National Electric Power Authority V. B. Atukpor (2000)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
This is an appeal against the ruling of the High Court of Oyo State sitting in Ibadan delivered on 28th November, 1996 on a preliminary objection that the Court lacked jurisdiction to hear the case, raised by the defendant, who is now the appellant. The claims in the High Court, as per the writ of summons and the statement of claim are as follows:
(i) Declaration that the purported dismissal of the plaintiff from the services of the 1st defendant by a letter dated 18th March, 1992 is unconstitutional, contrary to the rules of natural justice and/or procedures laid down in the conditions of the appellant’s appointment, irregular, illegal, null, void and of no effect.
(ii) Mandatory order directed to the 1st defendant to reinstate the plaintiff to the position where his contemporaries are in the employment of the 1st defendant.
(iii) An order directing the 1st defendant to pay the Plaintiff’s arrears of salary and other emoluments from 18th March, 1992 until the plaintiff is fully reinstated to the employment of the first defendant.
(iv) N1.5 million Naira as general damages suffered by the plaintiff as a result of the dismissal.
As was pleaded in the statement of claim, the plaintiff was employed as an Assistant Time Keeper by the 1st defendant on 1st June, 1977, and became an Investigation Officer. His duties included:- the checking of meters, illegal connections and taking evidence against other staff. In the course of these duties, he disconnected the light of one Mr. Ayodimeji. On the payment of the necessary fees, the High Investigation Officer directed that the metre should be replaced, but he couldn’t find it, so he was ordered to pay a sum of N285.00 to the defendant by the District Commercial Manager, which he did. A query was issued to the plaintiff which he answered and he was summoned to appear before an Ad hoc committee, and dismissed by a letter dated 18th March, 1992 in breach of the rule of natural justice, since he had been punished for the same offence.
In its pleadings, the 1st defendant denied most of the plaintiff’s allegations and the fact that the commercial manager gave the plaintiff any directive to pay the alleged sum of N285.00, or that the amount was in excess of the actual consumption. The answer to the query issued to the plaintiff was unsatisfactory, so it set up a disciplinary committee to which the plaintiff testified and agreed that, he misappropriated the alleged metre. At the close of pleadings, the defendants filed a notice of preliminary objection as follows:
“…that the ground upon which this application is made is that, having regard to the provisions of section 230(1) (q) and (s) of the Constitution (Suspension and Modification) Decree No.107 of 1993 and the recent Court of Appeal judgment in University of Abuja v. Professor Kingsley Owoniyi Ologe (1994)4 NWLR (Pt.445) at page 706, this Honourable Court has no jurisdiction to entertain the suit herein as the same involves questions relating to the validity of an Executive/Administrative decision taken by a Federal Government Agency”.
Both counsels made their submissions on the objection, and the learned trial Judge after a thorough consideration of the submissions overruled the objection. Dissatisfied with the ruling, the defendant appealed to this Court on two grounds of appeal which read:
“The learned trial Court erred in law when it held that the Oyo State High Court has jurisdiction to adjudicate on this case”
Particulars of Error
- The learned trial Judge acknowledged in his decision that appellant’s counsel relied on the following binding authorities namely:
(a) University of Abuja v. Kingsley Owoniyi Ologe (1996) 4 NWLR (Pt. 445) 906.
(b) Section 230(1)(q) and (s) of 1979 Constitution as amended by Decree 107 of 1993 and failed to properly consider the acknowledged authorities and wrongly appraised or construed the said statutory and judicial authorities and failed to apply, the same to this case in his ruling.
- Error of law
The learned trial Judge held that he had jurisdiction to entertain this suit.
