➥ CASE SUMMARY OF:
Isaac Obiuwevbi v. Central Bank of Nigeria (SC. 266/2006, 10 March 2011)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Law amending jurisdiction while case pending.
➥ CASE FACT/HISTORY
The facts are rather straightforward. The appellant was a senior employee of the Respondent Bank. On the 11th day of August 1987 he was put on suspension, and on the 30th day of October 1987 his appointment was terminated. Aggrieved by the situation, he sued the respondent at the Lagos High Court. He sought a declaration that the decision to terminate his employment was unlawful, null, and void as it offends the Rule of Natural Justice. He also claimed his entitlements and general damages in the sum of N100,000 against the respondent bank. The Writ of Summons and statement of claim were filed in the Registry of the Lagos High Court on the 7th day of July 1988. The suit was before Fafiade J (as she then was). Pending before the learned trial judge was a Motion to dismiss the suit for want of jurisdiction. Reliance was placed on Section 3 (3) of Decree No 17 of 1984.
In a considered Ruling delivered on the 16th of December, 2003 the learned trial Judge said in the penultimate paragraph that: ‘By virtue of Section 251(i) (P) and (r) of the 1999 Constitution, only the Federal High Court has exclusive jurisdiction in Civil Cases and matters pertaining (among other things) to the Administrative action or decision of the Federal Government or any of its agencies.’ And with the above reasoning the learned trial judge ruled that the Lagos High Court lacks jurisdiction to hear the case and struck it out. The plaintiff (as appellant) appealed to the Court of Appeal. The concluding part of the well considered judgment reads: ‘….. In conclusion, I affirm the decision of the lower Court in its Ruling of 16th December, 2003 on the Respondents Motion on Notice. This appeal therefore fails. Each party to bear its costs’.
➥ ISSUE(S)
I. Whether the claimant’s action is caught by the provisions of Section 251 (i) (p) (r) of the 1999 Constitution notwithstanding its commencement in 1988 before the promulgation of the 1999 Constitution?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE CENTRAL BANK IS AN AGENT OF THE FEDERAL GOVERNMENT
‘In this appeal it is not in dispute that the respondent, the Central Bank of Nigeria is an agency of the Federal Government. Any lingering doubt of that fact is put to rest by the provisions of Section 39 of the Central Bank of Nigeria Act, Cap 47 Laws of the Federation of Nigeria 1990 which states that the Central Bank may act generally as an agent for the Federal Government or of a State Government. It is thus obvious that the respondent Bank was established as an Agency of the Federal Government. On subject matter of the litigation, the matter must arise from the administration, management and control of the Federal Government or any of its agencies, from the operation and interpretation of the Constitution and from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, or any of its agencies.’
THIS SUIT ARISES FROM THE ADMINISTRATION OF THE CBN
‘This suit has to do with the administration or management and control of the Federal Government. The respondent is a Federal agency and the appellant is/was its employee. The termination of the appellant’s appointment is on administrative action by an agency of the Federal Government, the respondent.’
LAW AT THE TIME OF INSTITUTING ACTION GOVERNS JURISDICTION
‘Decree 107 of 1993 denied the State High Court jurisdiction as from 17/11/93 and transferred jurisdiction on the matters in Section 251 of the Constitution to the Federal High Court. As from 17/11/93 the State High Court no longer had jurisdiction. See: Uwaifo v A-G Bendel State 1982 7SC p124: Adah v NYSC 2004 13 NWLR Pt 891 p 639. Jurisdiction of the Court to entertain an action is determined by examining the law conferring Jurisdiction at the time the suit is instituted and trial commences.’
IN THIS CASE, TRIAL OCCURED AFTER THE STATE HIGH COURT NO LONGER HAS JURISDICTION TO GEAR THE CASE
‘In this case the cause of action arose on the 30th of October 1987 when his (appellant’s) appointment was terminated. He sued the respondent on the 7th of July, 1988. The 1st judge to hear the case was Fafiade J. No witnesses were taken before her Lordship retried. The case then came before Olugbani J for the first time on 22nd of January 1991. Trial commenced before Olugbani J. with evidence of the appellant on the 15th of December, 1993. The appellant concluded his evidence on the 8th of October 1996. No witness was taken thereafter. Olugbani J. retired, and so the case came before Lufadeju J. It is clear that the facts in O.H.M.B. v Gabra Supra are different from the facts in this case. The important thing to note is the date, 17/11/93 when the State High Court no longer had jurisdiction to hear the case. In O.H.M.B. v Garba (supra), the cause of action and trial commenced before 17/11/93. In this case the cause of action arose before 17/11/93 but trial commenced before Olugbami J after 17/11/93, i.e. on 15/12/93. Furthermore the proceedings before Olugbami J are of no effect, since the case went before Lufadeju J to start “de novo”. De novo means anew. That is, to start all over again. Anyway one looks at it the facts in O.H.M.B. v Garba supra are different from the facts in this case, and so O.H.M.B. v Garba cannot be followed. If I may add this case was filed in the Lagos High Court on the 7th of July 1988. This year makes it twenty-three years (23 years) since it was filed in court. It was sent to the Court of Lufadeju J in 2002 to start de novo. Lufadeju J has since retired. That is to say for twenty three years not a single witness has been taken. This is a classic case where interlocutory appeals should be discouraged. Counsel ought to have proceeded with the trial before the State High Court and at the end of trial appeal on the substantive case (if the need arises) and include jurisdiction.’
