IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
ON FRIDAY THE 22ND DAY OF JANUARY, 2016
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO… JUDGE
SUIT No PLD/406/2011
BETWEEN:-
MR. BARNABAS ABOKO ACHAKA………………………….PLAINTIFF
AND
The motion, subject of this Ruling, was argued on 1st July, 2014 and adjourned to 28th July, 2014 for Ruling. Following my appointment to Chair Election Petition Panels in Ekiti, Lagos and Gombe States between July, 2014 and October,2015, coupled with the industrial action embarked upon by the staff of the Judiciary of Plateau State between January and June, 2015, the ruling, though prepared in 2014, could not be delivered until today.
By a Writ of Summons issued on the 16th day of November, 2011, the plaintiff challenged, among other things, his removal from Office as the Auditor-General of Plateau State by the Governor of Plateau State acting on the resolution of the Plateau State House of Assembly. The matter proceeded to trial and the plaintiff closed his case on 7th May, 2013 and the matter was adjourned for defense. On 3rd June, 2013, I closed the case for the defendant and adjourned the suit for judgment. Upon the application of the defendants, the defense case was reopened and the defendants granted leave to defend the suit. That was on 25th March, 2014. On 30th May, 2014, however, the plaintiff filed a motion on notice seeking for the transfer of the suit to the National Industrial Court in view of the third alteration to the Constitution of the Federal Republic of Nigeria, 1999 which vested on that Court exclusive jurisdiction in matters related to employment. This ruling is in respect of the motion aforesaid. The application is supported by an affidavit of 4 paragraphs in which the deponent merely stated the ground for the application as encapsulated above.
After restating the fundamental nature of jurisdiction to adjudication, M. A. Dawam Esq, who settled the written address in support of the application submitted that by virtue of the provision of section 254C(1) (a) of the Constitution of the Federal Republic of Nigeria, (as amended) this suit falls within the exclusive jurisdiction of the National Industrial Court. He urged the Court to transfer the suit to the National Industrial Court pursuant to Section 24(3) of the National Industrial Court, Act, 2006 and the recent decision of the Court of Appeal in the case of John vs. Igbo Etiti L.G.A (2013) 7 NWLR (Pt. 1352) 1 at 4.
A counter affidavit of 9 paragraphs was deposed to by one Kevin Du’umwe’et on behalf of the defendants/respondents in opposition to the application. The substance of the counter-affidavit is that this Court has no power to transfer this suit to the National Industrial Court in that the provisions of its rules has not empowered it to do so. In a written address settled by Edward G. Pwajok, the Attorney General of Plateau State, three issues were identified for the determination of this Court:-
On the first issue, the learned Attorney General submitted that in the absence of provisions in the Rules of Court and the High Court Law enabling it on that behalf, this Court has no power to transfer this matter to the National Industrial Court. The decision of this Court in the case of Joshua Mape vs. The Governor of Plateau State, unreported, suit No. PLD/J16/2012 was cited in support of this argument.
On the second issue formulated by him, the learned Attorney General submitted that matters pending in Court before the alteration of the Constitution, such as this one, are not affected by the alteration, therefore this Court still has jurisdiction to adjudicate in this suit. It is submitted further that the subject matter of this suit is not Employer/Employee relationship, rather it is an appointment with constitutional flavour, and to that extent, the case of John vs. Igbo Etiti L.G.A. (supra) cited by learned counsel for the applicant is inapplicable here.
It is further argued for the respondents that it amounts to abuse of Court process for the plaintiff/applicant who initiated this suit to turn round and challenge the jurisdiction of the Court. The Court is urged to dismiss the application.
