Warri Refinery & Petrochemical Company Ltd. V. Benson O. Agbuje (2004)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
This is an appeal against the judgment of Emeordi, J., of the Effurun Judicial Division of Delta State, delivered on the 27th day of September, 1996, wherein the plaintiff’s claim was allowed. The plaintiff who is the respondent/cross-appellant herein had claimed the following reliefs in his statement of claim:-
(a) For an order that the plaintiff is still a staff of the defendant.
(b) A declaration that the purported termination of the plaintiff as per letter dated 8th April, 1993 is unconstitutional, unlawful, ultra vires, capricious, wrongful, invalid and null and void.
(c) An order for the defendant to pay to the plaintiff all emoluments and entitlements including promotions due and payable to him as from April 1993 and to be so calculated until final determination of this suit at N1,827.39 per month from April, 1993 to February, 1994. N6,441.66 per month from March and annual allowance of leave, entertainment bonus and educational assistance until final determination.
(d) An order reinstating the plaintiff with all its promotion with all its (sic) promotions, entitlements to his office.
(e)(i) In the alternative to and above an order that plaintiff be paid salary, and allowance of grade level GSS 3 N1,827.39 per month from April, 1993 to February, 1994; N6,441.66 per month from March, 1994 until final determination of suit as well as accrued annual bonus, annual leave allowance and annual educational assistance being N152,940.00
(ii) Gratuity and pension (at the retirement age of 60 years), which is the year 2008 to be worked out/calculated as per the current approved, rates respectively,
(iii) Salary and allowances due for the unexpired term of 14 years by the year 2008 being N1,266,628.00).
The respondent/cross-appellant as plaintiff further averred as follows in paragraph 19 of the said statement of claim:-
“The plaintiff has tried to secure alternative employment but all to no avail. And the plaintiff claims the sum of N152,000.00 for breach of contract of employment by the unconstitutional, wrongful, unlawful termination of his appointment contrary to the principal (sic) of natural justice.
Particulars of damages
(a) Salary, allowance & annual benefit up to 1994
(i) Arrears of salary from April, 1993 to March, 1994 = 16,268.88
(ii) Housing allowance of 1994 = 18,240.00
(iii) Transport allowance from 8th April, 1993 to March, 1994 = 6,400.00
(iv) Utility allowance from 8th April 1993 to March, 1994 = 4,800.00
(v) Gas subsidy from 8th April 1993 to March, 1994 = 960.00
(vi) Shift allowance from April 1993 to March, 1994 = 2,012.00
(vii) Hazard allowance from April 1993 to March 1994 = 1,600.00
(viii) Annual education assistance for 1992, 1993, 1994 = 6,420.00
(ix) Leave allowance for 1993, 1994 = 9,110.00
(x) Annual bonus for 1992, 1993, 1994 = 5,129.00
(xi) Housing grant on completion of ten years service =82,000.00
Total N152,940.00
(b) Entitlement at retirement in 2008
(i) Salary and allowance due for the unexpired term
of 14 years as at 2008 retirement = 1,266,628.00
(ii) Gratuity and pension to be calculated at the current approved percentage of annual allowance and benefits.
Grand total N1,419,568.00.”
The respondent’s case in the lower court is that he was employed as a security guard by Nigeria National Petroleum Corporation (N.N.P.C.) and was later posted to the appellant, a subsidiary of N.N.P.C. on the 28th of October, 1992, he was on morning duty at about 6.57a.m. when an industrial attachee of the appellant asked him for the key to the C.I.P. unit room 7.
He demanded and was shown the attachee’s I.D. card, whereupon he asked the attachee to sign for the key in the Key movement register. After signing, the attachee went into the room 7 and 5 minutes later the plaintiff saw him going towards the admin building without returning the key. Not long after that, other members of staff came asking for the key to room 7, and he told them that somebody had signed for it and when he could not find the attachee who collected the key from him, he reported the matter and the O. C. security asked that the door to room 7 be forced open, and they discovered that three table calculators were missing. On the 6th of November, 1992, he was issued with exhibit G, a query that reads as follows –
“It has been reported that while you were the security guard on duty at the technical building on 28th October, 1992, you allowed an unidentified person to sign for and remove the key to office room No. 007 used by the C.I.P.U. Unit of Finance and Accounts Department. The report added that the person, who used the key to gain access into the C.I.P. office, made away with (3) table calculators and eventually left with the key. And not until the office door was forced open and the items were found missing, you did not observe the loss as the guard in charge. Your actions as described above constitute gross negligence of duty for which you could be punished. Could you therefore explain in writing within 48 hours on receipt of this query why serious disciplinary action should not be taken against you for negligence of duty”.
