Keystone Bank Limited V. Mr. Olukayode Abiodun Oyewale (2009)
LawGlobal-Hub Lead Judgment Report
ITA GEORGE MBABA, J.C.A.
This appeal is against the judgment of Kaduna State High Court in suit No. KDH/KAD/1064/2010, delivered on 8/3/2013 by Hon. Justice Hannatu A. L. Balogun, whereof the learned trial Court held for the Respondent, that the termination of his appointment was unlawful and awarded the sum of N3,141,868.60 to Respondent as his “net severance package” and N3,000,000.00 as general damages. The trial Court also ordered the Appellant to release the Respondent’s title documents to him even though he was yet to pay his indebtedness to the Appellant relating to a subsisting legal mortgage over the Respondent’s property to which the documents related.
The respondent’s claims before the trial Court, as per his further amended Statement of Claim (pages 186 193 of the records) were:
“1. An order that the Plaintiff’s terminal benefits be computed and paid by the Defendant in accordance with the Central Bank of Nigeria disengagement plan, and the conditions of service and practice of the Bank subsisting at the date of Plaintiff employment as well as the date of his termination, to the exclusion of any policy that proportion to only the number of days put in service after the payment of last salary i.e. 10 days (sic).
- A declaration that the policy made on an undisclosed date by the defendant to the effect that payment of terminal benefits for disengaged staff who transferred their services to it (defendant company) will be proportion (sic) to only the number of days put in service after the payment of last salary i.e. 10 days is inapplicable to Plaintiff on any or all of the following grounds;
(i).That the policy is in breach of the conditions of service under which the Plaintiff was employed.
(ii). That the policy contravenes the established practice of the defendant, which was subsisting at the time of Plaintiff’s employment up to this (sic) date of his termination.
(iii). That the policy aims to subtract from Plaintiff’s right to full terminal benefits guaranteed under the Central Bank of Nigeria disengagement Plan and Circulars relating thereto.
- The sum of Three Million, One Hundred and Forty One Thousand, Eight Hundred and Sixty Eight Naira, Sixty Kobo (N3,141,868.60) being the net severance package due him after 9 years of meritious (sic) service particulars of which are set out below:
EARNINGS AMOUNTS
TOTAL PACKAGE
6,500,000.00
SPOUSE ALLOWANCE
200,000.00
TOTAL EMOLUMENT (A/12 MONTHS)9.14 x 9.14
TOTAL EMOLUMENT
5,103,166.60
100% OF TOTAL EMOLUMENT
5,103,166.60
LIABILITYAMOUNT
CONSUMER LOAN 936,474.25
CONSUMER LOAN 724,828.23
NAIRA CARD (CREDIT) 300,000.00
TOTAL LIABILITIES
1,961,298.00
NET SEVERANCE
3,141,868.60
- The total of all monies due and payable as terminal benefits from 11/07/2009 till the date judgment is given based on computation per month (sic).
- An order of this Honourable court directing the defendant to release the Plaintiff’s title documents as the Plaintiff’s contract with the defendant touching on consumer loan has automatically been terminated with his employment.
- General damages in the sum of N5,000,000.00 (Five Million Naira) for loss arising from the manner of termination of the Plaintiff’s employment.
- Cost of action (sic)”.
Dissatisfied with the decision of the trial Court, Appellant filed two Notice of appeal on 11/3/2013 and on 5/4/2013 against it. See pages 326 – 332 and 333 to 344, respectively, for the two sets of Notice of appeal.
Appellant filed its Brief of Argument on 15/5/2013 founded on the grounds of 2nd Notice of appeal filed on 5/4/13 with 16 grounds of appeal. Appellant distill 4 issues for determination from the 16 grounds of appeal as follows:
“(1). Whether the trial Court had the jurisdiction to hear and determine the Respondent’s action (Ground 1).
(2). Whether it was not wrong for the trial Court to suo motu raise and resolve the issue relating to the denial or admission of paragraphs 4, 9, B,14, 15, 16, 20, 21 and 22 of the Amended Statement of Claim, without giving an opportunity to the Appellant to be heard on the issue, and whether, indeed, those paragraphs of the Respondent’s pleadings were admitted so as to make proof of the averments therein unnecessary (Grounds 2 and 9).
(3). Whether in the entire circumstances of this case, the trial Court rightly placed the burden on the Appellant to prove compliance with Exhibit P9 in the determination of the Respondent’s employment and resorting to the examination of the content of Exhibit P9 in deciding that the determination of the Respondents’ employment was unlawful and granting the Respondent’s claim for N3,141,868.60 as his “net severance package”; ordering the Appellant to release the Respondent’s title documents and pay the sum of N3,000,000.00 as general damages to him (Grounds 3, 4, 5, 7, 8, 11, 12, 13, 14 and 15).