‘For the State High Court to have jurisdiction under Decree 107 of 1993 the cause of action must arise before the 17th of November, 1993 and the trial must also be in progress before the said date. That is to say all part heard cases in the State High Court before 17/11/93 can continue after 1711/93 in the State High Court because Decree 107 of 1993 does not have retrospective operation, and in view of Section 6(i) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria, 1990. See: O.H.M.B. v Garba 2002 7SC(Pt 11) p138 For the Federal High Court to have jurisdiction the suit must be filed on or after 17/11/93. All cases filed in the State High Court filed before 17/11/93 but in which trial had not commenced as at 17/11/93 shall be heard by the Federal High Court. See: Olutola v Unilorin 2004 18NWLR Pt 905 p416 and Osakue v F.C.E. 20102-3 SC (Pt 111) p138.’
‘In this case, the appellant’s cause of action arose on the 30th of October 1987 when his appointment was terminated by the respondent. The appellant sued the respondent at the Lagos High Court in 1988. As at today, twenty three years thereafter trial has not comn1enced in the State High Court. Legislation applicable to the cause of action and that applicable to the jurisdiction of the Court in this case are so obviously different. When this case would eventually be heard the State High Court would have been divested of jurisdiction. For the purpose of clarity I must restate that this suit is against the Central Bank, a Federal Government Agency. The Central Bank terminated the appellant’s employment. That act is an administrative action by the Central Bank. The Appellant’s action is for declaration affecting the validity of an administrative decision of the Central Bank. It falls within the warm embrace of Section 251 (i) (r), provisions in pari materia with Section 230 of the 1979 Constitution as amended by the Constitution (suspension and modification) Decree No.107 of 1993.’]
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✓ DECISION:
‘Now, the appellant’s cause of action arose in 1987. If trial commenced before 17/11/93 the State High Court would have jurisdiction if even trial continued after 17/11/93. On the other hand since trial has not yet commenced, since trial is to start de novo, it is the Federal High court that has jurisdiction to hear the case. Furthermore since the case would commence after the 1999 Constitution came into force it is the Federal High Court that has jurisdiction to hear and determine the suit, in view of the provisions of Section 251 of the 1999 Constitution. Finally I must observe that both courts below found that the proper court vested with jurisdiction to hear and determine the appellant’s case is the Federal High Court. Both courts below are correct. Trial in the State High Court had not commenced before Decree 107 of 1993 came into force in 1993. In fact twenty three years thereafter (i.e. 2011) trial has still not commenced in any court.’
➥ FURTHER DICTA:
⦿ FOR FEDERAL HIGH COURT TO HAVE JURISDICTION
For the Federal High Court to have jurisdiction under Section 230 of the 1979 Constitution or Section 251 of the 1999 Constitution the following must coexist. (a) The parties, or a party must be the Federal Government or its agencies; (b) Subject matter of the Litigation. That is to say jurisdiction is the combination of parties and subject matter. The words used in this piece of legislation are plain as plain can be and have been interpreted by this court on several occasions. See: N.E.P.A. v Edegbero 2002 18NWLR pt 798 p79: OIoruntoba-Oju v AbduI-Raheem & 3 Ors. 2009 5-6 SC (Pt.11) p. 57. — B. Rhodes-Vivour JSC.
⦿ DETERMINING JURISDICTION
Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. See: Bronik Motors Ltd and another v Wema Bank Ltd. 1983 1 SCNLR p.296: Okoya v Santilli 1990 2NWLR Pt131 P172: Madukolu v Nkemdilim 1962 1 ANLR Pt4 p587 Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time. See: Usman Danfodio University v Krans Thompson Organisation Ltd 2001 15NWLR PT736 P305 It can be raised by any of the parties or by the court, and once raised the judge would do well to examine it and render a considered Ruling on it. In the task of determining if the court has jurisdiction to hear and determine a case the following principles must be considered diligently by the Judge. (a) Whether the subject matter of the case is within the court’s jurisdiction; (b) Whether there is any feature in the case which Prevents the court from exercising its jurisdiction, and (c) Whether the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction; see: Madukolu v Nkemdilim 1962 2 SCNLR p342: Ajao v Popoola 1986 5 NWLR Pi 45 P 802. — B. Rhodes-Vivour JSC.
