University Of Calabar & Ors. V. Dr. Inyang Peter Oduok (2007)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A.

On 8th December, 1987, the Respondent as Plaintiff before the lower court filed a Writ of Summons on 10th September, 1987 and Statement of Claim on 8th December, 1987 in which he claimed jointly and severally against the three (3) Appellants (then Defendants) as follows:

1. A Declaration that the said letter of expiration of appointment No. UC/R ….. 31/S …. 634 dated 10th June, 1987 is null and void.

2. A Declaration that the Plaintiff is still a staff/lecturer of the 1st Defendant.

3. An order restoring the Plaintiff to his former position in the 1st Defendant.

4. N500,000.00 for wrongful termination of appointment.

In reaction to the Plaintiff’s/Respondent’s Statement of Claim, it is on record that the Defendants/Appellants filed a motion on Notice dated 5th May, 1988 on 30th June, 1988 with a proposed Statement of Defence attached thereto as Exhibit ‘A’. There was nothing on record to show that the Defendants/Appellants eventually filed a Statement of Defence. The records however show that the case went to trial as the Defendants/Appellants indeed called one Emmanuel Samuel Ndoik as DW1. On 15th May, 1996 J. A. Binang J. delivered his judgment and granted the claims of the Plaintiff/Respondent except the N500,000.00 claim for damages for wrongful termination of employment. On 10th June, 1999, the Appellants as Defendants before the lower court filed a Motion on Notice praying for an order setting aside the judgment of His Lordship Honourable Justice J. A. Binang in Suit No. C/156/87 on the ground that the said judgment is a nullity having been delivered by the court at a time when it had been divested of jurisdiction to entertain the suit. This Motion was heard by R.I.E. Odu J, between 19th March, 2001 and 31st July 2001 and on 19th December, 2001, R.I.E. Odu J, delivered a ruling in which he refused to set aside the judgment of J. A. Binang J. The reasoning of Odu J. for refusing to set aside the judgment of Binang J. is contained at page 86 of the Record of proceedings as follows:

“It would seem to me that the law maker(s) did not intend that on the coming into force of Decree No. 107 of 1993 all matters filed in the State High Court shall abate. The law maker should have said so if that was their intention as they did in Decree No. 13 of 1993 which established the Federal Revenue Court: S.8(3) of that Decree.”

It is against this Ruling of R.I.E. Odu J. that the Defendants/Appellants filed a Notice of Appeal on 3rd January, 2002. The Appellants Notice of Appeal contains three (3) Grounds of Appeal. On 21st February, 2006, this Honourable Court granted an Order that this Appeal be heard on the Appellants’ brief alone, the Respondent having failed to file his brief of argument.

The only issue formulated in the Appellants’ brief dated and filed on 13th May, 2005 is:

“Whether the State High Court still has the jurisdiction to hear and determine pending matters concerning the Federal Government or its agencies soon after the promulgation of the 1979 Constitution of the Federal Republic of Nigeria (Suspension and Modification) Decree No. 107 of 1993 conferring exclusive jurisdiction on the Federal High Court in matters concerning the Federal Government or its agencies.”

In his submissions on the sole issue for determination, the learned Counsel for the Appellant acknowledged that there are two schools of thought on the controversy as to whether such an instant transfer of jurisdiction has not been waived or suspended in matters pending before the State High Court before the enactment of Decree No. 107 in November, 1993.

The school of thoughts said Appellants’ Counsel seems to have emerged in this controversy even at the apex court represented in two decisions: OHMS vs. Garba (2002) FWLR (Pt. 123) 200 and Olutola vs. University of lIorin (2004) NWLR (Pt. 905) 416. According to Appellants’ Counsel, their Lordships in OHMS vs. Garba (supra) have taken position tending to support the view that pending matters in the State High Courts concerning Federal Government or its agencies before the enactment of the Decree could still be heard and determined by the State High Court and the decision thereof shall not be invalidated by virtue of the law which has divested the State High Court of any jurisdiction in matters concerning the Federal Government or any of its agencies.

Appellants’ Counsel submitted in contrast that in the case of Olutola vs. University of Ilorin (supra), it was decided that Decree 107 of 1993 confers on the Federal High Court an exclusive jurisdiction over matters of administration, management and control concerning the Federal Government and its agencies to the exclusion of the State High Court and which, by the enactment, the unlimited jurisdiction of the State High Court in S. 236 of the 1979 Constitution was curtailed from the date the Decree was enacted.