The respondent’s reply is exhibit H, dated 12th November, 1992 and it reads –
“… In view of the explanation demanded, I state as follows:-
- I confirm that I was at my normal duty post in the technical building between the hours of 0700 and 1400 p.m. 28th October, 1992, the day of the said incidence referenced in your letter.
- I confirm that the shift bus, having arrived early, I relieved the security officer on night duty at 0.50 (sic) hours on the said day.
- I also confirm that on the said day, a staff of WRPC signed for the key to room 007 of the technical building at about 06.57 a.m.
- I state that, hitherto, any staff of WRPC, whether permanent, casual, NYSC, industrial attachees, etc. could and were allowed to sign for any key to rooms in the technical building. The key register will bear me out.
- I further state that, where the identity of any staff is in doubt, security normally requests for the J.D. card of such individuals before the key could be signed for and removed.
He gave a detailed explanation as to why and how he allowed the industrial attachee to sign and enter the room, and concluded exhibit as follows-
“Based on all the foregoing, I submit, Sir, that the incidence though regretted does not amount to negligence on my part as the key was duly (sic) signed for by a staff carrying a WRPC J.D. card and that no items were removed from the building within the time frame of the incidence to the time the door to room 007 of the technical building was eventually forced open. Please Sir, consider my facts stated above and absolve me of the charge of negligence on duty”.
The respondent was however issued with exhibit J, a letter dated 8th April, 1993 terminating his appointment with the appellant on the ground that his services were no longer required. He rejected the terms of the termination and protested in exhibit K, dated 27th April, 1993, which reads as follows:-
“1 hereby formally write to reject the terms of termination as contained in your letter ref. … When the letter was served on me on 13th April, 1993 in my residence at…I protested to the process server and I hereby formally express (sic) my rejection of the purported termination. As you may recall, I was queried and hence, facing disciplinary action by management, I replied to the query but I was neither invited to any disciplinary committee nor warned. The allegation made against me, although christened as “Negligence to Duty” involved acts of stealing company property. I believe that this is a serious matter that touched on my reputation and requires proper investigation by management. I am aware that my condition of service is guaranteed by the Constitution of the Federal Republic of Nigeria, The Federal Civil Service Rules and the WRPC conditions of service, which stipulated specific procedures to be followed either by management or the terminating officer. I regret to state that the purported termination ran foul of the conditions of service subsisting between me and the company and I hereby reject the purported termination. I appeal to management to allow me to continue with my services and earn my pension”.
The respondent consulted a solicitor to demand reinstatement as shown in exhibits M & N, after which he instituted the action that led to this appeal. The appellant however objected to the exercise of jurisdiction by the lower court. Paragraph 17(a) of its amended statement of defence reads thus :-
“The respondent shall also raise…at the trial of this case that by virtue of section 230(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993, this Hon. Court lacks jurisdiction to entertain or try this case in that the plaintiff hereby seeks a declaration affecting and/or challenging the validity of the executive and/or administrative action of the defendant, an agency of the Federal Government of Nigeria, in terminating the plaintiffs appointment, the said Decree No. 107 having vested only the Federal High Court with jurisdiction to try the case to the exclusion of any other court”. At the close of trial and after addresses by counsel, the learned trial
Judge delivered his Judgment. On the objection to jurisdiction, he held as follows:-
“I have carefully considered the arguments adduced by both lawyers in this matter and I agree with Mr. Oghenejakpor that this Honourable Court has jurisdiction to entertain this suit because this case is based on master and servant relationship and that being so, it is not a matter against the Federal Government Order” (Italics mine)
The learned trial Judge then entered judgment for the respondent declaring that the termination of the respondent’s appointment was of no effect and ordered that he be reinstated and paid his entitlements up till the date of Judgment. He further held as follows:-
“Furthermore, in the alternative following the provisions of the 1979 Constitution, the plaintiff’s legal right has been breached by his appointment being unlawfully terminated. In that regard, the defendant is to pay the plaintiff the sum of N1.5 million if the defendant company does not want the plaintiff any more for breach of contract of employment. I so order”.
