Orthopaedic Hospitals Management Board Vs Mallam Umaru Garba (2002)

LAWGLOBAL HUB Lead Judgment Report

UTHMAN MOHAMMED, JSC

The plaintiffs, who are the respondents in this appeal, are employees of the National Orthopaedic Hospital, Dala, Kano. They were suspended from duty following an allegation of theft of some properties belonging to the National Orthopaedic Hospital, Kano. The respondents were arrested and taken to a Chief Magistrate’s Court in Kano. They were tried and discharged. Since then they were suspended from duty and placed on half salary. When their appeal for re-instatement on full salary was not granted they went to court and filed the following claim against Orthopaedic Hospitals Management Board: “(a) A declaration that the plaintiffs are still employees of the Defendant. (b) An order compelling the Defendant to re-instate the Plaintiffs to their posts. (1) N28,000.00 as arrears of salary and allowance due to the 1st plaintiff from the day of suspension till November 1992 and and thereafter his full salaries and allowances until he lawfully cease to be the Defendant’s employee. (2) N36,000.00 as arrears of salary and allowance due to the 2nd plaintiff from the date of suspension till November, 1992 and thereafter his full salaries and allowances until he lawfully cease to be employee of the defendant. (3) N40,000.00 as arrears of salaries and allowance due to the 3rd plaintiff from the date of suspension till November, 1992 and thereafter his full salaries and allowances until he lawfully ceases to be the Defendant employees. (4) N26,000.00 as arrears of salaries and allowances due to the 4th plaintiff from the date of suspension to November, 1992 and thereafter his full salaries and allowances until he lawfully ceases to be employee of the Defendant” The defendant/appellant filed a counter-claim against the respondents and averred that by the totality of the conduct of the respondents, since 1986, they had rendered themselves liable to be dismissed from service. At the end of the trial the learned trial judge granted the declarations which the respondents prayed for and ordered for their re-instatement. In addition the court ordered some amount of money to be paid to the respondents as special damages. The learned trial judge dismissed the counter-claim. Dissatisfied with the decision, the Orthopaedic Hospitals Management Board filed an appeal to the Court of Appeal. Learned counsel for the appellant, before the Court of Appeal, identified the following issues for the determination of the appeal. “(a) Did the learned trial judge properly evaluate the evidence before him before coming to the conclusion that the delay between the occurrence of the incident in 1986 and the commencement of disciplinary processes in 1992 was unjustified and therefore amounted to non-compliance with the provisions of section 14 of the Orthopaedic Hospitals Management Board Act? (b) Having regard to the entire circumstances of the case, was the learned trial judge correct in his conclusion that the plaintiffs were not given fair hearing by the defendant before seeking to dismiss the plaintiff. (c) Was there any or any sufficient evidence before the court to warrant the monetary awards made by the learned trial judge in favour of the plaintiffs? (d) Was the court’s jurisdiction not ousted with respect to the 3rd plaintiff who had died before judgment was delivered in the case?” The Court of Appeal fixed the appeal for hearing on 22nd May, 1997. On that day the court suo motu raised the issue of jurisdiction of the High Court to hear the action instituted by the plaintiffs/respondents, having regard to the provisions of Section 230(1),(q),(r) and (s) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 which provides as follows: “Notwithstanding anything to the contrary contained in this Constitution and in addition to PAGE| 2 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; (f) subject to the provision of this Constitution the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and (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 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.” The Court of Appeal also relied on the provisions of Section 7(6) (a) and (b) of the Federal High Court (Amendment) Decree No. 60 of 1991 in reaching its decision that the Kano State High Court had ceased to have jurisdiction to determine the suit filed by the respondents before it. Section 7(6) (a) and (b) of Decree No. 60 of 1991 reads as follows: “(6) Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria or of any Federal or State law shall, as from the date of making of the decision be null and void if it – (a) has declared the decision invalid or the Court incompetent to exercise exclusive jurisdiction in respect of any of the matters specified under subsection (1) or (2) of section 7 of this Act before it was substituted by this section; or (b) has conferred or purported to confer on any other court, apart from the court, concurrent jurisdiction in respect of the matters specified under section 7 of this Act before it was substituted by this section: Provided that any decision taken by any court other than the Court as a result of the power of the concurrent jurisdiction so conferred shall be valid, but all other cases pending in the said other courts, other than Appeal Court, shall, at the commencement of this section, abate and the Judge before whom it is pending shall transfer them to the Registrar of the Court to be heard as new suits.” The Court of Appeal pointed out that by the provisions of Section 7(6) (a) and (b) of the Federal High Court (Amendment) Decree No.60 of 1991, reproduced above, all pending cases before the State High Court in matters in which exclusive jurisdiction was vested in the Federal High Court shall be transferred to the Registrar of the Federal High Court to be heard as a new suit. The Court of Appeal allowed the appeal and declared the judgment of the Kano High Court a nullity. It transferred the claim filed by the respondents to the Registrar of the Federai High Court, Kano, for re-hearing as a new suit. The Orthopaedic