J.A Adekoye & Ors V. Nigerian Security Printing Minting Company Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the decision of the Court of Appeal, holden at Lagos in Appeal NO.CA/L/154/98 delivered on the 29th day of April, 2002 in which the court allowed the appeal of the present 1st respondent/cross appellant and dismissed the claim of the present appellants, thereby giving rise to the instant appeal.

By an originating summons No. LD/M/358/92 filed on 25/6/92, the appellants as plaintiffs raised the following questions for determination by the Lagos State High Court:-

“(i) Whether the employees of the Nigerian Security Printing and Minting Company Limited (N.S.P.M.C) are public officers of the Federal Republic of Nigeria within the meaning of the Constitution of the Federal Republic of Nigeria, 1979.

(ii) Whether the Nigerian Security Printing and Minting Company Limited is part of the public service of the Federal Republic of Nigeria.

(iii) Whether the provisions of the Pensions Act, Cap.346 Laws of the Federation are applicable to the employees of N.S.P.M.C by virtue of being public officers of the federation.

(iv) If the answer to question 3 is in the negative whether as having been (sic) members of the public service of Nigeria and thereby made subject to the disabilities, liabilities and restrictions applicable to such officers the provisions of the Pensions Act which deprive them of some pension rights and privileges applicable to other public servants under that Act are not inconsistent with the constitution and therefore void.

The appellants, as plaintiffs then claimed the following reliefs:-

“…Declaration that:

1. The 1st defendant is part of the public service of the Federal Republic of Nigeria.
2. The plaintiffs being former employees of the 1st defendant were subject to the disabilities, liabilities and restrictions prescribed for the members of the public service of the federation by or under the constitution of the Federal Republic of Nigeria, 1979 and are therefore entitled to enjoy all the rights, privileges and immunities including the pension rights of public servants under the constitution of the Federal Republic.
3. That the 1st defendant being part of the public service of Nigeria and having obtained the approval of the Federal Minister of Finance and Economic Development to implement its pension scheme in accordance with the Federal Government Guidelines is subject to the provisions of the Pensions Act Cap 346 Laws of the Federation 1990.
4. Each of the 1st – 3rd plaintiffs and those they represent who were compulsorily retired from service after attaining the age of 45 years was entitled to commence to receive his pension on the basis of total emolument effective from the date of retirement.
5. Each of the 5th – 7th plaintiffs and those they represent who were compulsorily retired from the service of the 1st defendant before attaining the age of 45 years were entitle to receive pension on the basis of total emolument from the date of his retirement notwithstanding the fact that he had not as yet attained the age of 45 years.
6. An order of mandamus compelling the defendants to pay pension to the plaintiffs in accordance with provisions of the Pension Act Cap 346 laws of the Federation 1990-”

At the conclusion of arguments, the trial court granted all the claims of the plaintiffs/appellants in the following terms:-

“(i) The employees of the Nigerian Security Printing and Minting Company Limited are public officers of the Federal Republic of Nigeria 1979.

(ii) The Nigerian Security Printing and Minting Company Limited is part of the public service of the Federal Republic of Nigeria.

(iii) The provisions of the Pension Act Cap 346 laws of the Federation of Nigeria 1990 are applicable to the employees of the Nigerian Security Printing and Minting Company Limited by virtue of being public officers of the Federation.

(iv) Any provisions of the Pension Act which deprives them of some pension rights and privileges applicable to other public servants under that Act are inconsistent with the constitution and therefore void.”

