IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 12TH DECEMBER, 2018
SUIT NO: NICN/BEN/24/2017
BETWEEN
DR. AISUENI NAPOLEON OSASUYI ………….CLAIMANT
AND
THE MINISTER FOR AGRICULTURE AND RURAL DEVELOPMENT, FEDERAL MINISTRY AGRICULTURE AND RURAL DEVELOPMENT.
NIGERIAN INSTITUE FOR OIL PALM RESEARCH (NIFOR).
DR. C.I. AISAGBONHI
EDWARD UJEADUAGHELE
THE ATTORNEY GENERAL AND MINISTER,
FEDERAL MINISTRY OF JUSTICE. ……………..DEFENDANTS
REPRESENTATION
S. E Ezenwa for the Claimant
E.G. Okemini for the 1st Defendant
Chief H.O. Ogbodu with him is N.L. Omorodion for the 2nd Defendant
E. I . Ihenyen with him F. I. Okoyomon for the 3rd Defendant
M.I. Enedion with him Vote Ugberaese for the 4th Defendant
JUDGMENT
By a way of an Originating Summons filed on 28th Nov, 2017, and was amended by an amended Originating Summons filed on 18th May, 2018, the claimant approached this Court for the determination of the following questions:
Whether the 1st defendant has the power under the extant laws to appoint Director/Chief Executive of the 2nd defendant?
If the answer to question No. 1 is in the positive, whether the appointment of the Claimant as Director/Chief Executive of the 2nd defendant vide a letter AGR BO3/1/156 dated 9th November, 2017 by the 1st defendant is regular and proper?
If the answer to No.2 is in the positive, whether the 3rd defendant who was acting Director/Chief Executive of the 2nd Defendant when the 1st Defendant appointed the claimant as Director/Chief Executive of the 2nd Defendant has Locus Standi to challenge the appointment of the Claimant under any guise?
If the answer to No. 2 is in the positive, Whether the 4th defendant who is the Secretary of the 2nd defendant and not in any way qualified to be Director/Chief Executive of the 2nd defendant has Locus-Standi to challenge the appointment of the Claimant under any guise?
WHEREOF the Claimant claims against the Defendants the following reliefs:
A Declaration that the appointment of the Claimant as Director/Chief Executive of Nigeria Institute for Oil Palm Research (NIFOR) by the 1st defendant vide letter No. AGR. BO3/1/156 dated 9th November, 2017 is proper and lawful.
An Order of this Honourable Court setting aside the letter dated 4th day of December, 2017 wherein the Defendant purported to have terminated the Claimant’s appointment with the 2nd Defendant while this suit is pending before this Honourable Court, and treated same as if it is not in existence.
An Order of Perpetual Injunction to restrain the 1st, 2nd, 3rd, 4th and 5th Defendants from in anyway whosoever interfering, disturbing, disrupting, tampering with the appointment of the Claimant properly made vide Letter of Appointment No. BO3/1/156 dated 9th November, 2017.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances
ALTERNATIVELY
A Declaration that the termination of the Claimant’s appointment with the 2nd Defendant is without justifiable reason by the defendants and as such it is a fundamental breach of contract of appointment and as such the Claimant is entitled to all his salaries, emoluments and entitlements for the 5years secured tenure.
An Order of this Honorable Court compelling the Defendants to pay to the Claimants all his salaries, emoluments and entitlements for the 5years tenure for a breach of contracts.
And/or such further order(s) as this Honorable Court may deem fit to make in the circumstances.
Accompanying the Originating Summons is a Twenty-Seven (27) Paragraphs Affidavit deposed to by the Claimant himself, wherein he averred that he was appointed by the 1st defendant as the Director/Chief Executive Officer of the 2nd Defendant that he worked with the 2nd Defendant and rose to the position of an Acting Director/Executive before his retirement. On the 25th September, 2017, the Agricultural Research Council of Nigeria issued him a letter of retirement with effect from 28th September, 2017 (Exhibit NAI), and prior to which he had been appointed the Assistant Executive Director and Chief Executive Director of the 2nd Defendant by the 1st and 2nd Defendants and held the position till he retired. That after his retirement, he was vide the Federal Government Circular dated 27th July, 2009 (Exhibit NA2) issued under the hand of the then Head of the Civil Service of the Federation, Stephen Oronsaye CON which stated that career officers who wished to take up tenured appointments should at the time of taking up the appointment retire first from the service to ensure they run their term uninterrupted, re-appointed to the position of Director/Chief Executive of the 2nd defendant by the 1st defendant on the 9th November, 2017 vide a letter no. AGR BO3/1/156 for a five year tenured appointment. That his appointment for five (5) years tenure was in accordance with the Federal Government Policy and Nigeria Research Institute Act, 1964 (Exhibit NA) which allows the Minister of the 1st defendant to appoint a person with wide experience in the particular field. He continued that, the 3rd defendant who was acting as the Executive Director before his new appointment as the substantive Director/Executive to the 2nd defendant and the 4th defendant who is also the Secretary to the 2nd defendant stubbornly refused to acknowledge his lawful appointment as the Chief Executive Officer of the 2nd defendant and as a result of which they embarked on attempt to ‘incite’ the workers of the 2nd defendant to protest against his appointment but failed because the workers were solidly in support of his appointment. He stated further that the 1st defendant got wind of the antics of the 3rd and 4th defendants as a result of which he was invited to the headquarters of the 1st defendant in Abuja on 16th November, 2017 together with the 3rd and 4th defendants where their alleged grievances were resolved amicably and the 1st defendant admonished that peace should be maintained in the establishment of the 2nd defendant and all the parties agreed and returned to Benin City to work in harmony. That despite this development, the 3rd and 4th defendants refused to abide by the admonition of the 1st defendant and went to lodge formal complaint against him at Zone 5 Police headquarters in Benin City, and the Assistant Inspector General of Police advised that peace should be maintained since his appointment was made lawfully by the 1st defendant. He stated that while this suit was already pending the 1st defendant purportedly vide a letter dated 4th December 2017 terminated his appointment with the 2nd defendant an act of disrespect to this Court and the said letter had not been served on him during the pendency of this suit.
