UNIVERSITY OF UYO & ORS V EBONG

UNIVERSITY OF UYO & ORS V EBONG


IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON THURSDAY, 7TH MAY, 2015


Appeal No: CA/C/164/2012

CITATION:

Before Their Lordships:

DALHATU ADAMU, JCA

PAUL OBI ELECHI, JCA

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA


BETWEEN

UNIVERSITY OF UYO
MR. PETER JEROME EFFIONG
REGISTRAR & SECRETARY TO COUNCIL, UNIVERSITY OF UYO
THE GOVERNING COUNCIL UNIVERSITY OF UYO
(APPELLANT)

AND

DR. INIH A. EBONG
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Applicable Law to a Suit – The type of Law that governs determination of suit and jurisdiction
What is the applicable law to a cause of action/suit

In view of the contentions of counsel, it must also be made clear that while the applicable law to a dispute is determined by the law as at the time the cause of action arose, the situation as to the forum for determining the said cause of action is a different thing entirely as that would depend on the prevailing law regulating same at the time the said cause of action comes up for adjudication. RHODES-VIVOUR, JSC put it very succinctly as follows:

“The Law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the Suit, while the law in force at the time of trial based on cause of action determines the Court vested with jurisdiction to try the case.”

See Obiuweubi vs. CBN (2011) 45 NSCQR 51 at 82.

In the said case of Obiuweubi vs CBN (supra), the Supreme Court reviewed its various positions in respect of cessation of jurisdiction of Courts necessitated by intervening legislations and provided guidance for lower Courts depending on the facts and circumstances presented by each case. I am most mindful of this guidance. Per ADAMU, JCA. read in context

B. COURT
2. Jurisdiction – The nature of jurisdiction
Importance of jurisdiction

I have duly considered the submissions by the counsels. Issue one of the Appellant and that of the Respondent are one and the same thing which borders on jurisdiction. No doubt issue of jurisdiction is very crucial in the determination of cases which can be raised at any stage of the case before judgment is entered and the Court is bound to resolved same first.

See Afribank Nigeria Plc v Bonik Industries Ltd (2006) 5 NWLR (Pt. 972) page 300 at 304.

The importance of jurisdiction in adjudication can never be over emphasized. According to the Supreme Court;

“Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the Court for adjudication. The parties cannot be heard on the merit of the case”

See Okolo vs Union Bank Of Nigeria Ltd (2004) 3 NWLR (PT 859) 87 at 108 and SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (PT 1252) 317 at 329.

The ingredients of jurisdiction are long settled and an adjudicating Court is said to be competent when:

“(a) It is properly constituted as regard number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) The subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case comes before the Court of law initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the jurisdiction.”

See Madukolu vs Nkemdium (1962) 2 SCNLR 341. Per ADAMU, JCA. read in context

3. Jurisdiction – The essence of jurisdiction
Effect of a court hearing a matter where it has no jurisdiction

Jurisdiction is a threshold matter and fundamental to the adjudicatory process. A decision without jurisdiction no matter how well arrived at, amounts to nothing and carries no legal effect. See Bronik Motors Ltd and Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296 and Okoya v. Santtlli (1990) 2 NWLR (PT131) 172. Per ADAMU, JCA. read in context

C. JURISDICTION
4. Jurisdiction of the National Industrial Court – The actions the National Industrial Court has jurisdiction over
Whether the National Industrial Court has jurisdiction over all matters relating to employment disputes

The extant provisions of Section 254c-(1) (a) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 are as follows:

(1) Notwithstanding the provisions of Sections 251, 257, 272 and anything 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 National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters

(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.

The dispute submitted by the Respondent herein to the Federal High Court is basically a labour dispute and no coloration or embellishment would change its essence.

It is well settled that clear provisions of statutes should be given their ordinary meanings.

See Mobil vs F.B.I.R (1977) 3 SC 53 and Obiuweubi vs CBN (supra).That being so, it is incontestable that the above provisions in the ordinary meaning totally divest the Federal High Court and any other Court of jurisdiction in the subject-matter of this case and vests same exclusively in the National Industrial Court from its operational date of 4th March, 2011.

