R. Taiwo Oloruntoba-oju & Ors V Professor P. A. Dopamu & Ors (2008)
LAWGLOBAL HUB Lead Judgment Report
The appellants were the plaintiffs at high Court, Ilorin where on 07/05/2001, they issued their originating summons against the respondents as the defendants. They sought for the determination of the following questions:
“1 . Whether the 4th defendant has the powers under the and by virtue of the provisions of University of Ilorin Act to unilaterally appoint the Dean of any faculty of the University of Ilorin.
Whether the 4th Defendant has the powers to unilaterally appoint a Head of Department for any Department of the University of Ilorin under the University Act.
3 . Whether the 4th defendant has powers to appoint the 1st Defendant as the Acting Dean of Faculty of Arts University of Ilorin.
Whether the 4th Defendant has the power to unilaterally remove the substantive Dean of Faculty of Arts University of Ilorin PROFESSOR E.E. ADEGBIJA and appoint 1st defendant to act in that position.
Whether the appointment of the 1st defendant as the Acting Dean of Faculty of Arts Univer-sity of Ilorin by the 4th defendant is not ultra vires.
6 . Whether the appointment of the 2nd and 3rd defendants as Acting Heads of Departments of Linguistics and Performing Arts respectively in the faculty of Arts is not ultra vires the power of the 4th defendant having regard to the provisions of the Unilorin Act.
Whether the purported replacement of the Dean Faculty of Arts, 2nd plaintiff as Head of the Depart-ment of Performing Arts and 6th plaintiff as Head of Department of Linguistics, with 1st, 2nd and 3rd defendants respectively in acting capacity is not tantamount to victimization on political and other grounds and contrary to the laws and the constitu-tion of the Federal Republic of Nigeria, 1999.
Whether the defendants can conduct any valid and/or credible degree examination without the participation and/or moderation of appropriate examiners and whether the 4th defendant can unilaterally remove and replace any examiner of the University.
Whether the 4th defendant has the power to ban the plaintiffs and/or instruct/order security officers and agents of the University of Ilorin to prevent the plaintiffs and other members of ASUU from entering the premises of the University of Ilorin and whether such ban is not contrary to the provisions of the constitution of the Federal Republic of Nigeria, 1999.
Whether the defendants are entitled to victimize the plaintiff by taking decisions that are adverse or prejudicial to their appointment with the 6th defendant or participating in a National protest/strike action as directed by their National Executive Council and whether said defendants are not in violation of the statute of the University and the constitution of the Federal Republic of Nigeria by intimidating, harassing and threatening compelling the plaintiffs to abandon their legitimate struggle against oppression/suppression by the 4th defendant.”
Depending on the answers given by the court to the above questions, the reliefs claimed against the respondents are:
“A declaration that the purported appointment of the 1st defendant as the Acting Dean of the Faculty of Arts of University of Ilorin by the 4th defendant by virtue of the letter to that effect addressed to the 1st defendant and signed by the 5th defendant is ultra vires, unconstitutional, illegal, unlawful, null and void and of no effect whatsoever having been made in flagrant viola-tion of the provisions of University of Ilorin Act Cap 455 Laws of the Federation 1999.
An order nullifying and setting aside the said purported appointment of the 1st defendant as the Acting Dean of the Faculty of Arts University of Ilorin (6th defendant).
A declaration that –
(i) the purported appointment of the 2nd defendant as the Head of Department of Linguistics in the Faculty of Arts of the 6th defendant by the 40th defendant is ultra vires, unconstitutional, null and void and of no effect whatsoever having been in flagrant violation of procedure and provisions of the University of Ilorin Act.
(ii) the 6th plaintiff is at all material times the Head of the said Department.
An order setting aside and nullifying the purported appointment of 2nd defendant as the Head of Department of Linguistics in the Faculty of Arts of the 6th defendant.
An order compelling the 4th, 5th, 6th and 7th defendants to restore the 6th plaintiff to the position of Head of Department of Linguistics in the Faculty of Arts of the University of Ilorin (6th defendant).
