CORAM

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Mohammed Lawal Garba, Justice of the Supreme Court of Nigeria

• Adamu Jauro, Justice of the Supreme Court of Nigeria (Lead Judgment)

• Moore Aseimo Abraham Adumein, Justice of the Supreme Court of Nigeria

• Obande Festus Ogbuinya, Justice of the Supreme Court of Nigeria

• Abubakar Sadiq Umar, Justice of the Supreme Court of Nigeria

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PARTIES

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NATIONAL YOUTH SERVICE CORPS

APPELLANTS 

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EZE AMADI UKACHUKWU

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, LABOR LAW, PRACTICE AND PROCEDURE, JURISDICTION, OUSTER CLAUSES, CIVIL SERVICE, APPEAL

 

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SUMMARY OF FACTS

The Respondent was an employee of the Appellant (National Youth Service Corps). He was dismissed from service by a letter dated 6th January, 1999. The dismissal arose from findings by an Administrative Panel of Inquiry that investigated allegations of malicious allegations against a superior officer, falsification of records, wrong channel of communication, and stealing of government property. The Senior Staff Committee, at its meeting No. 1/1998 held between 26th and 29th October, 1998, found the Respondent liable under Civil Service Rules and approved his dismissal with immediate effect. The letter of dismissal was signed by the Director (Personnel Management) for the Director-General.

As a result of this dismissal, the Respondent filed a Writ of Summons and Statement of Claim on 26th January, 1999 before the Federal High Court, Abuja Division to challenge his dismissal. During the pendency of the case, the Respondent was issued another letter by the Appellant dated 26th April, 1999 (Exhibit A) purporting to dismiss him with effect from 30th April, 1999. This second letter informed the Respondent that his dismissal was directed by the then Head of State, General Abdulsalami Abubakar, by virtue of the powers conferred on him by Decree No. 17 of 1984 (Public Officers (Special Provisions) Decree). The letter stated that it superseded any previous correspondence to the Respondent on the matter.

The Appellant subsequently filed a motion on 3rd June, 1999, praying for an order dismissing and/or striking out the suit for lack of jurisdiction on the ground that under Decree No. 17 of 1984, the Court lacked jurisdiction to entertain the matter. The trial Federal High Court upheld the preliminary objection, holding that its jurisdiction was ousted by Decree No. 17 of 1984 and proceeded to dismiss the suit.

Aggrieved by the trial Court’s ruling, the Respondent appealed to the Court of Appeal. In its judgment, the Court of Appeal faulted the trial Court’s reliance on Exhibit A (the letter of 26th April, 1999), which was not mentioned or pleaded in the Respondent’s Writ of Summons and Statement of Claim. The Court of Appeal held that what was before the trial Court was the letter of 6th January, 1999, upon which the Respondent’s claim was predicated, and that this letter had nothing to do with Decree No. 17 of 1984. It was thus held that the trial Court had jurisdiction. The Court of Appeal also held that assuming the trial Court lacked jurisdiction, the suit ought to have been struck out and not dismissed. The Court of Appeal allowed the appeal and remitted the case to the trial Court for fresh determination on the merit.

Dissatisfied with this decision, the Appellant appealed to the Supreme Court.

 

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HELD

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ISSUES

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Whether given the peculiar facts and circumstances of this case, the Court of Appeal was right in holding that the trial Court had jurisdiction to hear and determine the Respondent’s suit?

 

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RATIONES DECIDENDI

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JURISDICTION – THE NATURE AND IMPORTANCE OF JURISDICTION IN THE JUDICIAL SYSTEM:

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“Jurisdiction refers to the power of a Court to entertain or preside over a case. It refers to the authority which a Court has to decide matters before it or take cognizance of matters presented before it for its decision. It is the very basis upon which a Court or tribunal entertains, considers or tries a case or settles a dispute placed before it by feuding parties. Jurisdiction of a Court is vested and may as well be limited by the Constitution, statute creating the Court or other statutes. Jurisdiction in our judicial system is a threshold issue. It is an issue that ought to be decided the moment it rears its head. The reason for this is not farfetched, it is inextricably linked to vital role played by jurisdiction in the adjudicatory process. It is trite that where a Court lacks jurisdiction, any proceedings conducted, including trial conducted and decision reached, are an utter nullity and an exercise in futility. It is for this reason that jurisdiction has been described as the lifeblood, the life wire or the soul of adjudication. It has also been equated to the role played by an engine in an automobile. In essence, no valid adjudication can be conducted where a Court lacks jurisdiction and any proceedings so undertaken, no matter how well or beautifully conducted, would amount to nothing but a waste of scarce judicial time and resources.” – Per ADAMU JAURO, JSC

 

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MADUKOLU TEST – THE CONDITIONS FOR A COURT TO HAVE JURISDICTION:

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“In the locus classicus on the conditions to be met before a Court is competent to hear a case, MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, the guiding factors as to when a Court is said to have jurisdiction were famously set out to be when: (1) The Court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” – Per ADAMU JAURO, JSC

 

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OUSTER CLAUSES – DEFINITION AND JUDICIAL TREATMENT OF OUSTER CLAUSES:

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“An ouster clause is a statutory provision that limits or excludes the power or jurisdiction of Courts, thereby making actions or decisions to which the provisions relate, non-justiciable. Ouster clauses are often inserted in statutes or decrees to prevent the Courts from reviewing decisions or actions of the executive or other public bodies. Courts ought to and do guard their jurisdiction jealously. For this reason, Courts, whether during the periods when Nigeria was operating under military rule or under our present democratic dispensation, detest ouster clauses. That notwithstanding, the treatment of ouster clauses under military rule is different from how they are treated under a democratic governance.” – Per ADAMU JAURO, JSC

 

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OUSTER CLAUSES UNDER MILITARY RULE VERSUS DEMOCRACY – DISTINCTION IN TREATMENT:

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“When Nigeria was under military rule, the judicial policy was to reluctantly abide by clear and precise ouster clauses since the supremacy of the Constitution was non-existent under military rule. As we are now in a democratic dispensation, Courts are reluctant to uphold ouster clauses. Courts often deploy the potency of Section 6 of the Constitution to void such provisions as unconstitutional, thereby assuming jurisdiction over the dispute in question. This must be so because the right of access to Court is one of the pillars of democratic government. It serves as a leveller between the powerful and the powerless. It affords the oppressed an opportunity to challenge the actions of his oppressor. This is why Courts jealously protect their jurisdiction and do not take kindly to ouster clauses.” – Per ADAMU JAURO, JSC

 

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OUSTER CLAUSES IN STATUTES VERSUS IN THE CONSTITUTION – DIFFERENT TREATMENT:

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“Ouster clauses are generally regarded as antitheses to democracy as the judicial system regards them as unusual and unfriendly. When ouster clauses are provided in statutes, the Courts invoke Section 6 as barometer to police their constitutionality or constitutionalism. The Courts become helpless when the Constitution itself provides for ouster clause, such as Section 188. In such a situation, the Courts hold their heads and arms in despair and desperation. They can only bark but cannot bite. Their jurisdiction is to give effect to the ouster clause because that is what is in the Constitution or what the Constitution says. It is in the light of this very helpless situation of the Courts, the upholders of the rule of law, that parties should not urge them to interpret section of the Constitution as ousting their jurisdiction when it is not. Ouster Clause is a very hard matter of strict law which must be clearly donated by the provision. It is not a subject of speculation or conjecture.” – Per NIKI TOBI, JSC (cited with approval)

 

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INTERPRETATION OF OUSTER CLAUSES – REQUIREMENT FOR STRICT CONSTRUCTION:

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“Since ouster clauses exclude the jurisdiction of Courts, the approach of Courts in all cases and situations, is to construe them strictly. Under military rule, ouster clauses were fairly common as a number of Decrees contained provisions ousting the jurisdiction of Courts. Unfortunately, Courts could not find refuge in the provisions of Section 6 of the Constitution or any other provision for that matter, because Decrees were the supreme law at the time and they were superior even to provisions of the Constitution. Nevertheless, a Court ought not to simply throw in the towel upon sighting an ouster clause in a Decree. The judicial approach was rather to scrutinise the relevant ouster clause vis-a-vis the facts of the case. If it remained obvious that the provision was indeed an ouster clause and that the case before the Court falls within the subject matter or category of cases in respect of which the Court’s jurisdiction has been ousted, the Court will have no option than to reluctantly surrender and decline jurisdiction to entertain the matter.” – Per ADAMU JAURO, JSC

 

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PUBLIC OFFICERS (SPECIAL PROVISIONS) DECREE NO. 17 OF 1984 – APPLICATION AND THE MEANING OF “APPROPRIATE AUTHORITY”:

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“By the combined effect of all the provisions set out above, it is evident that for a Court’s jurisdiction to be ousted pursuant to Decree No. 17 of 1984, a public officer must have been dismissed, removed summarily from office, retired or asked to compulsorily retire and the dismissal, summary removal, retirement or advice to compulsorily retire must have been done by the appropriate authority, who must be the Military Governor of a State or any person authorized by him, where the office of the public officer was held for the purpose of that State; or in any other case, the President or any person authorized by him or the Armed Forces Ruling Council.” – Per ADAMU JAURO, JSC

 

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DISMISSAL OF AN EMPLOYEE – MEANING AND EFFECT ON EMPLOYMENT RELATIONSHIP:

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“Dismissal of an employee refers to the bringing to an end, the employment relationship between an employer and employee due to gross misconduct, poor performance, commission of a crime or other similar reasons. In most cases, an employer dismisses an employee as a disciplinary action where the conduct of the employee is of a serious and weighty nature. The bottom line here is that the dismissal of an employee brings a definitive end to the employment relationship between the employer and the employee.” – Per ADAMU JAURO, JSC