Also filed with the Originating Summons and supporting Affidavit is a Written Address wherein a sole issue for determination was canvassed by learned claimant’s counsel viz:
Whether based on all the available facts, the claimant’s claim has merit and ought to be granted?
Counsel submitted that the Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria, he cited PDP V CPC [2011] 17 NWLR (Pt 1277) 485 at 511, he submitted that the claims of the claimant have merit and same ought to be granted because by virtue of Section 148(1) of the 1999 Constitution as amended, the President may, in his discretion, assign to the Vice president or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation including the administration of any department and government, hence the President has the vested power to appoint a Minister for the Federal Ministry of Agriculture and Rural Development. Equivalently, the Minister therefore has the powers to appoint any qualified person to the post of the Director/Chief Executive of the 2nd Defendant; this right he exercised by appointing any qualified persons to the post of the director/Chief Executive of the 2nd defendant. He appointed the claimant to the position in the 2nd defendant institute. Counsel contended that the defendants have no locus standi to challenge or tamper with the appointment of the claimant under any guise and an attempt by the 3rd and 4th defendants to interfere with the appointment or prevent the claimant from carrying out his duties normally or instigating other workers so that the 1st defendant would remove the claimant from office is illegal.
In response to the affidavit filed by the claimant/applicant, parties filed their respective Counter-Affidavit, the 1st defendant/respondent filed on the 13th September 2018 an Eighteen (18) paragraph affidavit deposed to by one Mba Onyema; a litigation Clerk in the Legal Unit of the Federal Ministry of Agriculture and Rural Development, he averred that the claimant was erroneously appointed as the Director/Chief Executive of the 2nd defendant vide a letter with Ref No. AGR 803/1/156 dated 9th November, 2017 by the 1st Defendant pursuant to Item 4 Second Schedule of the Agricultural Research Council of Nigeria Act, A12, LFN 2010, that the claimant’s appointment was withdrawn by the 1st defendant in order to facilitate improvement in the 2nd defendant and that the appointment of the claimant as the Director/Chief Executive of the 2nd defendant is such that is not in public interest. That sometimes in December 2017, at the public hearing titled “Crisis in Nigeria Institute for Oil Palm Research (NIFOR) over the Appointment of a Substantive Director” at the National Assembly (House of Representative Committee on Agric College and Institutions ) the claimant boasted to the hearing of the general public amongst other things that “..he will set ablaze the 2nd Defendant if his appointment is tempered with. He noted that the claimant’s retirement from public office took effect from 28th September 2017 and this consequently nullified the claimant appointment and further that Section 13.4 of the Condition of Service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions puts the retirement of Non-Academic Staff of Research at the age of Sixty(60) years or Thirty-Five (35) years and also Sixty-Five years for Research Academic Cadre Staff. That the 1st defendant had withdrawn the earlier letter appointing the claimant as the Director/Chief Executive of the 2nd defendant vide a letter with Ref No. AGR 803/1/158 dated 4th December, 2017(Exhibit FG2). He stated that contrary to the averment of the claimant, the 1st defendant advised that the status quo should be maintained in order for peace to reign in the 2nd defendant and the status quo at the material time is that the 3rd defendant was and he is still the Acting/Chief Executive of the 2nd defendant and that inspite of the effort to restore industrial harmony in the 2nd Defendant, the claimant at the public hearing threatened to set the 2nd Defendant ablaze. It is the statement of the 1st defendant that the appointment of the claimant was erroneously made hence created unrest in the workforce of the 2nd defendant, and it was not aware of the pendency of this suit when he lawfully withdrew the appointment of the claimant as the Director/Chief Executive of the 2nd Defendant, also that there is no disciplinary provision under the enabling law which empowers the appointment of the claimant as the Director/Chief Executive of the 2nd defendant, recourse must be made to the Interpretation Act and other relevant Act.
Also filed was a Written Address wherein a sole issue for determination was posed: Whether the 1st defendant has power to appoint, suspend or remove the claimant in the instant case?
Learned Counsel submitted that by virtue of Section 14(1) and Second Schedule to the Agricultural Research Council of Nigeria, Cap A12, LFN 2010 and a combined reading of Section 11 (1) (b) of the Interpretation Act, Cap 123, LFN 2010, it is evident that the 1st defendant has the power to appoint, suspend or remove the claimant. That based on the above provisions of the law, the 2nd defendant was established and by virtue of Item 4 of the Second Schedule to the Agricultural Research Council of Nigeria Act, the claimant was erroneously appointed by the 1st defendant as the Director/Chief Executive of the 2nd defendant vide a letter dated 9th November, 2017. Counsel submitted that the claimant having retired from the civil service is not subject to the Public Service Rules governing the appointment and dismissal of government employee. He also stated that by the literal interpretation of Section 11(1) (a-b) of the Interpretation Act, it is glaring that the 1st defendant acted in line with the spirit of the framers of the law. It is further the submission of counsel that the termination of the claimant’s appointment as the Director/Chief Executive of the 2nd defendant was to facilitate improvement in the 2nd defendant and was done in public interest. Counsel concluded and submitted that the argument of the claimant cannot hold, hence the suit lacks in merit and should be dismissed.