The trial court also made the following declarations:-

“(i) that the 1st defendant is part of the public service of the Federal Republic of Nigeria,

(ii) the plaintiffs being former employees of the 1st defendant were subject to the disabilities, liabilities and restriction prescribed for the members of the public service of the Federation Republic of Nigeria, 1979 and are therefore entitled to enjoy all the rights, privileges and immunities including the pension rights of public servants under the constitution of the Federal Republic,

(iii) that the 1st defendant being part of the public service of Nigeria and having obtained the approval of the Federal Minister of Finance and Economic Development to implement its pension scheme in accordance with the Federal Government guidelines, is subject to the provisions of the Pension Act, Cap 346 Laws of the Federation, 1990,

(iv) each of the 1st to 3rd plaintiffs and those they represent who were compulsorily retired from service after attaining the age of 45 years was entitled to commence to receive his pension on the basis of total emolument effective from the date of his retirement,

(v) each of the 1st to 3rd plaintiffs and those they represent who were compulsorily retired from the service of the 1st defendant before attaining the age of 45 years were entitled to commence to receive pension an the basis of total emolument from the date of his retirement notwithstanding the fact that he had not yet attained the age of 45 years.

(vi) an order of mandamus is granted compelling the defendants to pay pension to the plaintiffs in accordance with provisions of the Pension Act, Cap 346 Laws of the Federation 1990.

(vii) the defendants shall pay the cost of this suit assessed at N7,500.00 (seven thousand, five hundred naira) in favour of the plaintiffs.”

The defendants were dissatisfied with that judgment and consequently appealed to the Court of Appeal, which as stated earlier in this judgment allowed the appeal by stating, inter alia thus:

” …I hold that this appeal has merit. It is allowed. I hold further that the appellant was made a part of the public service of the Federation under section 277 of the 1999 Constitution. However, it is my view that the provisions of the Pensions Act, Cap 346 do not apply to the plaintiffs/respondents. I therefore dismiss plaintiffs/respondents claim in so far as the claims were hinged on the assumption that respondents were entitled to pension under the Pensions Act, Cap 346.”

The plaintiffs, who were respondents in the court below, are not satisfied with the above judgment and have consequently appealed to this court against same.

In addition to the above appeal, there is a cross appeal by the 1st respondent against the said judgment.

In the appellants’ brief of argument filed on the 14th day of August, 2006 and adopted in argument of the appeal on the 10th day of November, 2008, the Learned Senior Counsel for the appellants Chief G. O. K Ajayi, SAN submitted the following issue for the determination of the appeal.

“Having accepted that the effect of the 1979 Constitution was to expand the scope of the meaning of the expression “public service” to include the appellants, was the Court of Appeal right in nevertheless proceeding to hold that the appellants were not entitled to receive pension benefits under the Pension Act “unless and until a new law is passed for that purpose by the Notional Assembly”.

On the other hand, learned counsel for the 1st respondent Norrison 1 Quarters Esq, in the 1st respondent/cross appellants’ brief of argument filed on 10/11/05 and also adopted in argument of the appeal, submitted one issue each for the determination of the appeal and cross appeal.

For the appeal. The issue is:-

“Whether the Court of Appeal was right in holding that the appellants are not entitled to receive pension under the Pension Act”.

While that for the cross appeal reads thus:-

“Whether the Court of Appeal was right in upholding the jurisdiction of the trial court to hear and determine the claim for pension against the 1st respondent a company responsible for the printing and minting of Nigeria’s currency and in which the administration, management, and control lies with the Federal Government of Nigeria.”

The normal practice when there is a main appeal and a cross appeal is to resolve the issue(s) raised in the main appeal before going onto those of the cross appeal. However in the instant appeal where the issue raised in the cross appeal touches and concerns the jurisdiction of the trial court to hear and determine the originating summons in the first place, it becomes of utmost importance that that issue be determined first before proceeding to determine the issue(s) touching and concerning the merit of the appeal, if need be, as it is settled law that whenever an issue of jurisdiction, which is usually considered a periphery issue, is raised, it must be resolved first and foremost. It therefore follows that the peculiar circumstance of the issues in this appeal makes it necessary for me to first resolve the issue raised in the cross appeal before going on to consider the issue raised in the main appeal, depending on the outcome of the resolution of the issue in the cross appeal.

