Mr. Vitalis E. Odunze V. National Assembly Service Commission & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant had taken out a writ of summons from the Registry of the F.C.T. High court (to be called High court hereafter) claiming declarative reliefs, payment of outstanding salaries, severance benefits and general damages against the Respondents for wrongful termination of contract of employment. The 1st and 2nd Respondents objected to the competence of the High court to entertain the suit on the ground that the 1st, 2nd and 4th Respondents are agencies of the Federal Government over which that Court had no jurisdiction. In reaction to the objection, the Appellant contended that though the 1st, 2nd and 4th Respondents are contract of employment and so the High court had the jurisdiction to entertain it. In a ruling delivered on 17/12/07, the High Court upheld the objection and held that the suit arose from the administrative and executive decision of the Respondents which was caught up by the provisions of Section 251(1) of the 1999 Constitution That it had no jurisdiction to entertain the suit and so struck it out.

Apparently, the Appellant was dissatisfied with the said decision and caused a Notice of Appeal to be filed on the 16/1/08 on two (2) grounds.

In the Appellant’s brief filed on the 18/4/08 in line with the practice of the Court, two (2) issues were formulated from the grounds as follows:-

“1. Whether the failure of the lower Court to make a finding of fact as to the status of the plaintiffs contract of employment before reaching the conclusion that the suit of the plaintiff is caught by Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria does not amount to miscarriage of justice.

2. Whether contracts of employment which do not have Statutory flavor cannot be categorized as ‘simple contracts’.”

The 1st and 2nd Respondents, brief of argument was filed on the 25/11/08 but deemed filed on 6/10/10.

In what is a practice unknown to the Rules of practice and procedure in brief writing, Counsel for the 1st and 2nd Respondent in addition to adopting and arguing the issues formulated in the Appellants’, brief, raised his own issue and argued his own issue which he did not indicate from which of the grounds of appeal it was derived. This is quite strange to the established practice because having adopted and argued the issues raised by the Appellant, the Respondents’ Counsel was no longer at liberty to formulate an issue outside the two grounds of appeal from which the said issues were distilled since he did not file a Cross appeal or file a Respondent’s notice. See:

AKINBOBOLA V. STATE (1991) 8 NWLR (208) 191, AKINLAGUN V. OSHOBOJA (2006) ALL FWLR (325) 53, JAWANDO v. BAKARE (2006) ALL FWLR (332) 1590.

If the learned Counsel for the 1st and 2nd Respondents did not think that the issues formulated in the Appellants’ brief represent the crucial or germane issue/s that require determination in the appeal, he had the option to formulate issue/s which in his view would determine the appeal from the grounds of appeal filed by the Appellant. But he cannot adopt and argue the issues formulated by the Appellant and still go ahead to raise and argue his own different and separate issue. Because there are only two grounds of appeal from which the two (2) issues were distilled in the Appellant’s brief, it would amount to prolife- ration of issues for the Counsel to raise and argue an additional issue. That is a practice that has always been deprecated by the Courts in cases that include: IBRAHIM V. OJOMO (2004) 1 SC (II) 136; NWAIGWE V. OKERE (2008) 9 MJSC, 86; UBA V. ABDULLAHI (2003) 3 NWLR (807) 359; IGWEGBE V. EZUMA (1999) 6 NWLR (606) 205.

Apart from proliferation of issues by formulating more issues in number than the grounds of appeal, splitting issues into bits and pieces is also not permitted and is unacceptable in law. See: OSAZUMA V. ISIBOR (2004) 3 NWLR (859) 16; UNOKAN EWI V. OMUVWIE (2005) ALL FWLR (262) 501 at 514; SALAMI V. LAWWAL (2008) ALL FWLR (438) 200 AT 229. For these reasons, the issue raised and argued as Issue 3 in the 1st and 2nd Respondent’s brief after adopting and arguing the Issues raised in the Appellant’s brief of argument, is an incompetent issue which is hereby struck out. In the result, the appeal would be considered on the basis of the arguments by learned counsel on the two (2) issues set out in the Appellant’s brief to which I now turn.

On the issue 1, it was submitted for the Appellant that it was wrong for the High Court not to have evaluated the Appellant’s statement of claim (s/claim) to find out the nature of the contract of employment before deciding that it was caught by Section 251(1(p) and (r) of the 1999 Constitution. That it was the claim that the High court was to look at and not the parties in order to find out whether or not it had jurisdiction over the suit, relying on ONUORAH v. KPRC MJSC, 137 at 154 where it was to have been held that the question whether a defendant is an agent or agency of Federal Government plays no role when a consideration of the jurisdiction of a court is being made because jurisdiction is donated by the claim and not parties before the Court. The cases of ADEYEMI v. OPEYORI (1976) 9-10 SC. 31;IZENKWE v. NNADOZIE (1952) 14 WACA. 36; TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) 517 at 549 and ADETAYO v. ADEMOLA (2010) 3-5 SC (II) 87 at 105 were in addition, cited on the point. It was further submitted that if the High court had considered the nature of the Appellant’s claim as contained in Annexture 1, and paragraph 4 of the statement of claim, it would have assumed jurisdiction since it had the duty to evaluate the nature of the claim before it and the authorities cited at the hearing of the objection. SAGAY v. SAJERE (2000) 6 NWLR (661) 360 at 364; ODUGBO v. ABU (2001) 14 NWLR (732) 45; ONUORAH v. KPRC (supra) and ADELEKAN v. ECU-LINE NV (2006) 31 WRN, 1 were cited on the duty of the High Court to evaluate the statement of claim in its decision and we were invited to evaluate the Appellant’s statement of claim and contract of employment and allow the appeal.

For the 1st and 2nd Respondent, it was submitted on the Issue 1 that the High court had carefully evaluated the Appellant’s statement of claim before holding that it had no jurisdiction to entertain the suit under Section 251(1) of the 1999 Constitution.

After setting out the reliefs contained in the Appellant’s statement of claim it was contended that the claim is for wrongful termination of employment and so is different from the breach of a commercial contract involved in the case of ONUORAH v. KPRC (supra) relied on by the Appellant. Further, that the Appellant’s case is on the administrative action of terminating the employment of a staff by an agent of the Federal Government which on the authority of AYENI v. UNILORIN (2000) 2 NWLR (644) 290 at 294 is caught up by the provision of Section 251(1)(p) and (r) of the 1999 Constitution. It was then argued that the case of SAGAY V. SAJERE (supra) does not apply as it borders on a final judgment of a Court which had jurisdiction to hear a matter unlike in the Appellant’s case which in the absence of jurisdiction, the High Court had no business going into evidence as it would have amounted to an exercise in futility. The cases of:

MADUKOLU v. NKEMDILIM (2000) 2 SCNLR, 341 and JERIC (NIG) LTD V. UBN PLC. (2000) 15 NWLR (691) 447 at 449 inter alia, were referred on jurisdiction and it was finally submitted that the Appellant had admitted the source of his employment in paragraphs 2-4 of the statement which shows that the termination of the employment is an administrative action of the 1st Respondent and no more. Once again, the case of AYENI v. UNILORIN (supra) was relied on and we were urged to resolve the issue in the Respondents’ favour.