Taiwo Oloruntora-oju & Ors V. Professor P. A. Dopamu & Ors (2002)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU, J.C.A.

This is an appeal against the ruling of Honourable Justice J. T. Tsoho of the Federal High Court, sitting at the Ilorin Division of the Court. The ruling was delivered on the 5th day of October, 2001.

I think it is necessary for a clear understanding of the issues raised in the plaintiffs’ suit, which the lower court was called upon to decide, to state although in outline, the history of the litigation now before the court. The plaintiffs’ suit was instituted against the defendants by an originating summons. In the said suit, the plaintiffs raised ten questions for determination by the lower court. They also asked for fourteen reliefs. For reasons which will become obvious later in this judgment, I consider it necessary to reproduce the said reliefs sought by the plaintiffs. They are –

“1. 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 & void and of no effect whatsoever having been made in flagrant violation of the provisions of University of Ilorin Act, Cap 455 Laws of the Federation 1999.

2. 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).
3. 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 4th defendant is ultra vires, unconstitutional, null & void and of no effect whatsoever having been in flagrant violation of procedure and provisions of the University of Ilorin Act.

(iii) the 6th plaintiff is at all material times the Head of the said Department.

4. An order setting aside & nullifying the purported appointment of 2nd defendant as the Head of Department of Linguistics in the Faculty of Arts of the 6th defendant.
5. 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).
6. A declaration that the purported appointed of the 3rd defendant as Acting Head of Department of the performing 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.
7. 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.
8. An order compelling the 4th, 6th & 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.
9. A declaration that the arrangement or purported conduct by the defendants of degree examination without moderation and/or participation of appropriate examiners (external & internal) as provided for in the Statute of the University, that is Unilorin Act is vires, illegal, unlawful, null & void & of no effect whatsoever.
10. A declaration that it is wrongful, unlawful and unconstitutional for the defendants at the instance and/or on the instruction of the 4th defendant to prevent the plaintiffs and other member Union (ASUU) whom 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.
11. An order of injunction restraining the 4th, 5th, 6th & 7th defendants whether by themselves or through their agents, privies, officers/officials by whatsoever named (sic) 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 & 7th defendants whether by themselves or through their agents, privies, officers/officials by whatsoever named (sic) called from preventing the plaintiffs and other members of their Union from entering their offices in the University or from operating meeting and generally associating and carrying meeting and generally associating and caring out their duties and functions from the ASUU Secretariat located in the Mini campus of the 6th defendant.

12. A declaration that is wrongful and unconstitutional 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 movements in and out of the said campuses of the University.
13. 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 their purported acting appointments were made by the 4th defendant.
14. An order prohibiting the 4th, 5th, 6th and 7th defendants from taking and decisions or acting in any manner or doing anything whatsoever that will adversely affect or prejudice the plaintiffs’ appointment/employment with the 6th defendant”.

Before I go on, I observed that the named plaintiffs in the suit are all members of the University of Ilorin Chapter of the Academic Staff Union of Universities. The latter is the umbrella Union that protects the interests of the academic Staff in the Nigerian Universities.

The averments in the affidavit in support of the originating summons show that the University of Ilorin Chapter embarked on a strike in February 2001 in order to draw attention to its grievance against the administration of the 4th defendant – Professor Shuaib Oba Abdulraheem. The strike was suspended on the 1st of April, 2001 because of a national strike called by ASUU against the Federal Government. This was to enable the Chapter participate in the national strike.

When the national strike was called off and the grievances of the Chapter were not still met by the authorities, the plaintiffs filed the aforementioned suit. The defendants were served with the hearing notice of the suit. The learned counsel for the 1st – 5th defendants reacted to the notice by bringing a motion on notice paying the court for-

“(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 misjoinder of causes of action.

(iv) And for such further or other order(s) as the Honourable Court may deem fit to make in the circumstances”.

The lower court after hearing arguments of counsel, in a considered ruling, held in part as follows-

“The originating summons of the plaintiffs in this case ordinarily seems sounded on fundamental rights issues whose determination requires only Statutory and constitutional interpretation. However some alien characteristics are identifiable therefrom.

It is incontestable that ASUU is a Trade Union as defined in section 1 (i) 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 protection group or collective rights without introducing some elements of Industrial dispute.

