Cyril O. Osakue V Federal College Of Education & 2 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, JSC

I had read before now the judgment just delivered by my learned brother I.F. Ogbuagu, JSC. I agree with his reasoning and conclusion. This court took judicial notice of Decree NO.1 07 of 1993 which amended the provision of Section 230 (1) (q) (r) and (s) of the 1979 Constitution and vested exclusive jurisdiction on the Federal High Court in civil matters arising from the administration, management of and control of the Federal Government or any of its agencies. The court saw the need for the counsel in this suit to further address on the jurisdiction of the Delta State High Court, Asaba Judicial Division to adjudicate on this matter in view of Decree No. 107 of 1993, and its effect on the provisions of Section 230 (1) and (2) of the 1979 Constitution. Counsel for the parties addressed the court on 9/3/10. Learned counsel for the appellant submitted that the action was filed in 1992 before the Asaba High Court whereas the Decree was promulgated and the date of commencement was 18th of November 1993 well before the Decree 107 of 1993 became operative. That Asaba High Court was right in assuming jurisdiction and adjudicating on the suit.

The learned counsel for the respondent drew our attention to the two conflicting decisions of this court in O.H.M.B. v. Garba (2002) FWLR pt. 123 page 200 and Olutola v. University of Ilorin (2005) FWLR pt. 245 pg. 1151. The learned counsel referred to the case of Unilorin v. Adeniran (2007) FWLR pt. 382 pg. 1871 at 1151 in which the Court of Appeal criticized the decision of the Supreme Court in the case of Olutola v. University of Ilorin. My Lord in his leading judgment has given adequate consideration to the case of Unilorin v. Adeniran and the application of the doctrine of Stare Decisis. I do not wish to make any further comments on this. On the two conflicting judgments – the last in time Olutolas case is very relevant to this case. The learned counsel for the respondent, with reference to Olutolas case, submitted that the Asaba High Court had no jurisdiction to entertain the case, because as at the time trial commenced in it, Decree 107 of 1993 was already promulgated.

That the learned trial judge should have declined jurisdiction and directed the appellant to institute his action before the Federal High Court. The trial court adverted its mind to this issue and gave due consideration to this crucial question at pages 181 – 184 of the Record. Before the lower court, the appellant raised it as issue (c) in the issues formulated for determination, and the respondent raised it as issue (a). The trial court considered same on pages 320–322 of the Record. Both parties agreed that the Federal College of Education (Technical) Asaba was created by Decree No.4 of 1986.

It is therefore not disputed that the respondent here is a Federal Government Agency. Adebilije v. N.E.P.A. (1998) 12 NWLR pt 572 pg. 219 N.E.P.A. v. Edegbero (2002) 18 NWLR pt. 798 pg. 79. Olutola v. Unilorin (2004) 18 NWLR pt. 905 pg. 416, Ansa v. P.T.P.C.N. (2008) 7 NWLR pt. 1086 pg. 421. Oloruntoba-Oju v. Dopemu (2008) 1 NWLR pt. 1068 pg. 397. The issue for determination by the court between the parties is a contract of employment. In view of the decision of this court in the case of NEPA v. Edegbero (2002) 18 NWLR pt. 798 at page 79, entering into a contract of employment with an employee is a business relationship which clearly comes within Section 230 (1) (q) of the 1979 Constitution as amended by Decree No. 107 of 1993.

In construing Section 230 (1) of the 1979 Constitution as amended by Decree No. 107 of 1993, two important matters arise for consideration by this court, namely – the parties in litigation and the subject-matter of litigation – which is the termination of the employment of the appellant. Both lower courts declared that the appellants cause of action accrued when his employment was terminated on. 30/3/90 and the appellants cause of action arose before Decree 107 was promulgated, as the Decree came into effect on the 18th of November 1993. By virtue of Section 236 (1) and (2) of the 1979 Constitution, the High Court of a State had unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

The criminal or civil matters include those that originated in the State High Court and those brought to it in the exercise of its appellate or supervisory jurisdiction. By the provision of Section 230 (1) (s) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 exclusive jurisdiction was vested in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government, the operation and interpretation of the Constitution as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions of the Federal Government.

In effect, the provision of Section 230 (1) (s) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 required the following conditions to be satisfied before embarking on any action at the Federal High Court: –

(a) The action or proceeding must be civil matters brought against the Federal Government or its agencies arising from the administration, management and control.

(b) The action or proceedings must affect the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.