In compliance with order 6 rules (2) and (4) of the Court of Appeal Rules 1981 as amended, learned counsel for the two sides exchanged briefs of argument. In each brief of argument, only one issue for determination was formulated, but I will adopt the one in the appellant’s brief of argument. The issue is, whether the lower court is right to hold that its jurisdiction to hear and determine this case is not affected by the provisions of section 230(1)(q) and (s) of Decree No. 107 of 1993?. Alternatively, whether the provisions of section 230(1)(q) and (s) of Decree 107 of 1993 effectively deprived the state High Court of Oyo state its jurisdiction to hear and determine the respondent’s case? In arguing this issue, learned counsel for the appellant referred to S.230 (1)(q) of the 1979 Constitution of the Federation as amended by Decree 107 of 1993 which he said is relevant to its determination. The said S.230 (1) supra reads:
S.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;
(s) 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:
“provided that, nothing in the provisions of paragraphs (q) (r) and (s) of the sub-section 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”.
It is the submission of learned counsel for the appellant that the question of the jurisdiction of a court is fundamental to any process, that any defect in the competence of the Court of adjudication renders the proceedings before it and the outcome of the adjudication a nullity. He cited the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587. He further submitted that, in a case like this the judicial duty of the Court was to look at the endorsement on the writ of summons and statement of claim filed by the respondent to find materials in determining whether it has jurisdiction or not. See RTEA v. NURTW (1986) 8 NWLR (pt.469) page 743, he relied upon. There is no doubt whatsoever that these submissions are in order, and they are not disputed, but I think, the crux of the matter in this appeal is the relevance and applicability of the provision of the amendment of the above provision of the Constitution, as amended by Decree No. 107 of 1993 to the case on hand. Learned counsel for the appellant has submitted that, a proper reading of S.230(1)(q) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 shows unmistakably clearly that, it is the Federal High Court that has exclusive jurisdiction to the exclusion of any other court to entertain the matters specified therein. I agree that, the provision vests jurisdiction of this case in dispute on the Federal High Court, but that is if the cause of action started from the commencement of the provision, or the action was commenced after the commencement of the said Decree No. 107. As can be seen from the writ of summons, it was taken on 1/4/93, and the cause of action emanated from a letter of dismissal of the respondent from the services of the Appellant dated 8/3/92. Decree 107, Constitution (Suspension and Modification) Decree 1993 has its commencement date as 17th November, 1993, seven months after the action resulting in this appeal was filed in the High Court, and as learned counsel for the respondent has rightly posited in his brief of argument, it has not been contended by the appellant that the Decree has retroactive provisions. I have perused the Decree in general, and I find nothing to suggest such retroactive effect. Right before the preamble of the Decree is clearly written (17th November, 1993) commencement. In a situation like this, where the cause of action arose before the date of the commencement of the Decree, and the action was instituted before the commencement of the Decree, the application of the provision of the Decree to the case on hand is doubtful, and completely out of the question. In the absence of any retroactive or retrospective provision in this Decree, it is the law in operation when the cause of action arose that governs the case and that is applicable. See Adigun v. Ayinde & Ors (1993) 3 NWLR (Pt.313) page 516. As said above, this action was instituted on 1/4/93 well before the promulgation of Decree No. 107 supra. The law governing the case was therefore the law in force as at that time. The provision of the Decree becomes irrelevant because, after all the case was clearly pending in court when it was promulgated and came into effect. See the case of Joshua Alao v. Gbadamosi Akana (1988) 1 NWLR (Pt.71) page 431, where Agbaje, J.S.C., in his concurrent judgment in considering the governing law in that case opined thus:-
“But it is quite clear from the record of proceedings in this case that the cause of action in this case arose before the 1979 Constitution came into effect. And this Court has decided it in the case of Uwaifo v. Attorney-General, Bendel State (1982) 7 SC 124 that the right and obligations of the parties must be considered in the light of the provisions of the law as it was when the cause of action arose. The change in the law after the cause of action arose is of no relevance. So, the law applicable to the case in hand is as contained in the former Constitution that is, the Constitution of the Federal Republic of Nigeria 1963”.