 

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TERMINATION VERSUS DISMISSAL – DISTINCTION AND COMMON EFFECT:

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“The difference lies in the fact that dismissal is accompanied by ignominy and is often a punitive or disciplinary measure exercised by the employer that leads to loss of terminal benefits; while termination of employment is an option that can be exercised by either side and does not lead to loss of terminal benefits. Nevertheless, whether an employee is dismissed or his employment is terminated, the end result is the same – the employment is brought to an end.” – Per OGUNTADE, JSC (cited with approval)

 

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RE-DISMISSAL OF AN EMPLOYEE – IMPOSSIBILITY OF DISMISSING FROM NON-EXISTENT EMPLOYMENT:

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“For this reason, the Letter of Dismissal served on the Respondent by the Appellant dated 6th January, 1999, brought an end to the employment relationship between the parties. Stated differently, the letter of 6th January determined the employer-employee relationship between the Appellant and the Respondent, meaning the Respondent ceased to be an employee of the Appellant. It stands to reason that the second Letter of Dismissal dated 26th April, 1999 which was served on the Appellant was futile and of no effect. At the time of the service of the letter of 26th April, 1999, the Respondent had ceased to be the employee of the Appellant for over three months, hence there was no employer-employee relationship to bring to an end. In essence, the Respondent could not be re-dismissed.” – Per ADAMU JAURO, JSC

 

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MANIPULATION OF ADJUDICATORY PROCESS – PROHIBITION AGAINST ACTS AIMED AT OUSTING JURISDICTION DURING PENDENCY OF SUIT:

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“Furthermore, Courts abhor the deployment of any deceptive sleight by any of the parties to litigation, aimed at rendering the Court powerless or foisting a fait accompli on the Court. Such acts not only put the opposing party at an unfair disadvantage, they are disrespectful to the Court, they tend to undermine the adjudicatory role and power of the Court, they amount to an abuse of the process of Court and may even be contemptuous of the Court. Thus, any move made by a party during the pendency of litigation targeted at frustrating the other party or gaining an unfair advantage over him is liable to be nullified by the Court.” – Per ADAMU JAURO, JSC

 

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CONTEMPTUOUS CONDUCT – ATTEMPTING TO OUST JURISDICTION DURING PENDENCY OF ACTION:

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“It needs be said that it was an act of disrespect to the Federal High Court, Abuja for the 1st defendant/respondent to attempt to interfere with the proceedings in the case of unlawful termination brought by the plaintiff/appellant. There is no doubt that the intention of the 1st defendant/respondent was to take the case out of the jurisdiction of the trial Court by getting the plaintiff/appellant dismissed during the pendency of his suit challenging his termination. This course was obviously resorted to so that the 1st defendant/respondent could take umbrage under the ousted provisions under Section 3(3) of Decree No. 17 of 1984. The behaviour of the 1st defendant/respondent shows bad faith and bad taste. What is however more worrying is the lame manner in which the Courts below threw up their hands in surrender thus allowing a litigant manipulate to its advantage the adjudicatory process.” – Per OGUNTADE, JSC (cited with approval)

 

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DETERMINATION OF JURISDICTION – RELIANCE ON ORIGINATING PROCESSES AND PLEADINGS:

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“It is gleanable from the respondent’s pleading on record, the bedrock of the appeal, that the second letter, dated the 26th April, 1999, which dismissed the respondent from the employ of the appellant, was birthed when the respondent’s suit was already sub judice. It is an elementary law that pleading, the respondent’s statement of claim before the trial Court, is the macro barometer to gauge/meter the presence or absence of jurisdiction of a Court to hear a matter. The suit was erected on the respondent’s agitation against the propriety of the first letter of the 6th January, 1999 which midwifed the suit filed on the 26th January, 1999. Incontestably, the first letter has no atom of romance with the then dreadful Decree No. 17 of 1984. Thus, the second letter, upon which the trial Court premised its decision, was issued during the gestation period of the respondent’s action before the trial Court. It was crafted against the established rules regulating sub judice and, de jure, ought to have been treated with disdain and contempt by the trial Court.” – Per OBANDE FESTUS OGBUINYA, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Public Officers (Special Provisions) Decree No. 17 of 1984

• National Youth Service Corps Decree No. 24 of 22nd May, 1973

• National Youth Service Corps Decree No. 51 of 16th June, 1993

• Constitution of the Federal Republic of Nigeria (Third Alteration Act), 2010

• Supreme Court Act

• Civil Service Rules (CSR)

• Tribunals (Miscellaneous Provisions) Decree No. 9 of 1991

• Special Tribunals (Miscellaneous Offences) Act

• Recovery of Public Property (Special Military Tribunals) Act

 

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OTHER CITATIONS

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