(4). Whether it was proper for trial Court not to resolve the issue raised by the Appellant in respect of the competence of the further Amended Writ of Summons and further Amended Statement of Claim and rely on the further Amended Statement of Claim in arriving at its decision in this case (Grounds 10 and 16)”.
The Respondent filed a preliminary objection on 7/11/13, pursuant to Order 10 of the Court of Appeal Rules, 2011, challenging the competence of grounds 1, 10, 15 and 16 of the Notice of Appeal.
He also filed Respondent’s Notice, pursuant to Order 9 of the Court of Appeal Rules, 2011, to the effect that the decision of the trial Court should have been affirmed on grounds other than those relied upon by the trial Court.
The grounds of both the preliminary objection and of the Respondent’s Notice were stated on the face of the processes, but the arguments were done in the Respondent’s Brief, filed on 7/11/13 and deemed duly filed on that date – 7/11/13. (More will be said on this later).
The respondent distilled five (5) issues for determination of the appeal, as follows:
“(1). Whether the Respondent’s claim at the trial Court falls within the ambit of Section 254 C (1) (a) and (k) of the 1999 Constitution as altered by the Constitution of Federal Republic of Nigeria (Third Alteration Act).
(2). Whether the introduction of Section 254 C (1) (a) & (k) into the 1999 Constitution has retrospective effect which ousted the jurisdiction of the State High Court to continue to adjudicate on the Respondent’s action which was pending before the Constitutional Amendment came into force.
(3). Whether the evaluation of evidence by the trial Court which found that the Appellant admitted paragraphs in the Respondents pleadings amounted to raising of issue suo motu and descending into the arena of conflict. (Grounds 2 and 9).
(4). Whether in arriving at a decision to grant the Plaintiff all the reliefs sought, the learned trial judge relied on inadmissible, extraneous or untested evidence. (Grounds 3, 4, 5, 7, 8, 11, 12, 13, 14 and 15).
(5). Whether the court is bound to resolve an issue raised for the first time in a reply to written submission” (Grounds 10 and 16).
The Appellant filed a reply brief on 18/11/13 to contest the issues in the preliminary objection and Respondent’s brief. When this appealed was argued on 4/3/14, it was obvious that Appellant had abandoned his initial Notice and grounds of appeal. The same is accordingly struck out.
The Respondent argued his preliminary objection by adopting the arguments, thereof in the Respondent’s brief. Parties finally adopted their briefs and urged us, accordingly.
Respondent’s preliminary objection was founded on the grounds that:
(a). Ground 1 of the appeal did not emanate from the judgment appealed against and so Appellant needed the leave of this Court to argue (as fresh issue);
(b). Ground 15 lacked particulars;
(c). Leave was not sought to argue grounds 10, and 16 which emanated from an interlocutory decision and not the judgment of the trial Court;
(d). consequently, grounds 1, 10, 15 and 16 of the appeal are incompetent and should be struck out.
Counsel for the Respondent argued the preliminary objection on pages 10 to 13 of the respondent’s brief. The grounds 1, 10, 15 and 16 which respondent faulted state as follows:
“GROUND 1:
The trial judge erred in law by exercising jurisdiction to hear and determine the Respondents action.
PARTICULARS:
(i). The Respondent’s action related to, was connected with and arose from his employment by the appellant and matters connected therewith or related thereto.
(ii). The Respondent’s action related to or was connected with a dispute arising from alleged non-payment of benefits, and other entitlements.
(iii). At the commencement of hearing and the determination of the action, the trial Court had ceased to have jurisdiction to hear and determine the action.
(iv). The National Industrial Court is the Court that has the exclusive jurisdiction to hear and determine the action.
GROUND 10:
The learned trial judge erred in law by relying on the further Amended Statement of Claim as the Respondent’s pleadings and relying on the facts therein in arriving at its decision when there is no competent further Amended Statement of Claim before the trial Court and this occasioned a miscarriage of justice.
PARTICULARS:
(i). The Respondent sought and obtained an order to amend his Amended Statement of claim.
(ii) A further Amended Statement of Claim described as Exhibit A was attached to the affidavit in support of the application to amend the Amended Statement of Claim.
(iii). The respondent did not seek any order to deem Exhibit A as duly filed and served and so no such order was made by the trial Court.
(iv) The respondent failed to file any further Amended Statement of Claim after he had obtained the order to amend his Amended Statement of Claim.
(v). The document marked as Exhibit A, which was attached to the application for the amendment of the Amended Statement of Claim is incompetent further Amended Statement of Claim.
GROUND 15:
Judgment is against the weight of evidence.
