Alidu Adah V. National Youth Service Corps. (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A 

In paragraph 16 of the statement of claim filed in this matter before the Makurdi High Court Benue State, the appellant (i.e. the plaintiff in the court below) claimed against the respondent (i.e. defendant in the court below) the following reliefs:

“(a) A declaration that the suspension of the plaintiff from office without pay vide the defendant’s letter Ref. No. NYSC/SC/STA/PER/28/Vol. 11/185 of 20/12/90 is null and void and of no effect as the said letter was given in breach of the Federal Civil Service Rules.

(b) A declaration that the termination of the appointment of the plaintiff by the defendant vide a letter Ref. No. NYSC/BNS/PER/3/54 of 28/6/91 is null and void and of no effect whatsoever, in that the procedure in the Federal Civil Service Rules was not followed.

(c) A declaration that the plaintiff is still in the employment of the defendant and that plaintiff is entitled to all his salary and allowances and or benefits including promotions from 20/12/90 when plaintiff was purportedly suspended from office without pay.

(d) An order reinstating plaintiff and for the payment of all the entitlements and allowances for the plaintiff including his salary.”

After the appellant’s oral evidence followed by a short address delivered by his counsel, the trial court in a considered judgment reached the following conclusion.

“Therefore where plaintiff has been queried and he has submitted his representations the defendant is at liberty to take any decision it deemed fit. In the circumstances of this case, the plaintiff cannot complain that he was not given an opportunity to be heard. He was heard in the allegations against him. His constitutional right to fair hearing was recognised and given. The defendant had the right to take a favourable or an unfavourable decision against him.

On the claim that he was terminated during the pendency of his criminal trial. I note that rule 04109 provides that if criminal proceedings are instituted against an officer, proceedings for his dismissal upon any grounds involved in the criminal charge shall not be taken pending the criminal proceedings. However, in this case the plaintiff has failed to tender the record of proceedings in the Magistrate Court to establish when the proceedings in that court terminated. I therefore invoke the provisions of Section 149(d) of the Evidence Act against the plaintiff for withholding that information as there is a presumption that if such proceeding was produced it could have been unfavourable to the plaintiffs.

I may say that as pathetic as the case of the plaintiff may appear to be, the court cannot substitute its own decision with that of the defendant. The duty of the court is to ensure that due process was followed in the disciplinary matter and no more.

For the foregoing reasons, I find that proper procedure was followed before the plaintiff was terminated. The case of the plaintiff is therefore dismissed.”

Utterly dissatisfied with the decision, the appellant has appealed to this court against thedecision and has itemised his grouse against the decision under 3 (three) grounds of appeal. And they are reproduced without their particulars as follows:

“(1) The decision is against the weight of evidence.

(2) The learned trial Judge misdirected himself in law when he held thus:

“Therefore, where plaintiff has been queried and he has submitted his representations the defendant is at liberty to take any decision it deemed fit. In the circumstances of this case, the plaintiff cannot complain that he was not given an opportunity to be heard. He was heard on the allegations against him. His constitutional right to fair hearing was recognised and given. The defendant had the right to take favourable or an unfavourable decision against him” and this has occasioned a miscarriage of justice.

(3) The learned trial Judge erred in law when he invoked S.149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, against the plaintiff/appellant herein and this has occasioned a miscarriage of justice.”

Beside his entry of appearance and a flurry of activities at the early stages of the matter such as taking a preliminary objection on the issue of jurisdiction and an application to appeal out of time both of which applications were overruled, the defendant went into a slumber and did not corne alive into the matter until after judgment. He practically abandoned the matter. He filed no pleading nor took part in the trial before the court below. The appellant’s case has therefore, remained simple, unchallenged and uncontradicted.