In arguing the cross appeal, learned counsel for the 1st respondent/cross appellant referred the court to a passage at pages 69-70 of the record where the lower court held that the Lagos State High Court has the jurisdiction to hear and determine the matter because though the 1st respondent may be an agent of the Federal Government, it is not, being a limited liability company, an agency of the Federal Government and therefore not covered by the provisions of Decree No 107 of 1993, and submitted further that the lower court was in error in so holding having regards to the decision of the court in the case of NEPA vs Edegbero (2002) 18 NWLR (Pt. 798) 79 at 98; that the issue of payment of pension or entitlement to payment of pension in accordance with the provisions of the Pensions Act falls within the purview of administration, management and control of the Federal Government or its agencies and that the 1st respondent is an agency of the Federal Government, as contemplated by section 230(1) (a) to (s) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution), and that it is only the Federal High Court, in the circumstance that has the jurisdiction to entertain the suit/action as constituted. Learned counsel cited the following additional authorities in support of his contention:

Ali vs CBN (1997) 4 NWLR (Pt. 498) 192 at 204; University of Abuja vs Ologe (1996) 4 NWLR (Pt. 445) 706 at 722: Adebileje vs NEPA (1998) 12 NWLR(Pt. 577) 219 at 222 and urged the court to resolve the issue in favour of the cross appellant and allow the cross appeal.

In the reply brief filed on 28/4/2008 and signed by Ade Okeaya-Inneh SAN, it is submitted that the proper issue calling for determination following the grounds of cross appeal is as follows:-

“Whether the Court of Appeal was right in upholding the jurisdiction of the trial court to hear and determine the claim for pension against the 1st respondent.”

However, whether the issue as formulated by the cross respondent is preferable does not take away the substance of the issue in contention which is simply whether in view of the provisions of section 230 of the 1979 Constitution the Lagos State High Court has the jurisdiction to hear and determine the matter as constituted. I had earlier reproduced the questions raised in the originating summons and the determination of same by the trial court.

Referring to the passage in the judgment of the lower court at pages 69 – 70 of the record earlier referred to by learned counsel for the 1st respondent/cross appellant learned counsel submitted that the 1st respondent is not an agency of the Federal Government within the meaning of Decree NO. 107 of 1993 but an agent used by the Federal Government to perform specific transactions; that the 1st respondent was not created by the Federal Government but was brought about by the provisions of the Companies And Allied Matters Act, the 1st respondent/cross appellant being a limited liability company; that the Lagos State High Court therefore has the jurisdiction to hear and determine the originating summons and urged the court to resolve the issue against the cross appellant and dismiss the cross appeal.

The learned counsel for the 2nd and 3rd respondents, G. F. Z1 Esq in the 2nd and 3rd respondents brief of argument deemed filed on the 10th day of November, 2008 adopted the argument of the learned counsel for the 1st respondent/cross appellant on the cross appeal and urged the court to allow the cross appeal.

Now, section 230(1)(q)(r)(s) of the 1979 Constitution, as modified by Decree No.107 of 1993, provides as follows:-

“230 (1) notwithstanding anything to the contrary contained in this 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 to (sic) any other court in civil causes and matters arising from:

(q) the administration or the management and control of the Federal Government or any of its agencies;

(r) subject to the provisions of this constitution, the operation and interpretation of this constitution in so far as its affects the Federal Government or any of its agencies; and

(5) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

Provided that nothing in the provisions of paragraphs (q)(r) and (5) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

In reacting to the submissions of the learned counsel for the Appellant, 1st respondent/cross appellant, in respect of the issue of the jurisdiction of the trial court to hear and determine the originating summons, the lower court had this to say at pages 69-70 of the record:-

“…It may well be that the Federal Government has used the 1st defendant in the execution of certain functions. That however, does not make the 1st defendant an agency of the Federal Government within the meaning of Decree 107 of 1993. At the highest, that it would only make the 1st defendant an agent of the government for the purpose of the specific transactions done for the government by the defend…………….. certainly not an ‘agency’.

