Matthew Ikpekpe V. Warri Refinery & Petrochemical Company Limited & Anor (2018)
LAWGLOBAL HUB Lead Judgment Report
This is an appeal against the judgment of the Court of Appeal Benin Division delivered on 4th March, 2005, wherein the Court below set aside the judgment of the trial State High Court for lack of jurisdiction and struck out the claim of the appellant who was the plaintiff at the trial Court. A perusal of the record of appeal shows the following as the facts leading to this appeal.
The appellant as plaintiff sued the Respondents as defendants before the High Court of Delta State, holden at Warri, claiming the following:-
- A declaration that the plaintiff is entitled to be employed by the first defendant as driver with effect from 12th day of June, 1987.
- Order of specific performance of the contract of employment of plaintiff by the first defendant upon the successful medical test the first defendant ordered the plaintiff to undergo as a condition for the said employment as a driver 11 on the first defendant salary grade level 16/1.
- N500, 000.00 against the second Defendant being damages in that on the 29th of June, 1987 the second
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defendant wrongfully and unlawfully and acting ultra vires and arbitrarily withheld the letter of appointment issued by the 1st defendant to the plaintiff employing the plaintiff as a driver 11 on the first defendant salary grade level 16/1.
The appellant in this appeal was a casual driver with the 1st Respondent, Warri Refinery and Petrochemical Company Ltd., then as Petrochemical section of the NNPC at Ekpan. He applied for employment as driver 11 on the 1st Respondent’s salary grade level 16/1. In August, 1986, the Appellant was interviewed along with others for regular employment with the corporation. However, on or about 30th December, 1986, he was dismissed from service. In June, 1987, he was invited by the 1st Appellant’s letter to attend a medical test, a condition upon handing over to him his letter of employment by the 1st Respondent which letter was alleged at the material time to be in the custody of the 2nd Respondent, an employee of the 1st Respondent assigned to the Petrochemical section of NNPC, Ekpan as its Project Manager. Appellant states that he passed the medical test conducted and medical report was issued to him which
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automatically entitled him to be employed as a driver 11.That the 2nd Respondent withheld the letter of employment issued by the 1st Respondent to the appellant without any just cause, consequent upon which he instituted the action.
The Respondents in their joint amended statement of defence denied the claim and stated that they never issued any employment letter to the appellant and that the medical test conducted by the 1st Respondent was one of sin quo – non for an applicant seeking gainful employment with the corporation and that it is not a guarantee or certainty or an assurance that the applicant is successful when such examination is conducted.
In his judgment, the learned trial judge on page 99 of the record of appeal made the following findings and conclusions:-
“The evidence before me shows that 2nd defendant Dr. Dena is an employee of 1st Defendant Company I so find.
As contended in plaintiffs pleadings and in his evidence, 2nd defendant had no mandate or authority by or from 1st Defendant Company to withhold plaintiffs letter of appointment. I so find.
I have earlier found that 2nd defendant did wrongfully
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withheld (sic) the said letter. I so find again.
As servant of the 1st Defendant Company, 2nd defendant acted in the course of his duty, albeit wrongfully.
2nd defendants action is wrongful and improper.
If he had the authority or mandate of 1st Defendant company to withhold plaintiffs letter of appointment Dr. Dena to have come to Court to place his evidence before the Court to that effect.
He appears to have defiantly or arrogantly ignored this proceedings whist the battle concerning his wrongful act was raging.
The absence of plaintiffs letter of appointment (which 2nd defendant is withholding) has to a large extent, prevented this Court from granting the declaration sought by plaintiff. It has made it impossible for the Court to ascertain plaintiffs entitlements, i.e., salary on appointment and fringe benefits and allowances. More importantly, plaintiff has suffered hardship and loss of earnings as a result of 2nd defendants act which is ultra vires and wrongful. Accordingly, plaintiff is entitled to general damages. In plaintiffs alternative claim at paragraph 14 (c) of his statement of claim, he claims the
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sum of N500,000 (Five Hundred Thousand Naira) as general damages.
Having regard to all I have said in respect of 2nd defendants wrongful act, I award the sum of N300, 000 (Three Hundred Thousand Naira) as general damages against 2nd defendant. Dr. Dena for his wrongful act of arbitrarily withholding plaintiffs letter of appointment in his capacity as servant of 1st defendant company who is vicariously liable.”
Dissatisfied with the above judgment of the learned trial judge, the Respondents herein appealed to the Court of Appeal as Appellants. The lower Court set aside the judgment of the High Court of Delta State on the ground that the said State High Court lacked jurisdiction to entertain the matter and to make the orders it made in the judgment.