GROUND 16:
The learned trial judge erred in law by failing to give any consideration to or resolving the issue concerning the competence of the further Amended Writ of Summons and further Amended Statement of Claim, which was raised in the Appellant’s reply to the Respondent’s final written Address and this occasioned a miscarriage of justice.
PARTICULARS:
(i). In its Reply to the Respondent’s final written Address, the Appellant challenged the competence of the further Amended Writ of Summons and further Amended Statement of Claim.
(ii). In arriving at its decision, the trial Court failed to consider the issue concerning the competence of the Further Amended Writ of Summons and the Further Amended Statement of Claim raised by the Appellant.
(iii). The judgment of a Court must demonstrate in full, a dispassionate consideration of all the issues properly raised and heard and must reflect the logical results of such exercise (per Nnameka-Agu J.S.C.) in Romaine (1992) 23 NSCC (pt. 11) 20 at 34.
(iv). It was imperative for the trial Court to dispassionately or properly consider and pronounce upon or resolve the issue raised and/or canvassed concerning the competence of the Further Amended Writ of Summons and Further Amended Statement of Claim”.
Respondent’s argument against ground 1 was that the issue thereof was not raised, tried and considered by trial Court; that for Appellant to raise same on appeal (as fresh issue) he needed to seek and obtain the leave of this Court to do so, which he failed to do; that though Appellant raised issue of jurisdiction, yet leave of Court is required to raise such issue. He relied on the case of Ikedigwe Vs Fai (2012) 10 NWLR (Pt.1308) 375 at 395; Udo Vs R.T.B.C. & S (2013) 14 NWLR (Pt.1375) SC 488.
Appellant’s reply to that was that absence of jurisdiction of Court to entertain a matter renders any step taken in the matter a nullity and such issue can even be raised by a court suo motu. He relied on Oloba Vs Akereja (1988) 2 NSCC 120 at 129 and 136; and Agbiti Vs The Nigerian Navy (2011) 4 NWLR (Pt.1236) 175 at 207, where the Supreme Court said:
“An Appellant is allowed to raise the question of jurisdiction on appeal, without the leave of Court, whereas, ordinarily, a fresh issue can only be raised on appeal with the leave of Court sought and obtained, hence the issue becomes incompetent and liable to be struck out. I shall repeat, with emphasis, that an Appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner”.
Counsel also relied on the Supreme Court case of NNPC Vs Orhiowasele & Ors (2013) 13 NWLR (pt.1371) 211 at 224; Elugbe Vs Omokhafe & Ors (2004) 18 NWLR (pt.905) 319 at 334.
The law is well settled that a ground of appeal and issue distilled therefrom must derive and flow from the judgment appealed against to be valid. The cases on this are all over the place. Ayangoke Vs Habeeb Nigeria Bank Ltd (2013) 21806 (AC); Ossai Vs FRN (2012) LPELR 16669 (CA); Shettima Vs Gono (2012) 18 NWLR (Pt.1297) 413 at 440; University of Ilorin Vs Olawepo (2012) 52 WRN 42; Ojemen Vs Momodu (1994) 1 NWLR (Pt.323) 685; Obosi Vs NIPOST (2013) LPELR 21397 (CA).
And the reason for this position is not far fetched, the issue being that it will be unfair or unjust to accuse the trial Court that it erred, (as is the usual language of Appellant in faulting the judgement of the trial judge), when the issue the judge is accused of was not even raised or canvassed by the parties, for the lower Court to consider in its judgment. Every appeal is a fault-finding with the judgment appealed against, and so where a matter was not raised and considered by the Court, it cannot form part of the judgment on appeal.
Thus, where an issue on appeal touches on a question not raised/or not considered by the trial Court in the judgment, but is material for consideration and determination of the appeal, the Appellant has a duty to seek and obtain the leave of the appellate Court to raise the issue, as a fresh issue, for consideration by the Appellate Court. A.G. OYO STATE VS. FAIR LAKES HOTEL LTD (1988) 5 NWLR (Pt.92) 1, UKPONG VS. COMMISSIONER OF FINANCE & ECONOMIC DEV. AKS (2007) ALL FWLR (Pt.350 1246; CHIDEBELU & ANOR VS. PROBATE REGISTRAR HIGH COURT OF ANAMBRA STATE & ORS (2013) LPELR 21215 (CA); SOLE ADMIN. OF OFFA LTD VS. ADEGBOYE (2012) LPELR 19677 (CA).