A declaration that the purported appointment of the 3rd defendant as Acting Head of Department of the Perfor-ming Arts in the Faculty of Arts of the University of Ilorin (6th defendant) by the 4th defendant is ultra vires, null and void and of no effect whatsoever having been made in flagrant violation of the laid down procedure in the University and the provisions of the University of Ilorin Act.
An order setting aside and nullifying the purported appointment of the 2nd defendant as the Head of Department of Performing Arts in the Faculty of Arts of the 6th defendant.
An order compelling the 4th, 5th, 6th and 7th defendants to reinstate and restore the 2nd plaintiff to the position of the Head of Department of Performing Arts in the Faculty of Arts of the 6th defendant.
A declaration that the arrangement or purported conduct by the defendants of degree examination without mode-ration and/or participation of appropriate examiners (external & internal) as provided for in the statute of the University, that is Unilorin Act is ultra vires, illegal, unlawful, null and void and of no effect whatsoever.
A declaration that it is wrongful, unlawful and unconstitutional for the defendants at the instance and/or the instruction of the 4th defendant to prevent the plaintiffs and other members of their Union (ASUU) who they represent from entering the premises or campuses of the University (6th defendant) or restricting and preventing the plaintiffs from using, operating, meeting and generally carrying out their legitimate duties and functions in the ASUU secretariat located within the Mini-campus of the 6th defendant.
An order of injunction restraining the 4th , 5th , 6th and 7th defendants whether by themselves or through their agents, privies, officers/officials by whatsoever named called or by any description from disturbing or preventing the plaintiffs and other members of their Union (ASUU) Unilorin Branch from entering the premises (campuses) of the 6th defendant.
(ii) An order of injunction restraining the 4th, 5th, 6th and 7th defendants whether by themselves or through their agents, privies, officers/officials by what-soever name called from preventing the plaintiff and other members of their Union from entering their offices in the University or from operating, meeting and generally associating and carrying out their duties and functions from the ASUU secretariat located in the mini-campus of the 6th defendant.
A declaration that it is wrongful, unlawful and uncon-stitutional for the defendants to prevent and disturb the plaintiffs and their Union members from entering or gaining access into the campuses of the 6th defendant or from entering their respective offices within the said campuses of the Universities or restricting their move-ments into and out of the said campuses of the university.
An order declaring as void all actions, decisions and steps taken by the 1st, 2nd and 3rd defendants while purported to Act in their respective positions since the time of their purporting acting appointments were made by the 4th defendant.
An order prohibiting/restraining the 4th, 5th, 6th and 7th defendants from taking any decisions or acting in any manner or doing any thing whatsoever that will adversely affect or prejudice the plaintiffs’ appointment/employment with the 6th defendant.”
In compliance with the requisite procedure the appellants filed a 49 paragraph affidavit in support of their originating summons. They annexed to the said affidavit some documentary exhibits identified as ‘A’ to ‘R’.
The defendants (now respondents) in reaction to the plaintiffs/appellants’ originating summons filed an application wherein they prayed for the following:
“(i) An order of the Honourable Court striking out this suit on the ground of lack of jurisdiction to entertain same and/or
(ii) An order of the Honourable Court dismissing the case for being a gross abuse of the process of the Honourable Court.
(iii) An order of the Honourable Court striking out the case on the ground of misjionder of causes of action.
(iv) …………………………………………………..
The grounds relied upon by the defendant/respondents for bringing the application were stated to be the following:
The issues raised in the suit relate to trade dispute in respect of which this Honourable Court lacks jurisdiction.
The plaintiffs had already filed an action against the 5th and 6th defendants the subject matter of which is same with the present action and which action is subsisting.
The plaintiffs’ action in the circumstances constitutes a flagrant abuse of the process of the Honourable Court.
The causes of action of the plaintiffs are distinct and peculiar to the plaintiffs and the causes of action cannot be joined.
It is in the (sic) justice to grant this application.”