⦿ COURT OF APPEAL (INTERMEDIATE COURT) MUST MAKE PRONOUNCEMENT ON JURISDICTION
Furthermore when there is an appeal on the substantive matter to the Court of Appeal and issue of jurisdiction is raised, the Court of Appeal should make a finding on jurisdiction and if it finds that it has no jurisdiction it should go ahead and say so and give a considered judgment on the substantive matter. This is so because as the penultimate court it must make its decision on the substantive appeal known to the Supreme Court, since its Ruling on jurisdiction may very well be wrong. See: Ebba v Egodo and Anor 1984 l.S.C.N.L.R. p372: Jamgbadi v Jamgbadi 1963 2SCNLR p 311. — B. Rhodes-Vivour JSC.
⦿ LAW IN FORCE AT THE TIME THE CAUSE OF ACTION AROSE
The Law in force, or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the Suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e.1990) if trial commences before 1993 the court to try the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court. — B. Rhodes-Vivour JSC.
⦿ LAW AT THE TIME OF HEARING AN ACTION GOVERNS JURISDICTION
In Olutola v Unilorin 2004 18 NWLR Pt 905 p416, the appellant, a Professor of Education at the University of Ilorin was removed from office in 1989. He sued the University. His action was filed on 13/1/93. Trial commenced on 31/3/94. This court ruled that the court that had jurisdiction to hear and determine the suit was the Federal High Court. This was so because Decree 107 of 1993 came into force on 17/11/93. It divested the state High Court of jurisdiction to hear the case. Since trial in the case commenced on 31/3/94 a date after 17/11/93, the correct court to hear the case was the Federal High Court. In Osakue v F.C.E. (Technical) Asaba & 2 Ors 2010 2-3 SC Pt 111 p158, the cause of action arose in 1990 when the appointment of the appellant was terminated. The appellant sought redress at the High Court in Asaba in 1992. The court commenced trial in the action in 1994. Decree 107 of 1993 became operative on 17/11/93. The law applicable to determine jurisdiction is Decree 107 of 1993. At the time the case was heard in 1994, the State High Court had been divested of jurisdiction. The correct court to hear the case once again was the Federal High Court. Olutola v Unilorin (supra) and Osakue v F.C.E (supra) are similar in that in both cases cause of action arose before 17/11/93. At the time cause of action arose it was the State High Court that had jurisdiction to hear and determine the case, but when the cases were eventually heard after 17/11/93 jurisdiction of the Court to entertain the action had changed. Jurisdiction to hear the action was conferred on the Federal High Court exclusively as at 17/11/93. Trial commenced in both suits in 1994. — B. Rhodes-Vivour JSC.
⦿ PENDING PROCEEDINGS ARE NOT AFFECTED WHEN JURISDICTION LAWS ARE MADE
The next case is OHMB. v Garba & 2 Ors 2002 7 SC Pt 11 p138. Learned Counsel for the appellant relied heavily on it, and asked that we follow it. In the case (supra) the respondents were employees of the appellant’s Board. They, with other employees were put on indefinite suspension in 1992. They brought action in the High Court against the appellant’s Board for declarations, and arrears of salaries. The cause of action arose before 17/11/93 and trial also commenced before that date. In fact the respondents closed their case on 17/1/93. As at 17/11/93 when the State High Court was divested of jurisdiction to hear the case, the matter was part heard. This court held that it was the High Court that had jurisdiction to hear and determine the case and not the Federal High Court. The reasoning of this Court runs as follows: Decree 107 of 1993 cannot affect pending proceedings to deprive the State High Court of jurisdiction to conclude such proceedings. Reliance was placed on Section 6(i) of the Interpretation Act, Cap. 192 Laws of the Federation of Nigeria 1990. — B. Rhodes-Vivour JSC.
⦿ RATIONALE BEHIND STARE DECISIS; FACTS MUST BE EXAMINED
The Supreme Court is the final Court of Appeal in Nigeria. Its decisions are binding on every court in this country. By the doctrine of Stare Decisis all courts are bound to follow the decisions of this Court. The reason is simple. Following previous decisions of this court ensures certainty and order in the judicial system. It ensures stability and removes surprises. Counsel is assured that justice would be done, and it reduces stress and makes the task of dispensing justice easier and less onerous. Before following precedent, facts must be examined. This is so because judgments can only be understood in the light of the facts on which they were decided. After all facts have no views … The position of Stare Decisis is not for counsel to follow the decision he likes but to follow the decision that is more recent. — B. Rhodes-Vivour JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Bode Rhodes-Vivour JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
