3PLR – JOHN EGBELE V. THE POSTMASTER GENERAL

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JOHN EGBELE

V.

THE POSTMASTER GENERAL

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 10TH DAY OF NOVEMBER, 2010

CA/L/585/05

3PLR/2010/37(CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, JCA

HUSSEIN MUKHTAR, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

 

BETWEEN

JOHN EGBELE – Appellant(s)

 

AND

THE POSTMASTER GENERAL – Respondent(s)

 

REPRESENTATION

John Egbele appears in person – For Appellant

 

AND

Respondent – absent (duly served) – For Respondent

 

ORIGINATING COURT

Lagos State: High Court

 

CONNECTED AREAS OF PRACTICE

1. Labour and employment Law

 

MAIN ISSUES

1. PRACTICE AND PROCEDURE- JURISDICTION- nature of– jurisdiction of Federal High Court -duty of court when an issue of jurisdiction is raised- what determines jurisdiction
2. INTERPRETATION OF STATUTES – how to

 

MAIN JUDGMENT

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):

The appellant Mr. John Egbele had by a writ of summons dated and filed on the 25th April 2003 filed a suit in the High Court of Lagos State (hereinafter referred to as “the court below”) seeking for the following declaratory reliefs:-

 

“i.      A declaration that the purported retirement by the defendant of the plaintiff is wrongful because adequate opportunities were not given for fair hearing and a pending case cannot justify this retirement.

 

1. A declaration that the defendant reinstate the plaintiff unconditionally; in alternative the defendant should adequately compensate the plaintiff for breach of employment contract which is pensionable and loss of careers prospects for pre-mature retirement by payment or additional ten percent (10%) of the final pensionable emolument and interest for necessary delay of silence to protestation.

 

iii.      A declaration that the defendant should pay the January and February 2001 salary that was not paid up till now because the plaintiff was still working or in service till the retirement letter was served or received on 20th February 2001 and for effective official handing over that extend beyond this period.”

 

The respondent reacted by filing a notice of preliminary objection dated and filed on the 18th August 2003. The court below ordered the parties to file and exchange written addresses on 18th October 2004, pursuant to which both parties filed their written addresses and adopted same on the 15th December 2004. Ruling was delivered on the 18th January 2005 in which the preliminary objection was upheld and the appellant’s suit struck out as being statute barred pursuant to section 59 of the Nigerian Postal Service Act Cap. N127 L.F.N. 2004 (hereinafter referred to as “the Act”) and also for want of jurisdiction.

 

The appellant being aggrieved by that decision appealed against it, by a notice of appeal dated 1st February 2005, on three grounds as reproduced hereunder less the particulars thereof:-

 

“1)     The learned trial judge erred and/misdirected himself in law when he held that the State High Court lack jurisdiction to entertain the suit.

 

2)      The learned trial judge erred in law and/misdirected himself in law when he considered that the suit was statute barred by the provision of Section 59 of the Nigerian Postal Service Act No. 41 of 1992.

 

3)      The learned trial judge paid no regards to the other two issues that arose for determination in this suit as to whether the writ of summons was properly served and a cause of action has been disclosed. Hence undue weight was given to the defendant.”

 

The record of appeal was duly compiled and transmitted and served on the appellant on the 28th December 2005 which was later amended by leave of the court granted on 17th January 2008 as per the amended appellant’s brief filed on 24th December 2007 but deemed properly filed and served on the 17th January 2008.

The appellant who, had on the 15th Novemebr 2006, sought for and obtained leave to argue the appeal on his brief alone due to the respondent’s failure to file brief, adopted and argued his amended brief on the 28th September 2010.
Two issues were raised, by the appellant, for determination as follows:-

 

“i)      Whether section 59 of the Nigerian Postal Service Act Cap N.127 L.F.N 2004 is applicable to employer/employee relationship, if so, is the suit statuted barred in the circumstance?

 

1. ii) Whether State high Court lacks jurisdiction to entertain a suit in view of the provision of Chapter iv (Fundamental Human Rights) section 36 of the Constitution of the Federal Republic of Nigeria 1999 i.e. right to fair hearing, which involves Nigerian Postal Services, a body corporate with perpetual succession and a common seal that may be sue and be sued in its corporate name which has a status of a public company with government and private representative i.e. government enterprises according to Bureau for Public Enterprises classification and if so what would have been the proper order the High Court would have made?”

