National Elecricity Power Authority V. Mr. B. Edegbero & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
All the respondents were employees of the appellant at the New Bussa Power Station. They were members of the N.E.P.A Workers Welfare Representative Committee, Kainji Power Station, (said to be an unregistered association) which is an affiliation of all power and transmitting stations of N.E.P.A. As a result of lack of confidence there was intra-union crisis between the Workers Welfare Representative Committee (W.W.R.C.) and the two existing unions in N.E.P.A – the National Union of Electricity and Gas Workers (N.D.E.G.W.) and the Senior Staff Association (S.S.A). Series of letters were written to the Managing Director/Chief Executive of N.E.P.A., Assistant Manager (Industrial Relations) N.E.P.A. Headquarters and the Ministers of Mines, Power and Steel, Labour and Productivity to intervene in the crisis. There was no response. Another letter was written to the Managing Director, N.E.P.A. informing him that (W.W.R.C.) cannot guarantee industrial harmony within the organisation if no action was taken in response to their demands.
After that, the (W.W.R.C.) threatened to go on strike. The strike action was pre-empted by the Management staff who took over the Control Room, workers were on the 4th of August, 1994 asked to go home when the Security Agencies and the Management took over the Power Station. On 5th day of August, 1994, the respondents were arrested and interrogated by the Police and later at S.I.I.B., Minna. On the day they returned from Minna they were served with letters terminating their appointment with the appellant.
The respondents then as plaintiffs initiated an action at the New Bussa, High Court whereby by paragraph 16 of their Statement of Claim, they were praying for the following reliefs:
- A declaration that the purported termination of the plaintiffs appointment with the defendant is irregular, unlawful, null and void and of no effect whatsoever.
- An Order reinstating the plaintiffs appointment with the defendant and the payment of the plaintiffs salaries, allowances and entitlements from the purported day of termination till reinstatement.
- A perpetual injunction restraining the defendant from harassing, intimidating and violating the plaintiffs right.
Pleadings were filed and exchanged by the parties and the case went for trial. Two witnesses testified for the respondents while the appellant/defendant rested their case on the respondents case. Counsel for the plaintiffs/respondents addressed the court but before counsel for the appellant could address the court he received a copy of a letter from the Head of State in which approval was given to N.E.P.A. to disengage the workers under Decree No. 17 of 1984. By virtue of the said letter counsel then filed an application to amend the defendants Statement of Defence which application was granted by the court.
He further filed a preliminary objection challenging the jurisdiction of the court in the matter. The preliminary objection was moved and overruled by the court. On 10th day of October, 1995, the appellant then filed an interlocutory appeal before this court but was withdrawn and struck out on 30th day of October, 1996.
The case was therefore reopened at the Suleja High Court before the same Judge who had been transferred from New Bussa to Suleja.
On 9th day of January, 1997 appellants counsel applied to address the court and call witnesses to give further evidence, but the trial Judge in his ruling allowed counsel to address the court but refused the application of calling additional evidence.
In his address counsel raised the issue of jurisdiction based on Decree 107 of 1993.
On 11th day of March, 1997 the court delivered its judgment whereby it dismissed the objection on jurisdiction and granted all the reliefs sought by the respondents.
The appellant being dissatisfied with the said judgment filed two notices of appeal on 19th day of March, 1997 and on 11th day of April, 1997.
This appeal is however argued based on the notice of appeal filed on the 11th day of April, 1997. The first appeal of 13th day of March, 1997 is therefore deemed abandoned and is hereby struck out.
In the notice of appeal of 11th day of April, 1997, the appellant has filed 9 grounds of appeal, shorn of their particulars the grounds read:
GROUND 1
The trial court erred in law in holding that the court has jurisdiction to entertain this suit in defiance of the clear provisions of Decree No. 107 of 1993.
GROUND 2
The trial court erred in law by refusing the application of the appellant to call witnesses to lead evidence and therefore denied them fair hearing.
GROUND 3
The trial court erred in law by holding that Exhibit ‘6’ is a bye-law pursuant to the combined effect of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law Cap. 61 laws of Niger State.