This view, said Appellants’ Counsel is consistent with the general warning on interpretation of statutes to the effect that:

“The object of all interpretation is to discover the intention of the law-makers which is deducible from the language used. Thus, where the words of a statute are clear, unambiguous and not doubtful as to its meaning and intendment, the court will employ the literal or ordinary meanings of the word used. If the general provision is ambiguous, it is the duty of the court to give meaning to that ambiguous expression …. ” Ayeni vs. University of Ilorin (2000) 2 FWLR (Pt. 644) 290.

Appellants’ Counsel submitted that the reasoning of the Supreme Court (per Ogundare JSC) in the case of OHMS vs. Garba (supra) was anchored on the provision of S.6(1) of the Interpretation Act Cap 192 LFN 1990 which provides for the inability to revive existing events and saves things duly done or rights and privileges that has accrued before the repeal of an enactment.

The Section provides:

“The repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect, affect the previous operation of the enactment or anything duly done or suffered under the enactment, affect any right, privilege, obligation or liability accrued on incurred under the enactment, affect any penalty, fortitude or punishment incurred in respect of any offence committed under the enactment, affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.”

In distinguishing the case of OHMS vs. Garba (supra) from the case of Olutola vs. Unilorin (supra) the learned Counsel for the Appellant submitted that the operational word in S. 6(1) of the Interpretation Act is “repeal” which the said entails the abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked or abrogated but that as the title of Decree 107 of 1993 suggests “The 1979 Constitution (Suspension and Modification) Decree 1993, the decree did not repeal S. 230 (1) of the 1979 Constitution but amended.

From this perspective, said Appellant’s Counsel, the case of OHMS vs. Garba (supra) is distinguishable from Olutola vs. Unilorin (supra) which he considers to be more appropriate to the facts of the present case and therefore preferable. He urged us to allow the appeal.

I think the distinction and the preference for the case of Olutola vs. Unilorin (supra) to the facts and circumstances of the present case to the case of OHMS vs. Garba (supra) goes beyond the paradigm of repealed enactment’ adopted in the Garba case (to use the words of the learned Counsel for the Appellant).

It is important first to recognize the distinction between cause of action jurisdiction and the adjudicatory jurisdiction of the court commonly called the jurisdiction of a court or the competence of a court to pronounce on an action before it. This distinction was usefully recognized by Tobi JSC in the case of Professor Aderemi Dada Odutola vs. University of Ilorin (supra) when he held at pages 464 – 465 of the Report thus:

“The law which supports a cause of action is not necessarily co-existence with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the State of the law conferring jurisdiction at the point in time the action was instituted and heard. In the instant case, it was puerile for the Appellant to argue as he did that the cause of action arose when the State High Court had jurisdiction over the matter, regardless of the fact that when the action was heard, the court had been divested of such power by reason of the amendment of Section 230(1) of the 1979 Constitution by Decree 107 of 1993.” Adah vs. N.Y.S.C. (2004) 13 NWLR (Pt. 891) 639.

Edozie JSC meant as much when in the same case of Olutola vs. Unilorin (supra) he declared at pages 469-471:

“….thus, a State High Court may have the jurisdiction to entertain a suit at the time the cause of action arose but at the time of the actual trial, it is divested of that jurisdiction. This was exactly what happened in the instant case where the Respondent removed the Appellant from inter alia the office of the Dean of the Faculty. As at that time and even as at the time of the commencement of the action in January, 1993 before the High Court of Justice, Kwara State, the existing substantive law was the 1979 Constitution which by Section 236 thereof conferred unlimited jurisdiction on the State High Court. By that the High Court of Kwara State had jurisdiction to hear and determine the matter. But the trial continued until 8th May, 1996 while Decree No. 107 of 1993 denying the State High Court jurisdiction came into effect on 17th November, 1993. As from that date the trial High Court had no jurisdiction to deal with the matter again. “A.G, Lagos State vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Ahaw vs. Akano (1988) 1 NWLR (Pt. 71) 431, Uwaifo vs. A.G. Bendel State (1982) 7 SC 124, Rossek vs. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382, Adah vs. NYSC (2004) 13 NWLR (Pt. 891) 639, Utih vs. Onoyirwe (1991) 1 NWLR (Pt. 166) referred to.

Now, apart from the fact that the case of Olutola vs. Unilorin (supra) came later in time to the case of Orthepeadic Hospitals Management Board vs. Mallam Umaru Garba & 2 Ors, (OHMB vs. Garba (2002) 14 NWLR (Pt. 788) 538, the logic of the effect of repeals, expiration, etc of laws deduced from the provision of Section 6(1) of the Interpretation Act cap. 192 LFN 1990 could not adversely affect the case of the Appellant in the instant case. This is because in essence, the provision of S. 6(1) of the Interpretation Act deals with the inability of a repealed enactment to revive non-existing rights and their incidence as well as the retention of accrued rights and their incidence in spite of the repeal of an enactment. With this explanation, it would be seen that the provision of S.6(1) of the Interpretation Act would for most of the part be relevant in a consideration of cause of action jurisdiction but would only have been relevant in the case of adjudicatory jurisdiction in situations where judgment had actually been delivered before the repeal of an enactment. In such a case, a right, or privilege arising from the judgment must have accrued to one of the parties in the case. Part of the intent of S.6 (1) of the Interpretation Act is that such a right that had accrued would not be taken away or perhaps so easily except the new legislation is duly retrospective.