Also dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court. Notice of appeal was filed on 20th May, 2005 against the judgment of the Court below which was delivered on 4th March, 2005. There are two grounds of appeal, out of which two issues have been distilled for the determination of this appeal.
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On 12th February, 2018 when this appeal was argued, the learned counsel for the appellant, D. E. Agbaga, Esq., adopted the appellant’s brief of argument filed on 16th November, 2006. The two issues alluded to above are as follows:-
- Whether Section 230(1) (P) of the 1979 Constitution as amended by Decree No. 107 of 1993 now Section 251 (1) (P) of the 1999 Constitution applies to action founded on breach of contract and specific performance for which the State High Court enjoys jurisdiction in line with the decision in Felix Onuorah v Kaduna Refinery and Petrochemical Co. Ltd (2005) All FWLR (pt 256) 1356.
- Whether the Court of Appeal was right to dismiss the appeal when it did not find it necessary to consider and determine the issues identified by the Appellant
Also, C. D. Bello, Esq., of counsel for the Respondents, on the same date identified and adopted the Respondent’s brief of argument he filed on 15th March, 2007 wherein he formulated two similar issues but couched differently thus:-
- Whether the Court of Appeal was wrong in holding that Section 230(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by the Constitution (Suspension and Modification) Decree 107 of 1993
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vested jurisdiction in the Federal High Court rather than the State High Court in the appellant’s action seeking declaratory reliefs and specific performance against the respondents when the 1st Respondent is an agency of the Federal Government.
- Whether the Court of Appeal did not consider the appellant’s case complaining that the respondents did not appeal against the order of vicarious liability made by the trial Court and, in any event, whether the decision of the Court of Appeal on the issue of jurisdiction did not dispose of the entire appeal before it.
I shall in the circumstance of this case, determine this appeal on the two issues distilled by both parties. But before then, let me make a few comments in respect of notice of preliminary objection contained on page 4, paragraphs 3.00 – 3.04 of the Respondents’ brief. It states:-
3.00 NOTICE OF PRELIMINARY OBJECTION
3.01 At the hearing of this appeal, the respondents shall raise preliminary objection to the competence of this appeal thus:-
3.02 (1) Grounds 1 and 2 of the grounds of appeal being grounds of mixed law and facts were filed
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without leave of the Court of Appeal or this Honourable Court contrary to Section 233 (1) of the Constitution of the Federal Republic of Nigeria 1999.
3.03 (2) The appellant cannot raise the issue of jurisdiction in his brief as he has done in issue 1 thereof without seeking or obtaining leave of this Honourable Court in that he did not argue of (sic) canvass the said issue in his brief at the Court of Appeal.
3.04 We therefore urge this Honourable Court to strike out the said issue 1 of the appellants’ brief of argument and grounds 1 and 2 of the grounds of appeal for being incompetent.”
The above is all that relates to the preliminary objection. There is no argument in support of the said issues raised in the notice of preliminary objection. The only reasonable conclusion would be that it has been abandoned. It is not the duty of the Court to proffer argument for the respondents in support of the notice of preliminary objection or the issues raised therein.
But even if there was argument in support, the law is trite that issue of jurisdiction is constitutional or statutory and therefore a matter of law.
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The appellant needed no leave to raise same. Moreover, issue of jurisdiction was the main and probably the only decision of the lower Court. It is my view that the said issue 1 was properly raised by the appellant. See Agbule v Warri Refinery & Petrochemical Company Ltd, (2012) LPELR – 20625 (SC), (2013) 6 NWLR (pt. 1350) 318, NNPC & Anor v Orhiowasele & Ors (2013) 13 NWLR (pt. 1371) 211 Wema Securities & Finance Plc v Nigeria Agricultural Insurance Co. (2015) LPELR – 24833 (SC), Western Steel Works Ltd & Anor v Iron Steel Workers Ltd., (1987) 2 NWLR (pt. 179) 188, Aderibigbe v Abidoye (2009) 10 NWLR (pt. 1150) 592.
As the learned counsel for the respondents did not proffer any argument on the preliminary objection, I do not know why he insisted that leave ought to have been obtained. In circumstance therefore, the preliminary objection is devoid of merit and is accordingly overruled. I shall now resolve the two issues submitted for determination which I intend to take them together.
On issue one, learned counsel for the Appellant submitted that the case of the Appellant as stated at the trial Court is founded on breach of contract of employment and specific
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performance for which a State High Court enjoys residual jurisdiction. He stressed that it is the claim of the party which determines whether a Court has jurisdiction or not.