GROUND 4
The trial court erred in law by holding that Exhibit ‘6’ is a bye-law pursuant to the Provisions of Section 2,3, Schedule 3(a) of N.E.P.A. Act.
GROUND 5
The learned trial Judge erred in law in holding that Exhibit ‘6’ is a bye-law by virtue of Section 16 of the Interpretation Law Cap 61 of Niger State.
GROUND 6
The trial court erred in law by ordering the appellant to reinstate the respondents to their stations quo ante.
GROUND 7
The trial court erred in law in holding that termination of respondents appointment is null and void and of no effect on the ground that the procedure for termination of appointment in Exhibit ‘6’ was not followed.
GROUND 8
The trial Judge erred in law and on the facts by asserting that the defendant/appellant did not challenge the evidence of the plaintiffs/respondents since giving contrary evidence through other witnesses is not the only acceptable means of challenging the evidence of a party or witness and by law the evidence of a party or witness can be challenged under cross-examination which counsel for the defence strenuously did in this case.
GROUND 9
The trial court erred in law in granting the respondents all the reliefs claimed in their Statement of Claim, that is, the declaratory relief and orders. And cost awarded is excessive, punitive and unwarranted.
In accordance with the rules of this court, parties filed and exchanged briefs of arguments.
In his brief, learned counsel for the appellant formulated these issues for our consideration:
(a) Whether Hon. Justice A. A. Bima was right in holding that he has jurisdiction to entertain/try the plaintiff’s case despite the provisions of Decree 107 of 1993 which amended Section 230 of the 1979 Constitution.
(b) Whether Exhibit’ 6′ is a Bye-Law by virtue of Section 24 Schedule 3(a) of N.E.P.A. Act or by virtue of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law Cap 61 Laws of Niger State respectively.
(c) Whether the trial court was right in ordering the reinstatement of the respondents to their employment with appellant (status quo ante) on the ground that respondents employment has statutory flavour and whether there is justification for the costs awarded in favour of respondents.
(d) Whether the termination of the respondents appointment is null and void and of no effect.
(e) Whether the trial court was right in holding that the appellant did not challenge the evidence of the respondents only witness merely because appellant rested their case on respondents case. The respondents on the other hand formulated three issues for determination in their brief of argument. These issues are:
- Whether the learned trial Judge, was right in assuming jurisdiction to entertain the plaintiffs/respondents case despite the provisions of Decree 107 of 1993 which amended Section 230 of the 1979 Constitution.
- Whether the Plaintiffs/respondents employment enjoy statutory flavour or not.
- Whether the learned trial Judge was right in ordering the reinstatement of the respondents.
As the three issues formulated by the respondents are similar to issues 1 and 3 of the issues formulated by the appellants, I shall proceed to determine this appeal on the issues raised by the appellant. Ground two of the grounds of appeal for which no issue had been raised on it and is abandoned by the appellant is hereby struck out:- Abubakar Umaru Abba Tukur v. The Government of Taraba State & Ors (1997) 6 SCNJ 81; (1997) 6NWLR (pt.510) 549.
ISSUE 1
It is the contention of the appellant that by virtue of the provisions of Decree 107 of 1993 which amends Section 230(1) of the 1979 Constitution the jurisdiction of the State High Courts was ousted and conferred exclusively on the Federal High Court and in all matters in which the Federal Government or any of its agencies are taken to court for any question arising from any exercise of Executive or Administrative action. That this case being a case against N.E.P.A. an agency of the Federal Government should not have been entertained by the trial court.
The respondents on the other hand sought to show that N.E.P.A. is not an agency of the Federal Government.
This is an issue of jurisdiction which to my mind should be put to rest before we can proceed to determine this appeal.
The issue of whether or not N.E.P.A. was an agency of the Federal Government was not raised at the trial stage. The trial court had made a specific finding at page 95 of the records that N.E.P.A. is an agency of the Federal Government. There is no counter-appeal on that finding by the respondents, neither is it one of the grounds of appeal. The respondent can therefore not raise it at this stage. Where any issue is raised and is not based on any ground of appeal an appellate court may find it incompetent and liable to strike it out:-
Dieli and Iwuno (1996) 4 SCNJ 57; (1996) 4 NWLR (Pt.445) 622 SC Agbaka & Ors. v. Amadi & Anor. (1998) 7 SCNJ 367; (1998) 11 NWLR (Pt.572) 16.
