Guardian

Continued from yesterday

How did we get to this stage?

The Federal High Court Act and the National Industrial Court Act did not transfer jurisdiction from the state to the Federal High Court or the National Industrial Court, respectively. Constitutional Decrees and the Third Amendment to the 1999 Constitution did so. We got to this stage because the Supreme Court gave conflicting judgments on the effect, which these successive amendments to the Constitution had on cases pending in the state high courts. During the Babangida/Abacha era, it was the practice to adjust the jurisdiction of states and federal high courts with slight regard for pending cases. Decree No.60 of 1991 transferred some matters to the exclusive jurisdiction of the Federal High Court. It then provided that cases pending in the state high courts must be automatically transferred to the Federal High Court by August 23, 1993, when it would enter into force, except those in respect of which judgment had been given in between the date in 1991, when it was enacted and August 23, 1993 when it entered into force. But in between 1991 and December 1993, the Babangida regime and the Abacha regime after his, enacted Decree No 16 of 1992 and Decree No.107 of 1993 respectively, both of which governed the same issue, without regard to the provision of Decree No 60 of 1991. These Decrees, especially Decree No.107 of 1993 which provision was eventually enacted by the 1999 Constitution contained no abatement or transfer instruction as did Decree No. 60 of 1991.

Now, counsel raising issue of the competence of the state high courts to continue to hear pending matters in transferred causes acquired the habit of lumping the decrees together without indicating which applied. Clearly, if Decree No.60 of 1991 had earlier transferred jurisdiction to the federal high court, the abatement provision of that Decree would have ensured that as at the date when Decree No 107 entered into force, the state high courts had already lost the competence to continue hearing in the matter. However, if Decree No. 107, for the first time transferred jurisdiction to the federal high court, the abatement provision of the now spent or obsolete Decree No.60 of 1991 will not apply. If abatement provision does not apply, the Interpretation Act preserves all rights acquired or steps taken under the pre-existing Constitution or Constitutional Decree. The Supreme Court buttressed this point in Orthopaedic Hospitals Management Board v Mallam Umaru Garba & 2Ors when it said:

On the Federal High Court Amendment Decree No. 60 of 1991 to which reference was made by the court below… submitted as follows… “Concerning Decree No. 60 of 1991, it is submitted respectfully, in the first place that there is nothing in the decree that extended the jurisdiction of the Federal High Court to cover the subject matter of the suit… The claim of the plaintiffs in this case as endorsed in their writ of summons (Pp.104-105) and Statement of Claim (Pg.118-119) are for declaratory reliefs and damages in relation to contract of employment… these would not qualify for any of item listed under 7(a)-(u) of the Federal High Court Act as amended by Decree No. 60 of 1991” I think their Lordships of the court below, with respect were in error to refer to Decree No. 60 of 1991 at all for this legislation was just not applicable to the question raised by them. I agree with submission of learned counsel in the passage above.

The Supreme Court therefore held that the state high courts did not lose the power to continue to hear cases pending in their court as at the time when Decree No.107 for the first time divested them of jurisdiction.

As this case was not cited to the Supreme Court in several subsequent cases, the apex court, somehow continued to give obviously flawed judgment on the matter, holding that the Constitutional transfer of jurisdiction meant that state high courts lost the competence to hear pending cases. When in Cyril O Osakue v Federal College of Education, Asaba the Supreme court was notified for the first time of the apparent conflict in her judgments, the Supreme Court treated the matter with obvious levity, saying that it was bound by the latter decision, a position which this author believes is not well founded and is even inconsistent with principle. That position is inconsistent with the power of the Supreme Court to overrule itself as established in a long line of cases, one of the bases of which is the need to avoid the perpetuation of errors or injustices. The case, which is possibly the first in the commonwealth that addressed the issue of conflicting decisions of any court when the same court is called upon to clear the air on the conflict is the English Court of Appeal decision of Young v Bristol Aeroplane. The decision in that case was that the English Court of Appeal can choose which to follow out of the hitherto conflicting decisions.

Finally, in the case of Isaac Obiuweubi v Central Bank of Nigeria the Supreme Court carved a most improbable ratio out of the Garba case, saying that it supports the position that the case must be discontinued unless trial has commenced. Since trial, which had been terminated on three previous occasions was yet to commence de-novo at the point when the issue of jurisdiction was raised, the proper decision was, in the apex court’s opinion, to strike out. While it is true that in Garba, Decree No 107 entered into force at the point when the court was about to deliver judgment, there was no-where in the judgment where it was said that, this fact was of any moment. The Supreme Court simply held that as the competence of the state high courts in the subject of that case was not divested by Decree No 60 of 1991, but by Decree No 107 of 1993, their power to continue hearing a pending case had not been affected by the abatement proviso.

So, today, the unsatisfactory state of stare decisis and statutes on this matter is not only that the state high courts must hands off pending labour cases, it is also that they must strike out such cases.

What can one then recommend in the circumstances?

First, the apex court will need to revisit its decision in Obiuweubi as pointed out. It is clear that the dateline of ‘time of trial’ crept into the lexicon of this discuss in an unwholesome way. It was the abatement proviso of Decree No. 60 of 1991 that provided for the automatic transfer of all matters listed in section 7((a)-(u) of the Federal High Court Act as amended by that decree. That amendment did not save or exempt any proceeding in which judgment has not been pronounced as at the date the amendment entered into force.

On the other hand, the amendments transferring jurisdiction to the Federal High Court in all cases relating to control and administration of federal agencies was done by Decree No. 107 which did not retain the abatement proviso. The decision in OHMB v. Garba remains the only sound decision that properly reviewed all relevant legal authorities relating to the issue of transfer of jurisdiction from one court to another without abatement or transitional provision as it affects all proceedings falling within the affected subject matters pending in the court from which the case is transferred.

In the absence of an abatement provision, Section 6 of the Interpretation Act would preserve and protect steps already taken in the affected proceedings without regard to the stage at which the proceeding were at the time of the amendment.

If the Supreme Court maintains its regrettable position in Obiuweubi, the only other solution is to further amend the Constitution to insert an abatement or transfer provision. An abatement provision will usually give a deadline for pending cases to either be concluded in the court where they were originally filed or be automatically transferred. A typical abatement provision is that employed in Decree No. 60 of 1991 to this effect:

Provided that any decision taken by any court other than the court (Federal High Court) as a result of the power of the concurrent jurisdiction so far conferred shall be valid, but all other cases pending in the said other courts, other than appeal court, shall, at the commencement of this section abate and the judge before whom it is pending shall transfer them to the Registrar of the court to be heard as new suits.

This provision can be altered as necessary to meet the requirements of elegance and proper description of court. Decree No. 60 of 1991 was enacted during military regime when the legislative competence of the Federal Government was not affected by extant provision of the 1979 Constitution and Decrees override the Constitution. Inserting an abatement provision in the National Industrial Court Act may not answer or solve the constitutional queries raised in Fasakin’s case, because it would still be arguable that whilst the Constitution was silent on abatement, the National Assembly vide the amendment could not dictate to the State High Courts. No such argument can be raised if the Constitution itself enacts the abatement provision.

In the event of the latter option the transfer should not be made subject to rules of the transferring high courts so that the provision does not remain inchoate. Since the Constitution is supreme, it will not lie in the mouth of the state high courts to say that they are not bound by its provision on transfer.

• Concluded.

• Olaniyan, Barrister at Law, is Senior Lecturer and Ag. Head, Dept. of Jurisprudence and  International Law, University of Lagos,  Akoka.