Hospitals Management Board filed an appeal against the decision of the Court of Appeal. The appellant’s Counsel, Mr. Adetola-Kaseem identified two issues for the determination of the appeal. The issues are as follows: “Issue No.1 (Based on Ground 1) Whether the Court of Appeal was correct to have raised the constitutional issue of the jurisdiction of the lower court suo motu and proceeded to take argument on the point immediately without affording the parties an opportunity to prepare for an argument on the point, especially as it involved a constitutional issue, when the Appellant’s Counsel having not had prior notice of the development was not present in court, and the Appellant’s representative in court was only a layman. Issue No. 2 (Based on Grounds 2 and 3) Whether the Kano State High Court truly lacked the jurisdiction to have tried the case and given judgment thereon, having regard to the provisions of Decree 107 of 1993 and Decree No. 60 of 1991 vis-a-vis the subject matter of the Suit; and having regard also to the fact that the action was commenced in November 1992 before promulgation and the commencement of Decree No.107 of 1993.” The respondents have not filed any brief. In fact, even at the Court of Appeal they did not file any brief. From the records it was clear that they were not represented by a counsel there. Be that as it may, when we were about to hear this appeal we became satisfied that the respondents had been served and were aware of the hearing date of this appeal. We permitted the appellant’s counsel to make his oral submissions in support of the appeal. PAGE| 3 Learned counsel for the appellant submitted that the issue of jurisdiction which was raised suo motu by the court was hinged on the supposed breach of the provisions of 1979 Constitution as amended by Decree No. 60 of 1991 and Decree No. 107 of 1993. That being the case the issue was a complex constitutional issue and could only be unravelled by reasoned legal argument. Counsel argued further and said that the Court of Appeal ought to have adjourned the matter to afford counsel the opportunity to prepare for an argument. He submitted that the Court of Appeal ought not to have directed the question to a layman who was not equiped to argue the point. In support of this submission counsel referred to the cases of Ntukidem & Ors. v. Oko & Ors. (1986)17 NSCC 1303; Olusanya v. Olusanya (1983) 3 SC 41 at 56-57 and Akinbobola v. Plisson Fisko (1991) 1 NWLR (Part 167) 270 at 286. The submission of learned counsel for the appellant is legally correct. The issue raised by the Court of Appeal is a constitutional issue, and that being so, the learned justices should have adjourned the hearing of the appeal and seen to it that a constitutional panel of five justices of the Court of Appeal were set up to hear the legal argument. The Court below was in error to fail to give counsel reasonable time to prepare for an address on the constitutional issue which it raised suo motu. In the second issue the appellant queried the Court of Appeal’s decision questioning the jurisdiction of the Kano State High Court judgment in this suit having regard to the provisions of Decree 107 of 1993 and Decree 60 of 1991. The decision of the Court of Appeal showing that the jurisdiction of the Kano High Court to determine the suit filed by the respondents had been ousted is in the following finding: “that as from the 17th day of November 1993 the Kano State High Court caused (sic) [ceased] to have jurisdiction to entertain such a matter as such jurisdiction has been exclusively reserved for the Federal High Court. It follows therefore that any steps that the lower Court took from that day up to the 26th of April 1995 when it delivered its judgment was done without jurisdiction. This is more so as the Decree No. 107 of 1993 did not make provision for pending cases. However with the Federal High Court amendment Decree No 60 of 1991 which came in to effect on the 26th day of August, 1993, the jurisdiction of the Federal High Court was extended and certain matters were reserved exclusively for its jurisdiction.” Learned counsel for the appellant made far reaching submissions on this subject. He deserves commendation because the decision of the Court of Appeal was in his client’s favour, but in view of the lega1 implications raised in the Court of Appeal’s decision he decided to obtain Supreme Court’s opinion on the legal issue involved. Mr. Adetola-Kaseem submitted that the principle of law has been well established that the rights and obligations of parties are considered in the light of the law at the time the cause of action arose. He referred to University of Ilorin Teaching Hospital v. Akilo (2000) 22 WRN 117 at 123 and Uwaifo v. Attorney-General (Bendel) (1982) NSCC 221. Counsel thereafter submitted that it had been held by this court that the fact that the statute conferring jurisdiction had been amended did not mean that it could by necessary implication have the effect of putting a stop to proceedings which had already been validly commenced, and that to hold otherwise would be tantamount to saying that the amending statute secured the undoing of something that has already been done. Learned counsel supported this submission with reference to the case of Are v. Attorney-General of Western Region (1960) NSCC 76 at 77. Learned counsel pointed out that Decree No. 60 of 1991 came into effect on 26th August 1993 which was after the cause of action in these proceedings had arisen and the trial of the suit had commenced at the Kano State High Court. In any event, counsel further submitted, Decree No. 107 of 1993 had revised the jurisdiction of the Federal High Court and had impliedly repealed the provisions of Decree No. 60 of 1991 which contained the following provisions: “Provided that any decision taken by any court other than the Court (Federal High Court) as a result of the power of the concurrent jurisdiction so far conferred shall be valid, but all other cases pending in the said other courts, other than Appeal Court, shall, at the commencement of this section, abate and the judge before