Olumolu v. Islamic Trust of Nigeria (1996) 2 SCNJ 29; (1996) 2 NWLR(Pt. 430) 253.
In the circumstances the first issue raised by the respondents is incompetent and is hereby struck out. The provisions of Decree 107 of 1993 which amend Section 230(1) of the 1979 Constitution provide as follows:
“Section 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 paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”.
This court had in a numbers of cases had occasions to look closely into the above provisions and particularly the provisions and particularly the proviso in (s).
In Nigerian Deposit Insurance Corporation (Liquidator of United Commercial Bank Limited in Liquidation) v. Federal Mortgage Bank of Nigeria Limited (1997) 2 NWLR (Pt. 490) 735 at 756. The question that arose before the Court of Appeal then was whether a State High Court has jurisdiction to entertain the exclusive jurisdiction of the Federal High Court. And the court held:
- That the State High Court has jurisdiction indicated in the proviso.
- That the fact that the Federal High Court has exclusive jurisdiction in Section 230(1)(d) shall not apply to matters falling within the circumstances of the proviso and does not entirely remove jurisdiction therein from the State High Court.
- That the Federal High Court shall not have exclusive jurisdiction in the circumstances indicated in the proviso.
- That both the Federal and the State High Courts have and can exercise concurrent jurisdiction in such circumstances.
See also Ona v. Atanda (2000) 5 NWLR (Part 656) 244. Musa & Ors. v. Hashim (unreported Appeal No. CA/A/39/99).
The Supreme Court had also in the case of Egbuonu v. Borno Radio (1997) 12 SCNJ 99 (1997) 12 NWLR (pt.531) 29 put its stamp of approval on the finding of the Court of Appeal where the above provisions were looked into that the High Court has jurisdiction to entertain an action challenging the suspension or termination of the appointment of an employee by his employer.
In the circumstances the trial court was right to have found that it had jurisdiction to determine the matter.
ISSUE 2
It is submitted for the appellant on that issue that the trial court placed a very strong interpretation on the provisions of Section 18 of the Interpretation Act Cap 192 Laws of the Federation regarding the definition of the word ‘regulation’ in Exhibit ‘6’ the Condition of Service of the defendant/appellant. ‘Regulation’ has been defined in Section 18 of the Interpretation Act Cap 192 Laws of the Federation as:
“an enactment passed or made before the passing of this Act and included Rules and Bye-Laws”.
Similarly, the appellant is a creation of statute as it was created by the N.E.P.A. Act Cap 256 Laws of the Federation of Nigeria, 1990. Section 1(1) of the said provision establishes N.E.P.A. Section 2 thereof provides that the affairs of N.E.P.A. shall be conducted by a Board of Directors of the Authority.
Section 4 empowers the Board subject to the provisions of the Act to appoint such officers and servants of the Authority as it may determine. Schedule 111 paragraph 9 of the Act allows the Board with the approval of Council of Ministers to make Bye-Laws which will along with other things regulate matters in relation to the appointment, promotion and discipline of the Officers and Servants of the Authority.
It follows therefore that Exhibits ‘6’ being the appellant’s Condition of Service, is the Bye-Law contemplated by both the N.E.P.A. Act and the schedule to the said Act.
The trial court has this to say in Exhibit ‘6’:
“Exhibit ‘6’ having defined itself as regulations in my view is not a mere document but a Bye-Law. There is in my view a presumption that it was made pursuant to the law conferring the power to make or issue it … It can thus be inferred from the combined effect of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law of Niger State that the word ‘regulation’ used in Exhibit ‘6’ was made pursuant to the law conferring the powers to make it, namely the N.E.P.A. Act”.