S. S. Obende Esq filed a written reply on points of law.
On issue No. 1 formulated on behalf of the respondents, Mr. Obende submitted that the National Assembly which enacted section 24(3) of the National Industrial Court Act, has exclusive power over Labor and employment matters. He submitted that the National Assembly cannot be faulted when it enacted that matters wrongly commenced in a Court, other than the National Industrial Court, cannot be struck out. He urged the Court not to follow its decision in Joshua Mape’s case (supra) in which it declared the provisions of section 24(3) of the National Industrial Court Act, 2006, null and void for being inconsistent with the provision of section 274 of the Constitution in that the said pronouncement was made per incuriam. It is the further submission of counsel that section 24(3) of the National Industrial Court Act provided that the power to make rules for the transfer of matters from the State High Court to the National Industrial Court is deemed to have been included in the Rules of the High Court of the State. Mr. Obende also refers the Court to the provisions of Order 47 of its rules which confers upon it powers to do all that is necessary towards the cause of justice by making appropriate orders.
On Issue No. 2 formulated by the respondents, Mr. Obende argued that this suit does not fall among those cases that can be continued with since jurisdiction was conferred on the National Industrial Court on the commencement date of third alteration to the Constitution, being 4th March, 2011. Learned counsel only fell short of stating that this suit was filed in November, 2011, nine months after the commencement of the third alteration.
This application is centered on the interpretation of section 24 of the National Industrial Court Act, 2006 and section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 254C (1) of the Constitution vests in the National Industrial Court exclusive original jurisdiction over causes and matters relating to labour, employment, trade unions and industrial relations as well as matters concerning the interpretation of chapter IV of the Constitution as it relates to employment and labour relations. The section did not differentiate between ordinary master and servant relationship and employment with statutory flavor. It covers all types of disputes arising from all types of employment contract or relationship. The third alteration of the Constitution which introduced section 254C came into operation on 4th March, 2011. This means that as at 3rd November, 2011 when this suit was filed, only the National Industrial Court, to the exclusion of this Court and other Courts in Nigeria, have exclusive jurisdiction to hear and determine it. This is so because the suit challenges the removal of the plaintiff from office as Auditor-General of Plateau State. The argument of the defendants/respondents on the second issue formulated by them is accordingly rejected and the issue resolved against them.
On whether this application constitutes an abuse of Court process by the plaintiff/applicant, my simple answer can be found in the terse submission of Mr. Obende at paragraph 2.20 of his written reply on points of law:
“It is submitted by the defendants’ counsel that this application is an abuse of Court process. Counsel failed to realize that parties cannot by consent confer jurisdiction on the Court.”
I am in complete agreement with learned counsel on this submission. The fact that a plaintiff files a suit in a wrong Court is not a reason why the same plaintiff cannot challenge the Court’s jurisdiction if he later realizes his initial error. Jurisdiction is sacrosanct; it cannot be created where none-existed. In consequence therefore, I resolve the 3rd issue formulated by the defendants/respondents against them, by holding that this application does not constitute an abuse of Court process.
I will now return to the crux of the application which is formulated as issue No. 1 by the defendants/respondents. The issue challenges the power of this Court to transfer the suit to the National Industrial Court as requested by the plaintiff/applicant.
This application was filed pursuant to Order 8 of the Plateau State High Court (Civil Procedure) Rules, 1987, section 24 of the National Industrial Court Act, 2006, and under the inherent jurisdiction of this Court. Order 8 of the Rules of this Court deals with interlocutory applications during the pendency of causes or matters. This application qualifies as an interlocutory application. That is the only nexus that connects this application with Order 8 of the Rules of this Court. Section 24(3) of the National Industrial Court Act, 2006, confers on all High Courts in Nigeria (Federal, States and FCT) the power to transfer suits to the National Industrial Court where the High Court concern finds that it has no jurisdiction to try the cause or matter. The section provides:-
“(3) Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or may under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of Court for the purposes of this subsection.”