The plaintiff (now appellant) was employed by the defendant as a driver as per Exhibit ‘A’ (i.e. letter Ref. NYSC/STA/PER/28/1) on 22/9/79. By another letter Ref. No.NYSC/63/S.6/SEC/1/000 i.e. Exhibit ‘A2’ he had his appointment confirmed as a permanent and pensionable staff in the public service of the Federation of Nigeria. On 9/12/90, the official vehicle he was in control of, broke down in the course of his employment. He invited one Usman Aper a driver/mechanic and a staff of the Federal Livestock, North Bank, Makurdi to carry out repairs to the vehicle. While test driving the vehicle along Lafia Road, North Bank, Makurdi on 9/12/90, the vehicle was involved in an accident and the mechanic Usman Aper was killed at the spot. The appellant was injured and hospitalized. He was queried and suspended without pay as per Exhibit ‘A3’ i.e. letter Ref. No. NYSC/SC/3TA/PER/28/Vol. 11/85 of 20/12/90. Later on 28/12/90 he was arraigned before the Makurdi Chief Magistrate Court as per charge No. MCM/19C3/90; Commissioner of Police v. Alidu Adah. As if his woes were not enough the appellant’s employment was by Exh. ‘A3’ by letter Ref. No. NYSC/BN8/PER/3/54 of 28/6/91 terminated with retrospective effect from 9/12/90 for gross misconduct. He was at the time on grade level 6 step 4 i.e. N8,800.00p.a. On 11/5/95, the criminal charge instituted against him was concluded and he was discharged for want of prosecution. He then brought this action seeking the reliefs herein before reproduced. In substance, the appellant has challenged his suspension without pay since 9/12/90 and the subsequent termination of his employment on 28/6/91 during the pendency of the criminal trial as per charge No. MCM/19c/90. After the appellant’s testimony and a brief address by his counsel, the defendant not having been a party to the hearing, the court below in a considered judgment dismissed the claim. All the same, he has now appealed to this court against the decision.

The issues for determination as perceived by the parties have been set forth in their respective briefs of argument. The appellant has set out two issues for determination as follows:

“(i) Whether the learned trial Judge was correct in his interpretation and application of Rule 04107(vi) of the Federal Civil Service Rules 1974.

(ii) Whether the dismissal of the claims of the appellant by the court below was proper, even though the respondent herein neither filed a statement of defence nor testified at the trial and in the circumstances whether the invocation of S. 149(d) of the Evidence Act against the appellant was correct.”

The 3 (three) issues raised by the respondent in his brief are as follows:

“(i) Whether the decision of the trial Judge was against the weight of evidence.

(ii) Whether the learned trial Judge misdirected himself in law as to the issue concerning the plaintiff/appellant’s constitutional right of fair hearing.

(iii) Whether learned trial Judge erred in law when he applied the provisions of S.149(d) of the Evidence Act Cap.112. Laws of the Federation of Nigeria 1990.”

Subject to my observations hereunder, the three issues made out by the respondent for determination dove-tail easily into the two issues raised by the appellant in his brief. In particular, issues Nos.1 (on question of facts) and 3 in the respondent’s brief are covered by issue No. 2 in the appellant’s brief: while appellant’s issue No. 2 has amply covered respondent’s issue No. 2. For purposes of considering this appeal, I have adopted the two issues formulated by the appellant. However, issue No.1 as formulated by the respondent in my view is imprecise and provokes some observations. It is framed in the general terms of general ground of appeal as in civil appeals: See Okezie v. Queen (1963) 1 All NLR 3; B.P. (Will) Ltd. v. Allen (1962) NSCC 409 at 410 and the unreported judgment of this court No. CNJ/98/95: Hamza Alhaji Audu Bilam Dambam v. Ardo Lele delivered on 8/6/2000. My reservations against it stem from its having been raised in general terms. Challenging a judgment on the ground of being against the weight of evidence being by its nature an appeal on facts contemplates a wide range of facts within its compass including:

(1) That the judgment cannot be supported by the evidence adduced by the successful party which the trial court accepted.

(2) That the inference drawn from accepted facts cannot be justified.

(3) That there is no evidence which if accepted could support the findings of the trial court.

(4) That if the evidence of both parties are put in the imaginary scale, the judgment given in favour of the respondent will be against the totality of the evidence adduced at the trial.