The exclusive jurisdiction on labour matters conferred on the National Industrial Court by the Third Alteration to the Constitution of the Federal Republic of Nigeria has been confirmed by this Court in a number of decisions including its full panel.

See Coca-Cola (Nig) Ltd vs Akinsanya (2013) 18 NWLR (PT 1386) 255. Per ADAMU, JCA. read in context


LEAD JUDGMENT DELIVERED BY ADAMU, JCA


This appeal is against the decision of the Federal High Court, Uyo Judicial Division, Akwa Ibom State, sitting at Uyo in suit No. FHC/UY/CS/144/2003, delivered on the 27th day of April, 2012, by His Lordship, Honorable Justice E. S. Chukwu of the Federal High Court No. 2, Uyo by which the judgment was entered in favour of the Respondent.

The Respondent had sued the Appellants in the Federal High Court, Uyo, by a writ of summons and statement of claim, challenging the validity of the executive and the administrative decision and the actions by the Appellants maliciously, wrongfully and unlawfully terminating his employment.

Being dissatisfied with the decision of the lower Court, the Appellants brought this appeal vide the amended notice of appeal dated 1lth day February, 2013. The Appellants brief was filed by Fidelis A. Iteshi, ESq., on the 15th day of January, 2013, the following issues were submitted for decision in the appeal:

“1. Whether by the combined provisions of Section 254C (1) (a) (b) of the Constitution of Federal Republic of Nigeria (Third Alteration Act, 2010) and Section 11 (1) &, (2) of the National Industrial court Act, 2006, the jurisdiction of the Federal High Court to entertain causes and matters related to or pertaining to labour employment or industrial disputes had ceased to exist as at the time the learned trial judge delivered judgment in the suit the subject matter of this appeal.

2. Whether from the totality of pleadings and evidence before the trial Court, the Respondent was denied the opportunity of a hearing or even fair hearing before his appointment was terminated by the Appellants?

3. Whether or not the Appellants complied with the spirit and letters of Exhibit PW1BB in determining the appointment of the Respondent.

4. Was it right in law, for the learned trial judge to have relied on the unpleaded vive-voce evidence elicited from DW1 during cross-examination in preference to facts established by Exhibit DW1PL tendered and admitted by the lower Court.

5. Whether the learned trial Court properly and dispassionately evaluated the evidence before it before giving its judgment in favour of the Respondent.”

The Respondent’s brief was filed by E.I. Ekanem, Esq., counsel for the Respondents, and was filed on the 25th April, 2014. Like the Appellant’s learned counsel, Ekanem also raised issues for determination as follows:

“1. Whether having regard to the entirety of the Constitution of the Federal republic of Nigeria 1999 (as amended by the third Alteration Act, 010) and any other law (s) of the Federation, the Federal High Court no longer had jurisdiction to entertain and on 27th April, 20I2 delivered judgment in suit No. FHC/UY/CS/144/03. (Ground 2).

2. Whether from the totality of the pleadings and evidence before the lower Court, the learned trial judge was not right in entering judgment for the Respondent. (Ground I, 3, 4&5).

An Appellant’s reply brief was filed on the 22/9/2014 to complete the settlement of briefs in the appeal.

APPELLANTS BRIEF

ISSUE ONE

Whether by the combined provision of Sections 254 C-(1) (a) (b) of the Constitution of the Federal Republic of Nigeria (Third Alteration Act, 2010) and Section 11(1) and (2) of the National Industrial Court Act 2006, the jurisdiction of the Federal High Court to entertain causes and matters related to or pertaining to labour, employment or industrial disputes had ceased to exist as at the time the learned trial judge delivered judgment in the suit the subject matter of this Appeal.”

It is the submission of Appellants counsel that the jurisdiction of the Federal High Court to entertain the subject matter of the suit leading to this appeal abated on the 4th day of March, 2011 being the commencement date of the Constitution of the Federal Republic of Nigeria (Third Alteration Act 2010) which conferred exclusive jurisdiction in respect of causes and matters relating to or connected with any labour, employment or industrial relation on the National Industrial Court. Counsel referred us to Section (1) (a) of the 1999 Constitution (as amended). And also relied on the case of Hon. Justice Raliat Elelu- Habeeb & Anor v The Hon. Attorney General of the Federation & 2 Ors. (2012) 13 NWLR (Pt. 1318) PG 423 at 474 Paragraphs A-H.