In the case of SHEKA VS. BASHARI (2013) LPELR 21403 CA at 50, this Court held, relying on the Supreme Court decision in CPC VS. INEC (2012) 29 WRN 1 at 4, thus:
“Any grounds of appeal which do not arise from the ratio of the judgment appealed against cannot stand, for reason of incompetence.Where a party desires to raise or generate a ground or issue not represented in the judgment appealed against, and/or captured in the printed Records of appeal, and the same is important to him for the determination of the appeal, then the party placing premium on the stanger ground/issue has to seek and obtain the leave of the Appellate Court to raise the same as a fresh issue. That was not done in this case. OLAGUNJU VS. PHCN PLC (2011) ALL FWLR (Pt 582) 1635; GARBA VS. OMOKHODION (2011) ALL FWLR (Pt.596) 404.
There is, however, an exception to this strict principle, where the point of law in issue touches on the jurisdiction of the trial Court to entertain the suit, in the first place, and this is so, because issue of jurisdiction can be raised at any time, even at the Supreme Court, without any need to obtain leave of the Appellate Court to do so. See the case of AGBITI VS. THE NIGERIAN NAVY (2011) 4 NWLR (Pt.1236) 175 at 207 and NNPC VS. ORHIOWASELE (2013) 13 NWLR (Pt.1371) 211 at 224 where RHODES-VIVOUR J.S.C. said:
“An appellant seeking to raise the issue of jurisdiction before this Court for the first time does not need to ask for leave. All that he needs to do is to raise the issue of jurisdiction in his brief thereby giving the respondent enough time to respond. The issue of jurisdiction raised by the appellant for the first time before this Court is very much in order.”
Of course, this is so, because whatever was done by the trial Court, without jurisdiction, is a complete wasteful exercise as the entire proceeding and decision, no matter how well conducted, amount to a nullity, being an exercise in futility. See KAYODE VS. ABDULFATAI (2012) LPELR 7874 CA, (2012) 53 WRN 145; UTIH VS. ONOYIVWE (1991) 1 NWLR (Pt.166) 166 at 206; JERIC NIG. LTD VS. UBN (2000) 12 SC (Pt.11) 133 at 139; KATO VS. CBN (1991) 9 NWLR (Pt.214) 126 at 148; ZAKARI VS. THE NIGERIAN ARMY (2012) LPELR 9246 (CA).
The point of jurisdiction raised by the Appellant in this Court relates to the power of the trial Court to entertain matters relating to employment and termination of service or dismissal from service, with the coming into effect of the enhanced jurisdiction of the National Industrial Court by the 3rd Alteration Act, that is, Section 254C (1) (a) and (k) of the 1999 Constitution (as amended), which vests exclusive jurisdiction on the National Industrial Court to handle issues of labour and employment and tends to oust the powers of the High Courts or Federal High Court to entertain such matters.
I think the first ground of appeal by the appellant (and the issue distilled therefrom) is well protected by law, though raised for the first time in this appeal, since the same challenges the jurisdiction of the trial Court to hear the case at all. The preliminary objection against the said ground 1 is therefore dismissed.
On ground 15 of the Appeal, the Respondent’s contention was that it lacked particulars. I think this one is a no show, as the ground is an omnibus ground, which, by Order 6 Rule 3 of the Court of Appeal Rules, 2011, is exempted from disclosing particulars or grounds to clarify it, as stipulated in Order 6 Rule 2(2) of the Rules. See also the case of ARIOLU VS. ARIOLU (2011) 11 NWLR (Pt.1258) 288 at 306; and KOBUWA VS. LAMUDU (1998) 9 NWLR (Pt.567) 709, where it was held that “omnibus ground of appeal does not require particulars of error.” By its very nature, such ground of law, is not a ground of law to elicit particulars of error as it is a ground of mixed law and fact, calling for the re-evaluation of the entire evidence and how the trial Court applied the law to the same. That leg of objection also fails and is dismissed.
Objection to grounds 10 and 16 was also that they do not arise from the judgment appealed against. I have already reproduced the grounds 10 and 16 in this judgment. I do not think the Respondent intended to be taken seriously when he alleged that the two grounds did not arise from the judgment appealed against, when in the 1st particulars to ground 16, it is clearly stated that in its reply to the Respondent’s final written address, the Appellant challenged the competence of the Further Amended writ of summons and Further Amended Statement of claim, but the trial Court failed to consider the competence of the same. I think the two grounds are properly located in the judgment appeal against or should be contemplated in the said judgment, and so did not require any leave of Court to raise. As can be seen, the said grounds of appeal did not emanate from the interlocutory decision leading to the Further Amendment of the processes but rather flowed from the final judgment which appellant appealed against, that it was wrong to use and rely on the alleged incompetent Further Amended processes to give judgment to the Respondent! On the whole I dismiss the preliminary objection for having failed.
