B.A. Shitta-bey Vs Attorney General Of The Federation & Anor (1998)
LAWGLOBAL HUB Lead Judgment Report
S.U.ONU, JSC.
The appeal herein which concerns the ouster of jurisdiction of courts under a Decree of the Federal Military Government of Nigeria is against the judgment of the Court of Appeal holden in Lagos and delivered on the I0th day of May, 1991 (Coram: Babalakin, JCA., as he then was and concurred in by Awogu and Kalgo, JJCA.)
The genesis of the appeal is that the appellant as plaintiff had sued the respondents then defendants, in the High Court of Lagos State presided over by Segun, J. The claim therein was succinctly for a declaration that the decision of the respondents to retire him (appellant) from the Federal Civil Service of Nigeria (with the letter issuing forth from 2nd respondent) Ref. No. FC. 0017/Vol. VIII/969 of 14th January, 1986 (Exhibit B) which was preceded by an earlier one from the President and Commander-in-Chief of the Armed Forces – Exhibit A to 2nd respondent) notice of which was given in the statement of defence, was irregular, illegal, null and void.
By a notice of preliminary objection, the respondents contended that the trial court lacked jurisdiction to hear the appellant’s claim. The High Court in a considered ruling dismissed their objection as lacking in merit. Whereof, the respondents being aggrieved, appealed to the Court of Appeal (hereinafter referred to as the court below) which in a well considered judgment, allowed the appeal. It is against the latter judgment that the appellant has now appealed to this court on nine grounds contained in a notice of appeal dated 29th July, 1991.
Briefly stated, the facts of the case as proffered by the appellant, are that he was first appointed to the post of a Crown Counsel in 1961; that he had earned series of promotions in his civil service career as State Counsel Grade 1 in 1964; Senior State Counsel in 1966; Principal State Counsel in 1970; Legal Adviser in 1972 and Director on Salary Grade Level 16 by 1977. Thereafter, said he, he was promoted to the rank of Acting Director of Public Prosecutions of the Federation in November, 1985 – a post he held until by Exhibit B, he was abruptly retired from service. The appellant pleaded in his statement of claim to the effect that he wrote two letters to the 2nd respondent, both to which he received no response despite the failure in all his attempts at personal calls at its office. He finally averred in the penultimate paragraphs 19 to 21 of statement of claim thus:
“19. The plaintiff will also contend at the trial that the purported premature retirement from service was conceived and executed in very bad faith so as to frustrate the plaintiff’s acting appointment as the Director of Public Prosecutions of the Federation from being substantively confirmed by the Federal Civil Service Commission, the second defendant.
- The plaintiff will contend that the purported premature retirement from the Federal Civil Service was misconceived by the perpetrators of the action which is illegal, unjustifiable, unfair and totally indefensible.
- Whereof the plaintiff claims as per his writ of summons.”
After the respondents had categorically denied in their entirety paragraphs 1,3,6,9,12,13,14,15,16,17,18,19,20 and 21 of statement of claim, they averred in paragraphs 8-10 of the statement of defence as follows:
“8. The defendants will further contend that the retirement of the plaintiff by the appropriate authority as stated in paragraph 7 above was in turn conveyed to the plaintiff by a letter dated 14th January, 1986 from the Federal Civil Service Commission. The defendants will rely on this letter and all other relevant documents at the trial of the action.
- In answer to the claim or declarations sought by the plaintiff, the defendants will raise by way of preliminary objection on point of law on or before the trial, the following issues:-
(i) The court has no jurisdiction to entertain this suit by virtue of the provisions of Section 3 of the Public Officers (Special Provisions) Decree 1984 No. 17.
(ii) The defendant in addition to the above will further contend that by virtue of the provisions of Section 5 of the Constitution (Suspension and Modification) Decree 1984 No.1 as amended, this action is void and it shall be so declared.
(iii) By virtue of the provision of Decree No. 13 Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984, no decision of any court will avail the plaintiff.