The power of transfer conferred on this Court by the above subsection of the National Industrial Court, Act is to be exercised subject to the Rules of this Court. This Court is a creation of the Constitution and the High Court Law of Northern Nigeria, 1963, applicable to Plateau State. The question arises as to whether the provision of an enactment of the National Assembly which created a different specie of Court can apply to the practice and procedure of a State High Court. I concede that the National Assembly has power to make laws for peace and good government in Nigeria. I also concede that Labour matters cannot be legislated upon by the Houses of Assembly of the States as it is under the Exclusive Legislative list. Therefore only the National Assembly has power to legislate on matters related to Labour and Industrial relations. I ask the question:- Can the National Assembly, in the exercise of its legislative powers over labour matters, confer powers on State Courts, which it has not created, to transfer Labour matters to the National Industrial Court, which it has created? Under what enactment or rules does the High Court of a State derive its powers? The High Court of a State is established by the Constitution but it is the House of Assembly of a State that determines the number of Judges to be appointed while the rules of practice and procedure is to be made by the Chief Judge subject to the provisions of any law made by the House of Assembly. The power of transfer of suits by the High Court to another Court is both a substantive and procedural power. Under the High Court Law of Northern Nigeria, deemed to be a law of the House of Assembly of Plateau State, there is no power vested in the High Court to transfer causes or matters pending before it to any other High Court or Federal Court. Under the High Court of Plateau State (Civil Procedure) Rules, 1987, which is an Edict made by the Military Governor, now deemed to be a Law of the House of Assembly of Plateau State, the only provision for transfer is Order 34. The power granted to a Judge under that Rule is to order the transfer of a suit from one District Court to another or to the High Court. The Law and the Rules of this Court does not confer on the Court the power to transfer any cause or matter to the National Industrial Court. It needs to be emphasized that a distinction must be drawn between the power of the National Assembly to legislate on the subject matter of Labor and employment on one hand, and her power (if any) to legislate with respect to practice and procedure in State Courts before which an employment dispute is wrongly commenced. It is one thing to have the power to legislate over a subject matter in dispute, it is entirely another thing to possess the competence to legislate with respect to practice and procedure in Courts created by the Constitution for the states. While the National Assembly indisputably has power over the former, it is my considered view that it does not have power over the latter. The National Assembly cannot legislate for this Court on matters of practice and procedure notwithstanding the fact that the subject matter of the suit before this Court falls within its legislative competence.
In urging the Court to hold that it has power to transfer this suit to the National Industrial Court, learned counsel for the plaintiff/applicant cited and relied on the Court of Appeal decision in John vs. Igbo-Etiti Local Government Area (supra). In that case, the Court of Appeal, Enugu Division held that by the provision of section 24(3) of the National Industrial Court Act, a High Court of a State shall not strike out causes and matters relating to labor and employment for want of jurisdiction, rather such causes and matters shall be transferred to the National Industrial Court. At the time this Court delivered its ruling in the case of Joshua Mape vs. The Governor of Plateau State on 27/02/2013, Suit No. PLD/J16/2012, I was not privileged to read the judgment of the Court of Appeal in the above cited case. On the doctrine of stare decisis, I am ordinarily bound by that decision. However, the Supreme Court had in 2006 interpreted a provision that is in pari materia with section 24(3) of the National Industrial Court Act, which interpretation ran contrary to the view held by the Court of Appeal in the case of John vs. Igbo-Etiti L.G.A. (supra).
In the case of Fasakin Foods (Nigeria) Ltd vs. Shosanya (2006) 4 SCNJ 229 what fell for interpretation was the provision of section 22(3) of the Federal High Court Act. That provision reads:
“Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law shall by virtue of this subsection be deemed also to include power to make rules of Court for the purposes of this subsection.”
The above provision is similar to section 24(3) of the National Industrial Court, Act, 2006.
Acting on the above quoted provision of the Federal High Court Act, the Lagos State High Court transferred the case of Fasakin Foods (Nigeria) Ltd vs. Shosanya (supra) to the Federal High Court for want of jurisdiction. The order transferring the suit was set aside by the Court of Appeal, whose decision was affirmed by the Supreme Court. The Supreme Court held that under the High Court of Lagos State (Civil Procedure) Rules, there is no rule of procedure which enables that Court to transfer a cause or matter to the Federal High Court. The Supreme Court further held that while the National Assembly could make laws with respect to the practice and procedure in the Federal High Court, the power to make similar laws for the High Court of a State is vested in the House of Assembly of a State. Their Lordships of the apex Court held that the National Assembly cannot legislate for the State High Courts on matters of practice and procedure. They further held that section 22(3) of the Federal High Court Act is clearly in conflict with the provisions of section 239 of the 1979 Constitution and consequently void to the extent of that inconsistency. That section (i.e. S.239) vested in the State House of Assembly the power to make rules of practice for the State High Court. In his contributory Judgment Niki Tobi, JSC had this to say at page 247 of the report:
“In the light of the Practice and Procedure provisions of sections 233 and 239 in relation to the Federal High Court and the High Court of a State respectively, I see section 22(3) of the Federal High Court Act, dictating to the Constitution what rule of Court should be followed when a High Court of a State lacks jurisdiction of the Federal High Court. Is such a dictation emanating with the supremacy clause of section 1(3) of the 1979 Constitution? Why should a Statute dictate terms for a Constitution to follow? Is it not the reverse position that is consistent with section 1(3) of that Constitution?”