Appellant’s Counsel Wole Agunbiade Esq., arguing issue one, said it is trite that jurisdiction is intrinsic to adjucation and relied on several Supreme Court cases, including GALADIMA VS. TAMBAI (2000) 11 NWLR (Pt.677); DANGANA vs. USMAN & ORS (2013) 6 NWLR (Pt.1349) 50 at 87, which said:
“It is settled law that jurisdiction is the life blood of any adjudication, because a Court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a Court or tribunal without requisite jurisdiction is a nullity – dead – and of no legal effect whatsoever..”
Counsel argued that it was obvious, from the pleadings and the evidence adduced by the parties, that the Respondent’s case related to or was connected with his employment and the conditions of his said employment and matters connected therewith; that it also touched on dispute arising from alleged payment or non payment of benefit, other entitlements and matters incidental thereto. He referred us to the Further Amended Statement of claim (pages 186 – 193 of the Records) as well as the Respondents deposition (pages 75 – 79 of the Records), and the Appellant’s pleadings and deposition (pages 112 – 114 and 116 – 117 of the Records).
Appellant submitted that the trial Court lacked jurisdiction to hear and determine the Respondent’s action as the same fell within the exclusive jurisdiction of the National Industrial Court, as per section 254C (1) (a) and (k) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended). Counsel reproduced the provisions of the said section of the Constitution and conceded that at the time the suit was filed, in November 2010, the trial Court had jurisdiction to entertain the action, as per section 272 (1) of 1999 Constitution, but that from 4th March, 2011, when the amendment in the 3rd Alteration Act of the Constitution came into effect, the jurisdiction of the trial Court ceased.
Counsel argued that hearing of this case commenced at the trial Court on 29/11/2011, after the jurisdiction of the trial Court had been ousted on 4/3/2011. He relied on the case of OBIUWEUBI VS. CBN (2011) 7 NWLR (Pt.1247) 465 at 495, where RHODES VIVOUR J.S.C., said:
“The law in force, or existing at the time of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law inforce at time cause of action arose governs determination of the suit, while the law inforce at the time of trial based on cause of action determines the Court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on 17/11/1993. A litigant who had a cause of action in 1990 would have his case governed by the law at that time (i.e, 1990). If trial commenced before 1993 the Court to try the case would be the State High Court but if after 17/11/1993 the case would be tried in the Federal High Court. Decree 107 of 1993 denied the State High Court jurisdiction as from 17/11/1993 and transferred jurisdiction on the matters in section 251 of the Constitution to the Federal High Court. As from 17/11/1993, the State High Court no longer had jurisdiction. ”
On page 499 of the judgment in the above case, Counsel said, the Supreme Court held:
“Cases that were on before 17/11/1993 were to be concluded by the State High Court, while cases that commenced after 17/11/1993 are to be heard by the Federal High Court…”
Counsel also relied on the case of NIGERIAN UNION OF TEACHERS, NIGER STATE VS. CONFERENCE OF SECONDARY SCHOOL TUTORS (COSST) NIGER STATE CHAPTER & ORS (2012) 10 NWLR (Pt.1307) 89, and called us to resolve the issue for the Appellant, since, he said, hearing in the Respondent’s case did not commence until 29th November 2011, after the coming into force of the Amendment of the Constitution (section 254C), which vest jurisdiction on the National Industrial Court to hear matters relating to labour and employment.
In response, Respondent’s Counsel E. O. Isiramen Esq., on their issues 1 and 2, which he argued together, submitted that, going by the provisions of Section 254C (1) (a) and (k) of the 1999 Constitution, the law vests jurisdiction on the National Industrial Court over disputes involving employment, labour and Industrial relations matters, but that the law clearly shows who the provision applies to; labour matters employees, workers political or public office holders, judicial officers or any civil or public servant; that though the Constitution did not define the above “persons”, Section 54 of the National Industrial Court Act, defines the word:
“employee” to mean “a person employed by another under a written contract of employment whether on a continuous, part time, temporary or casual basis and includes a domestic servant who is not a member of the family of the employer.”
Counsel asked, whether going by the facts of this action, per the averments in the pleadings filed at the trial Court, the Respondent, who is not in the employment of the Appellant, can be categorized as an employee of the Appellant? He proceeded to answer in the negative.
He relied on the case of AFRICAN PETROLEUM PLC VS. AKINNAWO [2012] 4 NWLR [Pt.1289] 100, to say that for National Industrial Court to exercise jurisdiction, the dispute must clearly be between an employer and employee; that the facts in the above case are the same with this case (as hand); that the claim in this case, as in the case of AFRICAN PETROLEUM PLC. VS. AKINNAWO (supra) was about severance benefits, not labour matters; that in that case of AFRICAN PETROLEUM PLC. VS. AKINNAWO (supra) page 117, this Court held:
“Furthermore the use of the phrase ‘terminal benefits’ presupposes that the respondent had ceased to be in the employment of the appellant hence his claim. I am therefore in agreement with the lower court that the claim is not directly related to labour matters or industrial relations and matters incidental thereto.”