It is by this same logic that the older authorities both local and foreign that were cited in the lead judgment of Uthman Mohammed JSC (pp 547 -556) and the consenting judgment of Ogundare JSC in the OHMS vs. Garba case (supra) at pages 565 – 568 could be explained as not been relevant to the present case. Ogundare JSC. Joined his other learned brothers M. L. Uwais CJN, I. L. Kutigi, U. Atu Kalgo to support the leading judgment of Uthman Mohammed JSC in the OHMS vs. Garba’s case. Both the lead judgment of Uthman Mohammed and the consenting judgment or Ogundare JSC in the OHMS vs. Garba’s case (supra) went beyond the invocation of the provisions of S.6 (1) of the Interpretation Act and further relied on the cases of The Council of the University of Ibadan vs. N. K. Adamolekun (1967) ANLR 225, and the privy council decision from Australia in Colonial Sugar Refining Co. Ltd. vs. Irving (1905) AC 369, to come to the conclusion in the OHMS vs. Garba’s case that the State High Court was indeed justified to continue and determine cases that were pending before 17th November 1993 when Decree No.107 of 1993 was introduced.

It is interesting to note that the cases of University of Ibadan vs. Adamolekun (supra) and Colonial Sugar Refining Co. Ltd. vs. Irving (supra) were clearly envisaged by the provisions of Section 6(1) of the Interpretation Act. Both cases deal with rights of appeal indeed constitutions rights of appeal that had accrued to the parties before the repeal of the enactments considered in those cases. It was thus rightly held in the Colonial Sugar Refining Co; Ltd vs. Irving (supra) that the right of appeal from the Supreme Court of Queensland (Australia) to his Majesty in-Council given by the order-in-Council of 1860, has been taken away by the Australian Common Wealth Judiciary Act 1903, and the only appeal therefrom now lies to the High Court of Australia, yet the Act is not retrospective, and a right of appeal to the King-in-Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away.

In my opinion, the cases of Colonial Sugar Refining Co. Ltd. vs. Irving (supra) and University of Ibadan vs. Adamolekun (supra) for our purpose fall within the category of cause of action jurisdiction based on their respective constitutional rights of appeal before the introduction of new legislation into the arena of appeal in both cases. To be sure that the privy Council was in that case dealing with accrued rights of the individual citizen (which was considered precious) emphasis supplied, in the Colonial Sugar Refining Co. Ltd. vs. Irving case (supra) Lord Macnaughten said inter alia at page 372 of the Report……

“The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty-in-Council a right vested in the Appellant at the date of the passing of the Act or was it a matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.” (Emphasis supplied)

In the instant case, unlike the Colonial Sugar Refining Co. Ltd vs. Irving (supra) and the University of Ibadan vs. Adamolekun case there was no such interference with existing rights. This is because, even ever before the introduction of Decree 107 of 1993, the provisions of Sections 230(1) and 236(1) of the 1979 Constitution dealt primarily with the adjudicatory jurisdictions of the Federal High Courts and the State High Courts respectively. It may well be that the controversy of pending matters before the State High Courts after the introduction of Decree 107 of 1993 was created by the Introduction or amendment of an adjectival or procedural issue into the body of a substantive law, that is the provision of Section 230(1) of the 1979 Constitution, nevertheless the case of Olutola vs. Unilorin (supra) is not only on all fours with the present case but also preferable because of its recognition of the distinction between cause of action jurisdiction and the adjudicatory jurisdiction of the courts.

In the instant case, for example, even though the action in suit No. C/156/87 was instituted in 1987, the judgment of Binang J. delivered in May, 1996, after 1ih November, 1993, when the Constitution (Suspension and Modification) Decree No. 107 of 1993 came into existence is null and void because as at May, 1996, the State High Courts have been divested of jurisdiction to entertain any civil causes or matters arising from the administration and control of the Federal Government or any of its Agencies. For these reasons I allow the appeal. Appeal succeeds. The judgment of Binang J. delivered on May, 1996, is hereby set aside for lack of jurisdiction.

There shall be no order as to costs.

Other Citations: (2007)LCN/2244(CA)