Striking Out or Transferring an Action to the Appropriate Court

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In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020

Before Their Lordships

Mary Ukaego Peter-Odili

Olukayode Ariwoola

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Chima Centus Nweze

Justices, Supreme Court

SC.535/2014

Between

MUSA ISMAILA MAIGANA APPELLANT

And

1. INDUSTRIAL TRAINING FUND

2. INDUSTRIAL TRAINING FUND

GOVERNING COUNCIL RESPONDENT

(Lead Judgement delivered by Honourable John Inyang Okoro, JSC)

Facts

The Appellant was an employee of the Respondents, until his dismissal from the service of the Respondents on 12th March 2009. He filed an action challenging his dismissal at the Federal High Court, Maiduguri Judicial Division. The suit was later transferred, to the Yola Judicial Division of the Federal High Court. Hearing commenced in the suit on 12th July, 2011 and as at this time, the Federal High Court had been divested of jurisdiction to entertain employment and labour related matters, by virtue of an amendment to the Constitution of the Federal Republic of Nigeria, 1999. By the Third Alteration Act 2010, Section 254(c)(1)(a) vested the National Industrial Court with exclusive jurisdiction over all matters relating to employment and labour. The Third Alteration Act, 2010 took effect from 4th March, 2011. The trial court however, continued hearing of the suit, and eventually dismissed the claims of the Appellant.

The Appellant filed an appeal, at the Court of Appeal. At the hearing of the appeal, the appellate court, suo motu, raised the issue of jurisdiction of the Federal High Court to entertain the suit, and invited the parties to address it. After hearing the arguments of counsel for the parties, the court delivered its judgement in which it struck out the proceedings and judgement of the Federal High Court, and the appeal that emanated therefrom, on the ground that the trial court wrongly assumed jurisdiction to determine the suit.

Aggrieved, the Appellant appealed to the Supreme Court.

Issue for Determination

In its determination of the appeal, the Supreme Court considered the following sole issue:

Whether having regard to the provisions of Section 22(2) of the Federal High Court Act Cap. F12 Vol. 6 LFN 2004 and Section 15 of the Court of Appeal Act Cap C36, Vol. 4 LFN 2004, the Court of Appeal was right in striking out the Appellant’s suit, after holding that the trial court had no jurisdiction to entertain the suit.

Arguments

Counsel for the Appellant argued that by Section 22(2) of the Federal High Court Act, the Federal High Court is empowered to transfer any matter it discovers it has no jurisdiction to entertain, to another court of competent jurisdiction. He submitted that had the issue of jurisdiction been raised at the trial court, the court would have legitimately transferred the suit to the National Industrial Court by virtue of the provision of Section 24(3) of the National Industrial Court Act. He relied on the case of ASSOCIATED DISCOUNT HOUSES LTD v AMALGAMATED TRUSTEES LIMITED (2006) 10 NWLR (Pt. 989) 635 at 649, Par. A-H.

Counsel submitted further that, having found out that the trial court had been divested of jurisdiction by the 3rd Alteration Act, the lower court ought to have invoked its powers under Section 15 of the Court of Appeal Act and made an order transferring the suit to the National Industrial Court, to enable the parties ventilate their grievances and the case decided on the merit.

In the Respondents’ joint Brief of Argument, counsel for the Respondents raised a Preliminary Objection to the competence of the issues raised in the Appellant’s ground of Appeal. The basis of the objection was that the said issues relating to the transfer of the suit, raised in the grounds of appeal and argued by the Appellant, were entirely new issues which were never canvassed before the trial court or the Court of Appeal. They contended that the Appellant ought to have sought the leave of court before raising the said issues, and since no leave was first sought and obtained, the Notice of Appeal as well as the grounds of appeal and issue raised therein, were all incompetent.

In response to the arguments of counsel for the Appellant on the sole issue for determination, counsel for the Respondents submitted that where a court has no jurisdiction to try a matter, the only order it can make is one striking out the suit, and not an order of transfer. He relied on FASAKIN FOODS NIG. LTD v SHOSANYA (2006) 10 NWLR (Pt. 987) 126 at 147 – 148 PAR. H-A. By his position, there was nothing for the Court of Appeal to transfer, and the Court of Appeal was right to have declared the proceedings before the Federal High Court, Yola a nullity and struck the same out since it was conducted without jurisdiction.