Counsel went further to recapture the claims of the Respondent, that which we are not to reproduce in this judgment and submitted that from the claims of the Respondent before the lower Court, it is incontrovertible that the subject matter of the suit leading to this appeal falls squarely within causes and matters covered by Section 254C (1) (a) of the 1999 Constitution as amended by the Third Alteration Act, 2010 and therefore National Industrial Court became vested with jurisdiction with effect from the 4th day of March, 2011 when the amendment to the constitution took effect. Counsel referred us to the case of Nigerian Union of Teachers, NIger State v Conference of Secondary School Tutors (COST) Niger State (2012) 10 NWLR (Pt. 130) page 89, where Hon. Justice Hussein Mukhtar, JCA, held as follows:-

“By this new provision, the lower Court’s jurisdiction completely migrated to the National Industrial Court, which forthwith has the exclusive original jurisdiction in all the matters enumerated there under.”

On the basis of the case, it is submitted that it was inappropriate in law, for the learned trial judge in the Court below to call on the parties herein to adopt their final addresses on 12th May, 2011 and 28th November, 2011 after the commencement of the Constitution of the Federal republic of Nigeria, (Third Alteration Act) 2010 on 4th day of March, 2011 and thereafter proceeded to give judgment on 27th day of April, 2012.

Appellants’ counsel while relying on Section 11(1) and (2) of the National Industrial Court Act, 2006, submitted that National Industrial Court has power to act on the related matters before the coming into effect of the Act. Counsel concluded that if the referred sections are applied to the instant appeal, the implication is that the Federal High Court, Uyo, ceased to have jurisdiction in respect of the subject matter of this Appeal since the 14th day of June, 2007 . Counsel however, referred to the authority of the National Union of Electricity Employees & Anor v Bureau of Public Enterprises (2010) 7 NWLR (Pt.1194) page 538 at page 569 to 574, wherein the Supreme Court held that the provision of the National Industrial Court Act conferring exclusive jurisdiction over trade disputes on the National Industrial Court Act is in conflict with Section 272 of the Constitution conferring jurisdiction on the State High Courts, where their lordships at the Supreme Court noted with emphasis, the need to amend the Constitution to give the National Industrial Court its proper place. It was then submitted that the Constitution having been amended and the inconsistency hurdle removed, the National Industrial Court Act has now taken its proper place acting in consent with the Third Alteration Act (2010) to effectively transfer all Industrial related disputes to the National Industrial Court. We were urged to hold that with the abatement clause contained in Section 11 of the National Industrial Court Act, the difficulty that would have arisen as to the retrospective operation of the Third Alteration to the Constitution has been cured, with the effect that both legislation cannot at cross-purposes.

ISSUE TWO

Whether from the totality of pleadings and evidence before the trial Court, the Respondent was denied the opportunity of a hearing or even fair hearing before his appointment was terminated by the Appellant.

It is the submission of the Appellant counsel that Respondent was afforded all the fair opportunity to defend himself but he utilized some and others he spurned. He argued further that it is evidence on records that Respondent had all the opportunity but could not use same.

Respondent was accused of two principal acts of misconduct one of abandonment of duty and the act of sexual harassment of a female student of the 1st Appellant. Appellant constituted two panels to look into the allegations. The Respondent attended the panel that looked into abandonment of duty. He made a short representation and left. He also attended the second panel on sexual harassment and walked out on the panel mid-way into the sitting.

