Kano State Government & Ors V. Hon. Nasiru Muhammad (2016)
LawGlobal-Hub Lead Judgment Report
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
This appeal is against the judgment of the Kano State High Court in Suit No K/450/2011 delivered by Honorable Justice Tani Yusuf Hassan (as she then was) on the 24th of April, 2012. The Respondent, as claimant, commenced the action in the lower Court against the Appellants, as defendants, and his claims, by an amended statement of claim dated 20th of October, 2011, were for:
i. A declaration that the action of the first Defendant conveyed in a letter dated 10th of June, 2011 directing the Plaintiff to hand over the affairs of the Board of Internal Revenue Kano Sate to the most Senior Director/Staff is ultra vires the powers of the Governor of Kano State, illegal, null and void.
ii. A declaration that the action of the first and second Defendants in appointing the fifth Defendant as Chairman of Board of Inland Revenue Kano Sate when the Claimant tenure as prescribed by law has not ended or expired is invalid, illegal, null and void.
iii. An order that the Claimant is still and remains the Executive Chairman of Board of Internal Revenue of Kano State until his tenure expires
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in June 2015.
iv. An order declaring the appointment of the fifth Defendant by the first and second Defendants when the Claimant’s tenure has not expired as invalid, null and void and of no effect.
v. An order that the interpretation placed on Section 10 item (f) of Kano State Revenue Administration Law 2010 by the agents of the first and second Defendants in directing the Claimant to hand over his position to another person is wrongful and not the intendment of the provision of the law.
vi. An order directing the fifth Defendant to stop parading, presenting himself and performing the functions of Executive Chairman of Kano State Board of Internal Revenue.
vii. Injunction restraining the fifth Defendant or any other person or agent of the first and second Defendants from performing the functions of Executive Chairman of Kano State Board of Internal Revenue pending the determination of the substantive suit.
viii. Damages of N10 Million for wrongful termination of the Claimant’s appointment as Executive Chairman Kano State Board of Internal Revenue.
ix. The Claimant claims against the Defendants in the Alternative as follows:
1.
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The Claimant claims from the first to the third Defendants jointly and severally the sum of N38,343,976.84 as entitlements or benefits attached to the office that would accrue to the Claimant as Executive Chairman Kano State Board of Internal Revenue from June 2011 until June 2015.
2. The particulars of the entitlement, the basis for their computation and the amounts are as follows:
a. Salary emolument, monthly emolument as N363 ,962.20 x 49 months with effect from June 2011 amounting to N17,83 4,147 .80
b. The Claimant is entitled to severance allowance at 300% of Annual Basic Salary i.e N1,247,870 and which is N3,743,610.00.
c. Transport/Vehicle maintenance of Annual Basic Salary for 4 years and 1 month at N3,821,601.88.
d. Furniture Allowance at 300% of Annual Basic Salary paid once in 4 years, provision for the fifth year is required and this is N935,902.50.
e. Medical Allowance at 300% of Annual Basic Salary for 4 years at N1,497,444.00.
f. Security Personnel Allowance at 30% of Annual Basic Salary for 4 years at N1,497,444.00.
g. Annual leave allowance at 10% of Annual Basic Allowance for 5 years at N623,935.00.<br< p=””>
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h. Annual Bonus/l3t month pay at one month basic salary per annum for 5 years at N519,945.83.
i. Kano State Board of Internal Revenue incentive, excess of target of at least N150,000.00 per month at N7,350,000.00.
i. Annual Sallah Ram Bonus 50% of monthly basic salary for five years at N259,972.92.
3. An order of this Honorable Court directing the Secretary to the Kano State Government to compute and direct that the Claimant’s gratuity and other benefits be paid to him forthwith.
