Grace Jack Vs University Of Agriculture Makurdi (2004)
LAWGLOBAL HUB Lead Judgment Report
KATSINA-ALU, J.S.C.
This appeal is from a decision of the Court of Appeal, Jos Division delivered on 8 May, 2000 in appeal No. CA/J/47/2000 allowing the appeal of the respondent to it against the decision of Ogbole, J. of the High Court of Benue State in suit No. MHC/749M/94 given on 22 September, 1995.
The facts giving rise to this case are largely undisputed. The appellant was employed by the respondent on 4 June, 1990 as a clinic attendant. On 7 May, 1991 she was transferred to the Bursary Department of the University. The appellant remained in that department until 23 September, 1993 when she was served with a letter of suspension. An internal inquiry was then set up by the respondent to determine the involvement of the appellant in some misconduct in relation to the collection and issuance of receipts for fees and other dues from students. The panel of inquiry found the appellant guilty of misconduct and accordingly dismissed her from service on 17 February, 1994.
The appellant was aggrieved and consequently by an ex parte application brought under Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 she was granted leave by the High Court of Benue State, holden at Markurdi to file a notice of motion against the respondent claiming as follows:-
”(a) An order quashing letters of suspension and dismissal with ref. Nos. R/UAM/JP/1315/VOL.1/41 of 23/9/93 and R/UAM/JP/1314/VOL.1/52 of 17/2/94 as the said letters were issued to the applicant in breach of the rule of natural justice theFederal Universities of Agriculture, Decree No. 48 of 1992 and the conditions of service of junior staff of the respondent.
(b) An order reinstating the applicant to her appointment with the respondent prior to her purported suspension/dismissal.
(c) An order that all the benefits accrued and accruing to the applicant including salary and other allowances of the applicant be computed and paid to her within two weeks from the date this Hon. Court may deem fit to make its final order.
(d) An order that the respondent or any of its agents/servants shall not harass or otherwise render the applicant incapable of performing her duties and or securing her salary, allowances and benefits accrued and or accruing to her.
(e) N50,000.00 general damages for breach of contract of employment.
Alternatively
An order that the applicant be paid N450,359.58k representing what the applicant could have earned in the next 33 years at N13,647.20 per annum.
- Grounds upon which reliefs are sought
(i) Applicant was never accused of any wrong doings or confronted with any case of misconduct and afforded an opportunity of defending herself before she was purportedly suspended/dismissed from the employment of the respondent.
(ii) The procedure to be followed in removing any staff for misconduct as provided in Decree No. 48 of 1992, was not attempted let alone followed before applicant was removed.
(iii) Throughout the period that the applicant appeared before the panel investigating irregular payments on 16/8/93 and 1/9/93, she appeared as witness.
(iv) Applicant is entitled to remain in the employment of the respondent until she reaches the retiring age of 65 years.
Dated this 1st day of November, 1994.”
At the hearing of the case counsel for the parties addressed the court.
In his judgment, the learned trial Judge (Ogbole, J.) granted all the reliefs with the exception of the alternative relief which was abandoned. As I have already indicated, the appeal by the University to the Court of Appeal was allowed and the decision of Ogbole, J. was set aside. This appeal is against the decision of the Court of Appeal.
The appellant raised a lone issue in her brief of argument. It reads:
“Whether the trial court is a High Court in Benue State as envisaged by section 42(1) of the 1979 (Constitution) as to confer it jurisdiction over the appellant’s application for breach of her fundamental right to fair hearing against her employers, University of Agriculture, an agency of the Federal Government.”
For its part, the respondent formulated four issues for determination which read:
- Whether or not the Benue State High Court was competent to entertain the matter especially the issue respecting the letter of dismissal dated 17/2/94 having regard to the provisions of sections 42 and 230 of Decree 107 of 1993 which came into effect on 17th November, 1993.
- Whether or not the applicable law in respect of the letter of suspension dated 23/9/93 on the issue of jurisdiction was the law when the cause of action arose or the law in force when the appellant filed the motion exparte on 1/11/94.
- Whether or not the issue with respect to the letter of suspension dated 23/9/93 was competent on 1/11/94 the date on which applicant filed an application for the enforcement of her Fundamental Human Right.
- Whether or not the action was statute barred having regard to the provision of section 2(a) Public Officers Protection Act.”
I shall deal with the appellant’s lone issue which is similar to the respondent’s first issue.
In the course of its judgment, the Court of Appeal per Mangaji, JCA stated thus:
“The first relief sought by the respondent was, ‘an order quashing letters of suspension and dismissal with ref. Nos. R/UAM/JP/1315/VOL.1/41 of 23/9193 and R/UAM/JP/1314/VOL.1/52 of 17/2/94 … ‘The facts upon which the respondent based her action only became complete on 17/2/94 when she was served with the letter of dismissal. That prompted her to apply under the Fundamental Rights Enforcement Procedure Rules, 1979 for redress. Obviously, since the respondent’s action challenged her dismissal by the letter dated 17/2/94, the facts upon which she relied to justify the reliefs she sought could not have completely accrued before that date. And by that date Decree 107 of 1993 had come into operation effectively ousting the jurisdiction of State High Courts as specified in section 230(1) thereof. Evidently, the respondent questioned the act of the appellant before the High Court of Benue State which said act was carried out after Decree No. 107 of 1993 had come into force. Withal the said Decree had effectively amended sections 42(1) and 236(1) of the 1979 Constitution vesting the Federal High Court with exclusive jurisdiction to entertain actions and proceedings of the nature instituted by the respondent. My clear position is that the respondent was wrong in instituting her action at the High Court of Benue State, and the said court was in error in assuming jurisdiction because it lacked any. The effect of S. 230(1)(s) of Decree No. 107 of 1993 is to oust the jurisdiction of the States High Courts and to vest jurisdiction in the Federal High Court in actions and proceedings which the reliefs sought are for declaration or injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies. See Ali v. CBN(1997) 4 NWLR (Pt. 498) 192 at 203.”