(5) In deciding upon this issue, it may be necessary to consider whether the credibility given to the testimonies of witnesses was wrongly given. See Anyaoke and Ors. v. Adi and Anor. (1986) 2 NSCC (Vol. 17) 799; 3 NWLR (Pt.31)731, Ogboda v. Adulugba (1971) 1 ANLR 68; 1 All NLR 68, Mogaji and Ors. v. Odofin and Ors. (1978) 4 S/C 91.

Order 3 R. 4 of the Court of Appeal Rules has recognised that the general ground of appeal is otherwise vague or general in terms but has permitted it as a competent ground. To my mind, it is unacceptable to couch an issue for determination thus “whether the decision of the trial Judge was against the weight of evidence” as it still remains vague or general as an issue nonetheless. It is only logical that when identifying issues for determination in this respect that the particular areas on questions of facts i.e out of the five implications above ought to guide the formulation of the issues for determination. In other words, the respondent’s issue No.1 in this matter has failed to identify as it were, in specific terms the question of facts encompassed by ground 1 (one) of the appellants grounds of appeal for determination here. The respondent ought to have pinpointed the relevant areas on questions of facts he is raising as issue to save the court unguided meandering through all possible issues that could be considered under questions of facts. Issues for determination ought not to be as vague or general nor couched in general terms as here. The essence of issues for determination is to narrow down the relevant points in controversy. I am very mindful that since the decision in Oduola and Ors. v. Coker (1981) NSCC (Vol. 12) 180 at 182, the decisions in Odufunade v. Rossek (1962) 1 All NLR 98 and Mobil Oil (Nig.) Ltd. v. Coker (1975) 3 SC 175 no longer represent correct statement of law in so far as a defendant who called no evidence could not challenge the facts on which a decision is based. The instant issue i.e. respondent’s issue No. 1, is grossly vague; to merely upstage a ground of appeal as here as an issue for determination may not always crystalise the issue for determination and so may prove most unsatisfactory. I have decided to deal with it at best as can be expected with issue No.3 in the respondent’s brief of argument.

As regards issue No. 1 dealing with the question of the procedure followed in the termination of the appellant’s employment, the appellant expressed the view that the court below wrongly relied on Rule 04107(vi) of the Federal Civil Service Rules to justify its decision. Not only that he canvassed that the said rule had no bearing on the matter as it did not apply to established officers when read with the rest of the sub-rules i.e. Rule 04107(i) and (vi) but that the applicable rule according to him for dealing with the appellant’s situation was rule 04121 which connotes that some sort of investigation into the appellant’s misconduct had to be carried out under Rules 04104, 04106, 04201 and 04121. The procedure to terminate the appellant’s employment if at all have to comply with Rules 04107 and 04121. On the content of “misconduct”, the appellant was alleged to have committed, he has referred to Rule 04201 as the encompassing provision on offences of misconduct. He has particularly observed also that no written warning had been given to the appellant nor had he before then suffered any loss of increment. And quite significantly that the appellant was not given a good hearing before being terminated even going by the procedure in Rule 04107(i) – (iv) relied by the court below to arrive at its decision. He further submitted that the issuance of a query had not met the clear requirements under Rule 04107. On how the rules should be construed he relied on the case of Oyeyemi v. Commissioner for Local Government and Ors. (1992) 2 SCNJ (Pt.11) 266 at 280 (1992) 2 NWLR (Pt.226) 661 per Nnaemeka-Agu, JSC to imply that they have to be read together.

On issue No.2, the appellant observed that the respondent filed no defence and that as there was non-joinder of issues that the court below erred to have invoked S. 149(d) against non-tendering of the record of proceedings in the criminal case No.MCM/19c3/90: Commissioner of Police v. Alidu Adah and to have used it to find against the appellant. He has also contended that as no issues were joined that the appellant’s claim had to be deemed admitted by the respondent i.e. defendant and so that the question of burden of proof did no longer arise: See Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) FNR 81 and 83 – 85 (1976) 1 All NLR Onobruchere v. Esegine (1986) All NLR (Pt.1) 238 at 241 (1986) 1 NWLR (Pt.19) 799 and 0.25 R9 – of the Benue State High Court (Civil Procedure Rules) 1988. On the minimal proof required of him in this matter he referred in support to the cases of Onwuka v. Omogui (1992) 3 SCNJ 98 at 1277 (1992) 3 NWLR (Pt.230) 393 Mogaji v. Odofin (1978) 4SC 91 at 93 – 96 and Nwabuoku v. Ottih (1961) ANLR (Pt.2) 485. See Ukoha and Ors v. Okoronkwo (1972) 1 All NLR (Pt. 2) 100 at 105 Obembe v. Wemabod Estates Ltd. (1977) 5SC 155 at 140 and Baba v. Nigeria Civil Aviation Training Centre (1991) 7 SCNJ (Pt. 1) 1 at 22 (1991) 5 NWLR (Pt.192) 388 per Nnaemeka-Agu, JSC.