On the pleadings, the Respondent, after stating his previous work experience, educational fellowships and background, averred that he was appointed the Executive Chairman of the Kano State Board of Internal Revenue by the second Appellant on the 7th of August, 2009 and that the appointment was for a tenure of five years and was governed by Kano State Revenue Administration Law of 2010. It was his case that in 2011, when a change of guard occurred in the office of the second Appellant, the second Appellant announced the dissolution of the Boards of Directors of all State Owned companies, agencies and parastatals, including the Board of Inland Revenue, with
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immediate effect and that this decision was communicated to him in a letter dated the 10th of June, 2011 from the office of the Secretary to the Government of Kano State. It was his case that this led to an exchange of letters between himself and the office of the Secretary to the Government of Kano State and that since his appointment, he has been performing his duties creditably well and he has not been found incapable of performing his functions or of having been involved in dishonest or corrupt practice or found guilty of corruption and dishonesty and he possesses no mental disability debarring him from functioning in the office. It was his case that he could not be removed from office in the manner purported by the first and second Appellants when he has not been found guilty of misconduct, corruption, dishonesty or incapable of performing his functions and that as such the action of the second Appellant was illegal and unlawful and amounts to an abuse or misuse of power. It was his case that his remuneration as Executive Chairman of the Board of Internal Revenue was governed by the Political Officer Holders Remuneration (Amendment) Law 2010.
In the
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response pleadings, the Appellants conceded that the Respondent was appointed the Executive Chairman of the Kano State Board of Internal Revenue by the second Appellant on the 7th of August, 2009, but stated that the appointment was not governed by Kano State Revenue Administration Law of 2010 and it was their case that the Appellant was not qualified to be appointed into the office in the first place and that his appointment was void ab initio and incompetent. It was their case that following a circular No 13/2010 issued by the Head of Service of Kano State as a reminder to civil servants and government functionaries interested in partisan politics, the Respondent resigned his appointment as Executive Chairman of the Kano State Board of Internal Revenue and he paid one month’s salary in lieu of notice in the sum N280,380.87 via an Intercontinental Bank cheque dated the 4th of May, 2011. It was their case that the Respondent thereafter relocated to Abuja to contest for the post of Member of the House of Representatives on the platform of ANPP and that after losing the elections, the Respondent returned to office of Executive Chairman of the Kano State Board
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of Internal Revenue without following due process. It was their case that the Respondent was legally and lawfully removed from office and was not entitled to any of the claims sought.
The matter proceeded to pretrial conference and at the close of which the lower Court stated that from what the parties told the court, it is an issue of employment between the employee and his employer. The Court will have to be guided with the State Civil Service Rules and evidence will be required in the circumstances to arrive at just decision The matter was thereafter set down for trial and in the course of which the Respondent testified as the sole claimant’s witness and he tendered exhibits in proof of his case and the Appellants called one witness in proof of their case. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment for the Respondent on his alternative claims and awarded him the sum of N10,102,684.44k being salary and allowances for three years of the unexpired tenure of the Respondent’s appointment.
The Appellants were dissatisfied with the
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judgment and they caused their Counsel to file a notice of appeal dated the 16th of May, 2012 against it and the notice of appeal contained five grounds of appeal. The Appellant subsequently filed an additional ground of appeal with the leave of this Court on the 3rd of November, 2014. The Respondent too was dissatisfied with the judgment and he caused his Counsel to file a notice of cross appeal and it was dated the 23rd of July 2012 and it contained five grounds of appeal. In arguing the case of the Appellants on this appeal, their Counsel presented an amended brief of arguments dated and filed on the 16th of July, 2014 and the brief of argument was deemed properly filed by this Court on the 10th of November 2014. Counsel to the Respondent filed an amended brief of arguments dated the 4th of March, 2015 and the brief of arguments was deemed properly filed by this Court on the 9th of March, 2015. Counsel to the Respondent prefaced his arguments in the brief with a notice of preliminary objection. Counsel to the Appellants filed a reply brief of arguments dated the 20th of March, 2015.
In arguing the cross appeal, Counsel to the Respondent filed an
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amended Cross Appellant’s brief of arguments dated the 21st of May, 2015 and the brief of argument was deemed properly filed by this Court on the 25th of May, 2015. The amended Cross Respondent’s brief dated the 6th of October, 2015 was filed on the 8th of October, 2015 and it was deemed properly filed by this Court on the 12th of October, 2015. At the hearing of the appeal, Counsel to the Respondent and the Appellant argued the notice of preliminary objection of the Respondent to the appeal and they thereafter relied on and adopted their respective briefs of arguments on the substantive appeal as well as the respective briefs of arguments on the cross appeal.