I see nothing wrong with the above finding, the trial Judge was applying the provisions of the Interpretation Act Laws of the Federation which is applicable in this instance and the Interpretation Law of Niger State an applicable law within his jurisdiction in reaching a decision.
In any case, the trial Judge is at liberty to apply any law in the determination of any issue that is before him for the just determination of the matter at hand. Issue two must therefore be determined against the appellant.
I will first determine issue five before coming back to the third and fourth issues.
ISSUE 5
It was submitted for the appellant on this issue that the fact that the defendant relied on the case presented by the plaintiff did not mean that the plaintiff’s case was not challenged by the defendant having regard to the answers elicited from the plaintiffs only witness under cross-examination which clearly helped the defendant’s case and made the calling of witness by the defendant virtually unnecessary. That the evidence of the plaintiffs only witness was thoroughly discredited under cross-examination by the defendant’s counsel as to make the plaintiffs case quite unreliable and unbelievable.
The trial court found as follows:
“In the case of F.C.D.A. v. Naibi (1992) Abuja Law Report 82 (1990) 3 NWLR (Pt. 138) 270 the Supreme Court stated that pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff. The court went further to state that if a defendant does not give evidence in support of his pleadings the averment therein are taken as having been abandoned for they stand no more than mere averment which have not been supported. In fact, where a defendant fails to adduce evidence in support of his Statement of Defence, the court will safely assume that he has abandoned his claims. See also ACB Ltd v. Ewaremi (1978) All NLR 114 at 121-122, Obo v. Commissioner of Education, Bendel (1993) 2 NWLR (Pt. 273) 46, Baba v. N.C.A.T.C (1991)7 SCNJ 1; (1991) 5 NWLR (Pt.192) 388. I shall in the light of these authorities deem as abandoned the Defendant’s pleading”.
The trial Judge has correctly stated the position of the Law.
In the instant case, the defendant who had filed pleadings did not call evidence in support of that pleading, even though he had cross-examined the witness for the plaintiff, that testimony at the end of the day was not discredited nor does it support the plaintiffs’ case. The evidence of the plaintiff therefore remains unchallenged and uncontroverted. The defendant not having called evidence in support of his pleadings is deemed to have abandoned same and therefore has nothing on his side of the scale of justice:- Obo v. Commissioner of Education, Bendel State (1993) 2 NWLR (Pt. 273) 46.
The fifth issue must also be answered in the affirmative and I so hold.
ISSUES 3 and 4
These issues centred on whether the termination of the respondents has statutory flavour or not and whether the termination was null and void the Judge was right to have ordered the reinstatement of the respondents.
It is the submission of the appellant that the trial Judge fell into grave error by ordering the appellant to reinstate the respondents as employees of the appellant and that that order was made on the wrong premise that the respondents employment enjoys statutory flavour.
It is the submission of the respondents that their employment is statutory as it is made pursuant to the regulations and provisions of the N.E.P.A. Act and it similarly follows that their termination must be by strict compliance with the statutory provisions.
What in effect is an employment with statutory flavour.
The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as:
“Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”.
The Supreme Court had similarly held that:
“In an employment with statutory flavour the parties are bound to object the Conditions contained in the statute and anything done which is inconsistent with that shall be null and void and of no effect”.
Union Bank v. Ogboh (1995) 2 SCNJ; (1995) 2 NWLR (Pt. 380) 647.
The trial Judge had in his judgment at pages 101-106 gone into these issues and critically examined them and I agree entirely with his findings. I agree that the evidence of the respondents based on the facts and the evidence of the case fall within the definition of employment with statutory flavour. I also agree that as there are clear provisions and regulations governing the employment of the respondents with the defendant the only way to terminate that appointment is by strict compliance with the said statutory rules and regulations. Where any termination of the employee is made without following the said rules and regulations such termination will be rendered null and void of no effect.
The trial court had so held and I see no reason to disturb a well considered decision. The termination of the appointment of the respondents is null and void and they are entitled to be reinstated.
The decision of the lower court is hereby affirmed and the appeal dismissed with costs of N16,000.00 (Sixteen thousand Naira) to the respondents.
Other Citations: (2000)LCN/0885(CA)