The emphasis here is on the law that was in existence at the time the cause of action arose, which must be applied in determining jurisdiction and other relevant issues. A law that comes into effect thereafter becomes irrelevant and will not be reckoned with in the course of deciding a breach of rights and obligations of a party. Adekola, J., was right when in his ruling he said inter alia:-
“There is no doubt that by the provisions of section 230(1)(q) and (s) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, the Federal High Court has been granted the same jurisdiction as the States High Courts and in addition, has exclusive jurisdiction as the State High Courts and in addition has exclusive jurisdiction in respect of matters relating to Federal Government and its parastatals and its other agencies.
Can it be said however, that the provision of section 230 of Decree 107 of 1993 has retrospective or retroactive effect in respect of cases pending before the State High Courts, the Decree No.107 of 1993 was promulgated?
My answer to this point is in the negative”.
The learned trial Judge further proceeded to compare the provision of the above Decree with that of Decree No.13 of 1973 reproducing and referring in particular to S.8(1) of the aforementioned Decree No.13. S.8(1) states:-
8(1) In so far as jurisdiction is conferred upon the Federal Revenue Court in respect of the causes or matters mentioned in the foregoing provisions of this Part of the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, ceases to have jurisdiction in relation to such causes or matters.
Then S.8 (3) states:-
8(3) Nothing in the foregoing provisions shall affect the jurisdiction and all other powers of the High Court or any other court of a State to continue to hear and determine causes and matters which are pending before such court at the date of the assumption of the functions of the Federal Revenue Court or at the date when jurisdiction is otherwise conferred on the Federal Revenue Court by the Head of the Federal Military Government, and any proceedings in any such causes and matters, which are still pending at the expiration of the period of six months beginning with the date of assumption of the functions of the Federal Revenue Court or at the date when jurisdiction is otherwise conferred on the Federal Revenue Court, shall abate on the expiration of that period.
That the above Decree which established the Federal Revenue Court specifically mentioned a period of grace is as clear as crystal. The statute in its provisions on jurisdiction of any of the two Courts (i.e. High Court and Federal Revenue Court) is not in the least ambiguous or silent on the prescribed period of transition. See Inland Revenue v. Rescallah (1962) 1 All NLR, 1 relied upon by respondent’s counsel. If the period of grace was not meant to be, it would have been silent, and if actions instituted or pending in the High Court were not intended to be abated after this period, the word abatement would not have been used. In fact, the use or the word (abate) in Decree No. 13 supra draws a distinct picture of the fate that will befall such actions pending at the commencement of the decree. This is however, not so in the case of Decree No.107 supra. It is in this vein, that I fully endorse the following holding of the learned Judge:-
“In the absence of the use of the word ‘abatement’ in Decree No.107 of 1993 regarding the pending actions in the states High Court, it is my view that Decree No. 107 of 1993 has no retrospective effect. In the circumstances, case pending before State High Courts will not abate in the absence of specific word of abatement being used in the said Decree”.
It is trite, that laws are to be given their ordinary and plain meaning, within the con of its provisions, and not to import any other meaning extraneous or otherwise nor there in and not intended by the legislator. See Toriola v. Williams (1982) 7 SC 27; Ifezue v. Mbandugha (1984) 1 SC NLR 427 and Lawal v. G. B. Olivant (1972) 3 SC 124.
It is significantly clear from the provision of Decree No.107 Supra that nothing therein signifies retroactive effect or retrospective operation. See Kuti v. A.-C., of the Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) page 211, and Ojukolobo v. Alamu (1987) 3 NWLR (Pt.61) page 377 cited by learned counsel for the respondent. In the light of the foregoing reasoning, the above sole issue in this appeal is resolved in favour of the respondent and so the grounds of appeal fail and are dismissed. The end reason of this appeal is that, it lacks merit and must be dismissed. The ruling of the lower Court is affirmed and the appeal is therefore dismissed. It is hereby ordered that the suit No. 283/93 be heard to its logical conclusion by the Oyo State High Court. I award the sum of N3,000.00 in favour of the respondent against the appellant as costs.
Other Citations: (2000)LCN/0745(CA)