 

To put it more precisely the issues for determination in this appeal are as follows:-

 

1)      Whether the provision of section 59 of the Act is applicable to employer/employee relationship so as to render the suit filed by the appellant statute barred.

 

2. Whether the court below lacks jurisdiction to hear and determine the suit.

 

These two issues are related to ground 1 and 2 of the appeal inversely.

 

I will start with the second issue, which is premised on jurisdiction and distilled from the first ground of appeal. The court below must first determine its jurisdiction to hear the suit before delving into any other issue in the matter. It has been held in a plethora of cases by the Supreme Court and this court alike that an issue of jurisdiction once raised must first be resolved. In the absence of jurisdiction the court is incompetent to go into the matter talkless of making any pronouncement other than that as to its lack of incompetence and striking out the matter. When a court lacks jurisdiction in a matter, its only option is to struck out the entire suit.

 

The appellant contended that the court below being High Court of a State is competent to determine the suit because it concerns the application of chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as “the Constitution”).

 

An issue of jurisdiction is ascertainable from the facts of the case and the applicable law. The appellant herein challenged his retirement from service by the respondent as being wrongful and reinstatement back to the service. He also claimed damages and for payment of his salary for January and February 2001. The appellant’s case boils down to challenging the respondent’s administration or managerial action. The status of the respondent as an agent or agency of the Federal Government has not been disputed. The relevant provision of section 251(1) (p) (q) and (r) of the Constitution relied upon by the learned trial judge states thus:-

 

“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, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

 

1. p) the administration or the management and control of the Federal Government or any of its agencies:

 

1. q) 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;

 

1. r) any action or proceeding for a declaration or in junction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

 

What determines jurisdiction is simply the enabling law on jurisdiction and the reliefs sought for in the suit. If the relief is within the court’s jurisdiction and the enabling law confers on the court jurisdiction on the matter the court must assume jurisdiction, otherwise it lacks jurisdiction in the matter. Jurisdiction is a fundamental and critical core issue once it is raised, and must be determined first. The reliefs sought for by the appellant in his writ of summons have clearly shown the nature of the action and same is reproduced for the avoidance of without doubt as follows:

 

“i.      A declaration that the purported retirement by the defendant of the plaintiff is wrongful because adequate opportunities were not given for fair hearing and a pending case cannot justify this retirement.

 

1. A declaration that the defendant reinstate the plaintiff unconditionally; in alternative the defendant should adequately compensate the plaintiff for breach of employment contract which is pensionable and loss of careers prospects for pre-mature retirement by payment or additional ten percent (10%) of the final pensionable emolument and interest for necessary delay of silence to protestation.

 

iii.      A declaration that the defendant should pay the January and February 2001 salary that was not paid up till now because the plaintiff was still working or in service till the retirement letter was served or received on 20th February 2001 and for effective official handing over that extend beyond this period.”

 

By the provisions of section 251(1)(p) and (r) of the Constitution, the appellant’s suit was clearly within the exclusive jurisdiction of the Federal High Court as rightly held by the learned trial judge. The Federal High Court has exclusive jurisdiction in all civil causes and matters in respect of the administration or the management and control of the Federal Government or any of its agencies. The appellant sought for declaratory reliefs affecting the validity of his retirement from the service of NIPOST. The fact that the respondent is agent or agency of the Federal Government was never contested or denied. The State High Court certainly lacks jurisdiction to hear the matter. It is exclusively within the jurisdiction of the Federal High Court by virtue of section 251(1)(p) and (r) of the Constitution. See NEPA v. Edegbero (2002) 18 NWLR (PT.798) 79 at 95.
The appellant’s contention that the High Court of Lagos State has jurisdiction to hear and determine the case because it is hinged on lack of fair hearing under section 36 of the Constitution is misconceived. The real issue in dispute as clearly spelt out on the face of the writ of summons is a declaration against an administrative decision or management of a Federal Government agency to wit NIPOST headed by the respondent.

 

The law is trite that once an issue of jurisdiction has been raised, the court is duty bound to settle it first, because if it lacks jurisdiction the matter ends there and the court will be left with but only one option and that is to struck out the suit for want of jurisdiction. In Attorney General of the Federation v. Abubakar (2008) 16 NWLR (Pt.1112) 135 at 158 paragraphs D – E the Supreme Court per Tobi. JSC observed thus:-

 

“Jurisdiction is the pillar of every adjudication. Consequently, courts of law must first determine the issue of jurisdiction when it raised. This is because if the court holds that it has no jurisdiction, that is the end of the matter, and the suit will be struck out; though the law allows the plaintiff to return to the court after repairing the jurisdictional blunder.”

