Professor Aderemi Dada Olutola Vs University Of Ilorin (2004)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

Appellant commenced this action against the respondent. In view of the issues raised in the appeal, it is considered necessary to state in this judgment the nature of the action that was commenced against the respondent filed, on the 13th day of January, 1993 in the Kwara State High Court. Suffice it to say that during the pendency of the trial, the Decree No. 107 of 1993 was promulgated to take effect from 17th November, 1993. Despite the enactment of this Decree, which affected the jurisdiction of State High Courts to hear and determine actions filed against agencies and parastatals of the Federal Government, the trial of the matter before the Kwara State High Court continued unabated until judgment was delivered by the trial Judge on the 8th of May, 1996. Now it is manifest from the printed record that none of the parties, and also the trial court adverted to the changes brought about by Decree No. 107 with regard to the jurisdiction of the trial court to hear and determine this action. At the end of the hearing, the learned trial Judge following the addresses of learned counsel delivered a considered judgment wherein the claims of the plaintiff were upheld. As the respondent to this appeal was dissatisfied with the judgment of the trial court, it appealed to the Court of Appeal sitting at Kaduna. The appellant in couching its grounds of appeal touched upon and or raised the question as to the jurisdiction of the trial court to hear and determine the action before it.

However, when the appeal was set up for hearing, briefs having been filed and exchanged, the Court of Appeal (Coram, Umaru Abdullahi, PJ. (as he then was), Ogebe and Ige, HCA) directed the attention of counsel to the question with regard to the jurisdiction of the trial court to determine the matter on appeal. The court then ordered as follows:-

“There is an issue that needs to be considered. It is an issue of jurisdiction which needs to be addressed by both counsels. The parties should go and consider the provisions of Decree No. 107 of 1993 as well as the provisions of the Federal High Court Act. We need to be addressed on this important issue.”

The appeal was accordingly adjourned to the 23rd of February, 1998 for counsel to address the court. On the adjourned date, learned counsel for the parties duly addressed the court as directed. After hearing counsel who also filed briefs of argument on the issue raised, the court below delivered a considered judgment. Ige, JCA, who delivered the lead judgment after a careful review of the relevant cases and the provisions of Decree No. 107 of 1993, Decree No. 60 of 1991 and Decree No. 16 of 1992, in conjunction with the provisions of the Federal High Court Act, concluded that the proceedings and judgment delivered by the learned trial Judge in respect of the action must be struck out as the trial court lacked jurisdiction to hear and determine the action. It is against this judgment that the appellant has filed this appeal. Pursuant thereto, he filed three grounds of appeal. In accordance with the rules of this court, briefs were also filed and exchanged between the parties. In the brief filed on behalf of the appellant by his learned counsel, T.O. S. Gbadeyan, Esq. three issues were identified for the determination of the appeal. They read thus:

“2.01 Whether the lower courts lacked jurisdiction as a result of the promulgation of Decree No. 107 of 1993 on 17th November, 1993 when the cause of action had arisen in 1989 and action on it filed before the trial court on 13th January, 1993.

2.02 Whether under the doctrine of judicial precedent or stare decisis, the Court of Appeal can refuse to follow its earlier decision, as done in this case, without setting it aside, when the issue for consideration and rationes decidendi are in pari materia.

2.03 Whether or not the appropriate remedy by the lower court should be setting aside the judgment of the lower trial court and striking out the appeal.”

In my humble view, the issues set down above for the appellant to this appeal correctly identified the complaint of the appellant against the judgment of the court and they also correctly reflect the grounds of appeal filed against the said judgment. In the course of the judgment, I will where necessary consider also the issues raised by the respondent.