In the affidavit in support of the application, paragraphs 3 and 4 which are relevant to this judgment read:
“3. That I know as a fact upon a perusal of the processes filed in this case and the documents annexed thereto that:-
(i) There is a dispute between some members of Academic Staff Union of Universities, University of Ilorin and the 4th-7th defendants who are their employers and principal and important organs of the employer respectively.
(ii) The dispute deals with employment and terms of employment and condi-tions of work of some members of Academic Staff Union of Universities, University of Ilorin Branch.
(iii) The plaintiffs are members of a trade union (ASUU) and they filed this action for themselves and on behalf of the members of the said trade union.
(iv) The issue in the case also includes the propriety or otherwise of the use of strike action to press home the demand of the plaintiffs and their trade union members.
(v) The issue raised in the case also deals with the use of a Trade Union’s Secre-tariat (ASUU Secretariat) and the entitle-ment of the employer to recover same and assign another one to the Trade Union.
(vi) The failure of some members of ASUU (a trade union) to call off a strike action and refusal to return to work is also an issue in the case.
That I know as a fact based on the foregoing that the issues raised in the case are ones for determination before the National Industrial Court hence this court lacks jurisdiction to entertain the case.”
The trial court received arguments on the application. On 5-10-2001, the court struck out the plaintiffs/appellants’ suit. Its conclusion on the application at pages 218-219 of the record reads:
“I rely on the pronouncement of the Supreme Court in Tukur v. Government of Taraba State (supra) at p.577 paras. C-D that a Court is competent to try an action when the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction.
Section 20 of the Trade Disputes Act (CAP 432) and Section 1A of the Trade Disputes (Amendment) Decree No. 47 of 1992 give exclusive jurisdiction to the National Industrial Court in matters of trade disputes. See Udoh v. O.H.M.B. (1993) 7 NWLR (Part 304) 139 at 148 or (1999) 7 S.C.N.J. 436 at 443.
At this juncture, I wish to identify with the view of the learned defence counsel that both the Trade Disputes Act Cap 432 and Decree 47 of 1992 are existing laws by virtue of Section 315 of the Constitution. I further agree with him that unless a law is expressly repealed, it is deemed to be still in existence and there cannot be a repeal by implication. In so far as it is the Constitution by itself that has created and preserved special jurisdictions of certain Courts, I do not accept that such jurisdiction as conferred in CAP 432 and Decree 47 are inconsistent with the provisions of the Constitution. A parallel to this is found in the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria, which confers exclusive jurisdiction on this Court in respect of matters specified therein. It has thus been held in Ajuebor v. Attorney General of Edo State (2001) 5 NWLR (Part 707) 466 at 481 paras. C-D that though the law is settled that Courts guard their jurisdiction jealously, if however, in any given case where the Court’s jurisdiction is expressly and unambiguously ousted by the provisions of the Cons-titution, an Act of Parliament or a Decree, then there must be a compliance with such an ouster clause. Equally, in Nwankwo v. Nwankwo (1992) 4 NWLR (Part 238) 693 at 710, paras. e-g, it is held that although the High Court has jurisdiction to grant declaratory reliefs, such declaration will not be made where the Constitution has already given exclusive jurisdiction in respect of such matters to another tribunal.
I hold that the cases of Adisa v. Oyinwola and Bendel State v. Obayuwana (supra) are not applicable in the circumstances of this case. Obayuwana’s case for instance, decides that a citizen has unfettered right to seek redress in Court for the determination of any question as to the civil rights and obligations. Therefore, where he, by a declaratory action, raises a constitutional issue he cannot be inhibited by procedural laws like the Petition of Rights Law and Public Officers Protection Law. In the present case, the inhibition against the declaratory action of the Plaintiffs is not by a mere procedural law but a substantive law; enjoying the force of the Constitu-tion itself. That is the difference.
In the light of all the foregoing, I declare that this Court lacks jurisdiction to entertain the Plaintiffs’ suit as presently constituted. It is hereby, consequently struck out.”