As regards the use made of the presumption under S.149(d) he submitted that it is always invoked in cases where the facts are disputed or the issues are joined on the facts but not as here where the plaintiff had proven his case in this matter as per paragraphs 7,8,9,10 of the statement of claim unchallenged. That the respondent could not use the presumption to fend off his clear breach of Rule 04109 wherefore the appellant’s appointment was terminated without waiting for the outcome of the criminal trial.

The respondent in his brief repudiated the appellant’s case in its entirety and maintained that the appellant’s employment with the respondent was properly terminated as evidenced by Exhibit ‘A5’, supported by the query Exhibit ‘A3’ and his answers and a plea for mercy i.e. Exhibit ‘A4’. In noting the distinction between a right to be heard and a right to oral hearing, the respondent referred to the case of Dr. Akinlade Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51 at 62, Hart v. Governor etc. (1976) Digest of the Supreme Court cases 1958/84 Vol. 3 P. 500 and Osakwe v. Nigeria Paper Mill Ltd. (1998) 10 NWLR (Pt.586) 1 at 11 paragraphs B-C and opined that by the written representation that is Exhibit ‘A4’ by the appellant the requirement to be heard under rule 04107 of the Civil Service Rules of 1974 was satisfied, more so, as the appellant was thereby given due opportunity to have fair hearing.

In answer to the appellant’s claim to judgment on his challenged evidence, the respondent made the point that the court below could not be precluded from finding otherwise inspite of the fact that the respondent failed to file a defence and to take part in the proceedings as the facts adduced by the appellant had not supported his claims.

On the relevance of S. 149(d) of the Evidence Act 1990 to this matter where the appellant failed to tender any documentary evidence of the proceedings leading to his discharge in the charge No. MCH/19c3/9 by the Magistrate Court, the respondent asserted that the presumption under S.149 was properly exploited on the facts of the matter.

On 16/2/99, the court suo motu raised the issue of jurisdiction vis-a-vis Decree No. 107 of 1993 and so ordered the parties to advert to it and if need be to submit further addresses on the issue. In compliance with the order, the appellant filed – “Appellant’s brief on issue of jurisdiction” and formulated a solitary issue thus:

“Whether or not the jurisdiction of the court below was ousted by virtue of S. 230(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 107 of 1993, having regard to the date of the accrual of the cause of action.”

The respondent on his part filed “respondent’s additional/supplementary briefs” and raised also one issue on jurisdiction formulated thus:

“Whether the trial court has jurisdiction to hear the matter taking cognisance of the Constitution (Suspension and Modification) Decree No. 107 of 1993.”

The appellant without argument conceded two material facts namely:

(1) That the respondent comes within the purview of S. 230(1) as amended by Decree No. 107 of 1993.

(2) That by the time of institution of this action on 28/7/95 Decree No. 107 of 1993 had come into being on 17/11/93.

The appellant has asserted that jurisdiction is determined by the state of the law when the cause of action arose and not when it is invoked. See Governor of Oyo Stare v. Folayan (1995) 9 SCNJ 50 (1995) 8 NWLR (Pt.13) 292 Uwaifo v. A/G Bendel State (1982) 7 SC 121; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539 and 339, Alao v. Akano (1988) NSCC (Vol. 19) 329(1988) 1 NWLR (pt.71) 431. It was also submitted that the cause of action arose on 9/12/90 or 28/6/91 as contained in “Exhibit ‘A5’ ” (the two dates represent the dates of the fatal incident and the termination respectively). He referred to S. 6(6) (b) and S.236(1) of 1979 Constitution as conferring on the court below unlimited powers at the accrual of the cause of action and urged the court not to follow the case of University of Ilorin v. Odutola (1988) 12 NWLR (Pt. 576) 72 at 79-80 as it misconstrued the relevant provisions of Decree 107 of 1993.