Mukhtar, JSC (now C.J.N) expressed his views at page 252 in the following words:
“On the validity of the application of Section 22(3) of the Federal High Court Act, I am in agreement with the Court below when in its judgment it held thus:-
“There is no doubt that Section 22(3) of CAP. 134 is a desirable provision in that it saves a cause or matter commenced in a state instead of the Federal High Court from being struck out. But if a State House of Assembly considers it desirable it can adopt the provision. The Lagos State House of Assembly having not done so, the provision is inapplicable in Lagos State High Court.”
The Plateau State House of Assembly having not provided in the Rules of the Plateau State High Court the power of transfer of causes or matters to the National Industrial Court, the provision of the National Industrial Court Act is inapplicable in the High Court of Plateau State. In so holding, I am fortified by the dictum of Niki Tobi, JSC, in the case of Fasakin Foods (supra) where the learned law lord said:-
“I have taken some pains to go through the relevant Civil Procedure Rules of High Court of Lagos State and I cannot place my hands on any rule vesting in a Judge of a High Court power to transfer a matter to the Federal High Court. I do hope I am correct in saying that a Judge of the High Court of Lagos State can only apply the Rules of Court of the High Court. I do not think a Judge of the High Court of Lagos State can leave the enabling rules of his Court and flirt with those of the Federal High Court by applying them. That is not correct. That is not right. That is wrong”
I cannot leave the rules applicable in this Court and flirt with the rules of the National Industrial Court on the simple pretext that the subject matter in dispute is within the Exclusive Legislative list. The power to make the rules of practice of this Court does not reside in the National Assembly but in the State House of Assembly. Having found and held that section 22(3) of the Federal High Court Act, CAP 134, Laws of the Federation of Nigeria, 1990, is in pari materia with section 24(3) of the National Industrial Court Act, 2006, I hold that the decision of the Supreme Court in the case of Fasakin Foods (Nigeria) Ltd vs. Shosanya (supra) applies with full force in the instant case. All the dicta of their lordships quoted above applies, mutatis mutandis, to the case at hand.
For the above stated reasons I cannot, with due deference to their lordships of the Court of Appeal, Enugu Division, follow their decision in the case of John vs. Igbo-Etiti L. G. A.(supra) as I am bound by the superior reasoning of the Supreme Court which contradicted the position taken by their lordships of the Court of Appeal.
The application for the transfer of this suit to the National Industrial Court having not been provided for by the Rules of this Court cannot be granted and is hereby refused and dismissed.
At the beginning of this ruling, I held that by virtue of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) only the National Industrial Court has jurisdiction to hear and determine this matter. Having divested myself of jurisdiction over this matter by operation of law, what is the appropriate order to make in the circumstance in view of the fact that parties have joined issues and hearing has commenced? The position of the law is that there can be no hearing on the merit when the Court rules, as in this case, that it has no jurisdiction to adjudicate. The proceedings so far conducted amounts to nullity. In the eyes of the law, there was no proceedings at all. In the circumstances, the suit is accordingly struck out for want of jurisdiction.
Justice M. I. Sirajo
Judge
22/01/2016
Appearances:-
C. J. Okeke (Miss) for the plaintiff.
.C. R. Parlong (Miss) Senior State Counsel with J. Lagumu (Miss) Senior State Counsel for the defendants.