The 2nd defendant/respondent on the 5th June 2018 also filed a Ten(10) paragraph counter affidavit deposed to by One Idahosa Augustine; an administrative officer in the Legal Unit of the 2nd defendant, he averred that the claimant was appointed to the post of Director/Chief Executive of the 2nd defendant by the 1st defendant vide a letter dated 9th November, 2017 and referenced AGR 803/1/156 (Exhibit 2DA) and also that vide another letter dated 4th December 2017 referenced AGR 803/1/158, the 1st defendant withdrew the appointment of the claimant as Director/Head of NIFOR (Exhibit 2DB). He stated that the claimant has no cause of action; hence the suit is lacking in merit and should be dismissed.
In the Written Address filed with the Counter-Affidavit, Counsel framed a sole issue for determination of the Court viz: Whether the claims of the claimant does not lack merit by virtue of the position of the law?
Learned Counsel submitted that the claims of the claimants lack merit, that the claimant having admitted that the 1st defendant has the vested power to appoint and remove a Director/Chief Executive of the 2nd Defendant, the 1st defendant has validly removed him from the said position. He placed reliance on Section 11 of the Interpretation Act LFN 2004, and submitted that the Court cannot restrain the 1st Defendant from performing its statutory function and also cannot restrain a completed act.
The 3rd defendant/respondent filed a Seventeen (17) Paragraph Counter-Affidavit on the 1st of June 2018, to the claimant’s Amended Originating Summons deposed to by the 3rd defendant himself, he averred that by virtue of his position as the Acting Executive Director of the 2nd Defendant that he is conversant with the facts of the case. That by a letter dated 25th September 2017, the Agricultural Research Council of Nigeria, which statutorily oversees the 2nd defendant forwarded a letter (Exhibit AA) to the claimant ending his appointment as Acting Executive Director of the 2nd defendant and retirement from the Federal Public Service having attained the mandatory retirement age of Sixty-Five (65) years. He stated further that by another letter dated 9th November, 2017 (Exhibit BB), the Minister of Agriculture and Rural Development appointed the claimant as the Director/Chief Executive of the 2nd Defendant on a single term tenured appointment of five (5) years with effect from 3rd November 2017 and that intendment of Exhibit BB created unrest in the 2nd defendant which necessitated him, as the Acting Executive Director to seek Police Protection for management staff of the Institute vide a letter dated 20th November, 2017 (Exhibit CC) and that while all of this was happening, the claimant instituted an action by way of Originating Summons on the 28th November 2017 when he ought to have reported in the first place to the supervisory ministry which is the procedure in the Civil Service. That the Minister of Agriculture by a letter dated 4th December 2017 (Exhibit DD) in the realization of the error made in respect of Exhibit BB withdrew the appointment of the claimant as the Director/Head of the 2nd defendant and coincidently on the same day, the Secretary to the Federal Government issued a circular (Exhibit EE) reiterating the abolition of the tenure elongation with a stern warning to comply. He stated that the claimant had initially concealed the fact that he has attained the mandatory age of retirement as prescribed by the civil service in order to hoodwink the Court and that he has now admitted same in view of the unassailable documentary evidence against him. The 3rd defendant stated that the claimant has no cause of action in this suit and hence the Court should dismiss the suit with substantial cost as it is lacking in merit.
The 3rd defendant/respondent alongside his Counter-Affidavit filed a Written Address and formulated two(2) issues for the Court’s determination which are:
Whether in view of the unassailable documentary evidence in this suit produced by the 3rd defendant, the reliefs sought by the claimant are not dead on arrival
Whether Exhibit DD (i.e. the letter dated 4th December, 2017 withdrawing the erroneous appointment of the claimant) is in violation of Section 83(3) of the Evidence Act given the claimant’s suit was instituted on the 28th November, 2017.
Learned Counsel noted on issue one that documentary evidence is the best evidence in the Nigerian Judicial System, he placed reliance on the cases of A.G Bendel State v. U.B.A Ltd [1986] 4 NWLR (Pt. 37), page 547 at 563, paras E, Agbareh v.Mimra [2008] 2 NWLR Pt. 1071, page 378 at 411, paras B, Anyanwu v. Uzowuaka [2009] 13 NWLR (Pt 1159) pg 445 at 468 A-B. He reiterated the position of the law that where there are conflicting oral testimonies, credibility would be accorded with the party with documentary evidence. He argued that the 3rd defendant provided unassailable documentary evidence in proof of his depositions as disclosed in Exhibits AA, BB and DD. He also noted that the claimant placing Exhibit AA before the Court is an admission and facts admitted need no further proof. He cited Section 123 of the Evidence Act 2011 and referred to the cases of FBN Plc v. M.O Nwadialu & Sons Ltd [2016] 18 NWLR PT 1543, pg 1 @65, pars A-E, Transocean S.S. (Nig) ltd v. Omelime [2018] All FWLR Pt. 927, 89 @108 paras B-C, C-A. Counsel in arguing issue two noted that a person who is not personally interested in the outcome of the litigation cannot be described as one who is interested in the proceeding, he cited Section 83(3) of the Evidence Act 2011, Abdullahi v. Maitsidau [2011[ 3 NWLR (Pt 1233) 55 @72, pars B-C Section 91(3) of the Evidence Act and submitted that Exhibit DD does not violate Section 83(3) of the Evidence Act as it is made in an official capacity that is under a statutory duty by the Minister of Agriculture and Rural development who is certainly not a person interested in the outcome of the suit unless of course the claimant proves otherwise. He also noted that the Court has no power to grant an injunction where the Applicant has not established a legal right and for a fact, an injunction will not be issued for an act that has been completed or carried out hence the claimant’s suit is otiose, lifeless and dead on arrival.