He relied on S. 6(1)(b)(c) and (e) of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 as supportive of his view of the applicable law. On the issue of jurisdiction the respondent has supported the contention that the court below lacked jurisdiction in the matter. Its jurisdiction having been ousted by S. 230(i)(q)(r)(s) of the Constitution 1979 as amended by Decree No. 107 of 1993 as the respondent is a Federal Government Agency by virtue of Decree No.51 of 1993 which amended Decree No. 24 of 1973. On the effect of the absence of jurisdiction in the court below the respondent relied on the case of Obikoya v. Registrar of Companies and Anor. (1975) 4 SC 31 at 34-35, Nelson v. Ebanga (1998) 8 NWLR (Pt. 563) P. 701 Nwanwata v. Esumei (1998) 8 NWLR (Pt. 563) 650 at 672.

Whenever the issue of jurisdiction is raised, it is a fundamental issue that goes to the vires of the court to competently deal with the matter before it and so has to be despatched of first. See Egbe v. Adefarasin (1987) 1 NSCC (Vol. 18) 1 (1987) 1 NWLR (pt.47) 1. Both the appellant and the respondent have recognised that the jurisdiction to determine a claim as in this matter has to depend on the state of the law when the cause of action arose and not at the time it is invoked: See Uwaifo v. A/G Bendel State and Ors. (supra) and Mustapha v. Governor Oyo State (supra).

In the case of Uwaifo v. A/G Bendel State and Ors., the appellant was being investigated by Maido Panel under Public Officers (Special Provisions) Decree 1978. He sought a number of reliefs at the High Court including declarations challenging the panel’s jurisdiction, failure to apply the rules of law and natural justice and that the panel’s recommendations were null and void. The High Court declined jurisdiction as its jurisdiction was ousted and its stance in this respect was upheld by the Federal Court of Appeal. On further appeal to the Supreme Court it held that the obligations and rights of parties must be considered in the light of the law when the cause of action arose. The appellant who had no enforceable right at the time when the cause action arose, that is, before the 1979 Constitution could not have it after the 1979 Constitution no matter that some of the laws in place when the cause of action arose i.e. before the 1979 Constitution had been repealed. The case of Mustapha came closely on the heels of Uwaifo’s case to reinforce this rule of law. See Alao v. Akano (supra).

The respondent’s line of argument comes to this that once it is shown that an agency is duly established by the Federal Government as is the case with the respondent (under Decree No. 51 of 1993 which repealed an earlier Decree No. 24 of 1973) all matters reserved by the said Decree No. 107 of 1993 become exclusively triable by the Federal High Court. In the event, that the unlimited jurisdiction conferred on the State High Courts by S. 6(6)(b) and S. 236(1) of the 1979 Constitution has become restricted and expropriated with regard to any actions, or proceedings for declaration of injunctions affecting the validity of executive or administrative actions or decisions by the Federal Government and its agencies, now to be handled by the Federal High Court.

In short, the respondent’s argument in this court i.e. that the court below bereft of any enabling power to proceed with this matter on coming into effect of the Decree No.107 of 1993 could not proceed therewith and that the proceedings before it were an exercise in futility; therefore of no effect and ought to be set aside.

The promulgation of the Decree No. 107 of 1993 undoubtedly has clearly abridged the unlimited jurisdiction of State High Courts as to the kind and nature of actions which they i.e. the State High Courts have to have cognisance of. At the beginning of this matter, the appellant unreservedly conceded two material factors as germane in considering this matter namely that the respondent is a Federal Government Agency covered by Decree No. 107 of 1993 and more significantly that by the time the instant action was commenced in the court below on 28/7/95 to be precise that the said Decree had come into effect i.e. on 17/11/93. He has strongly maintained nonetheless that this action being outside the ambit of the operation of Decree No. 107 of 1993, that is, judging from the date the cause of action arose that it was well within the competence of the court below to deal with by virtue of S.236(1) of the 1979 Constitution being the operative law to determine the jurisdiction of the court below when the cause of action arose. This according to the appellant in this court is the crunch of the appellant’s case. This is notwithstanding that the action was initiated in 28/7/1995 long after Decree No.107 of 1993 became operative. In other words, Decree No. 107 of 1993 was most inapposite in law to meet the situation in this matter.