Counsel further submitted that Appellant constituted a third panel, a senior staff disciplinary committee which letter of invitation was sent to the Respondent. The said committee in their reports noted that Respondent appeared once before the committee and no more. Counsel concluded that the decision of the lower Court was not borne out of established facts on records. Counsel however submitted that Respondent having appeared before the committees and his reply to the Letter of Invitation, was given fair hearing and referred to S & D Const. Company Ltd. v Chief Bayo Ayoku & Anor.(2011) 13 NWLR (Pt. 1265) of 487 particularly at page 509 Para E-F; Omo v Judicial Service Commission. Delta State (2000) 12 NWLR (Pt. 682) 444. Counsel further submitted that where a body as a panel of inquiry acts in an administrative and not in a judicial or quasi-judicial capacity and not take evidence on both the need for a hearing is satisfied by an opportunity to make representations, written or oral to the body. That the administrative body could get information but not obliged to disclose it to the person to be affected although it might be prejudicial to him, but the essential thing is the body to give fair opportunity: Udo v Cross River stale Newspaper Corporation (2001) 14 NWLR (Pt. 732) p. 116 at 15350.

Counsel’s conclusion is that the learned trial judge was wrong to have held that the Respondent was not given opportunity to be heard in the face of the evidence before it.

ISSUE THREE

Whether or not the Appellants complied with the spirit and letters of Exhibit PW1BB in determining the appointment of the Respondent.

Counsel answered in affirmative that Appellants complied with Regulations Governing the Senior Staff Conditions of Service of the university of uyo, 1998, in terminating the appointment of the Respondent. The said Regulations was reproduced by the counsel as chapter 2.21, of the Regulations, Chapter 2.24 and Chapter 2.25 which talk on the alleged offences which I have taken time to read through therefore, needless to capture same. The submission of these Regulations is to the effect that: ‘To terminate the Appointment of an Academic Staff of the fold of the Respondent, the Appellant must: set up a joint committee appointed by the council and the senate and at least, one-third of its members must be appointed by the senate and, the person concerned has if he so request been permitted to appear to defend himself either in person or through his representative; and, the report of the committee has been considered by Senate and ultimately the Governing Council which shall take the appropriate action.”

Counsel submitted that the view held by the lower Court is at variance with the provision of the regulations of the 1st Appellant, the lower Court missed the point when it held that:

“The joint committee of the senate and council must have l/3 members who are members of senate as members of the investigative Panel.”

That this misconception of the 1st Appellant occasioned a miscarriage of justice in this case. The said regulations required that the 1/3 of the members of joint committee must have been nominated by Senate not as held by the trial Court above, so also in respect of the lower Court holding on termination. Chapter 2.25 as argued by the Appellants counsel is that it has no provision dealing with suspension from duty which made issuance of query a condition precedent. Ayewa v University of Jos (2000) 6 NWLR (Pt. 659) pg. 142 Para F-L; Amadiume v Ibok (2006) 6 NWLR (Pt. 975) p. 158 R4; Longe v First Bank of Nigeria Plc (2010) 6 NWLR (Pt. 1189) pg. I at 60 Para E. Counsel concluded that Appellants complied with the regulations of the 1st Appellant and the termination of the Respondent was lawful. Fakuade v Obafemi Awolowo University Teaching Hospital Management Board (1993) 5 NWLR (Pt. 291) at 41. That the Respondent action alone as reported by the panels is enough to earn him a dismissal as it connote insubordination. Unical v Essien (1996) 44 LRCN pg. (2334). Counsel therefore urged the honourable Court to hold that the Appellant was justified in terminating the appointment of the Respondent having complied with the spirit and letter of the condition of service that governed the Respondent’s employment.

ISSUE FOUR

Was it right in law, for the learned trial judge to have relied on the unpleaded vive-voce evidence elicited from DW1 during cross-examination in preference to facts established by Exhibit DW1PL tendered and admitted by the lower Court.

The submission of the Appellants’ counsel on this issue is that the learned trial Court placed reliance on the oral evidence elicited from the DW1 during cross-examination in respect of an issue already established by documentary evidence in coming to the conclusion that the Respondent was not given fair hearing before his appointment with the 1st Appellant was terminated. Where the lower Court said:

“In effect based on the testimony of DW1 this Court ought to set aside the purported termination. He submits that it was wrong for the trial Court to reach a conclusion for a piece of evidence which had no place in either the plaintiff nor the Respondent or defendants now the Appellants pleadings before the lower Court. That the testimony of DW1 that panel set to investigate the allegations was not pleaded at all, therefore it was wrong for the lower Court to rely on it. Peter Ojoh v Owuala Kamalu & 3 Ors. (2005) 10-12 KLR (Pt. 204 – 207) pg. 2973 at 2992 Para 4”.