In conclusion, Mangaji, JCA declared thus:
“The jurisdiction of the Benue State High Court was clearly ousted by S. 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993. That being so the proceedings conducted by the learned trial Judge are absolutely null and void and of no effect whatsoever. For the above reason therefore, this appeal must succeed. It is accordingly, allowed. Suit No. MHC/749M/94 filed before the court below and the proceedings thereto including the ruling of the Hon. Justice Ogbole dated 22nd September, 1995 are hereby set aside.”
The main issue therefore, in this appeal is the question of the jurisdiction of the trial Benue State High Court. The enforcement of fundamental rights under which this action was brought is provided for in Chapter IV of the 1979 Constitution. Section 42 thereof confers special jurisdiction on the High Court. It is appropriate at this stage to read section 42(1), (2) and (3):
“42 – (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
By virtue and in the light of the above provisions, learned counsel for the appellant submitted that the application under these rules should be brought in a High Court in a State where the violation occurred or is likely to occur. For this submission learned counsel for the respondent submitted that section 42(1) reproduced above has been amended by (section 42) of the Constitution (Suspension and Modification) Decree No. 107 of 1993. It was further submitted that section 230(1)(s) has also been amended and the combined effect of these amendments is to oust the jurisdiction of the State High Courts from entertaining matters coming before it including matters under section 42 of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979. Learned counsel, for this submission, cited the case of Ali v. C.BN (1997) 4 NWLR (Pt. 498) 192 at 203.
In the resolution of this issue, I would like to point out that section 42(1) of the Constitution of the Federal Republic of Nigeria which I have reproduced above has provided the court for the Enforcement of the Fundamental Rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress.Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1 January, 1980 defines “court” as meaning”The Federal High Court or the High Court of a State”. What this means is this, Both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 this court observed as follows:
“In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or the other of his fundamental rights to his liberty or his freedom of movement. This contravention allegedly took place in Gongola State. From section 42(1) above, he has to apply to a High Court in that State that is the High Court where the contravention or breach occurred. The Federal High Court, Kano cannot be a High Court in that State which was envisaged by section 42(1) above. Even if the jurisdiction of the Kano Judicial Division of the Federal High Court extends to and includes Gongola State, the Kano Federal High Court cannot without undue violence to the plain meaning of the words, be described as a High Court in that State namely a High Court in Gongola State. It is therefore, my view that by choosing a court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the appellant in this case did not apply to a High Court in that State as required by section 42(1) of the 1979 Constitution.”
Now, be that as it may, it has been contended for the respondent that Decree No. 107 of 1993 has taken away the jurisdiction of the State High Court. I am unable to agree with this contention. I have closely read Decree No. 107 of 1993 and I find nothing even remotely which has repealed or abrogated the provisions of section 42 of the 1979 Constitution. Rather, a careful reading of the Decree reveals that the provisions of section 42 of the 1979 Constitution were preserved by Decree No. 107 of 1993. I would like to add that section 230(1) of Decree No. 107 of 1993 is a general provision relating to the jurisdiction of the Federal High Court while section 42 of the 1979 Constitution relates to special jurisdiction for the enforcement of the fundamental rights provided for in Chapter IV of the 1979 Constitution. As I have already stated, the High Court of Benue State has concurrent jurisdiction with the Federal High Court in matters of the enforcement of a person’s fundamental rights provided for in Chapter IV of the 1979 Constitution. I therefore, answer this issue in the positive.
This matter however, does not end there. This court, suo motu raised the question as to whether the claim of the plaintiff was a claim for the enforcement of her fundamental right or a claim for breach of contract. We called on the learned counsel to address us on this point. Counsel conceded that the claim as it stands was one for breach of contract.
I set out earlier on in this judgment the claim of the plaintiff.
The claim calls for (1) the quashing of letters of suspension and dismissal (2) an order reinstating the plaintiff (3) payment of accrued salaries and allowances and (4) general damages for breach of contract of employment. In the alternative, the plaintiff seeks an order that she be paid N450,359.58 representing what she could have earned in the next 33 years at N13,647.20 per annum. Looking at the claim, it will be seen clearly that it is claim for breach of contract.
The next question is one of procedure. For the enforcement of fundamental rights, a special procedure has been established by law as prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 1979. The process of enforcement of fundamental rights is commenced by an application made to the court; first, for leave; and upon leave being granted, by notice of motion or by originating summons for redress. No oral evidence is called. The application is heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the heating. The affidavits constitute the evidence.
On the other hand,an action for breach of contract is commenced by a writ of summons. This is the normal procedure in actions tried on the pleadings and to which rules of pleadings apply. View conceded that the plaintiff’s action was for breach of contract of employment. That being so, the present action should have been commenced by a writ of summons.
In the light of the foregoing reasons, I allow the appeal but strike out the plaintiff’s claim on the ground that it was wrongly commenced under the Fundamental Rights (Enforcement Procedure) Rules, 1979. It should have been commenced by the normal procedure in actions tried on the pleadings, id est, writ of summons. The plaintiff/appellant is entitled to costs of N10,000.00 against the defendant/respondent.
SC.262/2000