Dissatisfied with the judgment of the lower court, the appellant filed a notice of appeal containing 6 grounds of appeal and by leave of court, amended the original ground 5 and filed additional 4 grounds, making it 10 grounds of appeal filed by the appellant. Dissatisfied also with a portion of the judgment, the respondent with the leave of this court cross-appealed against the award of N1.5 million naira damages in addition to the order of reinstatement. Briefs of argument were filed and exchanged by both parties, and in the appellant’s amended brief prepared by C. D. Bello and Co.; the following issues were formulated as arising for determination in this appeal:-
- Whether the lower court was right in exercising jurisdiction in this case?.
- Whether the learned trial Judge was right in declaring the termination of the respondent’s appointment wrongful and/or of no effect and ordering that he be reinstated to his former post with his entitlements paid up till judgment or in the alternative, that the respondent be paid N1.5 million for breach of contract/respondent’s constitutional right if the appellant did not want the respondent any more?.
- Whether the learned trial Judge exercised his discretion judicially and judiciously in awarding the respondent costs of N5,000.00?.
- Whether on a proper consideration of the evidence before the court the decision of the learned trial Judge can stand?.
- It was however argued for the respondent in his brief settled by O. J. Oghenejakpor, Esq., that the issues formulated by the appellant did not arise from the grounds of appeal filed nor did they cover the grounds of the main appeal and cross-appeal. It was further submitted that the appellant drafted 4 issues from the 10 grounds of appeal; that issue 1 as formulated does not bring out the true complaint in the appeal; and issue 2 muddled up two distinct fundamental issues in the appeal, making the Issue unintelligible. The proper Issues for determination, it was submitted are as follows:-
(1) Was the learned trial Judge justified on the facts of this case in holding that the respondent’s employment with the appellant enjoys statutory flavour? (Ground 10)
(2) Whether the trial Court was justified in the circumstances of this case to hold that “management” lacks the “vires” or legal right to remove the respondent from its employment and that only the Managing Director can validly remove him from office? (Ground 3)
(3) Whether the learned trial Judge was justified in declaring the termination of the respondent as contained in exhibit J ultra vires, invalid, null and void and in ordering the reinstatement of the respondent?
(4) Whether the learned trial Judge being a Judge of the High Court of Delta State was justified in view of Decree 107 of 1993 and other constitutional provisions thereby in assuming jurisdiction and entertaining the claim of the respondent, who is a security guard seeking declaratory relief that his purported termination as contained in exhibit J from the employment of the appellant a subsidiary of the N.N.P.C. is unconstitutional, ultra vires, unlawful, invalid, null and void. (Grounds 1 & 7)
(5) Was the learned trial Judge right in awarding the respondent the sum of N 1.5 million as damages after it had granted a reinstatement order of the respondent? (Grounds 3 & 4 and cross-appeal ground 1)
(6) Was the learned trial Judge justified in the exercise of its discretion in awarding the cost of N5,000.00 against the appellant in favour of the respondent? (Ground 9)
(7) Was the learned trial Judge justified in the conclusion and judgment reached in this suit?
It was further submitted that the resolution of the respondent’s issue 1, which deals with the question of the nature and tenure of the respondents appointment with the appellant, will lead to the central issue of this action, namely issues 2 & 3, which deal with the validity of the termination letter – exhibit J and the order of the trial court declaring same null and void and ordering the reinstatement of the respondent.