(c) The matter must arise from the operation and interpretation of the Constitution – as it affected the Federal Government. In the case of N.E.P.A. v. Edegbero (2002) 18 NWLR pt. 798 pg. 79 at pg. 98, my Lord Uwais CJN (as he then was) said that ‘The clear intendment of the modification to Section 230 of the 1979 Constitution by the Constitution (Suspension and Modification) Decree No.107 of 1993 was to confer on the Federal High Court exclusive jurisdiction in respect of matters specified under subsection (1) (q) (r) and (s) thereof.

The proviso to the section – does not whittle down the exclusive jurisdiction. A careful gleaning of paragraphs (q) (r) and (s) of Section 230 (1) reveals that the intention of the law makers was to take away from the jurisdiction of the High Court of the State actions in which the Federal Government and its agencies is a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.’

Egonu v. BRTC (1997) 12 NWLR pt. 531 pg.29. Nigeria Deposit Insurance Corporation v. Federal Mortgage Bank of Nigeria Ltd. (1997) 2 NWLR pg. 235. UTB v. Ukpabia (2000) 8 NWLR pt. 676 pg. 570.

The exclusive jurisdiction granted to the Federal High Court is confirmed by the opening words of Section 230 (1) of the 1979 Constitution as amended which states that – ‘Notwithstanding anything to the contrary contained in 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 and exercise jurisdiction to the exclusion of any other court in civil causes and matters which are stated in the paragraphs of the Section 230 (1).’

I shall now consider the impact of Decree No. 107 of 1993 on cases pending before State High Courts when it came into effect. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose, and the law relating to jurisdiction is the prevailing law when the action was instituted and heard. The law in both situations may not co-exist. Adah v. NYSC (2004) 13 NWLR pt. 891 pg. 639. Utih v. Onoyivwe (1991) 11 NWLR pt. 166 pg.166, Uwaifo v. A-G Bendel State (1982) 7 SC pg. 224. Sossa v. Fokpo (2001) 1 NWLR pt. 693 pg. 16. Gov. of Oyo State v. Folayan (1995) 8 NWLR pt. 413 pg. 292, I.G.P. v. Aigberemolen (1999) 13 NWLR pt. 635 pg, 443. PAGE| 7 As I have mentioned earlier on in this judgment – the cause of action in this matter arose in 1990 when the appointment of the appellant was terminated. 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 conspicuously differ.

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 case of Olutola v. Unilorin (2004) 18 NWLR pt. 905 pg. 416 at page 471 paras B – C the court had this to say- ‘Although a Statute is prospective and not retrospective, since Decree No. 107 of 1993 made no provision for cases already pending in court on its effective date of 17th November 1993 those cases such as the one that gave rise to the instant appeal were caught by the Decree thereby rendering the decision of the trial court a nullity.’

The simple and straight forward interpretation of the nature of Decree 107 of 1993 is that when it came into operation, it was endowed with the force of law as the existing Constitution of the Federal Republic of Nigeria. By the Decree, Section 230 (1) of the 1979 Constitution was duly modified. By so doing the provision of Section 236 (1) and (2) of the 1979 Constitution, which gave unlimited jurisdiction to the State High Courts to hear and determine both civil and criminal causes automatically lapsed. The provision have been impliedly repealed and abrogated by Decree 107 of 1993. In effect the provisions of Decree 107 of 1993 and those of the 1979 Constitution could not stand together. In the appeal in hand since the respondent, the Federal College of Education is an agency of the Federal Government, the High Court of Asaba lacked the jurisdiction to hear and ultimately determine the matter when it did after the promulgation of Decree 107 of 1993. The trial court having become aware of the Decree, should have put an end to the proceedings as the court was rendered incompetent to handle the matter.

Any defect in competence is fatal for the proceedings are nullity, however well conducted and decided. University of Abuja v. Ologe (1996) 4 NWLR pt. 445 pg. 707. University of llorin v. Olutola (1998) 12 NWLR pt. 905 pg. 416. NEPA v. Edegbero & Ors (2002) 8 NWLR pt. 798 pg. 79. Adah v. NYSC (2004) 13 NWLR pt. 891 pg. 639. IGP v. Aigbiremolen (1999) 13 NWLR pt. 635 pg. 443. Ayeni v. University of llorin (2000) 2 NWLR pt. 644 pg. 290. Western Steel Works v. Iron and Steel Workers Union (1986) 3 NWLR pt. 30 pg. 617. Oloba v. Akereja (1988) 3 NWLR pt. 84 pg. 508. With the fuller reasons given by my Lord in the leading judgment, I also strike out the appellants claims in the trial court and adopt the consequential orders as mine. Olufunlola Oyelola Adekeye Justice, Supreme Court K.O. Ijatuyi Esq. for the Appellant. Chike Onyemenam, Esq., (With him Philip Adu-Odogwu, Esq.) for the Respondents.

SC.4/2003