Replying to the Respondents’ Preliminary Objection, counsel for the Appellant submitted the issue of transfer of the suit was thoroughly canvassed by the Appellant before the lower court, and determined by the court. He argued that the grounds of Appeal and the sole issue formulated from same, came about as a result of the issue being raised suo motu by the Court of Appeal on the jurisdiction of the trial court to have entertained the matter, in view of the provision of Section 254(c)(1) of the 1999 Constitution. He contended that it was therefore, not a new issue that required the leave of court first sought and obtained.

Court’s Judgement and Rationale

In resolving the Preliminary Objection raised by the Respondent and argued by respective counsel for the parties, the court reiterated the well settled position of law that a ground of appeal must challenge the ratio of the decision and must not be formulated in abstract, and in the same vein, issues for determination must arise from a competent ground of appeal.

The Respondent’s grouse on the issue of transfer of the suit to the National Industrial Court which they alleged was never mentioned or ventilated at the Court of Appeal, was misconceived as the record of appeal showed that the said issue was raised suo motu by the learned Justices of the Court of Appeal, who called on both counsel to address the court on same. The Appellant also made extensive submissions on this issue and urged the court to invoke Section 15 of the Court of Appeal Act and transfer the suit to the National Industrial Court, in the event that it finds that the trial court lacked jurisdiction. The court held that it was evident that the refusal of the Court of Appeal to transfer the Appellant’s suit to the National Industrial Court was the substratum of the Appellant’s appeal before the Supreme Court; hence, the issue of transfer of the suit to the National Industrial Court cannot be said to be a new issue which required leave of court. The court thereby, overruled the Preliminary Objection.

On the sole issue for determination, the Supreme Court held that by Section 22(3) of the Federal High Court Act and Order 49 Rule 5 of the applicable Federal High Court (Civil Procedure) Rules, 2009, where a suit over which the Federal High Court lacks jurisdiction is filed before it, the Federal High Court has the power to transfer the suit to either the State High Court or the High Court of the Federal Capital Territory as the case may be. Although the said Sections did not mention National Industrial Court, this did not affect its applicability in respect of matters involving the National Industrial Court, because the Federal High Court Act was enacted long before the Third Alteration Act, 2010 which vested exclusive jurisdiction in the National Industrial Court, came into force. Apart from this, Section 24(3) of the National Industrial Court Act forbids the striking out of its matters pending in the Federal, States and Federal Capital Territory High Courts. Rather, that such matters shall be transferred to the National Industrial Court having the jurisdiction to try same.

The court held that it was clear from the wordings of Section 24(3) of the National Industrial Court Act, that the intention of the legislature is to preserve suits pending before the various Federal and State High Courts prior to when the Third Alteration Act, 2010 was passed into law. Section 22(2) of the Federal High Court Act and Section 24(3) of the National Industrial Court Act aimed at avoiding a miscarriage of justice to a party who, after commencing an action before the Federal High Court or the High Court of a State or the Federal Capital Territory, would have his case thrown out after they were divested of jurisdiction to entertain the action. Furthermore, the provisions save a matter from being caught by the statute of limitation which may arise due to no fault of the Plaintiff, but as a result of an intervening event such as the amendment of the Constitution after commencing the action – ASSOCIATED DISCOUNT HOUSES LTD v AMALGAMATED TRUSTEES LIMITED (supra); GAFAR v THE GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 and AMC v NPA (1987) 1 NWLR (Pt. 51) 475 at 504.

The court held that inasmuch as the Court of Appeal was right that where a court lacks jurisdiction to try a matter, it has a duty to strike it out, it is also trite that that where the law provides that such a matter be transferred to a court which has jurisdiction, the court should apply the provision accordingly. The Apex Court held that the Court of Appeal ought to have invoked Section 15 of the Court of Appeal Act to transfer the suit to the National Industrial Court after holding that the Federal High Court lacked jurisdiction to entertain it, instead of striking it out.

Appeal Allowed. Appellant’s suit restored and transferred to the National Industrial Court.

Representation

Chief L.D. Daniel Nzadon with others for the Appellant.

D.A. Machar Esq. for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)