In urging, this court to first of all resolve the respondent’s issue 1, it was argued that it is trite law that the issue of jurisdiction once raised is treated and dealt with as early as possible before going into the main case, but that the general principle is subject to some exceptions, namely – if the issue of jurisdiction is predicated on the establishment or proof of contested facts, such facts have to be proved or established before the issue of jurisdiction ripens for hearing. It was pointed out that in this case, the appellant argued and contended in one breath that the respondent by his employment with it is an employee of N.N.P.C. and hence a Federal Government parastatal and the order of termination cannot be questioned by the Delta State High Court, and in another breath argued that the appellant is an ordinary company incorporated under CAMA and the respondent’s employment is not with statutory flavour but governed by ordinary master and servant relationship under common law. It was therefore submitted that in order to appreciate this irreconcilable stand of the appellant, the preliminary issue of the status and nature of the respondent’s employment with the appellant must be resolved first, citing Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599, (1985) All NLR 363 at 372 wherein Oputa, J.S.C. stated as follows:-
“Standing thus on the solid foundation of the findings of fact of the trial court, one may now ask the one vital question which holds the key to the resolution of many of the various issues for determination. That question is: What was the relationship between the respondents and the appellant? Was it the ordinary simple common law relationship of master and servant? Was it a relationship of master and servant based wholly and solely on a written contract? Or was it a relationship with ‘statutory flavour’ a relationship that invested the appellants with tenure and legal status I will now look at how the court of first instance and the court below answered this vital question”.
The appellant however filed a seven-page appellant’s reply brief; the gist of the reply being that the respondent’s submissions on issues 1, 2 & 3 of his brief violates the age-long principle in Emegokwue v. Okadigbo (1973) 1 All NLR (Pt.1) 379, that parties are bound by their pleadings, and such violation warrants the brief being struck out, as the respondent has made a case on appeal different from the case he made at the trial court.
I have carefully examined the grounds of appeal in the main appeal and cross-appeal vis-a-vis the record of proceedings and judgment complained against and I find I do not agree with the respondent. True enough, there are too many grounds of appeal for the number of issues formulated, but issues for determination are not formulated to coincide with the numbers of grounds of appeal. What is important is that the issue or issues must arise from one or a combination of the grounds of appeal, and what determines the formulation of an issue is whether the legal consequences of a ground or fact or a combination of those grounds or facts as framed by the appellant, if decided in favour of the appellant will result in a verdict in his favour. See African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391; United Bank for Africa Limited v. Ibhafidon (1994) 1 NWLR (Pt.318) 90.
What is more, there is a fine distinction between the issue of whether the respondent’s employment with the appellant enjoys statutory flavour and the issue of whether a State High Court has jurisdiction to try this case wherein the respondent’s claim includes declarations challenging the validity of the action or decision of the appellant, an agency of the Federal Government, such a matter being one which a Federal High Court has exclusive jurisdiction to try by virtue of section 230(1) of the 1979 Constitution as amended. I do however agree that the appellant’s issue 2 is a jumble of “two distinct fundamental issues”, but they could be split up to include the respondent’s issue 5. In other words, the issues may conveniently be merged as follows:-
(1) Whether the lower court was right in exercising jurisdiction in this case?.
(2) Whether the learned trial Judge was right in declaring the termination of the respondent’s appointment wrongful and/or of no effect and ordering that he be reinstated to his former post with his entitlements paid up till judgment?.
(3) Whether the learned trial Judge was right in awarding the respondent the sum of N1.5 million as damages after it had granted a reinstatement order of the respondent?.
(4) Whether the learned trial Judge exercised his discretion judicially and judiciously in awarding the respondent costs of N5,000.00?.
(5) Whether on a proper consideration of the evidence before the court the decision of the learned trial Judge can stand?.