Dissatisfied with the ruling of the trial court, the plaintiffs brought an appeal against it before the Court of Appeal, Ilorin (hereinafter referred to as ‘the court below’). On 10-12-02, the court below dismissed the appeal, thus affirming the ruling of the trial court. The court below at pages 304 – 305 of its judgment reasoned thus:
“When the above affidavit evidence is considered together with the appellants’ claim, it becomes clear that the present suit was instituted in order to protect the collective interests of the appellants. This fact is confirmed by the strike action the appellants undertook in order to get the 6th and 7th respondents look into what the appellants considered to be the excesses of the 4th respondent.
It is clear from the foregoing that the collective interests of the appellants can not be protected without making the issue between the appellants and the respondents a trade dispute as defined in section 47 of the Trade Disputes Act, Cap. 432, Laws of the Federation of Nigeria, 1990. In the section, ‘trade dispute’ is defined. (See the above for the definition). A careful look at the definition shows that the reliefs are caught by the said definition.
I am aware that some of the reliefs relate to the appellant’s right of Association and the interpretation of the University of Ilorin Act, but, those disputes are ancillary to the main complaint of the appellants which is, against the repressive style of administration of the 4th respondent. Being a dispute between an employer and its workers, the provisions of section l(i) of the Trade Disputes Act apply.
In that case it is improper to approach a court that is competent to determine some of the issues raised, which in this case happen to be ancillary issues. This is because a court cannot adjudicate over an ancillary claim if it has no jurisdiction to entertain the main claim.
In the result, having regard to the foregoing, I hold the view that this appeal lacks merit. And, it is accordingly dismissed. I make no order as to costs.”
Still dissatisfied, the plaintiffs have come before this Court on a final appeal. In their Notice of Appeal filed on 23/12/2002, the plaintiffs raised five grounds of appeal. They have distilled from their grounds of appeal three issues for determination. The issues are these:
“1. Whether the Court of Appeal was right in holding that the Federal High Court had no jurisdiction to entertain the plaintiffs/appellants’ case having regard to the provisions of S.251 of the Constitution of the Federal Republic of Nigeria, 1999, grounds 1 and 4 of the grounds of appeal.
Whether the Court of Appeal was right in relying on the plaintiffs/appellants’ affidavit evidence instead of their claims/reliefs to hold that the Federal High Court had no jurisdiction to entertain the case. (Grounds 2 & 5 of the grounds of appeal.)
Whether the plaintiffs/appellants case was/is a Trade dispute and if so, whether the Court of Appeal was right in holding that the jurisdiction of the Federal High Court was ousted by Trade Dispute Act 1976 and Trade Disputes (Amendment) Decree 47 of 1992 (Ground 3 of the Grounds of Appeal)”.
The defendants/respondents formulated two issues for determination. The said issues are covered by the plaintiffs/appellants’ issues. The three issues raised for determination by the plaintiffs/appellants could be conveniently taken together and I intend so to take them.
The pith of the appeal relates to the question whether or not the two courts below were right to have held that having regard to the nature of plaintiffs/appellants claims, the Federal High Court has no jurisdiction to entertain the suit. The two courts below held that the claims raised matters in respect of which only the National Industrial court has exclusive jurisdiction. Now in Western Steel Works v. Iron & Steel Works Union of Nigeria & Ors. [1987] 1 N.S.C.C. 133 at 140, this Court per Karibi-Whyte J.S.C. said whilst considering the relevant determinants of the jurisdiction of a court to hear a matter when objection is raised as to the exercise of such jurisdiction:
“Therefore the jurisdiction of the court will be determined by the subject-matter of the claim and not the claim relating to the injunction which was an ancillary relief and depends on the primary claim. In Adeyemi & Ors. v. Oyeyori [1976] 1 F.N.L.R. 149, the Supreme Court stated the position clearly as follows-
‘It is fundamental that it is the claim of the Plaintiff that determines the jurisdic-tion of the court which entertains the claim.’