The notice of appeal of the Appellants contained six grounds of appeal. In the preliminary objection, Counsel to the Respondent challenged the competence of grounds One, Two and Five on the notice of appeal of the Appellants and prayed that they should be struck out. The Respondent did not contend against grounds Three, Four and Six on the notice of appeal. This Court has read the arguments canvassed in the briefs of the arguments of both parties on the appeal and is of the view that the core issues
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for determination of the appeal of the Appellants can be sustained on grounds Three, Four and Six of the notice of appeal and as such a consideration of the notice of preliminary objection, even if this Court agrees with Counsel to the Respondent thereon, will not terminate the life of the appeal. It is settled law that the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which, if it succeeds, would put an end to the appeal – NEPA Vs Ango (2001) 15 NWLR (Pt.737) 627, Thomas Vs Aderinokun (2008) 16 NWLR (Pt 1112) 184 and Unity Bank Plc Vs Olatunji (2013) 15 NWLR (Pt 1378) 503. An objection that merely attacks some of the grounds of appeal, leaving other grounds that can sustain an appeal does not qualify as a preliminary objection – Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Okereke Vs James (2012) 16 NWLR (Pt 1326) 339, Nigerian National Petroleum Corporation Vs Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148 and Ihedioha Vs Okorocha (2015) LPELR-CA/OW/EPT/GOV/01/2015. Thus, the objection of the Respondent
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is, strictly speaking, not a preliminary objection. Embarking on consideration of it will amount to a futile academic exercise as the appeal of the Appellants will survive its consideration. This Court will not expend scarce judicial time on such an exercise. The notice of preliminary objection of the Respondent be and is hereby discountenanced.
Counsel to the Appellants distilled five issues for determination in the appeal of the Appellants and these were:
i. Whether the learned trial Judge was right to hold that the provision of Section 4 of the Revenue Administration Law No 1 of 2010 qualified the appointment of the Respondent.
ii. Whether the appointment of the Respondent declared illegal by the trial Judge can be rectified without any instrument re-appointing him.
iii. Whether the learned trial Judge erred in law in disregarding Section 87 (1) of the Personal Income Tax Act 1993, the applicable law at the time of the Respondent’s appointment.
iv. Whether the judgment is against the weight of evidence as the trial Judge failed to consider and evaluate the evidence of witnesses.
v. Whether considering the provisions Section
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254C (1) (a) and (k) of the Nigerian Constitution 1999 as amended, the Court below had jurisdiction to hear the matter.
Counsel to the Respondent adopted these issues for determination in proffering arguments in his brief of arguments. On the cross appeal, Counsel to the Respondent distilled six issues for determination and these were:
i. Was the appointment of the Cross Appellant as Executive Chairman, Board of Internal Revenue Kano State by the Governor of Kano State on 7th of August, 2009, illegal and null and void?
ii. Was the appointment of the Cross Appellant as Executive Chairman, Board of Internal Revenue Kano State by the Governor of Kano State on 7th of August, 2009 not saved by Kano State Board of Internal Revenue Law 2010?
iii. Was the Cross Appellant not entitled to reinstatement as the Executive Chairman, Board of Internal Revenue Kano State, the lower Court having held that his appointment was with statutory flavor and was terminated in violation of the relevant provisions of the statute?
iv. Was the Cross Appellant not entitled to damages from wrongful termination of appointment having been refused an order of
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reinstatement?
v.Whether the illegality of the Cross Appellant’s appointment was proved by evidence.
vi. Whether Exhibit D is not sufficient proof of Cross Appellant’s entitlement to allowances and benefits accruable to his position as Executive Chairman Board of Internal Revenue. And if so whether the Cross Appellant is entitled to terminal and other benefits claimed.
Now, the notice of cross-appeal contains five grounds of appeal and from which the Counsel to the Cross Appellant formulated six issues for determination. Counsel formulated Issues (v) and (vi) from one ground of appeal, Ground Five of the notice of appeal, and this fact was expressly stated by Counsel in the amended Cross Appellant brief of arguments. It is settled law that it is not permissible to formulate issues for determination in excess of the grounds of appeal in other words the number of the issues for determination must not exceed the number of the grounds of appeal filed – Amodu Vs Commandant, Police College Maiduguri (2009) 15 NWLR (Pt 1163) 75, Pharma Deko Plc Vs Nigeria Social Insurance Trust Funds Management Board (2011) 5 NWLR (Pt 1241) 431Â and Durbar Hotel Plc Vs
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Ityough (2011) 9 NWLR (Pt 1251) 41. It is also not permissible to formulate more than one issue for determination from a ground of appeal – Eke Vs Ogbonda (2006) 18 NWLR (Pt1012) 506, Thomas Vs Aderinokun (2008) 16 NWLR (Pt 1112) 184 and Ogbe Vs Asade (2009) 18 NWLR (pt 1172) 106. Where either of these occurs, the party is said to be guilty of proliferation of issues for determination and the Courts frown at and do not condone such dereliction – Orji Vs State (2008) 4 SCNJ 85 and Teriba Vs Adeyemo (2010) 11 NWLR (Pt.1211)242.
Additionally, Issue (vi) formulated on the cross appeal consisted of multiple questions and the Courts have said that an issue for determination should not comprise of other issues; it should not be a composition of two different issues – Iloabuchi Vs Ebigbo (2000) 8 NWLR (Pt 668) 197, Ehikhamwen Vs Iluobe (2002) 2 NWLR (Pt 750) 151, Unokan Enterprises Ltd Vs Omuvwie (2005) 1 NWLR (Pt 907) 293, Ikare Community Bank (Nig) Ltd Vs Ademuwagun (2005) 7 NWLR (Pt 924) 275.
Issues (v) and (vi) of the Cross Appellant are incompetent and they, along with the arguments canvassed thereon, are hereby struck out – Yusuf Vs Akindipe (2000) 8
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NWLR (Pt 669) 376, Agbeotu Vs Brisibe (2005) 10 NWLR (Pt 932) 1, Yadis Nigeria Limited Vs Great Nigeria Insurance Company Ltd (2007) All FWLR (Pt 370) 1348, Jamiu Vs Ayinla (2009) 17 NWLR (Pt 1170) 238, Okwuegbala Vs Ikwueme (2010) 19 NWLR (Pt.1226) 54.
With respect to Issue (iii) or the cross appeal on reinstatement of the Cross Appellant as the Executive Chairman, Board of Internal Revenue Kano Sate, it has become an academic question. This is because by his pleadings, the Cross Appellant was appointed on the 7th of August, 2009 and the tenure of his appointment was five years. This means that the Cross Appellant was due to leave office as Executive Chairman, Board of Internal Revenue Kano State on or before the 6th of August, 2014. An order of reinstatement will relate back to the date of his removal from office and it implies that the Cross Appellant was never removed from office and is entitled to all his arrears of salary and emoluments up to the time of reinstatement- National Electric Power Authority Vs Ango (2000) 15 NWLR (Pt.737) 627, Ekeagwu Vs Nigeria Army (2010) 16 NWLR (Pt 1220) 419. Consequently, if the Cross Appellant had been reinstated
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by the lower Court, he would have been due to depart the office on the 7th of August, 2014. The resolution of the question of whether or not the Cross Appellant was entitled to be reinstated as Executive Chairman, Board of Internal Revenue Kano State cannot thus be of any consequence, in the present circumstances of this case.
It is not the duty of an appellate Court to resolve issues that will have no effect on the outcome of the appeal. An issue for determination in an appeal must be a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392. In issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the Court affects the fate of the appeal – Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7
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NWLR (Pt 1245) 155. Issue (iii) the cross appeal does not come within any of these definitions of issue for determination in the circumstances of this case. This Court will thus decline to consider it.
Similarly, Issue (iv) on the cross appeal is a non-starter. It is directed at the refusal of the lower Court to grant the eighth relief sought by the Respondent/Cross Appellant on its pleading i.e. damages in the sum of N10 Million for the wrongful termination of his appointment as Executive Chairman Kano State Board of Internal Revenue.
The principles governing the measure of damages for wrongful termination of appointment or employment are settled and they have been stated and restated by the Courts and the damages that can be awarded are, prima facie, the amount the employee would have earned had the employment or appointment continued according to the contract of employment subject to deduction in respect of amount accruing from any other employment which the employee in minimizing damages either obtained or should have reasonably obtained – Nigeria Marketing Board Vs Adewunmi (1972) 11 SC 111, International Drilling Nigeria Ltd Vs Ajijola
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(1976) All NLR 870, Obot Vs Central Bank of Nigeria (1983) NWLR (Pt 310) 149, Chukwuma Vs Shell Petroleum Development Company Nig Ltd (1993) 4 NWLR (Pt 206) 691, Adeniran Vs National Electric Power Authority (2002) 14 NWLR (Pt 786) 30, Ibama Vs Shell Petroleum Development Company Nig Ltd (2005) 17 NWLR (Pt 954) 364, Oshisanya Vs Afribank (Nig) Plc (2007) 6 NWLR (Pt 1031) 565, Shell Petroleum Development Company Nig Ltd Vs Olanrewaju (2008) 18 NWLR (Pt 1118) 1. It is the salaries and the other legitimate entitlements that the employee would have been entitled to for the period necessary to determine the contract of employment – Union Bank of Nigeria Plc Vs Chinyere (2010) 10 NWLR (Pt 1203) 453. General damages, as a rule, are not awarded for wrongful termination of employment WNDC Vs Abimbola (1966) 1 ALL NLR 159, Shena Security Co Ltd Vs Afropak (Nig) Ltd (2008) 18 NWLR (Pt 1118) 77, New Nigeria Newspapers Ltd Vs Atoyebi (2013) LPELR-CA/K/282/2006, Selcon Tannery Ltd Vs Abubakar (2013) LPELR-CA/K/176/2010. The only exception is that where the termination carries with it a stigma on the character of the employee, award of damages beyond the amount the
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employee would have earned might be considered – Ezekiel Vs Westminister Dredging Ltd (2000) 9 NWLR (Pt 672) 248, British Airways Vs Makajuola (1993) 8 NWLR (Pt 311) 276 Mobil Producing Unit Unlimited Vs Udo (2008) LPELR-CA/C/11/2006. It was not the case of the Cross Appellant in his pleadings or evidence before the lower Court that the matter of termination of his appointment implicated or cast a stigma on his character. Issue (iv) on the cross appeal is thus “dead on arrival”. It is a waste of time to consider it in this appeal.
The only viable issues for determination on the cross appeal are Issues (i) and (ii) and the questions raised in these issues are the same as those raised in Issues (i) to (iv) of the main appeal of the Appellants. The issues are intertwined and considering them separately will only lead to unnecessary repetitions. This Court will thus resolve the appeal and the cross appeal together. It is the view of this Court that three issues arise for determination on both appeals and these are:
i. Whether considering the provisions Section 254C (1) (a) and (k) of the Nigerian Constitution 1999 as amended, the Court below had
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jurisdiction to hear the matter.
ii. Whether the lower Court was right when it found that the initial appointment of the Respondent as the Executive Chairman of Kano Sate Board of Internal Revenue was illegal.
iii. Whether the lower Court was right to hold that the provisions of the Revenue Administration Law No 1 of 2010 qualified, saved and rectified the appointment of the Respondent as Executive Chairman of Kano State Board of Internal Revenue, without need for an instrument re-appointing him.
The appeal and the cross appeal will be resolved on these three issues for determination and all the relevant arguments of Counsel in the appeal and cross-appeal will be considered under the three issues for determination. This Court will commence the consideration of the issues with Issue (i) and, if need be, thereafter consider Issues (ii) and (iii).