The 4th Defendant/Respondent equally filed an Eleven (11) paragraph Counter-Affidavit deposed to by the 4th Defendant himself, he averred that by virtue of his position as the Secretary to the 2nd Defendant and the Director of Administration Department, he stated that he has no hand in the appointment letter issued to the claimant on the 9th November, 2017 with Reference No: AGR803/1/156 attached by the Claimant as Exhibit A, he stated further that the said appointment given to the claimant was withdrawn by the Supervisory Ministry (that is the 1st defendant) that issued same vide a letter dated 4th December, 2017 with Reference No AGR803/1/158 (Exhibit N) and that the 1st Defendant being the employer of the claimant has the power to fire and hire as the Supervisory Ministry. He stated that the claimant had retired from the 2nd Defendant since 28th September, 2017 hence his cause of action fails.
In his written submission wherein a sole issue for determination was raised: Whether the Claimant has the locus standi to institute this action? It was the submission of learned counsel submitted that the claimant having retired from the 2nd Defendant has no locus standi to institute this action, he noted that the claimant cannot seek shelter or refuge under Section 148 of the 1999 Constitution as amended and that having validly retired from the service of the 2nd defendant, he argued that it is only those in service that are qualified to so act. He placed reliance on Section 13.4 of the Condition of Service for Research Institutes, College of Agriculture, Allied Institution and submitted that the claimant having admitted that the 1st defendant has the power to appoint and dismiss as such the claimant has no right of action before this Court.
Claimant filed a Sixteen (16) paragraph further-affidavit on the 18th May 2018, to respond to the facts deposed to by the defendants in their Counter-affidavits, In specific denial, he averred that his appointment as the Director/CEO of the 2nd defendant is not erroneous and the Minister did not make any error or mistake in appointing him, that his appointment was validly carried out and in compliance with the provision of Nigeria Research Institute Act and Federal Government Circular with Ref No. HCSF/EMS/EIR/B/6394/IV/T2/96 dated 27th day July, 2009, that the Minister was duly informed that he has retired from the 2nd defendant, He deposed that the Minister was not ill-advised rather he was properly guided by the Federal Government Circular and the Act establishing the Research Institute. Also that the 3rd and 4th Defendants were mischievous and guided by their self-interest and their relationship with the Minister hence they decided to rise against his appointment without any probable or just case. He denied that there was unrest in the 2nd Defendant rather it was the 3rd Defendant who wanted to retain his former position as Acting Executive Director and he conspired with the 4th Defendant to create trouble and use same to draw the attention of the 1st Defendant with a view to have his appointment terminated. That however, his tenured appointment can only be terminated by proven act of misconduct or by the death of his employer.
Claimant filed a Reply on Point of Law alongside the further affidavit, Learned Claimant’s counsel argued that whether in the light of the extant (Nigeria Research Institute Act and the Circular with Ref No HESF/EMS/EIR/B63684/IV/T2/96 dated 27th July, 2009 from the Head of Civil Service of the Federation in that regard, the appointment was regular. He also submitted that the defendant’s contention that the claimant having retired from the 2nd Defendant’s employment cannot be given five (5) years tenured appointment as it amount to tenure elongation is misconceived and cannot stand in the light of Section 2(4)(a & b) of the Nigeria Research Institutes Act, 1964 and the Federal Government Circular Ref no HESF/EMS/EIR/B63684/IV/T2/96 dated 27th July, 2009 from the Head of Civil Service of the Federation. He contended that by the provisions of the Act supra, it was not provided that the position of the Director is for career Civil servant but a person with wide experience of the matters with which the relevant institute is concerned. He noted that this circular and the one dated 4th day of December 2017 by the Secretary to the Government of the Federation (attached as Exhibit EE with Ref No SGF 50/S.II/C.2/268) by the 3rd Defendant are of the same purpose. On the contention of the defendants that the 1st defendant having terminated the appointment of the claimant as the director/chief executive officer of 2nd Defendant, the claimant has no cause of action before this Court, Counsel submitted that the 1st Defendant issued Exhibit DD (letter of withdrawal of appointment dated 4th day of December, 2017) during the pendency of this suit is an attempt to foist on this Court a state of helplessness by the 1st Defendant purported letter. He reiterated the position of the law that the Court will not allow a defendant who is in vantage position and in complete disregard for the outcome of the pending suit to go ahead and do that which is sought to be prevented in this suit. Reliance was placed on Adeogun v. Fashogbon [2008] LPELR 131 SC, Lau v. PDP [2017] LPELR-42800 (SC), Odedo v. INEC [2008] LPELR -2204 SC, He further submitted that by Section 83 of the Evidence Act 2011, a document made by an interested party while matter is pending before the Court is not admissible in evidence and if such document is exhibited in an affidavit as in the instant case, the Court should disregard the document in the final determination of the case and that by the doctrine of lispendis which simply means that during a litigation nothing new should be introduced, hence the 1st Defendant cannot lawfully terminate the claimant’s appointment during the pendency of this suit. He also cited the case of PDP &Anor v. Kingsley Nonye Philips & Anor [2010] LPELR-8980 (CA), Ugwu V. Ararume [2007] LPELR-24345 (SC), Idokwa Rtd v. Ibrahim &Anor [2011] LPELR-8936 (CA). He also noted that the argument of the 1st defendant that the claimant was appointed in error will not avail as the defendants have not placed before the Court sufficient evidence or material to establish same, Aiguokhian v. The State [2004] LPELR-269 (SC). He urged the Court to so hold.