Learned counsel submitted further that the Federal High Court is not conferred with jurisdiction to hear matters of simple contractual relationship between parties as such matters are outside the provisions of Section 230 (1) and [s) of the 1979 Constitution as amended by Decree 107 of 1993 now Section 251 (1) of the 1999 Constitution, referring to the case of Onuorah v Kaduna Refinery & Petrochemical Company Ltd., (2005) All FWLR (pt. 256) 1356, 7 Up Bottling Co. v Abiola & Sons (2001) FWLR (pt. 70) 1611, Trade Bank Plc vs Benilux Ltd (2003) FWLR (pt. 162) 1871.
Concluding on the 1st issue, learned counsel submitted that having regard to the decision of this Court in Onuorah v KRPC Ltd (supra), the decision of the Court below that the trial Court lacked jurisdiction to have tried this case was made in error and ought to be set aside.
On issue 2, the learned counsel for the appellant submitted that the Court below erred when it declined and/or failed to
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consider the issues raised by the Appellant (then Respondent) in his brief. That had the Court below considered those issues, it would have come to a different conclusion, relying on I.B.W.A. Ltd v Imano Nig Ltd (2001) FWLR (pt. 44) 421 at 443 paragraphs D – E and Owoseni v Faloye (2005) All FWLR (pt. 284) 220 at 249 paragraphs F – G. He urged the Court to resolve the two issues in favour of the appellant.
In his response on the first issue, the learned counsel for the Respondents, C. D. Bello, Esq., submitted that the decision of the Court of Appeal in holding that the judgment of the trial Court was a nullity for lack of jurisdiction is correct having regard to the provisions of Section 230 (1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by the Constitution (Suspension and Modification) Decree (Decree No 107) of 1993. On the essential elements which determine the jurisdiction of a Court, learned counsel referred to the cases of Madukolu v Nkemdilim (1962) 2 SCNLR 341 at 348, Odofin v Agu (1992) 3 NWLR (Pt. 229) 350 at 365 and Olutola v University of Ilorin (2005) 3 MJSC 151 at 164.
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Learned counsel submitted further that having regard to the principles enunciated in Madukolu v Nkemdilim (supra), there are features in the case in hand which affected the competence or jurisdiction of the trial Court to try the case in that Decree No 107 of 1993 had from its commencement date removed from the State High Court’s jurisdiction to try causes and matters, amongst others, seeking declaratory reliefs against the Federal Government and its agencies. Learned counsel referred to the case of NEPA v Edegbero (2003) 1 MJSC 69. According to him, breach of contract or alleged breach of contract cannot be excluded from the purview of Section 230(1) of the 1979 Constitution as amended by Decree No 7 of 1993.
On issue 2, learned counsel submitted that after reaching the decision that the trial Court lacked the jurisdiction to entertain this matter, it was not necessary for the lower Court to go further to consider the arguments in support of other issues in the appeal before it, relying on UBN v Sogunro (2006) 9 MJSC 164 at 175. He submitted further that the lower Court was right in not going further to consider the other issues raised in the appeal having regard to its
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decision on the issue of jurisdiction which disposed of the entire appeal, citing 7 Up Bottling Company Ltd v Abiola & Sons Bottling Company Ltd (2001) 5 MJSC 93 at 105. He urged the Court to resolve the two issues against the appellant.
The simple and straight forward issue in this appeal is to determine which Court has jurisdiction to entertain the claim of the appellant herein. Is it the High Court of Delta State, sitting in Warri or is it the Federal High Court The learned trial Judge of the Delta State High Court assumed jurisdiction in this matter and entered judgment for the appellant in part. However, the Court below held that the said High Court lacked jurisdiction to entertain the matter and struck out the claim of the appellant. It further held that the suit ought to have been filed at the Federal High Court.
The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it
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will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd(1992) 5 NWLR (pt 244) 675.
The next thing I wish to determine is the nature of the claim of the appellant before the trial Court. This is so because it is the claim of the Plaintiff that determines the jurisdiction of the Court to entertain the suit. See Adetayo & Ors v Ademola & Ors (2010) 15 NWLR (pt. 1215) 169, Abia State Transport Corporation & Ors v Quorum Consortium Ltd (2009) 9 NWLR (pt 1145) P.1., Dr. Salik v Idris & ors (2014) 15 NWLR (pt 1429) 36.