 

The learned jurist further observed the source and parameter of jurisdiction of courts at page 155 paragraph E as follows:-

 

“The jurisdiction of courts in Nigeria is contained in the Constitution and statutes. Courts of law are therefore bound by the provisions of the Constitution and Statutes vesting Jurisdiction in them. They have no jurisdiction to go outside the jurisdiction vested in them.”

 

Since appellant did not file a statement of claim, it is his writ of summons, with which he initiated the action, that will be examined to determine the court’s jurisdiction. The appellant’s claim for declaratory reliefs in respect of administration or management of an agency of the Federal Government, of course, falls squarely within the exclusive jurisdiction of the Federal High Court pursuant to section 251(1)(p) and (r) of the 1999 Constitution. These provisions are very precise and devoid of ambiguity. When a statute is clear it should be interpreted in its ordinary and natural sense. The Supreme Court in the case of Owners of the MV “Arabella” v. N.A.I.C. (2008) ii NWLR (Pt.1097) 182 at 210 at 210 – 211 paras G – B held thus:

 

“Where the words used in a statute are clear, the court gives the words their ordinary meaning without resort to any internal or external aid.”

 

The Supreme Court in yet another case of Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 119 at 155 paragraphs D-F per Mahmud Mohammed, JSC aptly observed thus-

 

“In order to determine whether a court has jurisdiction to entertain a claim, it is the claim that has to be examined. In this case, looking at the appellant’s originating summons, the declaratory and injunctive reliefs sought therein are squarely within the jurisdiction of the Federal High Court as prescribed under section 251(1) (q) and (r) of the 1999 Constitution.”

 

As earlier observed, an issue of jurisdiction is fundamental and the singular pillar upon which the entire litigation hinges. The entire proceedings, in the absence of jurisdiction, would be reduced to a complete nullity, no matter how well conducted. For the reasons aforementioned, I am of the humble view that the court below rightly held that the suit as constituted by the appellant’s writ of summons is within the exclusive jurisdiction of the Federation High Court and that it lacked jurisdiction to hear and determine same. However, in the circumstance the court below ought to have struck out the suit simplicita. This issue is resolved against the appellant and the related ground two of the appeal therefore fails. In the absence of jurisdiction every other issue abates. The other issue is consequently reduced to an absolute insignificance.

 

The Supreme Court in the case of Shell Petroleum Dev. Co. v. Isaiah (2007) 11 NWLR (Pt.723) 168 at 180 in the concurring judgment of Belgore JSC (as he then was) observed thus:-

 

“Jurisdiction is very important in every suit in court. Trial by a court without jurisdiction is a wasteful exercise as the trial will be a nullity. Decree 107 of 1993 clearly ousts jurisdiction of State High Courts from trying any matter pertaining to mining and minerals including oil fields, oil mining, geological surveys and natural gas.

Once jurisdiction of State High Court is ousted, as is the case in this matter, the State High Court assuming jurisdiction does so as an exercise either in moot or as an academic exercise but certainly in futility.”

 

The resolution of the second issue against the appellant has finally determined the appeal as one completely lacking in merit. I have no hesitation in dismissing the appeal with the following consequential orders:

 

The court below having rightly held that it lacked jurisdiction in the matter, ought to have simply struck out the matter as it lacked the competence to decide any other issue. The further pronouncement by the court below that the suit was statute barred was null and void and same is hereby struck out. In its stead the suit filed by the appellant in the court below shall be and is hereby struck out for want of jurisdiction. The decision of the court below is, to that extent, hereby partly affirmed.

 

There shall be no order as to costs.

 

CLARA BATA OGUNBIYI, J.C.A:

 

The question of jurisdiction is so fundamental that the effect cannot be overemphasized and hence its absence cannot be overlooked but renders every proceedings a nullity. Plethora of authorities are very clear on the pronouncements as it has become a household song. A number of such cases have been related to in the lead judgment of my brother Hussein Mukhtar, JCA. The lower court was therefore on the firm ground in taking the stand that it was devoid of any jurisdiction and in respect of which it ought to have struck out the matter before it and not taking any further steps which move was of no legal effect as arrived at in the judgment of my brother Hussein Mukhtar JCA which the orders made hereon are also endorsed by me.