The first issue for determination was constituted in the additional ground of appeal filed by the Appellants on the 3rd of November, 2014 with the leave of this Court and it was argued in the appeal of the Appellants. In arguing the issue for determination, Counsel to the Appellants stated that
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jurisdiction was the very basis on which any Court of law tries a case as it is the life of all trials and a trial conducted without jurisdiction is a nullity and he referred to the case of Garba Vs Sheba International (Nig) Ltd (2002) 1 NWLR (Pt 748) 372. Counsel stated that by the provisions of Section 254C (1) (a) and (k) of the Nigerian Constitution 1999 as amended, the lower Court had no jurisdiction to entertain the claims of the Respondent in this matter as set out on the amended statement of claim because they showed that this was a matter between an employee and employer, a subject matter which the provisions of the Constitution put within the exclusive jurisdiction of the National Industrial Court and he reproduced the provisions of the Constitution and referred to the cases of Tukur Vs Government of Gongola State (1989) 4 NWLR (Pt.117) 517 and Tiaga Vs Tiaga (2012) All FWLR (Pt.651) 1548. Counsel urged this Court to find for the Appellants on this issue for determination.
In his response arguments, Counsel to the Respondent stated that the Respondent was a political appointee and not an employee of the Appellants and that it was obvious from
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the pleadings of the Respondent that his case revolved around the interpretation of the Kano Sate Revenue Administration Law 2010 as it concerns the appointment of the Respondent and that the appointment of the Respondent was a tenured one and was not subject to the ordinary employee/employer relationship as is under a simple contract of employment. Counsel stated that the case of the Respondent was on the interpretation of the Kano State Revenue Administration Law 2010 on the illegal removal of the Respondent from office and did not come within the provisions of Section 254C (1) (a) and (k) of the Nigerian Constitution 1999, as amended. Counsel stated further that the matter of unlawful removal of the Respondent from office was not one of the matters that fell within the exclusive jurisdiction of the National Industrial Court by virtue of the provisions of Section 254C (1) (a) and (k) of the Nigerian Constitution 1999 as amended, as the matters mentioned in that section were those relating to or connected with any labor, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety,
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welfare of labor, employee, worker and matters incidental thereto or connected therewith.
Counsel stated that the section did not expressly mention termination or removal of appointment, wrongful dismissal or compulsory retirement or any matter connected to the above and that the only reasonable conclusion derivable is that the section did not intend to put those matters within the exclusive jurisdiction of the National Industrial Court and he relied on the maxim of interpretation that the ‘express mention of one thing is the exclusion of another’ and he referred to the case ofSEC Vs Kasunmu (2009) 10 NWLR (Pt 1150) 509. Counsel stated that the phrase “related to or connected with” was severally used in the provisions of the section and that this suggests that the list in the section was not meant to be open-ended and the phrase cannot be used to include wrongful dismissal or termination of appointment and that the law is settled that where general words follow the enumeration of particular classes of things, the general will be construed as applying only to things of the same general class as those enumerated and he referred to the case Kabirikim
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Vs Emefor (2009) 14 NWLR (Pt 1162) 602. Counsel stated that the lower Court was competent to hear and determine the case of the Respondent as it had the widest jurisdiction in this country under Section 272 of the 1999 Constitution and he referred to the case ofNUEE Vs BPE (2010) 7 NWLR (Pt 1194) 538.
Counsel concluded by saying that assuming that the lower Court had no jurisdiction to hear the matter, the appropriate order that this Court should make is not one of striking out as prayed by the Appellants but one transferring the suit to the National Industrial Court and he referred to Section 24 (3) of the National Industrial Court Act and the case of John Vs Igbo-Etiti (2013) 7 NWLR (Pt.1352) 1.
It must be stated that the issue of jurisdiction was not raised and canvassed in the lower Court by the Appellants and the lower Court did not rule on it. It is trite that, as a general rule, an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court only on the issue properly
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raised before the lower Court and pronounced upon by that Court – Oshatoba Vs Olujitan (2000) 5 NWLR (Pt 655) 159, Global Transport Oceanico Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case -Adeleke Vs Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608, Emmanuel Vs Gomez (2009) 7 NWLR (Pt 1139) 1, and Ebia Construction Ltd Vs Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110. However, case law authorities recognise that an issue of subject matter jurisdiction, as in the instant case and as opposed to procedural jurisdiction, is an exception to this general rule and it can be raised and taken at any stage of the proceedings in a matter and even on appeal for the first time, so long as it is properly raised as a ground of appeal – see for example, Cotecna International Ltd Vs Ivory Merchant Bank Ltd (2006) 9 NWLR (Pt 985) 275, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 466 and Nigerian National Petroleum Corporation Vs Orhiowasele (2013) 13
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NWLR (Pt.1371) 211. The issue was properly raised by the Appellants in this appeal as one of the grounds of appeal. This Court is thus obligated to consider it.