Counsel said that in reaching the above decision the Court of Appeal had relied on the Supreme Court decision in N.U.E.E VS. B.P.E. [2011] ALL FWLR part 525 201 at 233-236, where the Apex Court held that the National Industrial Court only has jurisdiction over matters involving dispute between employer/employee or between employees.
Counsel also relied on the case of EMEKA VS. OKADIGBO [2012] 18 NWLR [Pt.1331] 55 at 89, to say that in determining the jurisdiction of court over a subject matter, recourse has to be made to the Plaintiff’s claim. Counsel referred us to the claims of the Respondent on pages 186 – 193 of the Records, as per his further Amended Statement of claim. He submitted that the reliefs 1 to 4 of the Further Amended Statement of Claim, clearly pertain to the issue of payment of severance benefits; that going by the decision in the AFRICAN PETROLEUM PLC. VS. AKINNAWO (supra), National Industrial Court has no jurisdiction over such matters where an employer/employee relationship does not exist or when employment has been terminated, that Section 254 (1) (a) and (k) of the Constitution do not apply to this case.
Counsel also argued that the provision of Section 254 C (1) (a) and (k) of the 1999 Constitution, as amended, cannot apply, retrospectively, unless it is made to do so by clear and express terms, and that an existing right will not be lost as a result of an enactment, except it is expressly stated.
Counsel said that the decisions in the case of OBIUWEUBI VS. CBN 2011 and OHMB VS GARBA [2001] FWLR [Pt.123] 200, which Appellant relied on, are all to the above effect that statutes cannot apply, retrospectively. He also relied on the Section 6 (1) C of the Interpretation Act L.F.N., and on the case of OBIUWEUBI VS. CBN (supra) and OHMB VS GARBA (supra); he said that in OBIUWEUBI VS. CBN (supra) the Supreme Court, among other things, said:
“Any way one looks at it, the facts in OHMB VS. GARBA are different from the facts in this case and so OHMB VS. GARBA supra cannot be followed. If I may add this case was filed in Lagos High Court on 7th July 1988. This year makes it twenty three years (23 years) since it was filed in Court. It was sent to the Court of Lufadeju in 2002 to start denov. Lufadeju J. has since retired that is to say, for twenty three years, not a single witness has been taken. This is a classic case where interlocutory appeals should be discouraged… I now go back to consider decisions in EGYPT AIR VS ABDULLAHI [1997] 11 NWLR [Pt.528] 179 AND S.P.D.C. NIG. LTD. VS. ISAIAH [2001] 11 NWLR [Pt.723] 168.
In the former, it was held that if the trial in the State High is not concluded before the amendments came into force proceedings after the amendment are a nullity. The case ought to be transferred to the Federal High Court. This is clearly in conflict with O.H.M.B. VS. GARBA (supra). I must observe first that it is a decision of the Court of Appeal. To my mind, it is wrong for the simple reason that had their lordships adverted their minds to Section 6(1) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990 they would not have decided in the manner they did… Decree 107 of 1993 is substantive law. It has no retrospective operation and so would not affect proceedings ongoing that are before 17/11/93. Cases that were on going before 17/11/93 are to be heard by the Federal High Court…”
Counsel argued that in EGYPT AIR VS. ABDULLAHI (supra), nothing was said as to whether trial commenced before the State High Court; that what was obvious was that the case was filed in November 1990, before the State High Court was divested of jurisdiction on 26/8/93, but hearing in the case continued until 4/5/95!
Counsel argued that, to apply the above to this case, before following precedent, facts must be examined, because judgment can only be understood in the light of the facts of a particular action. He said that this case was filed on 10/11/10 and parties exchanged pleadings; pre-conference commenced on 26/1/11, during which parties filed several applications, settlement was explored; thus, that pre-trial conference commenced on 26/1/2011, before section 254 C came to force on 4/3/11. Counsel submitted that pre-trial are directly connected with and shape the conduct of the main trial. He relied on the case of NGIGE VS. OBI [NO.3] [2012] 1 NWLR [Pt. 1280] 87; that pre-trial, cannot be separated from the main trial; that the argument that the trial Court lacked jurisdiction, because the trial had not commenced when section 254C (a) & (k) was introduced into the 1999 Constitution, cannot be sustained; that even at pre-trial conference judgment can be entered for a party.
He urged us to resolve that issue against the Appellant.
RESOLUTION OF ISSUE
I think it is proper to consider and resolve the issue one before going to other issues, as a positive resolution of the same can conclude this appeal at this stage.
Appellant’s issue one distilled from ground 1 of the appeal was whether the trial court had jurisdiction to hear and determine the Respondent’s action.