MOHAMMED A. DANJUMA, J.C.A.:

 

I have read before now the lead Judgment just rendered by My Lord Hussein Mukhtar, JCA) in this Appeal, and I agree with the reasoning and conclusion arrived at by His Lordship that the Appeal be dismissed, as the trial High court of Lagos State rightly held that it had no jurisdiction.

 

I shall, however, add a little of my thought briefly and without the repetitive voyage of restating in full the facts and submissions which the lead discussant had succinctly captured despite the intricacy in what appeared as a cobweb of rolled up thoughts in the brief of the Appellant as filed. Briefly put, the Appellant as plaintiff at the High court of Lagos state had on the 25th April 2003 filed a suit for declaratory reliefs, compensation and re-instatement of the plaintiff into office following what the plaintiff called a pre-mature retirement from office contrary to the terms of his contract of employment and without given him the right of fair hearing.

 

The Respondent filed and argued a Notice of Preliminary Objection which was upheld on the ground that the suit was not only statute barred but that the High court lacked jurisdiction to adjudicate on same. The Court did not however consider the other grounds of the objection and responses made thereto for the reason that it was unnecessary, so to do.

 

Aggrieved by this decision, the Appellant appealed upon the 3 Grounds of Appeal reproduced herein under thus:

 

“1. ERROR IN LAW AND/MISCONCEPTION OF THE LAW:

The learned trial Judge erred and misdirected itself in law when it held that the state High Court lack jurisdiction to entertain the suit.

 

2. ERROR IN LAW AND MISCONCEPTION IN LAW:

The learned trial Judge erred in law and misdirected itself in law when she considered that the suit was statute barred by the provision of Section 59 of the Nigeria postal Service Act, No. 41 of 1992.

 

3. ERROR IN LAW AND/MISDIRECTION IN LAW:

The learned trial Judge pay (sic) no regards to the other two issues she consider (sic) arises (sic) for determination in this suit of whether the Writ of Summons was properly served and a cause of action has been disclosed hence undue weight was given to the Defendant.”

 

The 3rd Ground of Appeal, it would appear, have been abandoned as it may not conveniently fit into the issue of jurisdiction raised, let alone relate to the “limitation of action” argument raised and canvassed by the Appellant. It ought be struck out, therefore. I shall however comment on same nonetheless, as and when appropriate, in the course of this Judgment as I shall also do in respect of issue number 1 which is tied to ground No. 2.

 

The 2 relevant issues succinctly rephrased in the lead Judgment as thus:

 

1. Whether the provision of Section 59 of the Nigeria postal Services Act is applicable to employer/employee relationship so as to render the suit filed by the Appellant statute barred.

 

2. Whether the Court below lacks jurisdiction to hear and determine the suit, were framed by the Appellant.

 

section 251 (1)(p)(q) and (v) of the constitution of the Federal Republic of Nigeria 1999, provides as follows:-

 

“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, the Federal High court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

 

1. p) the administration or the management and control of the Federal Government or any of its agencies.

 

1. q) 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.

 

1. r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or any of its agencies.”

 

It is, with respect, my view that beyond the provisions of section 251 (P) and (R) of the 1999 constitution, the Appellants claim also fell under the provisions of Section 251 (Q) of the 1999 constitution as the Plaintiff/Appellant had sought to have interpreted and enforced the provision of section 36 – (1) of the 1999 constitution which appertains the right of fair hearing which he claimed was denied him by he Nipost, a Federal Agency, that was his employer. The jurisdiction of the state High court was therefore further ousted under the said section 251(1) (Q) of the 1999 constitution which concerns the interpretation on the provisions of section 36 of the 1999 Constitution as relating the Nipost’s action.

 

There is also this complaint by the Appellant that the trial High court did not consider the issues of the propriety or otherwise of the service of the writ of summons nor the issue of disclosure or non disclosure of a cause of action, in its judgment.

 

In respect of the above contention or complaint I would say that, the law is that where a party raises a ground of Appeal or matters that do not complain of the live issues or which do not appropriately fit into the decision of the court, they merely wonder or roam and gallivant in the appeal and serve no useful purpose.
The trial court, having found and held rightly that it lacked jurisdiction to adjudicate the claims as made being claims under section 251 (1) of Q, P, and R of the 1999 constitution and against a Federal Government Agency, every other claim or complaint grievance, or challenge as to the action or inaction of the said authority or the court that was in the first place not seized of jurisdiction over the matter, becomes a non issue. The issues were no longer life issues. The court without jurisdiction would therefore be right in not considering them. That the trial High court of Lagos state gave itself a soft landing in merely viewing it as “unnecessary to determine those issues,, does not detract from the fact that it had in law no jurisdiction to even consider those issues. Those issues were not merely superfluous, but the court had no firm legal terra or ground to proceed to adjudicate let alone pronounce on those issues.