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… Therefore, the way the plaintiffs’ action is formulated makes it more suited for a Court with specialized jurisdiction… 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 this ruling, the plaintiffs, now the appellants, by a Notice of Appeal dated 19th October, 2001, filed grounds of appeal against the above decision of the lower court. From the four grounds of appeal, the appellants formulated the following issues for determination by this court viz-

“1. Whether the trial court was not wrong in declining jurisdiction in this matter on the ground that the plaintiffs’ case in the Originating Summons is a Trade dispute (grounds 1 & 3 of the grounds of appeal).

2. Whether the appellants’ case as formulated in the Originating Summons is a trade dispute pursuant to the Trade Dispute Act and therefore caught by Decree 47 of 1992.

The learned counsel to the defendants now the respondents, formulated in the respondents’ brief also two issues viz-

“(i) Whether the trial court was not right in holding that the suit of the appellants was on trade dispute and in applying the provisions of the Trade Dispute Act.

(ii) Whether the trial court was not right in declining jurisdiction in the case and consequently striking out the case in the circumstances”.

In my view, the above issues formulated by the learned counsel for the respondents, are, but for the language used, approximated to the issues formulated by the appellants. A careful look at the issues shows that this appeal can be disposed of under one broad issue, to wit:

“Was the lower court right in declining jurisdiction in this matter on the ground that the plaintiffs’ case before it can be classified as a trade dispute under the Trade Dispute Act?”

The above lone issue, in my view, will effectively dispose the appeal.

Arguing the above issue, Balyeshea Esq., of counsel, submitted that the lower court has a grave misconception of what a Trade Dispute is. This mis-conception, in the learned counsel’s view, misleads the lower court into holding that the issues before it relate to trade dispute. The issues before the lower court, the learned counsel further submitted, are constitutional matters and, the determination of the civil rights and the obligations of the parties. In other words, the issues are in respect of the denial of the legal and constitutional rights of the appellants.

He emphasised the fact that the lower court was called upon in the suit to determine whether the 4th respondent in carrying out his duties as the Vice Chancellor of the University of Ilorin, acted arbitrarily and without regard to the laid down procedure of conducting the degree examinations, the appointment and removal of Deans of Faculties and heads of departments.

The learned counsel further submitted that the issues raised in the originating summons before the lower court relate to the management, administration and control of the University of Ilorin as a Federal Agency. He contended that by virtue of the provisions of section 251 of the 1999 Constitution, the lower court has the jurisdiction to hear the suit. The learned counsel referred to the following cases in which the provisions of section 251 of the 1999 Constitution were interpreted viz-

Ali v. CBN (1997) 4 NWLR Part 49, and

University of Abuja v. Ologe (1996) 4 NWLR (part 445) 202 at 203.

He submitted that it is the claim or the relief sought by a plaintiff in a suit, as formulated in the writ of summons or the originating summons that determines the jurisdiction of a court. He cited the following cases-

Anya v. Iyaji (1993) 9 SCJN 53 at 66.

Panya Anigboro v. Sea Trucks Nig. Ltd. (1995) 6 NWLR (Pt. 399) p. 35 at 56. See Trucks Nig. Ltd. v. Ayo Pyne (1995) 6 NWLR (pt. 400) p. 166 at 179.

The learned counsel then contended that the lower court was in error when it declined jurisdiction by relying on two out of the ten questions submitted to the lower court for determination viz questions 9 & 10, instead of relying on the 14 reliefs set out by the appellants in the originating summons. It is the learned counsel’s view that even if the said two questions relate to trade dispute, the lower court has still the jurisdiction to hear the whole suit.

Or if the court felt strongly about the issues raised in questions 9 & 10, it may decline jurisdiction on the said two questions and proceed to adjudicate on the remaining eight questions.

It is his submission that in view of the provisions of section 40 of the Constitution, the question of the alleged breach of the fundamental rights of the appellants was in issue. Such being the case, the lower court should not have declaimed jurisdiction. He attempted to distinguish the facts of the present suit from the facts of the case of Tukur v. Taraba State Government (1997) 6 NWLR (Pt. 510) 549 at 582 – 583. It is his view that the court in the latter case, rightly declined jurisdiction when it held that the appellant or securing the enforcement of a fundamental right and deprive the court that has the jurisdiction to try the principal claim, of its jurisdiction. In the present case, in the learned counsel’s view, the lower court was called upon to determine the validity of the decisions taken by the respondents as they relate to administration and, control of the University of Ilorin which is a Federal Agency. He reminded the court that Decree No. 47 of 1992 which is a Federal Agency. He reminded the court that Decree No. 47 of 1992 which amended section 20 of the Trade Disputes Act did not enlarge the jurisdiction of the National Industrial Court.