Was the Respondent’s claim caught by Section 254C (1) (a) and (k) of the 1999 Constitution, as amended?
The Respondent in the attempt to riggle out of the effect of Section 254C (1)(a) and (k) of the 1999 Constitution, as amended, argued that his case was not employment, labour or industrial relations matter, rather it was a case of severance benefit as the issue of employment had ended. Counsel also argued that Section 254C (1) of the Constitution cannot have retrospective operation (granted Respondent’s case were labour, and employment related). He also said that the case of the Respondent had commenced before Section 254C (1) (a) & (k) of the Constitution came into force on 4/3/2011, since the pre-hearing conference of the case had commenced on 26/1/2011, and, by law, pre-trial conference cannot be separated from the main trial due, to the fact that the former shapes the latter and judgment can even be entered at the stage of the pre-trial. He relied on decided cases and on Order 26 Rule 6 of the Kaduna State High Court (Civil Procedure Rules), 2007.
Section 254C (1)(a) & (k) of 1999 Constitution, as amended (3rd Alteration Act) states as follows:
“Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction 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 causes and matters:-
a) Relating to or connected with any labour, 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 there with…
k) Relating to or connected with disputes arising from payment 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.”
I had earlier reproduced the claims or reliefs sought by the Respondent in this judgment. In the light of the provisions of Section 254C (1)(a) & (k) (particularly (k), it is difficult to see how the Respondent can successfully argue that his case was just about “terminal or severance benefit” since the Respondent had ceased to be in the employment of Appellant, relying on the case of AFRICAN PETROLEUM PLC V. AKINNAWO (supra).
A close study of the reliefs sought by the Respondent, particularly reliefs 1, 2 (i) (ii) (iii) and 3, clearly portray Respondent’s quarrel with Appellant over the computation of his terminal benefits, vis a vis, what he called CENTRAL BANK OF NIGERIA DISENGAGEMENT PLAN and the CONDITION OF SERVICE AND PRACTICE OF THE BANK applicable at the date of Respondent’s employment as well as the date of termination of his appointment. He also quarrelled with Appellant’s policy, said to have been made, which tended to affect him negatively and which he claimed to be in breach of the conditions of service under which the Respondent was employed, and contravened established practice of the Appellant which operated at the time of his employment; that the policy subtracted from his rights to full termination benefits, guaranteed by the CBN Disengagement Plan.
The Respondent cannot therefore say that the case before the trial court was merely an issue of ‘terminal or severance benefits’, as if it was a case of a debt which had been ascertained and agreed upon but the Appellant refused or neglected to pay, and so the action was brought to enforce the payment! There is no way the various disputes, listed in the reliefs, could be sorted out, to arrive at what, in fact, was due to the Respondent, as appropriate terminal benefits or severance entitlements, without considering and determining the appropriate employment documents, conditions of service, laws and circulars, including what the Respondent called CENTRAL BANK OF NIGERIA DISENGAGEMENT PLAN and how the same and the alleged Policy of the Appellant which the Respondent complained against, affected his interest or whether they related to him (respondent). The Respondent’s case was therefore not just about his terminal or severance benefits, in the mould of the facts of the case of AFRICAN PETROLEUM PLC V AKINNAWO (2012) 4 NWLR (PT.1289) 100.
It must also be said that the case of AFRICAN PETROLEUM PLC V. AKINNAWO (Supra), which the Respondent, strongly, relied on, was not considered during the regime of the enhanced jurisdiction of the National Industrial Court under Section 254C (1) (a) & (k) of the 1999 Constitution, as amended, which completely ousts the jurisdiction of the State High Court and Federal High Court in civil causes and matters:
“relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlements 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. ”
Of course, prior to the 3rd Alteration Act which brought Section 254C of the 1999 Constitution and enhanced the Constitutional jurisdiction of the National Industrial Court, that Court did not enjoy any constitutional reference or parity with the High Courts, and/or exclusive jurisdiction, to the exclusion of the other Superior Courts of record, or to the extent of subjucating the other Courts’ jurisdiction, in such matters to that of National Industrial Court.
It can be seen that the far reaching enhanced jurisdiction of the National Industrial Court, as per the 3rd Alteration Amendment Act is beyond the scope of what that court had under the National Industrial Court Act 2006, under which the case of AFRICAN PETROLEUM PLC VS. AKINNAUPRO (Supra) was considered and determined.
There is no doubt that the National Industrial Court appears to be saddled with too much work or burden at the moment, which may in future result in litigation hardship or other legal contrains, if not reviewed, but that is the law for now. The Respondent cannot, therefore, in my opinion, discount or wish away the exclusive jurisdiction of the National Industrial Court over the subject matter of the suit in this appeal, by resort to the argument that the case was that of recovery to terminal or severance benefits!