- Whereof the defendants contend that the plaintiff’s action is frivolous, vexatious, speculative and an abuse of the court’s process and should be dismissed with substantial cost.”
Acting pursuant to the rules of this court, the parties filed and exchanged briefs of argument. While the appellant in his brief argued (contrary to the rules governing brief-writing) the grounds, the respondents in their brief submitted two issues as arising for the determination of this court. The argument by the appellant of the grounds of appeal is wrong. Since the art of brief-writing has been in practice in this court for upwards of two decades, issues and not grounds should be argued.
It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this court, must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal, See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 A-B; Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137 at 148E; Momodu v. Momoh (1991)1 NWLR (Pt. 169) 608 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. The above proposition is complemented by another which states that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal Chinweze v. Masi (1989) 1S.C.(Pt.II)33,1 NWLR (Pt. 97) 254 and Opebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313. (Parenthesis are supplied by me).
Hence, as this court had occasion to poignantly point out in Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 421 “in framing issues for determination the proper procedure is to argue issues and show how they relate to the grounds ….” See also Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. Irrespective of what the rules of court enjoin, on 18th May, 1998 when this appeal came up for hearing before us, the appellant relied on his brief by indicating that he would argue these nine grounds of appeal as contained in his brief of argument. The learned Senior State Counsel for her part and on behalf of the respondents, adopted her brief in which, rightly in my view, she identified two issues as arising for determination, to wit:
“1. Whether the Court of Appeal was right in holding that the jurisdiction of the trial court to entertain this matter was properly ousted by the provisions of Section 3(3) of Decree No. 17 of 1984.
- Whether the Court of Appeal was properly constituted while determining this matter.”
I take the view that the nine grounds framed by the appellant to attack the decision of the court below, were they to have been contracted into issues, would clearly and undoubtedly have overlapped and/or been concomitant with the respondents’ two issues set out above, with issue 1 covering grounds 1 to 8 and issue 2, ground 9 respectively.
All told, I deem these two issue as more precise and indeed enough to dispose of the matters in controversy in this appeal. I accordingly adopt the two respondents’ issues in my consideration of this appeal, the gravamen of whose complaint is pivoted on the purported retirement of the appellant from his civil service post for just or no just cause and which can, in my opinion, be decided on that single issue of whether such removal is illegal, unjustifiable, unfair and totally indefensible. Such issue in my firm view, is that epitomised in the respondents’ issue No. 1 and not that in all or any of the eight grounds (1-8) of appeal which are unduly repetitive and prolix. Equally, my opinion is that appellant’s ground 9 covers the respondents’ issue 2 which is adequate to dispose of the matter in controversy raised therein. This is why my consideration of this appeal, I do not hesitate for a moment in adopting the respondents’ issues 1 and 2 to aid me in my consideration of the appeal.
Before going into the merits of this appeal, however, I deem it pertinent, firstly, to consider albeit briefly, the issue of jurisdiction. As decided by this court in Obikoya v. Registrar of Companies & Anor (1975) 4 SC 31 at 34/35.
“….. the existence or absence of jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial Judge’s decision or order in respect of the relevant subject-matter.”
See also Ezomo v. Oyakhire (1985) 2 SC .260;(1985) 1 NWLR (Pt.2) 195 and Nwafia v. Ububa (1966) NMLR 219 at 221.
The question of jurisdiction can be raised at any time or stage in the proceedings or on appeal as a substantive point of law (See Bronik Motors Ltd. & Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296;(1985) 6 NCLR 1; (1983) 6 SC. 158 at 273 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, being mindful of the fact that any defect in jurisdiction is fatal to the whole proceedings and the judgment obtained thereby is a nullity. See Gabriel Madukolu v. Johnson Nkemdilim (1962) 1 All NLR (Pt. 4) 587; (1962) 2 SCNLR 341. Thus, stressing the importance of jurisdiction, Bello, CJN said in Utih & Ors v. Onoyivwe & others (1991) 1 NWLR (Pt. 166) 166:-
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
SC. 47/1992