The Claimant also filed a fifteen (15) paragraph 2nd Further affidavit on the 9th of October, 2018 in addition to the one filed the 18th May 2018, and stated that he rose to the position of the Acting Executive Director/CEO of the 2nd defendant on the 3rdJuly 2017 being the most Senior Technical Director of the 2nd Defendant following the expiration of five (5) years tenure of the erstwhile Director, Dr. Omorefa Asemota on 2nd July 2017, that it is based on all these recommendation that the 1st defendant approved his five (5) years tenure appointment on the 3rd November, 2017, that the 1st defendant knew very well that he had retired before appointing him based on his wide experience in the Area of Research. He denied the assertion of the defendants that he threatened to set ablaze the 2nd Defendant if his appointment is tampered with. He deposed that he had retired from career service at the time of the appointment but his appointment was based on the recommendation by virtue of Ref No. HCSF/EMS/EIR/B63694/IV/TV/96 dated 27th July 2009 that the 1st defendant is empowered to make tenured appointment to retirees and he indeed appointed him based on the recommendation. He stated that the 1st defendant is aware of the pendency of this suit as at the time he issued the purported withdrawal letter of my appointment and all the processes served on the 1st defendant and it even reacted to those processes.
The Claimant filed a Reply on Point of Law on the 9th October, 2018, Learned Claimant Counsel argued that the 1st defendant has completely misconceived the case put forward by the claimant, he argued that the 1st defendant tended to derail this Court by posing a question whether the 1st defendant under Section 14(1) and the Second Schedule to the Agricultural Research Council of Nigeria Act, cap A12, LFN 2010 has the power to appoint, suspend or remove the claimant. He argued further that the statutory authorities relied upon by the 1st defendant does not apply to the fact and circumstances of the case, counsel stated the position of the law that once an action is pending in Court, all the parties are to refrain from doing any act or taking any step capable of taking the cause of action away from the Court, that the 1st defendant decided to be a judge in his own case and illegality and unlawfully withdrew the appointment of the claimant in this suit. He was of the opinion that instead of the 1st defendant to allow this Court to determine the issue, the 1st defendant decided to usurp the function of this Court by determining the issue by itself and withdrew the claimant’s appointment on the ground that it is made in error. Reliance was placed on Enyibros Foods Processing Company Ltd &Anor v. Nigeria Deposit Insurance Corporation &Anor [2007] Vol, 153, LRCN pg 65 at page 71 and 72 Ratio 9 &10, he concluded that that the Court frown on the act of the defendants who during the pendency of the suit dispose the caution of action, the Court treated the act as if it never existed.
After a careful consideration of the Originating Summons, the accompanying affidavit forthwith and the Written Submission of Learned Claimant/Applicant’s Counsel and also the Counter-Affidavits of the Defendants/Respondents’ and the Written Addresses in support thereof, it is my respective view that the sole issue determination in this case is:
Whether or Not the Claimant/Applicant has proven the questions posed for determination of this Court to be entitled to the reliefs sought?
It is not in contention that by a letter dated 25th September 2017, the 2nd defendant forwarded a letter (Exhibit AA) to the claimant ending his appointment as Acting Executive Director of the 2nd defendant and retirement from the Federal Public Service having attained the mandatory retirement age of Sixty-Five (65) years. That after his retirement, the 1st defendant by a letter dated 9th November, 2017 (Exhibit BB), appointed him as the Director/Chief Executive of the 2nd Defendant on a single term tenured appointment of five (5) years with effect from 3rd November 2017. To the claimant, the appointment was done vide the Federal Government Circular dated 27th July, 2009 (Exhibit NA2) issued under the hand of the then Head of the Civil Service of the Federation, Stephen Oronsaye CON which stated that career officers who wished to take up tenured appointments should at the time of taking up the appointment retire first from the service to ensure they run their term uninterrupted which he complied with. That while this suit was already pending the 1st defendant purportedly vide a letter dated 4th December 2017 (Exhibit DD) terminated his appointment with the 2nd defendant. The defendants are ad idem on the appointment of the claimant as Director/Chief Executive of the 2nd defendant after his retirement but stated that he was erroneously appointed as the Director/Chief Executive of the 2nd defendant pursuant to Item 4 Second Schedule of the Agricultural Research Council of Nigeria Act, A12, LFN 2007, and in effect, his appointment was withdrawn by the 1st defendant on 4th December 2017 in order to facilitate improvement in the 2nd defendant and also that his is not in public interest.