I earlier in this judgment set out serially the claims which the plaintiffs/appellants raised against the defendants/ respondents. Although the plaintiffs/appellants brought the suit ‘for themselves and on behalf of Academic Staff Union of Universities, Unilorin Branch,’ it is the claim brought by them and not the capacity in which the claims were brought that should be the relevant consideration in determining the question which court has jurisdiction in the matter. When the claims of the plaintiffs/appellants are carefully scrutinized it becomes clear that the gravamen of their complaint is the alleged unconstitutional removal of the 6th plaintiff from the position of Head of the Department of Linguistics of the 7th Defendant University and replacing him with the 2nd defen-dant in the same position. It was alleged that the said removal was in a manner not consistent with the provisions of the Act creating the 7th respondent – University of Ilorin Act. It was further alleged that the conduct of degree examination by the Defendants/respondents without the participation of the appropriate examiners was contrary to the provisions of the University of Ilorin Act. Finally, they claimed that it was unlawful and unconstitutional for the defendants to prevent the plaintiffs/appellants and their members from gaining access to their respective offices within the University of Ilorin campus.
In paragraphs 14-18 of the affidavit deposed to in support of the originating summons, the deponent said:
“14. That no academic staff can become a Dean or Head of Department without being elected by academic members of the Faculty and Department respectively. And that no Dean or Head of Department in the University can be removed unilaterally by the 4th defendant or by any other power or authority without compliance with the statute of the University and other relevant regulations made by the defendants. That it is necessary for this Court to give inter-pretation to the said statutes, regulations and documents one of which is the internal memorandum of 8/7/99 issued by the 5th defendant. Copy is attached herewith as exhibit ‘B’.
That all the other plaintiffs are members of the Faculty Board of the Faculty of Arts who also participated in the election of the Dean of the Faculty, Professor E. E. Adegbija sometime in the year 2000 and so, individually and collectively we have a stake in the affairs and administration of the said Faculty.
That if the Dean of the Faculty is to be removed for any reason whatsoever, the Vice-chancellor 4th defendant cannot do it unilaterally, it has to be done fully in accor-dance with the statute establishing the University.
That the purported removal of the said Dean by the 4th defendant is borne out of victimi-zation as it is shown in the letter of Professor E. E. Adegbija dated 3//4/2001 to the 4th defendant and the minutes of the 4th defen-dant on the said letter which clearly shows that 4th defendant is claiming that the dean is not ‘loyal’ to the vice-chancellor. Copy of the said letter with the minutes thereon is attached herewith as exhibit ‘C’.
That the 4th defendant purported to have appointed the 1st defendant as the Acting Dean of Faculty of Arts which is wrong. And the 1st defendant while purporting to act as the Dean circulated the letter with the VC’s minutes referred to in paragraph 17 above by a memorandum dated 6th April 2001 copy of which is attached herewith as exhibit ‘D’.
It seems to me that from the totality of the plaintiffs/appellants’ claims, their grievance relates more to the infraction of the provisions of the University of Ilorin Act than in the mere pursuit of Trade Union Activities. Considering the fact that the plaintiffs/appellants’ suit was a spill-over from a union strike action embarked upon by the Plaintiffs/appellants Union, it is easy to see suggestions of collective posturing and grievance suffered by the plaintiffs/appellants. That however would not turn their suit into a trade dispute. It seems to me that the trial court had the duty to sift the grain from the shaft at the end of hearing and determine which of the claims truly arose out of the failure to abide by the provisions of the University of Ilorin Act and which did not.