Appellant had also argued, strongly, that at the time of commencement of the hearing of the Respondent’s case, on 29th November 2011, the enhanced jurisdiction of the National Industrial Court, which ousted the jurisdiction of the State High Court on similar matters, had come into force since 4/3/2011, and so the State High Court ceased to have jurisdiction to entertain the Respondent’s suit. He relied on Section 254C (1) (a) and (k) of the 1999 Constitution (as amended) and on the case of OBIUWEUBI VS. CBN (Supra) where RHODES VIVOUR J.S.C., held:
“A litigant who had a cause of action in 1990 would have his case governed by the law at that time (i.e. 1990). If trial commences before 1993 the Court to try the case would be the State High Court, but if after 17/11/1993, the case would be tried in the Federal High Court (now vested with jurisdiction). Decree 107 of 1993 denied State High Court jurisdiction as from 17/11/1993, and transferred jurisdiction on the matters…to Federal High Court.”
From the reasoning of his lordship in that case of OBIUWEUBI VS. CBN (Supra), it can be appreciated that the trial High Court would have been properly seised with jurisdiction to the trial of the Respondent’s case, if at the time the Section 254C (1) (a) and (k) came into force, on 4/3/2011, the hearing of the case of the Respondent had commenced in the High Court.
Available evidence shows that the hearing proper commenced on 29/11/2011, after the pre-trial conference, which was concluded on 28/7/2011. See page 277 of the Records of Appeal the Respondent appears to appreciate the effect of the date of commencement of the hearing, vis a vis, the jurisdiction of the trial High Court to conduct the trial, in the event of application of the Section 254C of the 1999 Constitution, as amended, hence the Respondent’s resort to confusing commencement of pre-trial conference, with commencement of main trial. Of course, by so doing the Respondent admitted the difference, that pre-trial is only preparatory for commencement of actual trial or hearing, by which time witnesses are called to give evidence, or in case of originating summons, the case is argued by Counsel.
There is legal consensus that “the law in force at the time of cause of action arose governs determination of the suit while the law in force at the time of trial based on cause of action determines the Court vested with jurisdiction to try the case”. See OBIUWEUBI VS. CBN (2011) 7 NWLR (Pt.1247) 465 at 495. See also the case of OLUFUNSHO VS. GSDI LTD. (2013) 8 WRN 36 at 54, where OGBUINYA J.C.A. said:
“No doubt, the provision (section 254C (1) of the 1999 Constitution, as amended) was newly factored into the Constitution. Indisputably, the provision has pruned down the expansive jurisdiction of the High Court, the Lower Court, entrenched in section 272 of the Constitution, as amended by stripping it of its vires to entertain, inter alia, civil causes and matters relating to or connected with labour and employment.”
See also GYANG YAKUBU PAM & ORS VS. ABU & ORS; an unreported decision of this Court in CA/K/10/2011 delivered on 10/6/2013, where ABOKI J.C.A. said:
“The law is that where there is a change to the law governing jurisdiction of a Court, the law shall have effect on all matters pending in that Court, except those in which trial has commenced. OLUTOLA VS. UNIVERSITY OF ILORIN (2004) 18 NWLR (Pt.905) 416; OSAKUE VS. FEDERAL COLLEGE OF EDUCATION (2010) 10 NWLR 9 (Pt.1201) 1 and OBIUWEUBI VS. CBN (2011) 7 NWLR (Pt.1247) 465. Hearing had not commenced in this matter before the Lower Court. Thus, as at today it is the National Industrial Court that has exclusive jurisdiction to hear and determine the case of Appellants.”
There is evidence that hearing of the case at the Lower Court commenced on 29/11/2011. By that date the learned trial High Court had lost its vires to hear and determine the case to the National Industrial Court, vested with jurisdiction to entertain such matters, since 4/3/2011, when the Amendment of the 1999 Constitution, as per the 3rd Alternative Act, came into effect. The case ought to have been transferred to the National Industrial Court, for hearing and determination, at that stage. Therefore, everything that was done by the learned trial Court in the case, from the moment it lost jurisdiction to entertain the action, was an exercise in futility.
It is therefore not necessary to consider the other issues raised by the Appellant, whether or not the learned trial judge erred in other respects, or whether the judgment was against the weight of evidence.
This appeal therefore succeeds on Issue one and is hereby allowed. The decision of the trial court in suit No.KDH/KAD/1064/2010, delivered on 8/3/2013, is hereby set aside, having been reached without jurisdiction. The case is hereby remitted to the National Industrial Court for hearing and determination.
Parties shall bear their respective costs.
Other Citations: (2009)LCN/3402(CA)