The 1st defendant was incorporated under the Companies Ordinance. It cannot posses a character different from other companies incorporated under the Companies Ordinance. All the attributes of companies incorporated under the Companies Ordinance are derived from the same law. It cannot enjoy a greater advantage from the same law than other companies just because the Federal Government has shares in it. It is my firm view that the Lagos State High Court was right to have assumed jurisdiction to hear and determine this matter. ”

The question is whether the lower court is right in its decision supra.

It has to be kept in view that the action of the appellants is premised on the fact that the 1st respondent /cross appellant, by virtue of the Federal Government owning controlling shares therein and by constitutional provision, to wit, section 277 of the 1979 Constitution, together with its employees form part and parcel of the Federal Public Service as a result of which the appellants contend that they are entitled, as public servants to receive pensions under the provisions of the Pension Act, Cap 346, Laws of the Federation, 1990. The lower courts agreed with the appellant that by operation of section 277 of the 1979 Constitution, the 1st respondent and the appellants form part of the Federal Public Service of Nigeria. The lower court, however held, in addition thereto that for the appellants to enjoy the benefits of such a pension under the Pensions Act supra, the National Assembly has to enact an Act to make the provisions of the Pensions Act, Cap 346 applicable to the appellants thereby giving rise to the main issue for determination in the main appeal. However, now that the issue is as to whether the trial court has the jurisdiction to entertain the suit as constituted in view of the public service status of the 1st respondent, the answer from the appellants/cross respondents and the lower court is that the 1st respondent being a limited liability company created by the Companies Ordinance remains the same i.e. limited liability company and not part of the public service of the Federation. We have to remember that it is the constitution of this country that conferred the status of public service on the 1st respondent/cross appellant, not an ordinary Act of the National Assembly. We all know, and infact it is long settled that the provisions of the constitution are supreme over any other provisions, law or Act of the National Assembly.

The said section 277(1) of the 1979 Constitution defines “public Service of the Federation” to mean “service of the Federation in any capacity in respect of the Government of the Federation, and includes service as…

(f) staff of any company or enterprise in which the Government of the federation or its agency owns controlling share or interest; …”.

From the above, it is very clear that by constitutional arrangement, the 1st respondent/cross appellant as well as its members of staff form part of the public service of the federation and that the 1st respondent in particular is an agency of the Federal Government as it is not disputed that the Federal Government owns a controlling share in the 1st respondent/cross appellant.

I therefore hold the view that the 1st respondent/cross appellant is an agency of the Federal Government contrary to the views of the lower court.

I hold the further view that the issue of payment of pension to qualified public servants in Nigeria with particular reference to those employed in the 1st respondent/cross appellant has to do with the administration, management and control of the 1st respondent/cross appellant as an agency of the Federal Government. It is therefore erroneous to hold that the 1st respondent/cross appellant is only an agent of the Federal Government in respect of specific functions.

I therefore hold that the question of payment of pension to public servants or entitlement to payment of pension under the provisions of the Pensions Acts Cap 346, Laws of the Federation, 1990 is an issue within the administration, management and control of the 1st respondent/cross appellant within the provisions of section 230(1) of the 1979 Constitution supra and consequently that where an issue has arisen as in the instant case, between the 1st respondent and its staff or former employees, only the Federal High Court has the exclusive jurisdiction to hear and determine the dispute, not a State High Court.

In the circumstance, I hold that the sole issue in the cross appeal be and is hereby resolved in favour of the cross appellant.

In conclusion, I find merit in the cross appeal which is hereby allowed. It is hereby ordered that suit NO. LD/358/92 which was instituted at the Lagos State High Court be and is hereby struck out for want of jurisdiction in that court.

I make no order as to costs in view of the fact that the appellants are pensioners. Cross appeal allowed while the main appeal is hereby struck out.

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SC.224/2002