The claimant in this suit has prayed to the Court to answer the following questions whether the 1st defendant has the power under the extant laws to appoint Director/Chief Executive of the 2nd defendant? The answer to this question has been validly answered by the defendants as they are not contesting the fact that the claimant was reappointed however, they asserted that his appointment as a Director/Chief Executive of the 2nd defendant is erroneous. It is clear that the 2nd defendant where the claimant was appointed Director/Chief Executive is established by the Nigerian Research Institutes Act, Cap N132, LFN 2007, hereafter called “the Act” and it provides vide Section 1 that: There shall be established four bodies corporate by the following names, that is
the Cocoa Research Institute of Nigeria
the Nigerian Research Institute for Oil Palm Research
the Rubber Research Institute of Nigeria; and
the Nigerian Institute for Trypanosomiasis Research (Underlining mine)
In the same vein, Section 2(4) of the Nigerian Research Institutes Act supra provides for the power of the 1st defendant to appoint a Director for the 2nd defendant, the exercise of the power is subject to the advice of the Council that: “There shall be a director of each institute who shall be appointed by the Minister on advice of the council and shall be a person with wide experience of the matters with which the relevant institute is concerned; and the director shall:
be charged with the day to day management of the affairs of the institute in accordance with such instructions as may from the time to time be given to him by the council; and
hold office, subject to the provision of section five of this Act in accordance with the terms of the instrument by which he is appointed (including terms as to the payment of his remuneration by the Council)
Also the Item 4 of the Second Schedule of the Agricultural Research Council of Nigeria Act, cap A12 LFN, 2007 as cited by the defendants provides that;
“4 (1) There shall be for each institute a Director to be appointed by the Minister on the advice of the Council (underline mine)
(2) The Director shall be-
a. a person with wide experience of the matter with which the institute is concerned;
b. charged with the day to day management of the affairs of the institute in accordance with such instruction as may from time to time to be given to him by the Governing Board of the institute; and
c. appointed in accordance with the regulation and conditions of service approved by the Council”
A clear perusal of both Acts reveals by Section 19 of the Agricultural Research Council of Nigeria Act supra; that the term Minister means “the Minister charged with responsibility for Agriculture” and Section 9(a) of the Nigerian Research Institutes Act supra provides that the term Minister means;
in relation to institutes other than the Trypanosomiasis institute, the Minister responsible for agricultural research”
It is obvious that the Minister in this suit is the 1st defendant and who in his official capacity appointed the claimant vide Exhibit BB dated 9th of November, 2017, thus there is no doubt that the 1st defendant in this case is the person solely vested with the rights and powers under the Act to appoint a director or Chief Executive Officer for the 2nd Defendant. With regards to the claimant’s appointment being erroneous, it is the law that he who asserts must prove by cogent, substantial, and credible evidence the existence of his assertion, in order to succeed in his claim. See Sections 131-137 of the Evidence Act, 2011; The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side, See the cases of Dasuki v. FRN & Ors [2018] LPELR-43897SC; Ilori & Ors v. Ishola & Anor [2018] LPELR-44063SC; Iseogbekun & Anor v Adelakun& Anor [2012] 4 SC 86; Adetoun v. Lafarge Africa Plc & Anor [2018] LPELR-44733CA.. A keen perusal of the evidence before me disclosed at nowhere were the defendants proved on a balance of probability that claimant’s appointment as the Director/ Chief executive of the defendant was erroneous, they placed reliance on Section 13.4 of the Condition of Service for Research Institutes, College of Agriculture, Allied Institution which according to them is an extant law that provides that those qualified to act in service of the 2nd defendant are those in service and not those that have retired like the claimant. I noted that the Condition of Service for Research Institutes, College of Agriculture, and Allied Institution relied upon by the defendants is not before the Court to corroborate their assertion. None of the defendants tendered it before the Court to corroborate their assertion. Alternatively put, the foundation upon which they hinged their argument is not proven before this Court, and the law remain settled that you cannot place something on nothing and expect it to stand, it will certainly crash. This is also captured in this latin maxim ex nihilo nihil fit. See the locus clasicus case of Macfoy v. UAC LTD. (1961) W.L.R. 3; (1951) A.C. 15.; Petgas Resources Ltd v. Mbanefo [2017] LPELR-42760SC; Mohammed v. Gbugbu & Ors [2018] LPER-44494CA. Courts are not allowed to fish for evidence or make a case for parties in prove of their case. The law is also long established that a person cannot be allowed to resile from an agreement or his action after same has been believed and acted upon by the other contracting party to be the true position of things. See Julius Berger Nig. Plc v. Almighty Projects Innovative Ltd & Anor [2018] LPELR-44382. It is plain vide exhibit Aisueni 1 and 2 that the 1st defendant followed all the necessary procedure for the appointment of the claimant in this case, in fact the 2nd defendant’s council recommended his appointment, the Permanent Secretary made his strong submission in support of same to the 1st defendant and he in turn sought for and obtained legal advice from the Director Legal of the Ministry Mr. Olatigbe who is here present in Court today, before appointing claimant. What more claimant’s name has been published in the official circular which is a subsidiary legislation of the Ministry, he has been held out and known as the Chief Executive Officer of the 2nd defendant. It would therefore constitute the height of injustice to the claimant for the Court to overlook or allow the 1st defendant to lackadaisically and brazenly withdraw his letter of appointment just by merely saying that his appointment was in error, which error, the one that the 1st defendant has failed to substantiate or any other one not stated on record. Courts of law are the last hope of all citizens of this great nation and the Courts in this clime cannot allowed itself to be used in giving a nod to such a reckless/unjustifiable act. By exhibit EE, i. e. a circular from the office of the Secretary to the Federal Government of Nigeria, all tenured positions are to be strictly complied with, id est tenure position should not be exceeded. Meaning of which is as in this instance, the claimant’s tenure should not exceed five years, and this circular should not be otherwise interpreted to mean that the claimant cannot be appointed to a tenured position after retirement. That is not the import of exhibit EE. Exhibit NA 2, dated 27th July, 2009, stated that career officers can take up tenured appointment after retirement from service and the tenure should be run uninterrupted. It is therefore obvious and without any contradiction from all the documents on record as well as the evidence before me that the claimant’s appointment as the Director/Chief Executive of the 2nd defendant is valid, remains valid until after his tenure period of 5 years. Consequent upon which I find that the 1st defendant’s appointment of the claimant as the Chief Executive of the 2nd defendant vide a letter AGR BO3/1/156 dated 9th November, 2017 by the 1st defendant is regular, proper and remains valid. The 1stt defendant is accordingly estopped from resiling at the middle of the game when claimant’s tenured appointment remains unexpired. I so hold.