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or
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achieve the clear intentions of the lawmaker. A Court cannot do more than this – Anibi Vs Shotimehin (1993) 3 NWLR (Pt.282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt.1318) 423, Madumere Vs Okwata (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (pt.1369) 512.
The provision under consideration in this appeal on the issue of jurisdiction is Section 254C of the 1999 Constitution of the Federal Republic of Nigeria as amended by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act of 2010. The Act was passed by the Senate on the 14th of December, 2010 and by the House of Representatives on the 15th of December 2010 and it was approved by the States Houses of Assembly on the 8th of February, 2011. It was assented by the President of the Federal Republic of Nigeria on the 4th of March, 2011 and was published as Government Notice No 103 in No 20 of Volume 98 of the Federal Republic of Nigeria Official Gazette dated the 7th of March, 2011. By the provision of Section 2 of the Interpretation Act, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act of 2010 came into being and
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became operational on the 4th of March 2011 when the President assented to it – Hope Democratic Party Vs Obi (2011) 18 NWLR (Pt 1278) 80. The action leading up to this appeal was filed in the lower Court on the 29th of August, 2011 and the writ of summons was issued out of the Registry of the lower Court on the 26th of September, 2011, after the coming into being of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act of 2010.
Section 254C (1) (a) and (k) read thus:
“Notwithstanding the provisions of Sections 251, 257 and 272 and anything contained in this Constitution and in addition to such other jurisdictions as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause and matters –
(a) relating to or connected with any labor, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(k) relating to or connected with disputes
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arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
These provisions have already been interpreted by the Courts and this Court need not “re-invent the wheel” on the meaning and intendment of the provisions. The consensus of the Court is that by the provisions, the National Industrial Court possesses exclusive jurisdiction over all matters relating or incidental to an employee/employer relationship, whether or not the relationship is governed by statute or by a contract of employment and/or by a collective agreement, and this includes matters dealing with removal from office, termination or dismissal of an employee, payment of salaries, wages or terminal benefits, etc – Olofunsho Vs GSDI Ltd (2013) 8 WRN 36, Keystone Bank Ltd Vs Oyewale (2014) LPELR-23512(CA), Maigana Vs Industrial Training Fund (2014) LPELR-24172(CA), Council of the Federal Polytechnic, Mubi Vs Dingoli (2014) LPELR-24187(CA), Salami Vs National
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Judicial Council (2014) LPELR-CA/A/175/R/2013, Ainababholo Vs EDSU Workers Farmers Multi-Purpose Cooperative Society (2015) LPELR-24513(CA), Central Bank of Nigeria Vs Okefe (2015) LPELR-24825(CA), Oniga Vs Government of Cross Rivers State (2016) LPELR-40112(CA).
Now, it is elementary that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt.1377) 274. It is also trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt.851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt.853) 142.
Reading
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the claims of the Respondent as reproduced above and the totality of his case as made out in the amended of statement of claim, it is uncontestable that his cause of action is wrongful termination of his appointment as the Executive Chairman of the Kano State Board of Internal Revenue by the first and second Appellants and the reliefs sought are predicated on this cause of action. This was the same summation made by the lower Court when it stated at the close of pretrial conference of the matter that “it is an issue of employment between the employee and his employer. By the provisions of Section 254C (1) (a) and (k) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the lower Court ceased to have jurisdiction to entertain the claims in the nature made by the Respondent on the 4th of March, 2011. Thus, as at 26th of September, 2011 when the lower Court issued the writ of summons to commence the action of the Respondent out of its Registry, it had ceased to have jurisdiction to entertain the matter.
The issue of jurisdiction is most fundamental in the adjudication or determination of a cause or matter by Court. It is “the
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blood, life wire, bedrock and foundation of adjudication and without it the ‘labourers’ therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain” Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt.111) 552. A Court with jurisdiction builds on a solid foundation because jurisdiction is the rock on which Court proceedings are based. But a Court that lacks jurisdiction and continues to hear a matter and determine judicial proceedings builds on quick sand and all proceedings and steps based on it will not stand. The entire proceedings before the lower Court, including the trial and the judgment, cannot thus sand. It is a nullity and it is liable to be set aside.