ISSUE FIVE

Whether the learned trial Court properly and dispassionately evaluated the evidence before it before giving its judgment in favour of the Respondent.

Counsel while relying on the case of Irejue Nwokidu v Mark Okanu & Anor (2010) 41 NSCOR (Pt. 1) at 252-253 at pg 215, drew the attention of this Court that when a party complain that judgment is against the weight of evidence, the party wants the Court to consider:-

The evidence before the Court. Whether the trial Court accepted or rejected any evidence upon the correct perception, Whether the trial Court correctly approached the assessment of evidence. Whether the trial Court used the imaginary scale to weigh the evidence on either side. Whether the trial Court appreciated on the preponderance of evidence which side the scale weight having regard to the burden of proof. He cited lreju Nwokidu v Mark Okanu & Anor (2010) 41 NSCOR (Pt. 1) at 252-253 at pg. 215.

Counsel argued that the lower Court ignored and failed to take cognizance of vital evidence of the Appellant placed before it and rather acted on inadmissible pieces of evidence of the Respondent.

Respondent was given fair opportunity to clear himself of all allegations but lower Court still held that he was not given such fair hearing. That Respondent never denied appearing before the 1st panel of which report was tendered in evidence. He equally did not deny the content of the letter he replied to, inviting him to attend the panel and there was also no documentary evidence to show that the report of the joint committee to the effect that he walked out on a panel set to investigate him was incorrect. Therefore, counsel submitted that the decision of the lower Court that Respondent was not given opportunity to present his case was perverse and same not flowing from established evidence on records.

Therefore the end result of the improper evaluation of evidence by the learned trial judge is that it occasioned miscarriage of justice on the Appellants.

RESPONDENT’S BRIEF (ISSUE ONE)

Whether having regard to the entirety of the Constitution of the Federal Republic of Nigeria 1999 (as amended by third Alteration Act 2010) and any other laws of the Federation, the Federal High Court no longer had jurisdiction to entertain and on 27th April 2012 deliver judgment in suit No. FHC/U/UY/CS/144/03. (Ground 12).

Counsel to the Respondent submitted that Sub-section (b) of the 1999 Constitution in the Appellant’s brief having been abandoned need to be struck out. So also that Appellants raised fresh issue and new cause of action that were never canvassed at the lower Court by stating that this appeal ‘falls’ squarely within causes and matters related or pertaining to labour, employment or industrial dispute. He cited Oloruntoba Oju ,v Abdul-Raheem (2009) ALL FWLR (Pt. 497) and submitted that this appeal did not challenge the termination of the Respondent’s appointment but the validity of the executive and administrative decision by the Appellant urged the Court to discountenance same and strike out the offending ground of appeal together with the issue distilled from it and all the argument relating thereto. He relied on the cases of Wema Bank Plc v Olatunji (2002) 12 NWLR (Pt. 781) 259 and Alubankudi v A-G. Federation (2002) 17 NWLR (Pt.796) 338.

On Issue No. 1, counsel submitted that issue raised by the Appellants borders on the correct interpretation of the 1999 Constitution (as ammended) particularly Section 251 and 254C and how they relate to and affect the case on this appeal, that Appellants misconstrued Section 254C (1) of the 1999 Constitution (as amended) and Section11(1) and (2) of the National Industrial Court Act 2006 to the case on this appeal.

Appellants argued in their briefs that the subject matter of the case on this appeal falls within the provisions of Section 254C (1) (a) of the Constitution (as amended) by the Third Alteration Act 2010 which came into force on 4th March, 2011 and that from the combined reading of same and Section 11(1) and (2) of the National Industrial Court Act, 2006, the lower court no longer had jurisdiction to entertain the suit and deliver on 27th April, 2012, the judgment now on this appeal. But that Appellants have failed to point to this Court the law under which the Respondent’s action was brought on 27th June,2002 and the lower Court assumed jurisdiction.