 

The Apex Court, in ADISA VS. OYIWOLA & ORS. TILA C 18, per E. O. Ayoola (JSC) had this to say –

 

“This Appeal and Judgments are in two parts. The first deals with the question of the Jurisdiction of the High Court and, second with the question of the merit of the case. Evidently, the second question arises only if the High Court was properly seized of the suit in the first place. Since the jurisdictional issue is a threthold issue, it is expedient that it be disposed of first.”
See also: ALSTHOM VS. SARAKI 2005 123 LRC 72

 

Having first considered, the question of jurisdiction, the Learned trial Judge had no jurisdiction to make any further pronouncement on the fact that the action was statute barred. See also OLUTOLA VS. UNILORIN 205 123 LRCN 217. Wherein Ejiwunmi, JSC delivering the lead judgment quoted with approval at page 241 – 242 the observation of LORD WRIGHT IN WESTMINSTER BANK LTD VS. EDWARDS (1941) AC 529 AT 539 (1941) 1 ALL ER. 470 AT 474 thus:
“Now it is clear that a court is not entitled but bound to put an end to its proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even thought the parties have consented to the irregularity because, as Willes J. said in cited of LONDON CORPORATION VS. COX (1986) LR 2.H.L. 239, 283, in the course of giving answers of the Judges to the House, “Mere acquiescence does not give jurisdiction.”

 

In FERGUHARSON VS. MORAN (1894) 1 Q. B. 552, 556, Lord Halsbury states the principle thus:

 

“It has long been settled that, where an objection to the jurisdiction of a court appears on the face of the proceedings, it is immaterial by what means and by whom the court is informed of such objection. The court must protect the prerogative of the crown and the due course of the administration of justice by prohibiting the inferior court from proceeding in matters as to which it has no jurisdiction.”

 

…That was a case of prohibition, but I think the general principle applies to the duty of the court to take objection when it becomes apparent in the course of the proceedings before it on appeal…”

 

It is therefore evident on the authority of the Supreme Court, case of OLUTOLA VS. UNILORIN supra, that the learned trial High court Judge was therefore not merely entitled but indeed was bound to strike out the case before her when it was apparent on the claims that it was a matter that fell within the exclusive jurisdiction of the Federal High court, thus rendering her bereft of any jurisdiction. The objection relating to jurisdiction, as raised rightly only re-enforced the position which the trial High Court was bound to take.
The ground of Appeal challenging the lack/or refusal to proceed further to consider other complaints raised had no basis and argument as formulated in issue No. 2 relating to that complaint on ground of Appeal is a non issue. Ground 3 of the Appeal fails and is therefore dismissed also. It is in the same reasoning that I hold that the challenge raised in ground No.2 of the Appeal – bordering as it were on the limitation of action, has no merit as the High Court of a State including that of Lagos State has no jurisdiction to proceed to pronounce on the incompetence of the suit for being statute barred after it had found from the face of the originating process i.e. claims and… … The enabling statute… That it lacked jurisdiction to adjudicate the matter. The pronouncement, relating to the limitation of the action as made, was therefore academic, and puerile. It did not detract from the want of jurisdiction and courts of law are not academic institutions. See EKOTIE EBOH VS. MANAGER (2005) 123 LRCN 256 AT 288 PART K. per Edozie JSC. Such pronouncement was not only superfluous but had no legal authority. On the whole, I agree that the appeal be dismissed and the Judgment appealed against be affirmed on the ground that the trial High Court of Lagos State was right in holding that it had no jurisdiction to entertain the suit and to grant the reliefs sought by the Appellant.

 

In summary, I do say that –

 

1. The Appellant’s case was therefore, rightly struck out for want of Jurisdiction on the part of the trial High Court.

 

2. The non consideration of all other issues raised by the parties and emphasized upon in reply by the Appellant was proper in law and did not amount to giving the Defendant undue advantage, as after all there is no room for sentiment in the administration of the law.

 

3. The decision is affirmed and;

 

4. Appeal is dismissed.