CRITICAL ANALYSIS OF SECTION 22(3) OF HIGH COURT ACT AND SECTION 24(3) OF NATIONAL INDUSTRIAL COURT ACT AS INCONSISTENT WITH SECTION 274 OF THE CONTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

The constitution of federal republic of Nigeria(hereafter to be referred to as the constitution) that came into force on 29th may 1999 provided under section 251(1),(2)&(3) an exclusive jurisdiction to federal high court to exercise over all matters, while section 257(1)&(2) and 272(1)&(2) make similar provision for High Court of Federal Capital Territory (hereafter to be referred as High Court FCT) and High Court of state respectively.

On exactly 4th day of March 2011 the constitution Of Federal Republic of Nigeria(Third Alteration Act)(here after to be referred to as the Act) came into force; in which by section 6 of the Act, section 254 of the constitution was altered by inserting Section 254C (1), (k) as follows:

(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of an employee, worker, political or public office holder, Judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto”.

The provision of the Act under the above section transferred (ousted) jurisdiction of the federal High Court, High Court FCT and State High Court (would altogether be referred to as the courts hereinafter)in respect of matters of ‘payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of an employee, worker, political or public office holder, Judicial officer or any civil or public servant’ as vested the same in the National Industrial Court.

The above experience brought some amendments and/or enactments of Acts by the National Assembly (NASS) to provide a convenient solutions to the issues that may occur accompanied by the enactment and implementation of the ‘Act’s. Among such inconveniences as envisaged by the legislatures, is to prevent cases that are pending before ‘the courts’ prior to the enactment of the ‘Act’ to be struck out however, with a maximum period of one year. Section 11(1) and (2) of National Industrial Court Act provide thus;

(2) Nothing in Sub-section (1) of this section shall affect the jurisdiction and powers of the Federal High Court, ‘the High Court of a State’ or of the Federal Capital Territory, Abuja ‘to continue to hear and determine causes and matters which are part-heard before commencement of this Act and proceedings in any such causes or matters,’ not determined or concluded at the expiration of one year after the commencement of this Act shall abate. (emphasis mine)

Another lapses that the NASS attempted to prevent is striking out cases that were filed in the courts which by the virtue of the ‘Act’s provision should be filed in National Industrial Court but instead, to transfer them to National Industrial Court as the court with appropriate competency. This idea is groomed in Federal High court Act and  National Industrial Court Act. The former provides thus under section 22(3);

“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 (Federal High 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 empowering the making of rules of court generally which 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”. (emphasis mine )

Similarly  the latter provided under Section 24(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 (National Industrial Court) in accordance with such rules of Court as may be in force in that High Court or made 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 to include the power to make rules for the purpose of this subsection”.  (emphasis mine)

From the  above provisions one can clearly see the attempt of NASS by their respective wisdom purported to include ‘State High Court’ inter alia, in their recommendable effort to procure the analysed lapses that may accompany the enactment and the implementation of the ‘Act’ inter alia. The question that is begging for answer hereunder Is;

To briefly address this issue; section  254 of the constitution stated;  “Subject to the provisions of ‘any Act of the National Assembly’, the Chief Judge of the Federal High Court may make ‘rules’ for regulating the practice and procedure of the ‘Federal High Court’”. (emphasis mine).

Similarly, section 274. stated; “Subject to the provisions of any ‘Act of the National Assembly’, the Chief Judge of the High Court of the Federal Capital Territory, Abuja may make rules for regulating the practice and procedure of the ‘High Court of the Federal Capital Territory, Abuja’. (emphasis mine).

While in contrary section 259 reads; “Subject to the provisions of any law made by the ‘House of Assembly of a State’, ‘the Chief Judge of a State’ may make rules for regulating the practice and procedure of the ‘High Court of the State’.(emphasis mine).

From the above constitutional provisions we have it cleared that the constitution exempted state high court laws, rules and guidelines(whatever may be called) from subjecting to the Act of NASS or rules that may be made by chief justice of Federal High Court or chief  justice of High court FCT as the case may be. The maxim applicable here is ‘expressio unius est exclusio alterius’ (the express mention of one thing exempts what is not mentioned). And that is the trite that only whose name mentioned in the above provisions can exercise the power given and however, they can only exercise such within the capacity specified by the law.

In nutshell, NASS cannot enact any law to the effect of state high court therefore, the provisions of section 22(3)of the High Court Act and section 24(3) of National Industrial Court Act being Inconsistent with the constitutional provision of section 274, the said acts’ sections shall hereby null and void to the extend of their inconsistency and the provision of the constitution shall hereby prevail.

The Supreme court of Nigeria held this view in  Fasakin Foods (Nigeria) Limited v. Shosanya (2006) 10 NWLR (Pt. 987) 125 also reported in (2006) LPELR-1244, the Supreme Court considered Section 22 (3) of the Federal High Court Act viz-a-viz the power of a State High Court to transfer a suit wrongly filed before it to the Federal High Court. It held that “unless and until there is a clear enabling provision in the High Court Law of the State or the State High Court (Civil Procedure) Rules empowering the State High Court to exercise the powers vested in it under Section 22(3) of the Federal High Court Act not being a law made by the House of Assembly of the State, the State High Court ‘has no power’ to transfer an action wrongly filed in that Court to the Federal High Court”.(emphasis mine)

It is a trite that law makers (not being extra ordinary human beings) are not perfects and can never be but happily, any law that may be enacted is subject to amendment (included and not excluded) even the constitution itself. To really  have legal and successful transfer of a case filed wrongly in a state high court, legislation to that effect must be in place by the state House of Assembly or by the Chief Judge of the state. For example as it is clear under section 24(2) of National Industrial Court Act; empower it not to strike out case  that should be filed in ‘the courts’ but wrongly filed in National Industrial Court but to transfer such wrongly filed cases to the appropriate court. There is not such provision in respect to our state high court laws by the appropriate Legislative arm. Ipso facto, this lacuna ought to show that  state  high courts  have noting to do with the cases filed on the above circumstances but to strike them out.