Be that as it may, it is only if issue 1 on jurisdiction is resolved against the appellant that the other issues will come into play. This is because jurisdiction of court is so fundamental that it forms the foundation of adjudication. It is the lifeline of an action, thus, if a court lacks jurisdiction, it automatically lacks the necessary competence to try the case at all. See Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103 & Akeem v. Unibadan (2003) 10 NWLR (Pt.829) 584. In this case, it is the appellant’s submission that the parties were on all fours that the appellant is a subsidiary of N.N.P.C. established by the Federal Government, and that it is trite or common knowledge that N.N.P.C. was established by Decree No. 33 of 1977 by the Federal Government, therefore, the appellant as a subsidiary of N.N.PC. is an agency of the Federal Government having regard to Decree No. 107 of 1993. It was thus submitted that a State High Court lacks the jurisdiction to entertain the respondent’s case as such jurisdiction is vested in the Federal High Court to the exclusion of any other court by virtue of section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993; University of Abuja v. Ologe (1996) 4 NWLR (Pt.445) 706 & Onyenucheya v. Military Administrator of Imo State (1997) 1 NWLR (Pt. 482) 429. It was further submitted that notwithstanding the provision of the said section of the 1979 Constitution as amended, the learned trial Judge curiously held as follows:-
“I agree with Mr. Oghenejakpor that this Honourable court has jurisdiction to entertain this suit because this case is based on master and servant relationship and that being so, it is not a matter against the Federal Government Order”. (Italics mine)
It is the appellant’s contention that the above comment of the learned trial Judge is fraught with fundamental flaws, being a misconception of the pleadings filed and/or issues canvassed by the parties regarding jurisdiction; that in purporting to resolve the issue, the learned trial Judge created the erroneous impression that the objection to jurisdiction was predicated on the ground that the action arose from master and servant relationship and that the case was “a matter against the Federal Government Order”.
It was also argued that contrary to the impression created by the learned trial Judge, these were not the grounds of the appellant’s objection to the exercise of jurisdiction in this case, as there was no dispute as to the case arising from master and servant relationship and the appellant never complained or canvassed that this was a “matter against the Federal Government Order”. It was thus submitted that the learned trial Judge failed to appreciate the purport of the appellant’s objection to the exercise of jurisdiction by the lower court. Furthermore, that the learned trial Judge was glaringly in misconception not only of the facts on which the appellant hinged its objection but also of the legal authorities cited in support of the objection, and the effect of the misconception and/or misdirection by the learned trial Judge occasioned a miscarriage of justice which this court was urged to remedy by setting aside the judgment of the lower court, the issue of jurisdiction being fundamental – citing Onyekaonwu v. Ekwubiri (1966) 1 All NLR 32; Onobruchere & Anor. v. Esegine (1986) 1 NWLR (Pt.19) 799, (1986) 2 SC 385, where the decisions of the lower court were set aside on the ground that there was a misdirection leading to miscarriage of justice. It was further submitted, citing Onyeama & Ors. v. Oputa (1987) 3 NWLR (t.60) 259, (1987) 6 SCNJ 176 & Odofin v.Agu (1992) 3 NWLR (Pt.229) 350, that it is trite law that where a court lacks jurisdiction, the entire proceedings is a nullity no matter how well conducted.
The respondent however argued that the respondent’s claim is merely an issue of master/servant relationship and is challenging the purported termination by exhibit J of his appointment by a non-existent organ called management of the appellant. It was further submitted that the interpretation of the administrative or executive order of the Federal Government or its agency that excludes the jurisdiction of the High Court of the State must be done with some caution so that it will not lead to absurdity; that by section 2 on the NNPC Act, 1977, the power for the day-to-day running of the NNPC and its subsidiary is vested in the Managing Director (MD) and his power to terminate a security guard does not constitute a Federal Government Order that can be tried only by the Federal High Court.
It is the respondent’s contention that the “Federal executive order” in that instance only exists, if and only if, the Federal Government specifically directed the removal of staff or embarked on any pruning exercise; that it does not apply when the MD of NNPC purports to exercise his power in the day to day running of the corporation, and it may lead to absurdity to argue that a security guard terminated at Warri Refinery, Warri whose salary is below N2000 per month can only be expected to challenge the validity of his removal by an action in the Federal High Court Benin, which by its rules require a deposit of a handsome sum before initiating an action against the Federal Government. Secondly, that the purported termination challenged herein is neither the action of the appellant nor that of the MD of the NNPC as the offending letter, exhibit J was issued by S. J. Otobo signing for “Head, Admin. & Personnel” on the authority of Management which is “an amorphous non-juristic body unknown organ of the appellant”, who has no capacity to so act. It was therefore submitted that even if Decree No. 107 of 1993 prohibits a termination validly made by NNPC from being challenged in the High Court, the termination herein is not by the appropriate authority and therefore cannot rely on the protection of the enactment, citing Katto v. CBN (1991) 9 NWLR (Pt. 214) 126, (1991) 12 SCNJ 1; Wilson v. A-G., Bendel State (1985) 1 NWLR (Pt. 4) 572, (1985)2 SC 19. The respondent further submitted that there is no executive order of the Federal Government in this matter nor was any such order challenged at the trial court, so the argument of the appellant in this issue is otiose and the High Court of Delta State was therefore justified when it assumed jurisdiction.