Counsel submit that this case does not fall within the action as a trade dispute, industrial or labour related matter so as to confer exclusive jurisdiction on the National Industrial Court relied on Sections 2 (1) and 48 (1) of the Trade Disputes Act, 1990, case of Osoh & Ors v Unity Banks Plc (2013) 216 LRCN 1.

That the Appellants at the trial admitted that the Respondent suit was covered under Section 251 (1) (p)(q)(r) of the original Constitution of the 1999 when the state on page 1000 of the records of appeal. It is strongly submitted that the termination of the plaintiff’s appointment by the defendants as Exhibit PW1BC is purely an administrative action and submit that Appellants cannot now be heard to prevaricate on the issue, approbating and reprobating both in one breath, regarding the subject matter of the Respondent’s suit.

Section 251 (1) (p) (q) (r) of the 1999 Constitution under which the case of the Respondent was brought read with Section 7 (1) (p) (q) (r) of the Federal High Court Act, 1973 Cap F12 Laws of the Federation of Nigeria 2004. It is beyond question that the jurisdiction conferred on the lower Court is special and distinct from the jurisdiction conferred on the National Industrial Court under Section 254C (11) (a).

Counsel submitted that the lower Court enjoys a special and distinctive party and subject matter jurisdiction, not available to the National Industrial Court, in which at least one of the parties must be the Federal Government or any of its agencies, 1st Appellant being an agency of the Federal Government is being caught by this provision.

Counsel relied on the case of Oloruntoba Oju v Abdul-Raheem (supra) and Oloruntoba Oju v Dopamu (supra) in burying the argument of the Appellants.

Throughout their brief, the Appellants relied only on one subsection of an entire Constitution in-coming to the absurd conclusion that the jurisdiction of the lower Court to entertain the case on this appeal abated on 4th March, 2011 the day Section 254C (1) (a) of the 1999 Constitution (as amended) came into force. It is submitted that a statute must be read as a whole and related sections together and in context, in order to discover and give effect to the intention of the law maker regarding the statute. Nafiu Rabiu v The State (1980) 8-11 sc 15; Aqua Ltd. v Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; PDP V INEC (1999) 11 NWLR (Pt. 626) 200.

Counsel argued that where a section has not been amended as with case of Section 251 of the 1999 Constitution it cannot be deemed to be altered, amended or repealed by the insertion of a new section to the statute. See Chairman More Local Government v Lawal (2008) ALL FWLR (Pt. 440) 684 at 726 where Court held:

“The law is now settled that where it is the intention of a later statute to modify or repeal an earlier one, such intention must be clearly stated or unequivocally deducible from the provision of the later statute.”
Also in Oloruntoba Oju v Dopamu (supra) Court said: “Unless a law is expressly repealed, it is deemed to still be in existence and there cannot be a repeal by implication.”

Counsel submitted that the ambiguous general construction of Section 254C (1) of the 1979 Constitution (as amended) cannot amend or repeal Section 251 of the same Constitution. Constitution according to the submission of the counsel is the organic and fundamental law at the Nigerian Nation. For this reason, each section of the Constitution is a supreme law in its own right, and is organically related within a nexus to all other Sections of the Constitution. The ultimate effect being that a right given in one section of the Constitution cannot be taken away in or by another section of the same Constitution and no one section of a Constitution can exist and operate in subterfuge of another section of the same Constitution. See Adeleke v O.S.H.A (2006) 16 NWLR (Pt. 1006) 608 at 665 & 718. But Appellants in the present state of construction. Section 251(1) and 254 (C) (1) of the Constitution are clearly in conflict with and in sabotage of each other.

Counsel submitted finally that the law in force at the time the cause of action accrued and the case on this appeal was filed was Section 251 (1) (p) (q) (r) of the 1999 Constitution. Assuming but not conceding that the constitution (as amended) has altered the applicable law under which the action arose and the case had commenced, counsel concluded that such a change in the law cannot affect the jurisdiction of the lower Court to deliver judgment in the case as it did on 27th April, 2012. Moreso that there is no abatement clause. See Adah v NYSC (2014) 13 NWLR (Pt. 891) 639. Also in Sossa v Fokpo (2001) 1 NWLR (Pt. 693) 16 at 30, Court held:-

“The law applicable to a cause or matter and therefore the jurisdiction and competence of the Court is determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law, it is immaterial that during the trial the law has been repealed.”