Section 251 (l)(p), (q) and (r ) provides:
“(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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matter
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(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Consti-tution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) 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;”
In University of Abuja v. Ologe [1996] [1996] 4 NWLR (Part 445) 706 at 722, I had this to say on the ambit of Section 230(l)(q), (r) and (s) of Decree No. 107 of 1993 which is in substance the same with Section 251(l)(p), (q) and (r) above:
“In the instant case, in which Section 230(l)(q) (r ) and (s) confers the exercise of jurisdiction on the Federal High Court to the exclusion of any other Court in civil causes or matters arising from:-
‘(q) the administration or the management and control of the Federal Government or any of its agencies;
(r) subject to the provisions of this Consti-tution in so far as it affects the Federal Government or any of its agencies; and
(s) 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 and in which by virtue of Section 277-(l) of the 1979 Constitution ‘Public Service of the Federation’ include:
(e) staff of any educational institution established or financed principally by the Government of the Federation, of which the respondent is a staff, and
(ii) the University of Abuja is listed in S.I of the Schedule to Decree No. 11 of the 1993 as item 2;
the provisions of Section 230(l)(q)(r) and (s) which clearly confer jurisdiction exclusively on the Federal High Court in instances such as this is not difficult to see. The issue is not one of interpretation of statutory provisions. The provisions are clear and unambiguous and do not admit of what counsel or Judge thinks otherwise they are. In addition, the University is clothed with legal status to sue and be sued. It has a perpetual succession with a common seal and can sue or be sued in its corporate name. It needs not join any-body or the Federal Government. The action before the lower court is a proceeding for declaration that their letters of suspension by the University is illegal and void. That action is well within the ambit or provision of Section 230(1 )(q) of the 1979 Constitution (Suspension and Modi-fication) Decree No. 107 of 1993. The pursuit to sue or join the Federal Government is a wild goose chase. It is a non-sequitor.”
The trial court in its judgment at page 217 — 218 of the record said:
“The Originating Summons of the Plaintiffs in this case ordinarily seems founded on fundamental rights issues whose determination require only statutory and constitutional interpretation. However some alien characteristics are identifiable therefrom. Very prominent among these is the fact that the Plaintiffs have expressed having taken the action ‘For themselves and on behalf of Academic Staff union of Universities Unilorin Branch.’ It is incontestable that ASUU is a Trade Union as defined in Section 1(1) of the Trade Unions Act (CAP 437) Laws of the Federation of Nigeria, 1990. That being so, it seems difficult to seek to maintain an action aimed at protecting group or collective rights without introducing some elements of industrial dispute. Credence seems lent to this view particularly by Nos.9 and 10 Questions for determining. They read thus:
‘9. Whether the 4th defendant has the power to ban the Plaintiffs and/or instruct/order security officers and agents of the University of Ilorin to prevent the plaintiffs and other members of ASUU from entering the premises of the University of Ilorin and whether such ban is not contrary to the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
Whether the defendants are entitled to victimize the plaintiff (sic) by taking decisions that are be (sic) adverse or prejudicial to their appoint-ment with the 6th defendant for partici-pating in a national protest/strike action as directed by their National Executive Council and whether said (sic) defendants are not in violation of the statute of the University and the Constitution of the Federal Republic of Nigeria by intimidating, harassing and threatening compelling the plaintiffs to abandon their legitimate struggle against oppression, suppression by the 4th defendant.’
Admittedly, the Plaintiffs have raised constitutional questions but which in my humble opinion, are so tied to the matter of trade dispute with their employers that they appear inseparable.
The term ‘trade dispute’ as defined in Section 47(1) of the Trade Disputes Act (CAP 432) means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. This definition substantially covers the issues for determination in the Originating Summons. There are complaints of removal of some officers and their replacement with others, the right to go on strike action, and so forth. These, among other issues touch and concern the terms of the Plaintiffs’ employment. Therefore, the way the Plaintiffs’ action is formulated makes it more suited for a Court with specialized jurisdiction. This is because the issues no doubt have arisen from administration of the University of Ilorin (6th defendant) which is a Federal government Agency, but the aspect of trade dispute is foreign to this Court’s jurisdiction.”
The passage reproduced above from the judgment of the trial court seems to suggest that its conclusion that the Federal High Court has no jurisdiction in a case as this was largely influenced by the fact that the action was brought by the representatives of a trade union.
SC. 89/2003