The opposing posture taken by either side on the question of jurisdiction has been set out above. However, I recognise there is considerable force in another view of this issue which is not adequately exploited may be it did not appeal to the parties. Going by the appellant’s expostulations as I understand, it is not being disputed that on 2817/95, that is, the date when the action was instituted, the Federal High Court was also competent to entertain the matter. Putting it point blank, that is to say, that both courts that is the court below or the Federal High Court could entertain the matter. This can only be feasible if the two courts possessed concurrent jurisdiction in the matter as at 28/7/95. This of course raises a fundamental question and to resolve it, I have to advert to S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended.

Without plunging deep end into the legal history of how the Federal Revenue Court transformed into the Federal High Court, suffice it to say, that the case of Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 11 SC 77 (1973) 1 All NLR (Pt.2) 208 remains the locus classicus in defining the relative jurisdictions of the Federal High Court vis-a-vis the State High Court and it construed the provisions of S.7(1)(a)(b)(c) and (d) of the Federal High Court Decree No. 13 of 1973 and in doing so has emphasised the exclusiveness of the jurisdiction of the Federal High Court in matters within its jurisdictional preserves that is, as encompassed in Section 7 of the Federal High Court Decree No. 13 of 1973. The cited case exhaustively examined in the context the provisions of S. 230 and S. 236 of the Constitution of 1979 vis-a-vis the unlimited jurisdiction of the State High Court and S. 8 of the Federal High Court Decree No. 13 of 1973 vis-a-vis the exclusiveness of powers of the Federal High Court as against the State High Court. It held that the true object as well as the purpose of the Federal Revenue Court Decree was the more expeditious despatch of revenue cases for example, personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like, which the State High Courts were supposed to have been too tardy to dispose of and that it was not intended that ordinary cases of banker/customer relationship and the like were included. Thus, Jammal’s case recognised the exclusiveness of their respective jurisdiction in civil matters and it remained so until Decree No. 107 of 1993. I have to set it out and examine its provision – S.230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993 in relation to the facts of this matter. The section reads thus:

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(q) The administration or the management and control of the Federal Government or any of its agencies;

(r) Subject to the provisions of this Constitution the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(s) Any action or proceedings 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; provided that;

“Nothing in the provisions of paragraph (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.”

The above provision has been variously construed in a number of the decisions of the Court of Appeal and they constitute very strong authority in that regard. I shall advert to some of them in the course of this judgment. The basic principle of construction known as the golden or literal rule has it that where the words used in a statute as here are clear, simple and unambiguous, they should be given their ordinary literary meaning provided no absurdity would otherwise be occasioned. See Caledonian Ry v. North British Ry (1881) App. Cas. 114 at 121 and 122; and also Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622.Having read S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended over and over again it seems to me with respect that the proviso of the section is a curious piece of legislation and the language used in it is so woolly as not to be capable of any certain interpretation. However, construing the main provision of S.230 and its subsections together the collective effect gathered, is that there is a clear and unambiguous intention of the law maker to confer exclusive jurisdiction in matters  specifically mentioned therein to the Federal High Court: See the case of University of Abuja v. Ologe (1996) 4 NWLR (pt. 445) 706; Ali v. C.B.N. (1997) 4 NWLR (pt. 498) 192. In this respect, I have gone through the cited cases and others and I am satisfied there is no implication in the provision empowering both courts running concurrent jurisdiction in matters referred to in S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended, and given exclusively to the Federal High Court. A random reflection on the cases that have construed the provision is worthwhile. And I start with the case of University of Abuja v. Ologe (supra); the respondent sued the University in the Federal High Court for his suspension, the appellant took a preliminary objection that the appellant not being an agency of the Federal Government that the Federal High Court had no jurisdiction in the matter. The Court of Appeal in dismissing the appeal affirmed the decision of the court below that held that it had. In Ali v. C.B.N. (supra) the issue was whether Decree No. 107 of 1993 has divested the State High Court of the jurisdiction to entertain matters on the administration or management and control of the Federal Government and its agencies; the Court of Appeal had no difficulty in concluding that Decree No. 107 of 1993 has so divested the State High Courts of their hitherto exclusive jurisdiction before the amendment, of entertaining and adjudicating over all matters relating to the administrative management and control of the Federal Government and its agencies. In the University of Ilorin v. Odutola (supra) the issue was whether the State High Court had the jurisdiction to entertain the matter involving the Federal Government Agency since the promulgation of Decree No.107 of 1993. The action was pending before the said Decree came into effect. The Court of Appeal construed the provisions of S.230(1)(q)(r) (s) of the Constitution of 1979 as amended and pronounced the said provision as having conferred exclusive jurisdiction on the Federal High Court in matters arising from the operation and interpretation of the Constitution in so far as they affect the Federal Government or its agencies. And that there is nothing in the provision to suggest that both Federal High Court and the State High Court have to exercise concurrent jurisdiction in the matters specified in the provision. The proceedings and judgment were void. It struck out the appeal.