Counsel urged this Court to hold that lower Court had jurisdiction to entertain the Respondent’s case beyond 4th March, 2011, when the amended Constitution came into force and the judge was right in delivering judgment on 27th April, 2012.

ISSUE TWO

Whether from the totality of the pleadings and evidence before the lower Court, the learned trial judge was not right in entering judgment for the Respondent (Ground 1, 3, 4 and 5).

Counsel submitted that Appellants were in error when they argued that the decision of the lower Court was not borne out of established facts on record and he referred us to Exhibit DW1PL and DW1PN and to the pleadings and evidence on record. Exhibit D is the report of the Senior Staff Disciplinary Committee Appellants claim that this is third panel set to review the report of the first two panels. This exhibit did not recommend the termination of Respondents’ appointment. It was submitted that the termination of the Respondent’s appointment was based on the report by the 2nd Appellant not based on Exhibit DW1PN. Counsel submit that Appellants reliance on the two documents at pages 37l-373 is an attempt to confuse the Court so also the invitation letter which is Exhibit D to the Respondent to appear before the SSDC, issued during the pendency of suit No. FHC/CA/CS/110/2011 was designed and intended to deny the Respondent fair hearing.

The letter Exhibit D is dated the 25th day of January 2002 addressed to the Respondent in his village about 25 kilometers from the venue of the meeting of the Senior Staff Disciplinary Committee delivered to the Respondent at 8.20 a.m on 25th January,2002, one hour (1hr) and forty minutes from the time he was expected to appear before the committee.

Counsel concluded that Respondent was not bound to honour that invitation in the first place since it was during the time the said suit was pending in Court. See J. E. Jones v Securities Exchange Commission 80 Led 298 US 1-32. Counsel submitted that the Appellants did not follow due process in determining the Respondents Civil Right as contained in Section 36 (1) of the 1999 Constitution. See also the case of FRN v Obegolu (2006) 18 NWLR (Pt. 1010) 188 at 231, Court said:-

“The fundamental requisite of the process include

(a) Being informed that a matter is pending

(b) Being afforded opportunity to make an informed choice whether or not to contest the matter

(c) Being afforded unfettered opportunity to be heard.”

I have duly considered the submissions by the counsels. Issue one of the Appellant and that of the Respondent are one and the same thing which borders on jurisdiction. No doubt issue of jurisdiction is very crucial in the determination of cases which can be raised at any stage of the case before judgment is entered and the Court is bound to resolved same first. See Afribank Nigeria Plc v Bonik Industries Ltd (2006) 5 NWLR (Pt. 972) page 300 at 304.

The importance of jurisdiction in adjudication can never be over emphasized. According to the Supreme Court;

“Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the Court for adjudication. The parties cannot be heard on the merit of the case”

See Okolo vs Union Bank Of Nigeria Ltd (2004) 3 NWLR (PT 859) 87 at 108 and SLB Consortium Ltd vs NNPC (2011) 9 NWLR(PT 1252) 317 at 329.

The ingredients of jurisdiction are long settled and an adjudicating Court is said to be competent when:

“(a) It is properly constituted as regard number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) The subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case comes before the Court of law initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the jurisdiction.” See Madukolu vs Nkemdium (1962) 2 SCNLR 341.

In view of the contentions of counsel, it must also be made clear that while the applicable law to a dispute is determined by the law as at the time the cause of action arose, the situation as to the forum for determining the said cause of action is a different thing entirely as that would depend on the prevailing law regulating same at the time the said cause of action comes up for adjudication. RHODES-VIVOUR, JSC put it very succinctly as follows:

“The Law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the Suit, while the law in force at the time of trial based on cause of action determines the Court vested with jurisdiction to try the case.”

See Obiuweubi vs CBN (2011) 45 NSCQR 51 at 82. In the said case of Obiuweubi vs CBN (supra), the supreme Court reviewed its various positions in respect of cessation of jurisdiction of Courts necessitated by intervening legislations and provided guidance for lower Court depending on the facts and circumstances presented by each case. I am most mindful of this guidance.