From a very careful perusal of the argument in respect of the first issue in the appellant’s brief, it became manifest that the thrust of the complaint of the appellant appears to be that a person’s vested right fails to be determined by the law applicable when the cause of action arose. It is therefore submitted for the appellant that in the instant appeal the vested rights of the appellant took effect when the action was commenced at the Ilorin High Court, by virtue of the provisions of section 230 of the 1979 Constitution. It is therefore the submission of learned counsel for the appellant that the jurisdiction vested in the High Court of IIorin to try and determine the action before it cannot be taken away by any of the provisions of Decree No. 107 of 1993. In support of this submission, he referred to decisions of this court namely: Amavo Ltd. v. Bendel iles Mills (1991) 8 NWLR (Pt.207) 37 at 51; Osadebay v. A.-G., Bendel State (1991) 1 NWLR (Pt.169) 525 at 574; A.-G., Federation v. Sode (1990) 1 NWLR (Pt.128) 500 at pages 526 and 534; Turkur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 581; Mustapha v. Governor of Lagos State (1987) 2 NWLR (pt.58) 539; Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449.

After the submission so made by learned counsel for the appellant that the court below erred in holding that the provisions of Decree No. 107 of 1993 had the effect of abrogating the jurisdiction of the IIorin High Court to continue with the hearing of the action, also submitted that the court below did not advert nor did it consider what is meant by “action” before it arrived at its decision. In respect of this aspect of his submission, learned counsel made reference to cases wherein decisions of this court, the meanings of “action” and proceedings were stated. See Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt.304) 139 at 148. And he went on to refer to the different kinds of proceedings recognized within the jurisdiction of the IIorin High Court. Also reference was made to the High Court (Civil Procedure) Rules of Kwara State. After these references, it is the contention of learned counsel for the appellant that the court below did not seek to distinguish between “action” and proceedings before striking out the action before it.

The respondent in the brief filed on its behalf by its learned counsel commenced his arguments against that of the appellant by submitting that the court below was right to have raised suo motu the issue of jurisdiction when the appeal came before it. And in support of that contention, he referred to Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 and Western Steel Works Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR (Pt.30) 617. With regard to whether the trial court had jurisdiction or not in view of the provisions of Decree No. 107 of 1993, particularly section 230(1)(q)(r) & (s) thereof, the thrust of the submission of learned counsel for the respondent is that, the lower court was right to have held that the trial court no longer had jurisdiction to continue with the hearing of the matter upon the promulgation of Decree No. 107 of 1993. On this point, which he concedes that there is a general presumption against retrospectivity, yet he submits that such presumption must be applied in the light of the language of the statute and the subject matter with which the statute is dealing or the circumstances of the case. In support of this proposition, reference was made to Ojokolobo v. Alanu (1987) 3 NWLR Vol. 18 (1987) (PCII) (Pt.6l) 377; Utih v. Onoyivwe (1991) 11 NWLR (Pt.l66) 166; Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 423, (1997) 5 SCNJ 92.

With the above summaries of the arguments contained in the briefs of argument filed on behalf of the parties by their respective learned counsel, I will now consider issue (1) raised in the respondent’s brief and thereafter, issue (1) in the appellant’s brief would be considered. The point that fails to be considered is, whether the court below was right to have raised suo motu the question as to whether the trial court had vested in it the power to continue with the trial of the action with the promulgation of Decree No. 107 of 1993. Regardless of what my conclusion would be on this first issue raised in the respondent’s brief, I think that this issue deserves to be considered before considering the other issues raised in this appeal. It is manifest from the arguments of counsel that the appellant’s position is that the court below was wrong to have raised the issue suo motu. The respondent on the other hand, has argued that the court below was right to have raised the issue as it did.

There can be no doubt that the issue of jurisdiction is a threshold issue, which may be considered at any stage in the course of proceedings. This question has been determined in a long line of cases that at any stage of the proceedings, be it at the pre-stage trial of the case during the trial, or during the hearing of the appeal by the Court of Appeal and even in the Supreme Court. On this point, I think it is desirable to quote the dictum of Obaseki, JSC, as propounded in Oloha v. Akereja (1988) 3 NWLR (Pt.84) 508, (1988) 7 SC (Pt.1) at pp. 11-12, which reads: