WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI  & ORS V BALA

WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI & ORS V BALA



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

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/S/86/2016

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI
THE GOVERNING COUNCIL, WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI
THE RECTOR, WAZIRI UMARU FEDERAL POLYTECHNIC
THE REGISTRAR, WAZIRI UMARU FEDERAL POLYTECHNIC BIRNIN KEBBI
(APPELLANTS)

AND

DR. HALIRU BALA
(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Originating Summons – When originating summons procedure can be used
General rule applicable for the use of originating summons as a method of commencing proceedings

In resolving this issue, the need to begin with the classical position cannot be over emphasized. In the case of National Bank of Nigeria vs. Lady Ayodele Alakija & Anor (1978) 2 LRN 75, the Supreme Court per ESO, JSC had this to say on the subject:

“Originating summons should only be applicable in circumstances where there is no dispute on questions of fact or even the likelihood of such a dispute… Application by originating summons should never be a substitute for initiating contentions issues of fact… Where the affidavit leaves matters for conjecture originating summons is not an appropriate procedure.”

In the case of M. O. Oloyo vs. B. A. Alegbe, Speaker Bendel State House Of Assembly (1983) 2 SCNLR 35, the old sage was at it once again when he said:

“Applying the above authorities to the instant case the affidavit raised contentions facts of ownership of land… and no doubt facts in the affidavit and counter-affidavit were irreconcilably in conflict; it is the law that in such situation, oral evidence shall be given Falobi vs. FalobI (1976) 9 AND 10 SC 1; Eze vs. A. G. Rivers State (1999) 9 NWLR (PT. 619) 430; Chigbu vs. Tonimas Nig. Ltd (1999) 3 NWLR (PT. 593) 115…”

These stated, the Noble Lord and sage was not done yet. He said in addition:

“As stated above, the learned Judge made a finding of fact that the action was not hostile proceedings therefore held that their action was properly initiated by originating summons. In the light of the above Judgments of the Supreme Court which are binding on this Court, I am strongly of the views after looking at the facts deposed to in the affidavit and counter-affidavit that they raised contentions and hostile proceedings pointedly that this action ought not to have been commenced or initiated by originating summons the finding of the learned Judge to the contrary was perverse and being an Appellate Court which is reluctant or loathes disturbing the finding of facts by the lower Court. As the finding of the learned Judge was perverse having regards to the contentions facts which could only be resolved by oral evidence, this is an exception to the General rule that an Appellate Court should not disturb or interfere with the Judgment of the lower Court. Having declared that this action was wrongly commenced, instituted or initiated by originating summons being perverse, I set aside the finding. Woluchem vs. Gudi (1981) 5 SC, 291; UAC (Nig) Ltd vs. Fasheyitan (1998) 1 NWLR (PT. 573) 179…”

The originating summons procedure, going by the provisions of Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009 is a procedure, which should be used only where a deed, a will, enactment, written instrument are to be interpreted by the Courts. It is a procedure, which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also required for issues like the determination of short questions of construction and not matters of such controversy as in this one where the Justice of the case demands the setting up of pleadings. See Din vs. Attorney-General of The Federation (1986) 2 NWLR (PT. 7) 471; Obasanjo vs. Babafemi (2000) 15 NWLR (PT. 689) 1; Keyamo vs. House Of Assembly, Lagos State (2002) 18 NWLR (PT. 799) 605.

In Famfan Oil Limited vs. Attorney General of the Federation (2003) 18 NWLR (PT. 852) 453, the Supreme Court, per BELGORE, JSC had this to say on the issue:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest… It is a procedure where the evidence in the main is by way of documents and there being no serious dispute as to their existence in, the pleading of the parties to the suit. In such a situation there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his right.”

The position of the Law on the issue is quite simple and straightforward. Facts generally take a back seat in the originating summons procedure and this clearly distinguishes it from the writ of summons procedure where it is the manner of the treatment of the facts in issue which leads to the Court’s decision. And of course, between the two procedures the distinguishing factor remains the manner of the treatment of the facts involved. Per OHO, JCA. read in context

B. COURT
2. Jurisdiction – How the jurisdiction of a Court is a threshold issue
Importance of jurisdiction in the process of adjudication; whether jurisdiction can be conferred on the Court by parties

The settled position of the law is that the issue of jurisdiction is so fundamental to an action that parties to a case cannot by acquiescence or any form of agreement confer jurisdiction on a Court, which does not have it. See Adesola vs. Abidoye (1999) 14 NWLR (PT. 637) 28 AT 52; Okoroma vs. UBA (1999) 1 NWLR (PT. 587) 359 AT 378. It is therefore, immaterial whether the Appellants at the Court below had consented to or had refused to object on the question of jurisdiction or not.

Perhaps, the metaphor on jurisdiction employed by this Court in the case of University of Ilorin and Ors vs. Oluwadare (2009) ALL FWLR (PT. 452) 1175, 1204; per NWEZE, JCA, (as he then was) provides an apt description of the subject when he said:

“Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty…” Per OHO, JCA. read in context

C. EVIDENCE
3. Oral/Documentary Evidence – How it is abominable for the Court to pick which of the affidavit evidence of the parties to believe
The use of oral evidence in resolving conflict in documentary evidence

In the lower Court’s bid to adjudicate on the matter it ended up ironically in reconciling the conflicting affidavit evidence and in the process engaging in the abominable practice of picking and choosing which of the affidavit evidence of the parties to believe and which to disbelieve. See Boy Muka vs. The State (1976) 10 – 11 SC 305; Oyemena vs. The State (1974) ALL NLR 522 AT 530. It is only by resorting to viva voce evidence that the Court could have arrived at the Justice of the case in this matter where the issues involved touched on the material substance of the matter, and that is whether, the Respondent was unfairly treated under the master and servant relationship which existed between the parties. Per OHO, JCA. read in context

D. JURISDICTION
4. Jurisdiction Of The Federal High Court – The matters that come under the jurisdiction of the Federal High Court as conferred upon it by the 1999 Constitution
Whether the Federal High Court has jurisdiction to entertain labour matters

…In any ways, without having to mince words on the issue, the current position of the law is that by virtue of 254(c) (i) (a) & (b) of the 1999 Constitution, as Amended, which came into effect on the 4-3-2011, the Federal High Court was completely divested of its Jurisdiction to entertain any matters described therein, particularly those dealing with the employment and/or dismissal of the Respondent herein from the Appellants’ institution. Per OHO, JCA. read in context

E. PRACTICE AND PROCEDURE
5. Preliminary Objection – How to properly file preliminary objection
Whether a preliminary objection can be used to attack one or more grounds of appeal

It would be recalled that the Appellants predicated their Appeal before this Court on five (5) Grounds of Appeal and not just Grounds four (4) and five (5) alone, which the Respondent has picked quarrels with. The Supreme Court, in the case of General Electric Co. vs. Harry Akande (2011) 4 NSCQR P. 611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal”…

See also the case of Adejumo vs. Olawiye (2014) 12 NWLR (PT.1421) 252 AT 265, where the Supreme Court per BODE RHODES VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and relying on several decided authorities on the issue, I hereby find and do hold that the Notice of Preliminary Objection filed by the Respondent, same having not been filed against the hearing of the Appeal per se, but solely against the competence of a few Grounds out of several others, is inappropriate in the opinion of this Court to disturb the hearing of this Appeal. It would have been a different thing altogether, if the defects spotted against the few Grounds have permeated the entire Grounds of Appeal and the objection had been taken on the strength of the defects spotted and not just one associated only with a few Grounds. Assuming aguendo, that the objection raised against the two (2) Grounds have succeeded and are subsequently struck out, it would not have been enough to terminate the hearing of the Appeal. In this connection, and on account of this development, this Court shall without hesitation go ahead and determine this Appeal on its merit while the Notice of Preliminary Objection is dismissed. Per OHO, JCA. read in context

6. Preliminary Objection – The purpose of a notice of preliminary objection
Aim/essence of a preliminary objection

The purpose of a Notice of Preliminary Objection, is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters, which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418. Per OHO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


This is an Appeal against the judgment of the Federal High Court sitting in the Birnin Kebbi Judicial Division, delivered on the 30-6-2016 in suit number FHC/KB/CS/7/2016, wherein judgment was entered in favour of the Respondent. Following the grant of leave on the 9-3-2015 by the Court below to the Respondent who at the time was the Plaintiff to apply for judicial review by way of certiorari and seek the reliefs as contained on the face of the Originating summons dated the 26-2-2015, and filed on the 2-5-2015, the Respondent asked for the following reliefs;

1. AN ORDER for leave to apply for judicial review by way of certiorari praying for:

a. A Declaration that the notice of dismissal issued by the 4th Respondent on the approval of the 2nd Respondent is invalid unconstitutional, null, void and of no effect whatever in law regard being had to pendency of suit No. KB/HC/47/2014 before the Kebbi State High Court of Justice, Holden at Birnin Kebbi seeking to restrain and set aside the query issued against the Applicant (on the basis of which query the Applicant was dismissed), denial of fair hearing and logical deductions of malice, ill-feelings, bias and attempt to settle personal scores as at the time of the issuance of the notice of dismissal.

b. A Declaration that the proceedings of the 4-12-2014 held by the 2nd Respondent in pursuance of which the Applicant was dismissed was null and void having been held during the pendency of suit No. KB/HC/47/2014.

c. AN Order of certiorari setting aside, vacating, quashing and nullifying the notice of dismissal issued by the 4th Respondent on the approval of the 2nd Respondent on the grounds that the notice was invalid and ineffectual having been issued during the pendency of a Court case seeking to restrain the Respondents and set aside the query.

d. AN Order of certiorari setting aside, vacating, quashing and nullifying the dismissal of the Applicant carried out on the 4th day of December, 2014 by the Respondents having been effected in breach of lis pendens principles by which the Applicant had a pending suit seeking to restrain and set aside the queries issued against him in suit no. KB/HC/47/2014.

e. AN Order of this Honorable Court directing that Dr. HALIRU BALA (Applicant) be re-instated to his employment as Chief Lecturer in the Business Administration and Management Department of the WAZIRI UMARU FEDERAL POLYTECHNIC, BIRNIN KEBBI(1st Respondent) forthwith.

f. AN Order of this Honorable Court directing the 1st Defendant to pay to the Plaintiff all his financial entitlements from the date of his purported dismissal from employment as Chief Lecturer in the Business Administration and Management Department of the WAZIRI UMARU FEDERAL POLYTECHNIC, BIRNIN KEBBI, i.e. 4-12-2014 till his re-instatement, namely;

i. N406,448.96 constituting the salaries and wages of the Plaintiff withheld by the Defendants for the 2 months he was suspended i.e. October and November.

ii. N406,448.96 being the monthly salary of the Plaintiff

g. AN Order of perpetual injunction restraining the Respondents, their Officers, Servants, Agents, Privies, Assigns or any other persons deriving authority from them in any way whatsoever from the unlawfully interfering, harassing, victimizing or disturbing the Applicant in any way whatsoever from the execution of his lawful duties as Chief Lecturer in the Waziri Umaru Federal Polytechnic, Birnin Kebbi and from enjoying in any way whatsoever the benefit privileges and right inuring to the Applicant by virtue of his position as Chief Lecturer.

After the settlement of pleadings, the Court below took its time to consider the Respondent’s grievances with the Administrative Committee vis-a-vis the Appellants’ Committee’s procedure and granted all the reliefs claimed by the Respondent as Plaintiff setting aside/quashing all the acts of the Appellants’ administrative Committee by the issuance of an order of certiorari in a well considered judgment delivered on the 30-6-2016. It is against this judgment that the Appellants have Appealed to this Court vide their Notice of Appeal filed on the 23-9-2016. There are five (5) Grounds of Appeal filed which are hereby reproduced without their particulars as follows:

GROUNDS OF APPEAL

1. The learned trial judge wrongly assumed jurisdiction to hear and determine the case between the parties when it was clear to him that the matter was outside the jurisdiction of his Court.

2. The learned trial judge fell into the grave error of law when he heard and determined the case of the claimant (now Appellant) under originating summons in the fact of fundamental conflicts in the parties’ respective affidavits and this occasioned a miscarriage of justice.

3. The learned trial judge erred in law when he set out a case different from the one instituted by the claimant (Respondent herein) and this occasioned a miscarriage of justice.

4. The learned trial judge misdirected himself on the facts of the case and determined the suit on the basis of dismissal of the claimant (herein Respondent) when dismissal was no longer a life issue in the suit thereby misapplying the law which occasioned a miscarriage of justice.

5. The decision of the trial Court was perverse as the honourable Court closed its eyes to undisputed evidence before the Court and came to a conclusion that the claimant was not given a fair hearing.

ISSUES FOR DETERMINATION

There are a total of four (4) issues nominated for the determination of this Court by the Appellants as follows:

1. Whether or not the proceedings and subsequent judgment of the Court below is not liable to be set aside having been conducted without jurisdiction. (Ground 1.)

2. Whether or not resolving the dispute between the parties on hotly contested facts in originating summons amounts to infraction of the parties (particularly the Appellants) rights to fair-hearing. (Ground 2.)

3. Whether the Court below actually resolved the real life issue between the contending parties before it. (Grounds 4 and 5)

4. Whether the finding of the Court that the disciplinary actions of the Appellants was done on a case different from the one set out by the Respondent, and if so whether it infringed in the Appellant’s right to fair-hearing. (Ground 3.)

On the part of the Respondent, two (2) issues were nominated thus:

1. Whether the trial Court has jurisdiction over the administration, management and control of the Appellant or not. (Ground 1)

2. Whether an application for an order of certiorari requires the calling of oral evidence merely because the Appellant filed a counter affidavit. (Grounds 2 and 3)

There is also raised a Notice of Preliminary Objection not to the hearing of this Appeal, but to the competence of Grounds 4 and 5 of the Notice and Grounds of Appeal.

The purpose of a Notice of Preliminary Objection, is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters, which are not worthy of taking any valuable time and resources of the Court. See the case of the Yaro vs. Arewa Construction Ltd. & Ors (2007) 6 SCNJ 418. With this at the background, this Court has carefully observed that the substance of the Notice of preliminary objection raised by the Respondent herein, even though stated to be an objection against the hearing of the Appellants’ Appeal, it is in reality not an objection taken against the hearing of the Appeal as such, but one which merely quarrels against Grounds four (4) and five (5) of the Appellants’ Notice and Grounds of Appeal, which Respondent’s Counsel has variously described as vague, incomprehensible, misleading, at-large, incompetent, academic, moot and hypothetical; and so on.

It would be recalled that the Appellants predicated their Appeal before this Court on five (5) Grounds of Appeal and not just Grounds four (4) and five (5) alone, which the Respondent has picked quarrels with. The Supreme Court, in the case of General Electric Co. vs. Harry Akande (2011) 4 NSCQR P. 611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal”…

See also the case of Adejumo vs. Olawiye (2014) 12 NWLR (PT.1421) 252 AT 265, where the Supreme Court per BODE RHODES VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and relying on several decided authorities on the issue, I hereby find and do hold that the Notice of Preliminary Objection filed by the Respondent, same having not been filed against the hearing of the Appeal per se, but solely against the competence of a few Grounds out of several others, is inappropriate in the opinion of this Court to disturb the hearing of this Appeal. It would have been a different thing altogether, if the defects spotted against the few Grounds have permeated the entire Grounds of Appeal and the objection had been taken on the strength of the defects spotted and not just one associated only with a few Grounds. Assuming aguendo, that the objection raised against the two (2) Grounds have succeeded and are subsequently struck out, it would not have been enough to terminate the hearing of the Appeal. In this connection, and on account of this development, this Court shall without hesitation go ahead and determine this Appeal on its merit while the Notice of Preliminary Objection is dismissed. This, at least is not a situation in which the entire five (5) Grounds of Appeal have been cited as being defective.

DETERMINATION OF SUBTANTIVE APPEAL;

This Appeal shall be determined on the basis of the issues nominated by the Appellant for the sake of comprehensiveness. The Appellants’ Brief of argument dated 23-9-2016 was settled by ABUBAKAR ABDULLAHI ESQ., and filed on the same date while the Respondent’s Brief of argument dated the 24-10-2016 and filed on the 26-10-2016 was settled by HUSSAINI ZAKARIYAU ESQ. The Appellant filed an Appellants’ Reply Brief of Argument on the 8-11-2016 but deemed filed on the 9-11-2016. At the hearing of the Appeal on the 21-3-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF LEARNED COUNSEL

APPELLANTS

ISSUE ONE

Whether or not the judgment of the Court is not liable to set aside having been rendered without jurisdiction

Learned Appellants’ Counsel submitted that Jurisdiction is the power of the Court to hear and determine disputes submitted to it by parties and he cited several authorities in support of this proposition of the law some of which are; A.G. Rivers State vs. A. G. Akwa – Ibom State (2011) 29 WRN 1 AT 123-124; Madukolu vs. Nkemdilim (1962)2 SCNLR 341. On account of this issue, Counsel further submitted that the Court below is created by Section 249 of the Constitution of the Federal Republic of Nigeria 1999 as amended while its jurisdiction is donated by Section 251 of the same Constitution, which empowers the Federal High Court to hear and determine to the exclusion of any other Court in civil cases and matters in; “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” among others.

Counsel also submitted that the jurisdiction conferred by Section 251 of the Constitution by the 1999 Constitution is circumscribed/limited by Section 254(c) of the same Constitution 3rd Alteration, which he said confers exclusive jurisdiction on the National Industrial Court in Civil Matters and causes relating to any Labour, employment and industrial relations. In other words, Counsel argued that the National Industrial Court has exclusive jurisdiction in matters relating to Industrial or Labour relations.

It was also the argument of Counsel that by making specific reference to Section 251 of the Constitution, it only suggests that the jurisdiction of the Federal High Court under Section 251 is clearly and unequivocally excluded by 254(c)(i) of the 1999 Constitution contained in the 3rd Alteration to the Constitution. He relied on the case of Ladoja vs. INEC [2007] ALL FWLR (PT. 377) 934 at 996 where the Supreme Court, in interpreting the word “notwithstanding” used in the 1999 Constitution stated thus;

“When the term; “notwithstanding” is used in a Section of a statute, it is meant to exclude and impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said Section fulfills itself. It follows that as used in Section 251 (i) of the 1999 Constitution, no provision of the Constitution shall be capable of undermining the said Section….”

In applying the above interpretation in the instant Appeal Counsel argued that the word; “notwithstanding” used in Section 254 (c) of the Constitution clearly ousts the jurisdiction of any other Court particularly the Federal High Court in matters mentioned in Section 254(c) of the Constitution and confers the jurisdiction on same exclusively on the National Industrial Court. Counsel further argued that this contention is in consonance with the rules of interpretation i.e. when effect is to be given to the legislature’s intention by applying the literal meaning to clear and unambiguous words used in a statute.

With these at the background, Counsel contended that the claims/reliefs of the Respondent before the Court below in its originating summons contained at pages 85 to 86 of the records of Appeal is what has to be looked at in determining whether the Court below had the jurisdiction to entertain the matter in the first place. This, he said has been settled by a long line of judicial authorities. He cited the case of Ladoja vs. INEC (Supra) where the Supreme Court per MOHAMMAD, JSC held thus:

“The law is indeed trite that in a situation that arose at the Court below regarding the determination of whether or not the trial Federal High Court has jurisdiction to entertain the claim of the Appellant as contained in his originating summons, it is indeed that claim that needed to be looked into or examined. Looking at the Appellant originating summons, the relevant parts of which have earlier been quoted in this judgment, I am of the firm view that the declaratory and injunctive reliefs sought falls squarely within the jurisdiction of the Federal High Court as prescribed under S. 251 of the Constitution.” See also the case of Igwe And Ors vs. Ezeanochie (2010)7 NWLR (PT. 1192) 61 AT 86.

In the instant case, Counsel told Court that the Respondent approached the Court below to set aside his dismissal and subsequent conversion of same to termination from the employment of the 1st Appellant on grounds that it was done during the pendency of his action (suit No. KB/HC/47/2014, challenging the issuance of a letter of query to him) and an order of reinstatement amongst others. Counsel argued that the claims of the Respondent clearly arose out of a dispute relating to his employment, discipline and remuneration as contemplated by Section 254(c) (i) of the Constitution. According to him there could hardly be a better instance of a Labour related issue falling within the exclusive jurisdiction of the National Industrial Court than the example provided by Respondent’s case at the Court below.

Learned Counsel further argued that although none of the parties canvassed the issue of jurisdiction before the trial Court, that the issue of Jurisdiction, notwithstanding is so radical that it has long been settled beyond peradventure that it can be raised for the first time even on appeal at the Apex Court. Counsel urged this Court to resolve this issue in favour of the Appellants and allow the appeal on this issue.

ISSUE TWO;

Whether or not resolving the dispute between the parties on hotly contested facts in originating summons amounts to infraction of the parties (particularly the Appellants) rights to fair-hearing (Ground 2.)

It was contended by learned Counsel that a Court of law is bound to resolve disputes submitted to it for adjudication no matter how incredible and or unreliable, the evidence and processes presented to it by the contending parties may be. According to Counsel where the parties are not in tandem on the facts, each ought to be given an opportunity to present his case and the other to test the facts by cross-examination to ascertain their veracity and correctness. Learned Counsel said that the case of the Respondent was initiated by a process only open to situations of non-contentious facts i.e. originating summons/writ of certiorari. But that the basis of his case was that the Appellants dismissed him from service when his case was pending in Court, and that he was not given fair-hearing before he was dismissed; that his dismissal above all else was actuated by malice and bias.

It was further contended that the above facts were hotly contested by the Appellants as shown in their reliefs (a) (b) (c) (d) of the Respondent’s claim, contained on pages 85 and 86, and paragraphs 13, 14, 15, 16, 17, 18, 22 and 25 of the Respondents verifying affidavit and paragraphs 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25-29 of the Appellants Counter Affidavit found at pages 191 to 192 of the records.

Arising from these, Counsel submitted in addition that the learned judge of the Court below fell into grave error of law in proceeding with the case under originating summons procedure in respect of these contested facts thereby denying the Appellants the opportunity of leading evidence in proof of the case put forward by them as contained in their affidavit evidence. Counsel argued that the law is settled that where facts in originating summons cannot be reconciled, pleadings should be ordered. He said that in the case at hand, the Respondent contended that his dismissal was done in violation of his Constitutional right to fair-hearing; that the Appellants denied this and contended that several invitations were extended to him, which he initially spurned, but later honored and relied on the Respondent’s Exhibit “M”. Counsel argued further that the learned trial judge by proceeding with the case in the Court below as constituted infringed on the Appellants’ Constitutional right to fair-hearing as guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended. On this issue, Counsel finally submitted that any judicial proceeding that infringes on any of the parties’ Constitutional right to fair-hearing is null and void. See Yusuf vs. The State [2012] 27 WRN 148 AT 1873 and Ibrahim vs. Adekunle [2012] 22 WRN 45 AT 57 – 58.

ISSUE THREE;

Whether the Court below actually resolved the real life issues between the contending parties before it.
Learned Counsel submitted that although the claim of the Respondent in the Court below was predicated on the issue of dismissal, but that there was ample evidence that the dismissal was converted to termination. Counsel referred Court to paragraph 24 of the Respondents’ counter affidavit contained at page 192 of the records of Appeal and the Respondent’s exhibit “WUFP2” at page 203 of the records. He said that the learned judge of the Court below did not advert his minds to this obvious uncontested fact before proceeding to make a finding and a declaration on the question of the dismissal of the Respondent, which was at the time, no longer a live issue before the Court below. Counsel posed a rather pertinent question thus; the issue of dismissal and termination of appointment being radically different in nature and consequences, whether the learned trial Judge of the Court below could have come to the same conclusion if he has adverted his mind to this fact? Counsel also referred to the dictum of the Court below on the issue at pages 367 to 368 of the record where the Court observed thus;

“The question then, is, assuming the allegations against the plaintiff were found proved, should the sanctions, even applying the so-called conditions of service of the 1st defendant be meted out to the plaintiff who had put in 22 years of his adult life in the service of the 1st defendant to such a drastic and corrosive one as dismissal?
…………………………………………………

It is clearly stated and for avoidance of doubt, least I may be grossly misunderstood that whilst I accept that delinquent or slothful public, servant should be punished and sanctioned within the ambit of the extant Rules. The defendants must realize that punishment and sanction must relate and commensurate with the offence allegedly committed and I dare say that past records of the officer being punished ought to be taken into account, to do otherwise, is to drive good men and women away from the public service if decisions to punish or sanction allegedly erring officers such as the plaintiff and who has put in over 22 years of his useful and active life can be, based on victimization, vendetta and an attempt to settle personal scores as expressed by the plaintiff in his written address…

…There is the need for the Civil/Public Service to be human even when it sets out to infuse discipline in its work force. As I had said, an officer who had put in more than 22 years and who had never received any query nor even a verbal warning in his entire career as a Chief Lecturer should not at the twilight of his career, be driven down so callously, “the dark alley” by a summary dismissal from service when on the face of the evidence before this Court, he has put more than half of the number of years he should retire from the service of the 1st defendant voluntarily.”

Counsel submitted once again, that had the Court below adverted its minds to the fact that the Respondent was no longer dismissed but rather had his appointment terminated, and which allowed him the opportunity to collect his gratuities, he would not have come to a conclusion that he was callously shown the way out.

ISSUE FOUR;

Whether the finding of the Court that the disciplinary actions of the Appellants was done on a case different from the one set out by the Respondent, and if so whether it infringed in the Appellant’s right to fair-hearing.

It was the submission of Counsel that all the reliefs sought by the Respondent in the Court below were predicated on the doctrine of lis pendens and that the Court went ahead and made far-reaching findings touching on the substance of the case, which was allegedly pending when the Respondent’s dismissal was subsequently converted to termination of appointment. According to Counsel the case of the Respondent before the High Court of Kebbi State in suit No. KB/HC/47/2014 and in the Court below are radically different in several material particular. He said that whereas the case of the Respondent in suit No. KB/HC/47/2014 was to the effect that the issuance of queries on him were motivated by bias, ill -feeling and attempt to settle personal scores, the case before the Court below was that his dismissal (which was subsequently converted to termination) was null and void because it was done when the very actions /steps leading to it (dismissal) were being challenged in a Court of law.

It was argued that the learned trial judge relied heavily on Section 17 of the Federal Polytechnics Act in declaring the actions of the Appellant null and void when it was not a live issue in the case before him. Counsel urged this Court to resolve this issue in favour of the Appellants and to allow this appeal on this ground.

RESPONDENTS

ISSUE ONE

Whether the trial Court has jurisdiction over the administration, management and control of the Appellant or not.

It was the argument of learned Counsel that the law relating to the above issue is as provided for by Section 251(1)(p) (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria. He cited the Supreme Court in
Obiuweubi vs. CBN (2011) 5 NSCQR 51 AT 57:3 a case, which Counsel said is in parimateria with the instant case and in which the Court held while referring to the jurisdiction of the Federal High Court in causes arising from the administration, management and control of the Federal Government or its agencies, per RHODES VIVOUR, JSC held:

“Section 251 (1) (p), (q) (r) of the 1999 Constitution is in parimateria with the above. The provisions vest exclusive jurisdiction in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government and its agencies, the operation and interpretation of the Constitution as it affects the Federal Government and its agencies as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government and its agencies…”

Counsel further argued that the Respondent’s suit before the trial Court is headed “In the matter of an application by Dr HaliruBala for leave to Apply for an order of certiorari”. It was submitted by Counsel that the jurisdiction of the trial Court with regards to the above is deduced from the statement of claim of the Respondent, which herein is the affidavit accompanying his application for judicial review. (See page 88 – 92 of the records of proceedings). See the case of Anao vs. Sun Publishing Ltd (2013) 3 NWLR (PT. 1341) 399 AT 401:2 on this issue.

By the content of the Respondent’s affidavit, Counsel argued that it is evident that the Respondent’s complaints before the trial Court was in respect of the administration, management and control of the 1st Appellant; and for this reason he submitted that his claim by Section 251 (1) (p) (q) (r) is exclusively reserved for the Federal High Court. It was further argued by Counsel that the Appellants, in filing their defense before the trial Court, virtually admitted that the Respondent’s complaint before the trial Court was in respect of the administration, management and control of the 1st Appellant. (See page 190-193 of the record of Appeal). He submitted that admitted facts need no further proof. Learned Counsel contended that the Appellants having admitted by paragraph 7 of their counter affidavit that the Respondent’s complaint before the trial Court was in respect of its administration; cannot after losing their case change the tone of the Respondent’s case on Appeal. Counsel urged this Court to so hold and urged this Court to resolve this issue in favour of the Respondent and against the Appellants.

ISSUE TWO;

Whether an application for an order of certiorari requires the calling of oral evidence merely because the Appellant filed a counter affidavit.

According to learned Counsel, the law relating to this issue is as provided for by the Supreme Court in Atungwu vs. Ochekwu (2013) 14 NWLR (PT. 1375) 605 AT 611:5 held thus:

“Where there is a conflict in affidavit evidence, it is not only by calling oral evidence that such a conflict could be resolved. There may be authentic documentary evidence which support one of the affidavit in conflict with another. The document is capable of tilting the balance in favour of the affidavit which agrees with it. In the instant case, the authentic documentary evidence which showed demands by the Respondent for the return of the paraphernalia of the Edikwu chieftaincy were annexure “D” and “F”. Therefore, there was no need to call oral evidence on the issue of demand”

According to Counsel, the Respondents claim before the trial Court is as contained in the affidavit in support of his application. (See page 88 to 91 of the records of appeal of Appeal). Counsel argued that the Appellants in their defense before the trial Court did not counter by way of a denial any of the Respondent’s affidavit. (See page 190 – 193 of the records of Appeal), but had merely stated their own side of the case. This Counsel submitted is an admission against the interest of the Appellants and he urged this Court to so hold. Counsel cited the Supreme Court in the case of O.S.S.I.E.C vs. N.C.P (2013) NWLR (PT. 1360) 451 AT 457 where the Court held thus:

“Where a party chooses not to file a counter affidavit, he is deemed to admit the facts averred in the affidavit of his advisory. In the instant case, the Respondents prayed the Court of Appeal, based on the facts averred in their supporting affidavit, to strike out the notice of appeal, but the Appellants chose not to file a counter affidavit. They were deemed to have admitted the facts averred by the Respondents.”

Counsel therefore submitted that the mere fact that an affidavit is countered; does not necessarily mean that oral evidence must be called and that the law is and as rightly done by the trial judge that, if a Judge can resolve the conflict from the available evidence there will be no need to call for oral evidence. Counsel also submitted that the Appellants misunderstood the Respondent’s claims before the trial Court; that the Respondent used the writ of certiorari to quash a quasi judicial power exercised by the Appellants; which power the “Appellants refused to prove before the trial Court”. He said that the Appellants by paragraph 16 of their counter affidavit (See page 191 of the record of appeal) admitted that they gave a letter of query to the Respondent and conducted some investigation before they prematurely terminated his employment.

According to learned Counsel the underlined words here are “premature termination” not in accordance with the law in the exercise of a quasi judicial power. Counsel said that the Supreme Court in J.S.C. Cross Rivers State vs. Young (Supra) a case, which is in all fours with the Respondents’ case held AS FOLLOWS:

“The power to suspend a person from his employment or to retire a person from service prematurely; as in this case, is a quasi judicial power because it involves investigation and a determination whether the officer is guilty of an offence or not. Consequently, the exercise of that power is amenable to certiorari. [Odemuyiwa vs. Nigerian Railway Corporation (1973) 3 UILR (PT. 1) 94; Falomo vs. Lagos State Public Service Commission (1977) 5 SC 51]”

Learned Counsel contended that the writ of certiorari is a prerogative writ used to check excesses of the Appellant and that it is never meant for a determination of any question and that the Respondent rightly used same in checking the Appellants abuse of power. He further stated that the Supreme Court in J.S.C. Cross Rivers State vs. Young (Supra) at 10:9 stated the meaning of certiorari and purpose for which it will be used thus;

“Certiorari is one of the prerogative writs, the other mandamus, used by the Court to restrain the abuse or misuse of power, or to correct errors of law, wrong exercise of discretion by tribunals, public authorities and government officials. Once a public authority acts judicially or administratively, its conduct is subject to control by the Courts by means of certiorari or mandamus”.

Counsel finally urged this Court to resolve this issue in favour of the Respondent and against the Appellants.

RESOLUTION OF APPEAL

The first issue nominated for the determination of this Appeal has to do with the ever recurring question of the Jurisdiction of Court. This being an employer/employee relationship gone soured, the result of which is the action filed at the Court below, one can reasonably argue by virtue of the benefit of hindsight, that the lingering jurisdictional issue in the dispute between the parties has fairly well been settled from the present state of case law in Nigeria today.

Learned Appellant’s Counsel had contended that the Court below, not being the National Industrial Court but the Federal High Court, had no jurisdiction to entertain the matter in the first place. Counsel had referred this Court to Section 254 (c) (i) of the Constitution, which for the avoidance of doubt is reproduced hereunder thus;

“254 C (i) notwithstanding the provision of Sections 251, 257, 273 and anything contained in this Constitution and in addition to such jurisdiction that may be conferred upon it by the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusive of any other Court in civil cases and matters.

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

In his arguments on the issue, learned Counsel contended that by the specific reference to Section 251 of the Constitution made in Section 254(c)(i) of the same Constitution, 1999 as Amended and as contained in the 3rd Alteration, it clearly and unequivocally shows that Section 251 of the Constitution providing for the jurisdiction of the Federal High Court, is excluded in the matters itemized/mentioned in Section 254(c)(i) of the Constitution, 1999 as Amended. In response, Learned Counsel for the Respondent who had argued that the essence of the matter at the Court below had to do with the administrative and management control of the 1st Appellant, which is an agency of the Federal Government of Nigeria and therefore that the Federal High Court was vested with the requisite jurisdiction to entertain the matter.

In any ways, without having to mince words on the issue, the current position of the law is that by virtue of 254(c) (i) (a) & (b) of the 1999 Constitution, as Amended, which came into effect on the 4-3-2011, the Federal High Court was completely divested of its Jurisdiction to entertain any matters described therein, particularly those dealing with the employment and/or dismissal of the Respondent herein from the Appellants’ institution.

The argument put up by learned Respondent’s Counsel concerning the question of whether or not the Appellants at the Court below did not object to the question of jurisdiction and had rather acquiesced on the issue, is clearly of no moment. The settled position of the law is that the issue of jurisdiction is so fundamental to an action that parties to a case cannot by acquiescence or any form of agreement confer jurisdiction on a Court, which does not have it. See Adesola vs. Abidoye (1999) 14 NWLR (Pt. 637) 28 AT 52; Okoroma vs. UBA (1999) 1 NWLR (Pt. 587) 359 AT 378. It is therefore, immaterial whether the Appellants at the Court below had consented to or had refused to object on the question of jurisdiction or not.

Perhaps, the metaphor on jurisdiction employed by this Court in the case of University Of Ilorin And Ors vs. Oluwadare (2009) ALL FWLR (Pt. 452) 1175, 1204; per NWEZE, JCA, (as he then was) provides an apt description of the subject when he said:

“Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty…”

Against the background of the foregoing, I cannot help but be in total agreement with the learned Counsel for the Appellant that Section 254(1) of the 1999 Constitution as Amended has pruned down the otherwise expansive jurisdiction of the Federal High Court, which has been stripped of its powers to entertain matters relating to and/ or connected with employment, labour and industrial relations generally. See the cases of Keystone Bank Ltd vs. Oyewole (2014) LPELR-23612; Obiuweubi vs. CBN (2011) 7 NWLR (PT. 1247) 465 AT 495 and a host of other cases. Issue one is resolved in favour of the Appellants.

The main thrust of the arguments of the Appellant in respect of the originating summons procedure in this Appeal is that the facts upon which the main issues for determination were predicated are disputed and highly contested; that the matter would have been better resolved not by the originating summons procedure but by the filing of pleadings and the taking of oral evidence from the witnesses. On the part of the Respondent the most suitable procedure ever for any Court at all in resolving the disputes between the parties in the circumstances of this case is the originating summons procedure. Learned Counsel had contended that it is not on every occasion where disputes arise in the affidavit of parties that oral evidence must be called as such disputes or conflicts can be resolved even by documentary evidence.

On both sides of the divide, there were several authorities cited and analyzed. In resolving this issue, the need to begin with the classical position cannot be over emphasized. In the case of National Bank of Nigeria vs. Lady Ayodele Alakija & Anor (1978) 2 LRN 75, the Supreme Court per ESO, JSC had this to say on the subject:

“Originating summons should only be applicable in circumstances where there is no dispute on questions of fact or even the likelihood of such a dispute… Application by originating summons should never be a substitute for initiating contentions issues of fact… Where the affidavit leaves matters for conjecture originating summons is not an appropriate procedure.”