Next is the claimant’s prayer to the Court to determine whether or not the 3rd defendant who was acting Director/Chief Executive of the 2nd Defendant and the 4th defendants who is the Secretary of the 2nd defendant have Locus-Standi to challenge the appointment of the Claimant under any guise? Locus standi has been defined in plethora of cases as the legal capacity to institute an action in a Court of law based on a sufficient interest in the subject matter of a case. By Barbus & Co. (Nig) Ltd & Anor v. Okafor Udeji [2018] LPELR-44501SC, the expression “Locus standi”, denotes legal capacity to institute proceedings in a Court of law without inhibition, obstruction or hindrance from any person or body whatsoever. It is used interchangeably with terms like “standing” or “title to sue. See also the cases of Oyewumi v. Osunbade [2001] FWLR (Pt. 82) 1919. It evolved primarily to protect the Court from being used as a playing ground by professional litigants, meddlers, interlopers, prank-players and other cracks who have no real stake or interest in the subject-matter of the litigation they are professing to be interested in. Locus standi is the legal capacity to institute or maintain an action, See Opobiyi & Anor v. Minuru [2011] LPELR-8232 (CA). Now, does the 3rd and 4th defendants have sufficient interest in the appointment and termination of the claimant’s tenured appointment? The law is that locus standi is tied to a cause of action. The apex Court in Eze v. PDP & Ors [2018] LPELR- 44907SC, held that “.. where a plaintiff’s locus standi to maintain an action is challenged, it is the plaintiff’s claim that determines the objection. If, however, the action is commenced by an originating summons it is the averments in the affidavit in support alone that is examined in determining whether or not the Court is competent to proceed.” See also ASUU v. BPE [2013] 14 NWLR (1324) 378, 415 and 421. The Court, in determining locus standi is urged to examine the statement of claim or an affidavit in support of an originating summons as in this case to see if the plaintiff has shown; (1) An injury that he has suffered or is likely to suffer. (2) Sufficient legal interest in the subject matter of the action likely to be affected if the Court does not intervene. It is clear from the affidavit/counter affidavit evidence before the Court that the 3rd and 4th defendants have no locus to challenge the claimant’s appointment, I say so in view of the fact that the claimant was not appointed by them but by the 1st defendant there is nothing with regards to the claimant’s appointment that concerns/affects them save for the fact that the 3rd defendant vide Exhibit CC dated 20th of November, 2017 wrote to the 2nd defendant informing them that there was a threat to his life by the claimant. This simpliciter does not amount to having an interest or locus to challenge the appointment of the claimant as there is no linkage between the document exhibit CC and the appointment of the claimant. The only one who would likely have an interest with respect to the claimant’s appointment is the 1st defendant who appointed the claimant for the 2nd defendant and not the 3rd and 4th defendants because the mode of appointment and withdrawal of the claimant’s appointment has nothing to do with the 3rd and 4th defendants and also that same does not impose any incumbent danger on the right of the 3rd and 4th defendants. There is no evidence (document) pointing to any infringement of their civil right and obligation in relation to the Claimant’s appointment as the Director/ CEO of the 2nd Defendant, they are thus meddlesome interlopers in this suit. They are not necessary parties who ought not to have been sued in this case. It is upon this basis that I find that the 3rd and 4th defendants have no locus standi to challenge the appointment of the claimant as they equally not necessary parties to this suit. I so hold.
