abacha v. Fawehinmi 2000 6 NWLR pt 660 pg 228. Nowadays courts lean towards guarding their jurisdiction jealousy while any attempts made to limit or curtail their jurisdiction are regarded with suspicion and consequently rebuffed.
Courts must never be in haste to decline jurisdiction particularly where infringement of rights of citizens is at stake.
In sum I find this appeal meritorious and it accordingly succeeds.
The ruling of the lower court is set aside. The suit is to be sent back to the Administrative Judge, Federal High Court Abuja for reassignment to another judge of that jurisdiction, No order as to costs
Other Citations: (2007)LCN/2606(CA)