The extant provisions of Section 254c-(1) (a) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 are as follows:

(1) Notwithstanding the provisions of Sections 251, 257, 272 and anything 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 National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters

(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.

The dispute submitted by the Respondent herein to the Federal High Court is basically a labour dispute and no coloration or embellishment would change its essence.

It is well settled that clear provisions of statutes should be given their ordinary meanings.

See Mobil vs F.B.I.R (1977) 3 SC 53 and OBIUWEUBI VS CBN (supra).That being so, it is incontestable that the above provisions in the ordinary meaning totally divest the Federal High Court and any other Court of jurisdiction in the subject-matter of this case and vests same exclusively in the National Industrial Court from its operational date of 4th March, 2011.

The exclusive jurisdiction on labour matters conferred on the National Industrial Court by the Third Alteration to the Constitution of the Federal Republic of Nigeria has been confirmed by this Court in a number of decisions including its full panel.

See Coca-Cola (Nig) Ltd vs Akinsanya (2013) 18 NWLR (PT 1386) 255.

It was argued for the Respondent however that as at the said date of 4th March, 2011, trial had already commenced before the learned trial Judge and that as such the part heard trial would be concluded in the absence of abatement provisions.

The response to that argument in my view is found in the abatement provisions contained in Section 11 of the National Industrial Act, 2006, a legislation already in place before the jurisdiction of the Federal High Court was invoked, as follows:

“11-(1) In so far as jurisdiction is conferred upon the Court in respect of the causes or matters mentioned in the foregoing provisions of this part of this Act the Federal High Court, the High Court of a State, the High Court of the Federal Capital Territory, Abuja or any other Court shall, to the extent that exclusive jurisdiction is so conferred upon the Court, cease to have jurisdiction in relation to such causes and matters. Cessation of jurisdiction etc

(2) Nothing in Subsection (1) of this section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are part-heard before the commencement of this Act and proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate.”

When read and construed together therefore, Part heard matters commenced before 4th March, 2011 must be concluded before one year of that date otherwise the proceedings would abate.

In the instant case therefore, it would seem that the learned trial Court having commenced trial before the clarification on the exclusive jurisdiction

of the National Industrial Court by the Third Alteration to the Constitution, had a time limit of one year from the 4th March, 2011 to conclude trial and deliver his judgment otherwise, the proceedings shall abate.

The learned trial Judge however delivered judgment on 27th April, 2012 a period of more than one year after the commencement date of 4th March, 2011 and by which date the proceedings before him had abated.

Jurisdiction is a threshold matter and fundamental to the adjudicatory process. A decision without jurisdiction no matter how well arrived at, amounts to nothing and carries no legal effect. See Bronik Motors Ltd and Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296 and Okoya v Santtlli (1990) 2 NWLR (PT131) 172.

The National Industrial Court Act (supra) in Section 24 makes provisions guiding transfer of matters where jurisdiction is missing, ditto in Section 22 of the Federal High Court Act therefore ensuring that litigants are not left in limbo.

I therefore resolve this issue against the Respondent in favour of the Appellants.

Having so held, while it may be desirable that the views of this Court be made known in respect of the other formulated issues, doing so within the facts presented here would be prejudicial. I shall therefore hold back from doing so.

Appeal is accordingly allowed.

Case shall be remitted to the National Industrial Court for trial de novo.

Parties shall bear their respective costs of the appeal.

ELECHI, JCA

I have read in draft the lead Judgment just delivered by my Learned brother Dalhatu Adamu, CFR, JCA in this matter. Having dealt with the issues involved, I do not have anything to add. I therefore agree with his reasoning and conclusion and adopt same as mine in allowing this appeal. The parties are to bear their respective cost.

OYEWOLE, ]CA

I have had the privilege of reading the draft of the lead judgment just read by my learned brother DALHATU ADAMU, CF& JCA and I agree with the reasoning and conclusion therein.

Appearances:

Fidelis A. Iteshi, Esq. For Appellant(s)

E. I. Ekanem, Esq. For Respondent(s)