The appellant however replied that the status or impecuniosity of the respondent and the alleged huge deposit required before an action is filed at the Federal High Court is not an excuse for the respondent to pick and choose which court to bring an action, whether or not such court has jurisdiction to try his case; that the action was not filed against the Federal Government, and his arguments contradicts his admission in the statement of claim that the appellant terminated his appointment; so he cannot argue that it was “management” and not the appellant that terminated his appointment.
As the respondent also submitted, it is now trite law that the jurisdiction of the court is determined by the claim of the plaintiff before a court – see Akeem v. Unibadan (2003) 10 NWLR (Pt.829) 584. In this case, the respondent averred as follows in paragraphs 1, 2, 9, 10, 18(b) & 19 of his statement of claim in the lower court-
- The plaintiff was and is at all material time a staff of the defendant as security guard and resides …
- The defendant is a subsidiary of Nigerian National Petroleum Corporation a Federal Government owned corporation established by law for the business of petroleum production etc. and its conditions of service and terms of employment stipulated by NNPC corporate policies and procedure guidelines are applicable to the defendant …
- The plaintiff avers that he was not invited before any disciplinary committee on the allegation of stealing which is a very serious criminal matter touching on his reputation and requires proper investigation and fair hearing by a competent court, which was not done thus undermining his fundamental right and breach of natural justice.
- The plaintiff avers that while investigations on the allegation were still pending, he was purportedly removed from office by wrongful termination without fair hearing contrary to the requirements of the Constitution by a letter reference No. WRPC/APD/PER/PF.11041 dated 8th April, 1993 and the plaintiff being dissatisfied protested against this action vide a letter dated 27th April, 1993
…
- Whereupon the plaintiff claims
(b) A declaration that the purported termination of the Plaintiff as per letter dated 8th April, 1993 is unconstitutional, unlawful, ultra vires, capricious, wrongful, invalid, and null and void
- The plaintiff has tried to secure alternative employment but all to no avail. And the plaintiff claims the sum of N152,000.00 for breach of contract of employment by the unconstitutional, wrongful, unlawful termination of his appointment contrary to the principle (sic) of natural justice. (Italics mine)
Section 230(1) of the 1979 Constitution as amended by Decree No.107 of 1993, which is applicable to this appeal, provides as follows:
“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 –
(q) The administration or the management and control of the Federal Government or any of its agencies;
(r) Subject to the provisions of this Constitution, the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies;
(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.” (Italics mine)
In University of Abuja v. Ologe (supra), the court held that the use of the expression “any of its agencies” in section 230(1) of the 1979 Constitution as amended is meant to cover all the organs established by law through which the Federal Government carries out its functions. See also the statement of Tobi, J.S.C. in NEPA v. Edeghero (2002) 18 NWLR (Pt. 798) 79 as follows:-
“In construing section 230(1) of the 1979 Constitution as amended, two important matters arise. They are: the parties in the litigation as well as the subject matter of the litigation. The court must consider both. In construing the parties, the court will have no difficulty in identifying the Federal Government but it may have some difficulty in identifying the agency of the Federal Government in certain matters. The case law and the law of agency will certainly be of help in relevant cases…Another important area is the subject matter of the litigation. In my view, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, or any of its agencies.” (Italics mine)
Without doubt, the appellant is an agency of the Federal Government; parties are agreed on that fact. There is also no dispute as to the fact that the respondent’s claim relates to a breach of contract of employment. Fortunately, the question of whether a contract of employment with an employee comes within section 230(1)(q) of the 1979 Constitution as amended has been answered in the affirmative by the Supreme Court in NEPA v. Edegbero (supra), wherein the respondents were employees of NEPA whose appointments were terminated following an industrial action, they instituted various suits claiming inter alia for the following declaration –
“A declaration that the purported termination of the plaintiff vide a letter dated 10th August, 1994 from the services of the defendant is irregular, wrongful, null and void and of no effect whatsoever”.