The learned counsel referred to the following passage of the Ruling against-

“Upon due perusal of the questions for determination and reliefs sought in the Originating Summons, I am satisfied that the issues involved essentially border on the interpretation of provisions of the Constitution of Federal Republic of Nigeria 1999 and the University of Ilorin Act (Cap. 445) Laws of the Federation of Nigeria 1999… This is fundamentally an issue of law…”

He submitted that even if Decree No. 47 of 1992 is an existing law (which he did not concede) its validity is completely subject to the provisions of the 1999 Constitution. He observed that an existing law must conform to the Constitution in force at the time. Consequently, the provisions of the existing law which are inconsistent with the Constitution will be declared null & void. He relied on-

Edjerome v. Ikinde (2001) 12 SCNJ 18.

Bendel State v. The Federation (1982) 3 NCLR p. 9.

The learned counsel concluded that in the light of the above observation, the existence of Decree No. 47 of 1992 is subject to the provisions of sections 1, 6(b), 40, 46 and 251(l) (p) (q) & (r) of the 1999 Constitution. He urged the court to apply the “blue pencil” rule of interpretation in construing the provisions of the Trade Disputes (Amendment) Decree No. 47 of 1992. He cited the case of –

A.G. Abia State v. A.G. Federation (2000) 3 SCNJ 158 at 17.

It is his view that if this court runs “blue pencil” over decree 47 of 1992, the court would declare the provisions of section 2, 3, 4, 5 & 6 of the said Decree null & void. He cited the case of ABV v. Odugbo (2001) 7 DCNJ 262 at 290. The learned counsel urged the court to resolve the issue in the appellants favour.

In his reply, Eleja Esq., of counsel, submitted that the grievance of the appellants bothered mainly on union activities. He referred to paragraphs 12, 13 & 14 of the reliefs sought by the appellants as are endorsed in the originating summons.

The learned counsel referred to the following passage of the lower court’s ruling. It reads-

“Admittedly the plaintiffs have raised Constitutional questions but which in my humble employer that they appear inseparable”.

He observed that the appellant did not appeal against this finding of the lower court. It is his view that, there being no express challenge, by way of an appeal, to this specific finding of the lower court, the appellants are deemed, in law, to agree with the finding. He cited the case of-

Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 532.

The learned counsel again emphasized the fact that the lower court found that the suit instituted by the appellants was in respect of trade dispute.

The learned counsel in order to justify the decision of the lower court referred to paragraph 1, 2 – 11, 27 – 32, 35 – 37, 44 & 45 of the affidavit in support of the originating summons. He observed that the averments in the said paragraphs take the place of the Statement of Claim in respect of actions commenced by way of writ of summons. He further observed that the said averments support the ruling that the issues raised in the suit are in respect of trade dispute. It is the view of the learned counsel that the under listed facts are deductible from the affidavit in support viz-

“(a) That all the appellants are members of a registered Trade Union, Academic Staff Union of Universities (ASUU).

(b) That there was at the relevant time a lingering trade dispute between the appellants and the 6th & 7th respondents (especially) as copiously stated in the paragraphs of the affidavit earlier referred to.

(c) That the action of the appellants as expressed in the originating summons was in a representative capacity for members of ASUU, University of Ilorin Chapter.

(d) That the issues of terms of employment, conditions of employment and service and physical conditions of work of the appellants were raised in the case culminating in this appeal.

(e) That the issue of use of strike action whether local or national to press for conditions of service betterment by the appellants called for determination of the court.

(f) The propriety or otherwise of the appellants being called upon to work during the subsistence of a supposed national strike by 6th & 7th respondents was also an issue in the case.

(h) The propriety of some members of the local ASUU of the University of Ilorin calling of strike while the national ASUU was on strike was another issue raised in the case”.