Now, with this finding what order is this Court to make in respect of the claims canvassed by the Respondent before the lower Court. Counsel to the Appellants prayed this Court to strike out the claims of the Respondent while the Counsel to the Respondent urged this Court not to strike out the case, but to transfer same to the National Industrial Court for adjudication de novo. Section 24 of the National Industrial Act provides
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for power of transfer of cases to the National Industrial Court where a finding of no jurisdiction is made. Its Subsection (3) reads thus:
“Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed to include the power to make rules of Court for the purposes of this section.”
This provision was interpreted in the case of John Vs Igbo-Etiti Local Government Area (2013) 7 NWLR (Pt 1352) 1 and this Court stated in that case that the provision was a directive to the High Court of States not to strike out a matter
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where it finds out that it possesses no jurisdiction to entertain same and that such High Court should instead transfer the matter under its own Rules of Court to the National Industrial Court. This exercise of power of transfer of cases to the National Industrial Court by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja is however not afree for all’ affair and it is dependent on the High Court concerned possessing the power of transfer either under its High Court Law or its Rules of Court. Where the High Court possesses no such power of transfer, it cannot transfer a matter to the National Industrial Court and it cannot exercise such powers under the National Industrial Court Act Aluminum Manufacturing Co Nig Ltd Vs Nigerian Ports Authority (1987) 1 NWLR (Pt 51) 475, Fasakin Foods (Nig) Ltd Vs Sosanya (2006) 10 NWLR (Pt 987) 126 and Amalgamated Trustees Ltd Vs Associated Discount House Ltd (2007) 15 NWLR (Pt 1056) 118. Neither can this Court do so in place of the High Court concerned because, under Section 15 of the Court of Appeal Act, it can only exercise the powers of the said High Court, and
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nothing more. This Court has read through the Rules of Court of the lower Court, High Court of Kano State, as well as its High Court Law and must say that it is unable to locate any provision empowering the High Court of Kano State to transfer cases either to the Federal High Court or to the National Industrial Court. This Court cannot thus transfer this case to the National Industrial Court as canvassed by Counsel to the Respondent. The only order that can be made, in the circumstances, is an order of striking out.
With these findings, it is appropriate that this Court terminates its deliberations in this appeal as the two other issues touch on merits of the case of the Respondent before the lower Court. To make findings on the other issues will, where the Respondent chooses to commence the matter afresh in the National Industrial Court, compromise the ability of that Court to determine the claims freely as our findings would have put shackles on its full control of the facts and issues before it in that matter. This Court is not unmindful of the usual admonition that because it is not the final Court in the judicial hierarchy, it is wise that it goes
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further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on subject matter jurisdiction is wrong – Ovunwo Vs Woko (2011) 17 NWLR (Pt.1277) 522, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1. The Supreme Court restated the advice in the case of National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (pt 1307) 170 that this Court, being the penultimate Court in our judicial system, when confronted with the issue of jurisdiction should decide the issue one way or the other and then proceed to determine the main appeal thereby affording the Supreme Court the benefit of its opinion. The facts of this case, however, necessitate this Court to desist from resolving the two other distilled issues in the appeal and cross appeal so as to give the parties a level playing field should they decide to take their fight before the National Industrial Court. The second and third issues for determination in his appeal will thus not be considered and resolved. They are hereby declined.<br< p=””>
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In conclusion, this Court finds merit in the appeal of the Appellants and it is hereby allowed while it declined the consideration of the issues raised in the cross appeal of the Respondent and the cross appeal is hereby struck out. The judgment of the Kano State High Court in Suit No K/450/2011 delivered by Honorable Justice Tani Yusuf Hassan (as she then was) on the 24h of April, 2012 is hereby set aside. In its stead is entered an order striking out the claims of the Respondent before the lower Court.
The parties shall bear their respect costs of the appeal. These shall be the orders of this Court.
Other Citations: (2016)LCN/8837(CA)