The Supreme Court held in that case, that the aim of paragraphs (q), (r) & (s) of subsection (1) of section 230 of the 1979 Constitution as amended by Decree No. 107 of 1993 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party, and a State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action. Tobi, J.C.A. further held as follows at pages 100 – 101:-
“I entirely agree with the submission of learned counsel for the respondent that the plaintiffs claim should be looked at alongside with the provision of section 230(1) of the 1979 Constitution …. I do not however agree with him that the claim, which relates to breach of contract of employment, has nothing to do with the administration or management or control of the appellant. Administration is a large term in business and commerce. So too management. Etymologically, the words are synonymous in our con. Administration is the management or direction of the affairs of a business. Management is the art or practice of managing especially a business. Entering into a contract of employment with an employee is a business relationship, which clearly comes within the section 230(1)(q) of the 1979 Constitution as amended by Decree 107 of 1993”. (Italics mine)
The above decision of the Supreme Court speaks for itself. I only wish to comment on the submission canvassed for the respondent that it will lead to absurdity to expect a security guard in Warri, whose salary is below N2000, to challenge the validity of his removal by an action in the Federal High Court in Benin. Justice has not got two weights and measures – one for the Managing Director of a company for instance, and another for the security guard or cleaner in the same company. As Oputa, J.S.C. observed in Kalu v. The State (1988) 4 NWLR (Pt.90) 503, “it should be one and the same even handed Justice, blind to all social distinctions and disparities in wealth and status and no respecter of person”. In the circumstances of this case, it is the Constitution of the Federal Republic of Nigeria, the highest law of the land, which guarantees equal constitutional rights to all its citizens that dictated that a State High Court would no longer have jurisdiction to entertain matters in which the Federal Government or any of its agencies was a party, notwithstanding the nature of the claim in the action. The respondent’s claim as couched took it outside the ambit of the State High Court.
He sought for a declaration that his purported termination “as per letter dated 8th April, 1993 is unconstitutional, unlawful, ultra vires, capricious, wrongful, invalid, and null and void’. He also claimed “the sum of N152,000.00 for breach of contract of employment by the unconstitutional, wrongful, unlawful termination of his appointment” contrary to the principle of natural justice. And what is more, the learned trial Judge granted it, as he held as follows:”
Furthermore, in the alternative following the provisions of the 1979 Constitution, the plaintiff’s legal right has been breached by his appointment being unlawfully terminated. In that regard, the defendant is to pay the plaintiff the sum of N1.5 million if the defendant company does not want the plaintiff any more for breach of contract of employment. I so order”.
The decision of the learned trial Judge in this case, obviously cannot stand. He had no jurisdiction to entertain the matter in the first place, and it is trite law that if the court has no jurisdiction to hear a case, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been as a defect in competence is not intrinsic but extrinsic to adjudication. See Trustees, P.A.W v. Trustees A.A.C.C. (2002) 15 NWLR (Pt.790) 424; APP v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 & Lawal v. Oke (2001) 7 NWLR (Pt.711) 88.
The end result of the foregoing is that the appeal is meritorious and is allowed. The proceedings of the High Court of Justice, Effurun, Delta State in suit No.E/112/94 including the judgment thereon dated the 27th September, 1996 is hereby declared a nullity. They are accordingly set aside, including the order as to costs. The suit is hereby struck out for want of jurisdiction by the lower court to entertain it. The cross-appeal is dismissed since there is nothing to appeal against. The appellant is awarded N2,000.00 costs.
Other Citations: (2004)LCN/1608(CA)