It is the learned counsel’s submission that premised on the foregoing, the dispute culminating in the case was a trade dispute. He relied on the definition of “trade dispute” in the Trade Disputes Act, Cap. 432, Laws of the Federation, 1990.

The learned counsel then referred to the provisions of section 251 (1) (p) (q) & (r) of the Constitution. In his view, since the provisions are clear and unambiguous and do not expressly extend to trade dispute matters, the lower court has no duty to fill any imagined gap in the provision of the section. He relied on the case of Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 at 277 – 278.

He urged a provision names specific things among many other possible alternative the intention is that those not named are not intended to be included. (EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS). The fact that matters relating to trade disputes were not specifically mentioned in section 251 of the 1999 Constitution, in the learned counsel’s view, supports his contention that the lower court lacks jurisdiction to hear the case. He relied on

A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646.

Udoh v. OHMB (1973) 7 NWLR (Pt. 304) 139 at 148 – 149.

He also emphasised the fact that the 6th respondent is an agency of the Federal Government does not automatically confer jurisdiction on the Federal High Court to hear all cases affecting it. He relied on the case of Hon. Minister of Works & Housing v. Tomes (2001) 48 WRN, 119 at 145 – 147.

He contended that for a court of law to completely assume jurisdiction to try a case all the necessary ingredients adumbrated in the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 21 must be satisfied. He observed that in the instant case, the Federal High Court has no jurisdiction to hear the case because the main claim of the appellant is that of trade dispute.

Finally, the learned counsel observed that through courts guard their jurisdiction jealously, if however the court’s jurisdiction is expressly and unambiguously ousted by the provisions of the Constitution, that court must comply with the ouster. He cited the case of Ajuebor v. A.G. of Edo State (2001) 5 NWLR (Part 707) 466. Continuing, he submitted that section 6(6)(b) of the Constitution is therefore no authority for a court to assume jurisdiction over a matter in respect of which jurisdiction has been vested in a specialized court. He relied on the case of-

Nwankwo v. Nwankwo (1992) 4 NWLR (part 238) 693 at 710.

He urged the court in the light of the foregoing to hold that the lower court rightly declined jurisdiction in the peculiar circumstance of this case.

I now consider the submissions of the learned counsel. It is trite that the issue of jurisdiction is fundamental in any suit. This is because when a court has no jurisdiction with respect to a matter before it, the judicial basis for the exercise of any power with respect to such matter is also absent. This is because a power can only be exercised where the court has the jurisdiction to do so. Bronik Motors Ltd. v. Wema Bank Ltd. (183) 1 SCNLR 296. If therefore a defendant in a suit, is of the view, that ex facie the court has no jurisdiction to try the case before it and, that the issue, if raised, will determine the action in limine, he can raise the issue. This he may do without filing a defence. If he does that, he is deemed to have relied only on the papers filed by the plaintiff for his contention that the court has no jurisdiction. No further evidence is required to ground the objection.

In the instant case, the appellant filed a motion on notice for inter alia, an order of the lower court, striking out the suit for lack of jurisdiction to entertain same. The question before us now is, can it be said that from all the papers filed in the lower court by the appellants, that the lower court has the jurisdiction to hear the case?

Before answering the question, I would like to make one observation. In the instant case the appellants are the following-

“1. Dr. Taiwo Oloruntoba – Oju

(Chairman Academic Staff Union of Universities (ASUU) Unilorin Branch).

2. Dr. Bode Omojola

(Vice Chairman Academic Staff Union of Universities (ASUU) Unilorin Branch.)

3. Dr. Yetunde Osunfisan
4. Dr. Adeyinka Banwo
5. Dr. Sola Ademiluka
6. Professor Bisi Ogunsina

(Head if Department of Linguistics Unilorin)

(for themselves and on behalf of the Academic Staff Union of Universities (ASUU) Unilorin Branch.)

In my considered view, the appellants in the action before the lower court are not the above six named, i.e., Dr. Taiwo Oloruntoba-Oju and the other five persons, but, Dr. Taiwo-Oju and the other five representing the Academic Staff Union of Universities (ASUU) Unilorin Branch. It is therefore not a personal, but, a representative action.

ETOWA ENANG & ORS. V. Fidelis Ikor Adu (1981) 11 – 12 SC 25 at 28 & 32.