whom it is pending shall transfer them to the Registrar of the court to be heard as new suits.” I agree with the submission of the learned counsel that Decree No. 107 of 1993 which further amended the jurisdiction of the Federal High Court did not contain any abatement provision. That being so I am of the opinion that the argument of the learned counsel that the abatement provision is impliedly repealed is based on sound reasoning. Decree No. 107 of 1993 was the Constitution (Suspension and Modification) Decree, 1993. It was enacted with the sole purpose of restoring and suspending of some and modification of other provisions of the 1979 Constitution. Section 230 of Decree 107 of 1993 provided for detailed jurisdiction of the Federal High Court. There is no provision for cases which are pending in the State High Courts to have abated and I agree that it could be implied that the provision of abatement in Decree 60 of 1991 had been repealed. The strongest supporting case for the appellant in this appeal is the decision of this court in Are v. Attorney General Western Region (Supra). In that case the appellant claimed from the Government of Western Region by way of petition of right at the High Court, a large sum of money as compensation for land acquired by the Government 20 years previously. Subsequent to the filing of the claim and the endorsement of the Governor’s fiat, an amendment to the relevant law stated as follows.- “Subject to the provisions of section 20, no claim to any estate, interest or right in or to any lands in respect of which a notice has been served and published in the Gazette in accordance with section 9, or any compensation or rent in respect of any such estate, interest or right, PAGE| 4 made after the expiration of twelve months from the publication of the notice, shall be entertained by any public officer whose duty it is to receive such claims or by any court”. The learned trial judge who was handling the claim of the appellant held that the new subsection in the law had affected the petition of the appellant retrospectively. As more than 12 months had expired between the publication of the Gazette notices provided for by section 10 of the Public Land Acquisition (Amendment) Law, 1958 of the Western Region and the filing of the petition, it could not be entertained. This court, per Abbott F.J, held that the effect of the wording of the amending law is clearly “in futuro” which could not by necessary implication have the effect of putting a stop to proceedings which had already been validly commenced. It was held that it is a cardinal principle of law that, unless it affects purely procedural matters, a statute cannot apply retrospectively unless it is made to do so by clear and express terms. The decision in Are v. Attorney-General of Western Region (supra) is strengthened by the provisions of section 6 of Interpretation Act on the effect of repeals of enactments. Section 6(1) reads: “6. (1) The repeal of an enactment shall not- (a) revive anything not in force or existing at the time when the repeal takes effect; (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment; (c) affect any right, privilege, obligation or liability accrued or incurred under the enactment; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment; (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed. As is clear from the provisions of Section 6(1) [c] of the Interpretation Act any right, privilege or obligation accrued to an individual shall not be affected by the repeal of an enactment. It is clear from the wordings of the Interpretation Act that legal proceedings may be continued as if the enactment has not been repealed. Another relevant decision which will help the appellant and support counsel’s submission is the case of University of Ibadan v. Adamolekun (1967) NSCC 210. In that case the Council of Ibadan University had filed an appeal to the Supreme Court against the decision of the Western Region High Court. While the appeal was pending, the Court of Appeal for the Western Region was set up and made to start functioning with effect from April 1,1967. In June 1967 the University Council applied to the Supreme Court for accelerated hearing of the appeal and a consequential order directing the Registrar of the High Court to despatch the records of appeal to the Supreme Court. Counsel for the respondent objected to the Supreme Court entertaining the application on the ground that the appeal could not be heard by it but must be heard in the first instance by the new Western Region of Nigeria Court of Appeal. It was held in that case that parties in proceedings which were in existence before the Court of Appeal was set up, have a right to come from the High Court to the Supreme Court directly on appeal without going to the Court of Appeal. See also the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369. I should add that a right in existence at the time a new law is passed transferring jurisdiction of a court to another court will not be lost. In the case in hand the Kano State High Court was about to deliver its judgment when the new law was passed ordering that all cases dealing with the administration or management and control of the Federal Government or any of its agencies shall be within the exclusive jurisdiction of the Federal High Court. In other words, the State High Court had no jurisdiction to determine such actions. Since there was no provision in Decree No. 107 of 1993 that pending cases in the State High Courts shall abate with effect from the date the new Decree took effect, the decision of the Kano State High Court in the appellant’s case is valid and not void. Before the law was passed it was a right which the parties acquired and it cannot be taken away. In conclusion, this appeal succeeds and it is allowed The judgment of the Court of Appeal is set aside. The appeal from the judgment of the Kano State High Court in respect of this case is sent back to the Kaduna Division of the Court of Appeal for re-hearing before a differently constituted panel of the Court of Appeal. I make no order as to costs.

SC. 149/1997