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From the statement of claim of the appellant (as Plaintiff) before the trial Court, it is clear that the Respondent herein had offered to employ the appellant as a driver. The appellant took steps to accept the offer by presenting himself for interview and attending a medical examination as ordered by the 1st Respondent. It must be noted that the appellant had been a casual driver in the 1st Respondent Company before seeking a permanent employment. This contract of employment could not be concluded and no satisfactory reason was given for such failure. It is the failure of the Respondents to issue the appellant with appointment letter that has brought the appellant to Court to order specific performance. Thus, the Appellant’s claim at the trial Court zero on breach of contract of employment and specific performance. The Court below agrees that the claim of the appellant arose from breach of contract of employment. On page 178 – 179 of the record of appeal, the lower Court held as follows:-
In this case, the Plaintiff/Respondent action seeking for a declaration(s) challenging the validity of the executive order or administrative action of the 1st Defendant/Respondent including
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damages, an agency of the Federal Government of Nigeria for breach of contract of employment clearly falls within the purview of Decree 107 of 1993.”
(Underling mine for emphasis)
Having established that the claim of the appellant at the trial Court arose from contract of employment and specific performance, is it the Federal High Court or the State High Court which has jurisdiction to entertain the matter
At this stage, it is pertinent to reproduce the provisions of Section 230(1) (p) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 (now Section 251(1) (p) and (s) of the 1999 Constitution (as amended). It states:-
“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 of any other Court in civil causes and matters arising from:
(p) the administration or the management and control of the Federal Government or any of its agencies,
(s) any action or proceeding for a declaration
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affecting the validity of the Federal Government or any of its agencies.”
There is no doubt that by the above provision i.e. Section 230(1) (s) of Decree 107 of 1993 which is in pari material with Section 251(1) (s) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) 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 shall be brought before the Federal High Court. I have given a thorough examination of a plethora of cases of this Court on this issue and there is a consistent pronouncement that the Federal High Court does not have jurisdiction to entertain matters relating to simple contracts. It must not be forgotten that I have already held that the claim of the appellant relates to a simple contract of employment which the appellant sought specific performance. This type of claim, definitely, is not contemplated under Section 230(1) (P) (s) of the 1979 Constitution as amended by Decree 107 of 1993. See Onuorah v KRPC Ltd (2005) All FWLR (pt. 256) 1356, Ports and Cargo Handling Services Company Ltd.& Ors v. Migfo Nig Ltd. & Anor
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(2012) 18 NWLR (pt. 1333) 555, Adelekan v Ecu-Line NV (2006) 12 NWLR (pt 993) 33.
In Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12 NWLR (pt. 995) 483, this Court held emphatically that in a simple contract (as in this case), it is the High Court and not the Federal High Court that has jurisdiction to entertain and determine it. See also Eze v Federal Republic of Nigeria (1987) LPELR – 1193 (SC) Pp 29 – 30 paragraphs G – F.
In a simple contract of employment as in the instant case, there is nothing in Section 230(1) of the 1979 Constitution (as amended) which shows that the Federal High Court is conferred with exclusive jurisdiction to entertain matters arising therefrom. Rather it is the State High Court which continues to have jurisdiction to entertain issues connected therewith as brought by the parties for adjudication. The Court below made a grave error as to the claim of the appellant before the trial Court. Had the Court of Appeal properly located the claim of the appellant, I belief their decision would have been different.
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I am fully convinced that the learned trial Judge had jurisdiction to entertain the claim of the appellant herein.
Eight issues were distilled and placed before the Court below for determination. Unfortunately, only one issue (of jurisdiction) was determined by the Court below leaving untouched seven issues. This Court has stated in quite a number of cases that intermediate Courts should pronounce on all issues placed before it. It should not restrict it to one or more issues which its opinion may dispose of the matter.
This is to give the apex Court the benefit of their views in the matter should there be the need to consider other issues not determined by the intermediate Court. See Chief Adebisi Adegbuyi v All Progressives Congress & Ors (2014) LPELR 24214 (SC) Xtoudos Services Nig Ltd v Taisei WA Ltd (2006) WRN 46 at 37, Edem v Canon Balls Ltd (2005) 12 NWLR (pt. 938) 27.
Be that as it may, this appeal succeeds on the only issue of jurisdiction determined by the Court below. This Court is of the firm view that the appellant’s claim i.e. enforcement of contract of employment was squarely within the jurisdiction of the Delta State High Court.
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The learned trial Judge was right to assume jurisdiction in the matter. The Court below was therefore wrong to strike out the claim on the ground that the said Court did not have jurisdiction to entertain the matter. The judgment and orders of the learned trial Judge are hereby reinstated and the lower Court is ordered to determine all the other seven issues presented before it as this matter is remitted back to the Court of Appeal Benin Division for hearing de novo. I make no order as to costs.
This matter shall be given accelerated hearing.
Appeal Allowed.
SC.203/2006