In the case of M. O. Oloyo vs. B. A. Alegbe, Speaker Bendel State House Of Assembly (1983) 2 SCNLR 35, the old sage was at it once again when he said:

“Applying the above authorities to the instant case the affidavit raised contentions facts of ownership of land… and no doubt facts in the affidavit and counter-affidavit were irreconcilably in conflict; it is the law that in such situation, oral evidence shall be given Falobi vs. Falobi (1976) 9 AND 10 SC 1; Eze vs. A. G. Rivers State (1999) 9 NWLR (PT. 619) 430; Chigbu vs. Tonimas Nig. Ltd (1999) 3 NWLR (PT. 593) 115…”

These stated, the Noble Lord and sage was not done yet. He said in addition:

“As stated above, the learned Judge made a finding of fact that the action was not hostile proceedings therefore held that their action was properly initiated by originating summons. In the light of the above Judgments of the Supreme Court which are binding on this Court, I am strongly of the views after looking at the facts deposed to in the affidavit and counter-affidavit that they raised contentions and hostile proceedings pointedly that this action ought not to have been commenced or initiated by originating summons the finding of the learned Judge to the contrary was perverse and being an Appellate Court which is reluctant or loathes disturbing the finding of facts by the lower Court. As the finding of the learned Judge was perverse having regards to the contentions facts which could only be resolved by oral evidence, this is an exception to the General rule that an Appellate Court should not disturb or interfere with the Judgment of the lower Court. Having declared that this action was wrongly commenced, instituted or initiated by originating summons being perverse, I set aside the finding. Woluchem vs. Gudi (1981) 5 SC, 291; UAC (NIG) LTD vs. Fasheyitan (1998) 1 NWLR (PT. 573) 179…”

The originating summons procedure, going by the provisions of Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009 is a procedure, which should be used only where a deed, a will, enactment, written instrument are to be interpreted by the Courts. It is a procedure, which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also required for issues like the determination of short questions of construction and not matters of such controversy as in this one where the Justice of the case demands the setting up of pleadings. See Din vs. Attorney-General of the Federation (1986) 2 NWLR (Pt. 17) 471; Obasanjo vs. Babafemi (2000) 15 NWLR (Pt. 689) 1; Keyamo vs. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605.

In Famfan Oil Limited vs. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, the Supreme Court, per BELGORE, JSC had this to say on the issue:

“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest… It is a procedure where the evidence in the main is by way of documents and there being no serious dispute as to their existence in, the pleading of the parties to the suit. In such a situation there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his right.”

The position of the Law on the issue is quite simple and straightforward. Facts generally take a back seat in the originating summons procedure and this clearly distinguishes it from the writ of summons procedure where it is the manner of the treatment of the facts in issue which leads to the Court’s decision. And of course, between the two procedures the distinguishing factor remains the manner of the treatment of the facts involved.

In the instant appeal a careful examination of the records reveal that the case of the Respondent was initiated by a process only open to situations of non-contentious facts i.e. originating summons. However, the basis of his case was that the Appellants had him dismissed from service when his case was pending in Court; that he was not given a fair-hearing before he was dismissed and that his dismissal was actuated by malice and bias. Of course the records are replete with contentious issues arising from these facts, which were hotly contested by the Appellants as shown in their reliefs (a) (b) (c) (d) of the Respondent’s claims, contained at pages 85 and 86, and paragraphs 13, 14, 15, 16, 17, 18, 22 and 25 of the Respondent’s verifying affidavit and paragraphs 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25-29 of the Appellants Counter Affidavit found at pages 191 to 192 of the records.

In the lower Court’s bid to adjudicate on the matter it ended up ironically in reconciling the conflicting affidavit evidence and in the process engaging in the abominable practice of picking and choosing which of the affidavit evidence of the parties to believe and which to disbelieve. See Boy Muka vs. The State (1976) 10 – 11 SC 305; Oyemena vs. The State (1974) ALL NLR 522 at 530. It is only by resorting to viva voce evidence that the Court could have arrived at the Justice of the case in this matter where the issues involved touched on the material substance of the matter, and that is whether, the Respondent was unfairly treated under the master and servant relationship which existed between the parties. Issue two, and so are all other issues resolved in favour of the Appellants. Generally, this Appeal succeeds and the judgment of the Federal High Court delivered in suit No. FHC/KB/CS/7/2016 on the 30-6-2016 is hereby struck out for reason of lack of jurisdiction on the part of the Court below. There are no orders as to cost.

MUKHTAR, JCA

I was privilege to preview of the lead judgment of my learned brother, Frederick O. Oho, JCA. I completely agree with the eloquent reasoning therein and the conclusion that the appeal is meritorious and succeeds perforce. I adopt it as mine and accordingly allow the appeal.

I subscribe to all the orders made in the judgment inclusive of costs.

SHUAIBU, JCA

I have a preview of the judgment just delivered by my learned brother, Frederick O. Oho, JCA for the reasons stated therein; I agree that Section 254(1) of the 1999 Constitution as (amended) has pruned down the wider jurisdiction of the Federal High Court, which has been stripped of its jurisdiction to entertain matters relating to or connected with employment; labour and industrial relations generally. I also allow the appeal and abide by all the consequential orders.