However in 7up Bottling Co. v. Abiola and Sons (1996) 7 NWLR (Pt. 463) 714, the view was expressed that as Decree No. 107 of 1993 made no transitional provision regarding pending cases and so that it would be deemed they were not affected. There can be doubt from the cases cited above that the Federal High Court possesses exclusive jurisdiction in matters covered by S. 230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993. Also both courts i.e. the Federal High Court and the State High Court do not run concurrent jurisdiction in matters comprised in S. 230(1)(q)(r) and (s). I agree with these conclusions having myself examined the said provision. In the instant matter, the appellant is asking for a declaration and injunction affecting the validity of an administrative decision taken by the respondent a Federal Government Agency in terminating the appellant summarily. The appellant has properly conceded that the respondent is an agency of the Federal Government and that the action was instituted on 28/7/95, I am of the firm view that it is wrong to have commenced this action in the State High Court which at the time it was filed lacked the power to entertain the suit.

The above cited cases are in unison in recognising that the Federal High Court has conferred on it exclusive jurisdiction in matters mentioned in S.230(1)(q)(r) and (s) of the Constitution of 1979 as amended by Decree No. 107 of 1993 at the promulgation of the said Decree. The construction and conclusion syncronise with my reasoning herein. To hold otherwise would make nonsense of the clear intention of the law maker as gathered from construing the provision in the context of the other provisions of the Constitution read as a whole: See Rabiu v. The State (1982) 2 NCLR 117.

I make haste however, to observe that the facts and circumstances in the case of 7up Bottling Co. Ltd. v. Abiola and Sons (supra) and the instant case are not the same. In this case, the action was commenced on 28/7/95 whereas in the case of 7up Bottling Co. Ltd. v. Abiola and Sons (supra) the action was already pending before the said Decree came into effect. The principles established in that case are not relevant in this matter as they are non sequitur.

Flowing from my reasoning there can be no doubt that on the facts of this case that as the law stood before the promulgation of Decree No. 107 of 1993, the appellant could have at once brought his action in the court below (i.e. as a State High Court) to enforce his rights. But on the jurisdiction of the court below (i.e. as a State High Court) being ousted by the aforesaid Decree as from 17/11//93, the court below (as a State High Court) could no longer assume jurisdiction in an action like the instant one taken out on 28/7/95 even though the cause of action accrued to the appellant since 9/12/90. This conclusion is reached based on the construction of the said provision.

There is nothing to prevent the appellant reconstituting his claim all over again before the proper venue of the Federal High Court, if he so wishes.

In the result, the proceedings and the judgment of the court below having been embarked upon without jurisdiction, I declare them null and void and they are hereby set aside. Accordingly, the suit is hereby struck out with N2,000.00 costs against the respondent.

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Other Citations: (2000)LCN/0869(CA)