I observed that in a representative action every member of the class represented by the named plaintiffs is equally a party to the action through unnamed. They are unnamed party in the action because each and every member of the class represented will be bound by the eventual decision of the court. See-

A.Y. Eke & Ors. v. Nago Rubber Industries Ltd. & Ors, Re Clara Eke (1993) 4 NWLR, Part 286, p. 176.

It follows that the appellants in the present case is, the Academic Staff Union of Universities (ASUU) Unilorin Branch. It is trite that a right of action is exercisable by a person who has complaints touching on his civil rights and obligations against another person. The only way the present suit may be justified their complaints against the respondents.

Section 47 of the Trade Disputes Act, Cap. 432, 1990, Laws of the Federation of Nigeria defines Trade Dispute as-

“any dispute between employers and workers or between workers and workers, which is connected with the employment or not employment, of the terms of employment & physical conditions of work of any person”.

From the affidavit evidence before the lower court, the appellants’ grievance is, in the main against the arbitrary, rude, and unconstitutional manner their employment are running the University of Ilorin. That collective right cannot be protected without treating it as a trade dispute in the light of the above definition. This is because the dispute is between the employers and workers and it is connected with employment, terms of employment etc.

I now look at the issue from another angle. The lower court is a Federal High Court. It is a court of limited jurisdiction. Consequently, it cannot exercise jurisdiction over any cause or matter outside what is conferred on it by the enabling law. Section 251 of the 1999 Constitution which confers jurisdiction on a Federal High Court does not provide that any suit, in which the Federal Government or any of its agencies, functioninary or parasatal is a party, must be heard by a Federal High Court. It follows that there is no blanket provision which confers exclusive jurisdiction on the Federal High Court in suits against or by the Federal Government or any of its agencies regardless of the subject matter of the suit. See-

Omosowani v. Chiedozie (1998) 9 NWLR Part 506

As was observed by Bairamiam F.J. (as he was then) in the case of Madukolu v. Nkemdilim (1962) NSCC, p. 374, a court is competent when-

(i) it is properly constituted with respect to the number & qualification of its members.

(ii) the subject of the action is within its jurisdiction.

(iii) the action is initiated by due process of law, and

(iv) any condition precedent to the exercise of its jurisdiction has been fulfilled.

In order to determine whether in a given case, the subject matter of the action is within the jurisdiction of the court, one has to look only at the reliefs sought by the plaintiff in the case. See-

Onitola v. Bello 3 FSC 53 at 55.

I have earlier in this judgment set out the reliefs which the appellants sought in the lower court. It is the reliefs, as set out in the originating summons that determines the jurisdiction of the court to hear the suit. It is however necessary in my view, for a better understanding of what was the subject matter of the suit, to refer to the relevant paragraphs of the affidavit evidence in support of the above claim. They read as follows –

“3. That for quite some time now there has been crisis in the University of Ilorin arising from the unpopular style of the administration of the 4th defendant who is 6th defendant’s Vice Chancellor and so there have been protests by members of ASUU of the University of Ilorin.

4. That the protests have been on since February, 2001, but they were suspended by a letter signed by me on behalf of ASUU. Copy of the said letter is attached herewith as Exhibit A.
5. The Academic Staff members of University of Ilorin are being threatened and harassed by the 4th defendant and/or his subordinates who have issued letters and notices directing the academic staff members of the University to sign a register which prevent them from exercising their legitimate rights.
6. That many members of ASUU believe that the directive is not right and is in bad taste and that the 4th defendant is intimidating them by such notices and by withholding their salaries and allowances.
7. That the previous crisis in the University has not been resolved because of the recalcitrant and obstinate posture of mass termination of appointment of many members of the academic staff for daring to go on protest.
8. That many members of ASUU have remained committed to the struggle to ensure that the 4th defendant is not allowed to completely rupture or cancel academic freedom in the University community and to ensure that he obeys and observes the rule of law. They are also committed to the national struggle to get urgent steps to get the Federal Government of Nigeria to take urgent steps to stop the decay in the University system & to halt brain drain.
9. That the 4th defendant is victimizing and removing from positions all our members who hold opposing views and who stand for truth and righteousness”.

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 at 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 cannot 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 1(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.

Appeal is dismissed.

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Other Citations: (2002)LCN/1308(CA)