The claimant prayed to the Court that the letter dated 4th day of December, 2017 wherein the Defendant purported to have terminated/withdrawn his appointment with the 2nd Defendant while this suit is pending before this Honourable Court should be set aside and treated as though it is not in existence. The defendants on the other hand stated that it was not aware of the pendency of this suit when he lawfully withdrew the appointment of the claimant as the Director/Chief Executive of the 2nd Defendant. Claimant’s counsel by his reply on point of law dated 18th of May, 2018 posited that by Section 83(3) of the Evidence Act, 2011 Exhibit EE is inadmissible as it was made by an interested party during the pendency of the suit. In response the 3rd defendant stated that Exhibit DD does not violate Section 83(3) of the Evidence Act, 2011 as it was made in an official capacity by the Honourable Minister for Agriculture and Rural Development who is not a person interested in this case. It is clear that the claimant filed this suit on the 28th of November, 2017 and during the pendency of the suit, the 1st defendant by Exhibit DD dated the 4th of December, 2017 which according to them is predicated on the letter dated 4th of December, 2017 Exhibit EE terminated the claimant’s appointment. Section 83 (3) of the Evidence Act, supra is clear that when a statement is made by an interested person during the pendency of the suit it is inadmissible. This is predicated on the doctrine of Lis Pendens or Pendent lite nihil innovetur which mean that during litigation nothing new should be introduced. This principle is intended to prevent foisting a fait accompli on a Court with respect to a matter before it. On the premise of this hallowed and ageless principle, it is noteworthy that the inadmissibility of documents or evidence manufactured during the pendency of a suit by a party is largely a matter of public policy that makes it unconscionable for a party interested in the outcome of the pending litigation to overreach his adversary, see the Apex Court decision in Anagbado v. Faruk [2018] LPELR-44909 (SC), on the argument of the 2nd and 3rd Defendants’ learned Counsel, let me state here unequivocally that the general rule and the law is that documents made by an “interested party” during the pendency of the suit is inadmissible, See Ogidi v. Egba [1999] 10 NWLR (Pt.62) 42, the Court held amongst others that “…however, the divergence by Section 83(3) of the Evidence Act, 2011 is that such a document is only rendered inadmissible when the maker of the document knows about the pendency of the suit to which the document is made and even when he does not know about the existence of the suit, he anticipated that a dispute might arise, the wisdom in the section is that the person interested might easily be tempted to depart from telling the truth by reason of the interest he has,” See the cases of UBN Plc v. Okoro [2002] 10 NWLR (Pt.774) page 1 at 11, pars c-a, Anya v. Anya & Ors [2014]LPELR-22479 (CA). The 1st defendant in this case I find, is an interested party in this suit being the one who appointed the claimant as the Director/Chief Executive of the 2nd defendant and competently sued as a party in this suit. It is therefore obvious by the authorities cited and Section 83(3) of the Evidence Act, supra that a document tendered or any action done or purported to have been done by a party during the pendency of a suit is in unlawful. I so hold.
It is germane to address the issue of concern to the claimant, which is whether or not the 1st defendant can withdraw claimant’s appointment letter during the pendency of this case. The Court of appeal in the case of Alhaja Risikat Dabiri Oyegbemi v. Mr. Fatai Aromire & Ors [2012] LPELR-7942CA; Per Ogunwumiju JCA, aptly and succinctly puts the firm and correct position of the law in instances of this nature thus-
The principle is settled that the court cannot be hamstrung by a party who changes the status quo during litigation. Thus, if a party cannot prove its case, the court is not obliged to indulge the party because it had changed its position during litigation and it may suffer the consequences if the case is resolved against such a party. In consequence, a party who resorts to self help cannot enjoy any favour from the court. That is the essence of the dictum of Nnaemeka-Agu JSC in Registered Trustees Apostolic Church v. Olowoleni (1990) 4 NWLR Pt. 158 Pg. 514 at 537 where he said: “Once parties have turned their dispute over to the courts for determinations, the right to resort to self-help ends. So it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of fostering upon a court a situation of complete helplessness or which may give the impression that the court is being used as a mere subterfuge to tie the hands of one party while the party helps himself extra judicially. Both parties are to wait the result of the litigation and the appropriate order of court before acting further.
I have held supra that the 1st defendant is an interested party in this suit, this is in addition to the above reason, the fact that Exhibits DD was made by the Permanent Secretary for and on behalf of the Minister who is the 1st defendant and Exhibit EE was made by the Secretary to the Government of the Federation. It is clear that the Honourable Minister who authored Exhibit DD is the 1st defendant who is an interested party in this suit and by the provision of Section 83(3) of the Evidence Act, supra such document as held supra is inadmissible. I place heavy reliance on the beautifully captured certain and sure position of the law stated in Dabiri’s case supra, and find that the action of the 1st defendant in withdrawing the claimant’s appointment is a step taking in a wrong direction. It is a desecration by the 1st defendant of the sanctity of the judex and the temple of justice by that singular act. I say so in view of the fact that the power to adjudicate on grievances of parties is bestowed on the Courts by Section 6 of the 1999 Constitution as amended.
Now an important question to consider is can the 1st defendant determine the appointment of the claimant vide Exhibit DD a letter dated 4th of December, 2017? It is apposite to state that an indepth perusal of Exhibit BB at paragraph 2 thereof provides that “the appointment which will run for a single term of 5 years takes effect from 3rd of November, 2017…” It is the law that he who has the right to hire has a correspondence right to fire as is the position of the 1st and 3rd defendants, but must be done in accordance with the terms of the contract of employment. See the case of Mr S. Anaja v United Bank for Africa Plc [2014] 4 ACELR 78. Now has the 1st defendant determined claimant’s appointment in accordance with the terms in Exhibit BB, I answer in the negative and state that it is plain from the above paragraph of Exhibit BB that his contract was predetermined by Exhibit BB to a five years tenure and the decision of the Supreme Court in the case of Shena Security Company Ltd v Afropak Nig Ltd & Ors [2008] 18 NWLR (Pt. 1118) 77 SC, on the significance of a fixed term contract states that; “where the term of service is predetermined at the commencement of the contract. Notice may or may not be in contemplation of the parties. The Proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies” It is also trite that a person appointed to a post for a term by statute has a right to serve out the statutory term of his appointment, See the case of Achu v. CSC Cross Rivers State [2009] 3 NWLR (Pt 129) 475 CA, a corollary of the foregoing is that the claimant having been appointed by virtue of the provisions as evident in the Letter dated 9th November 2017, with Ref No. AGR.803/1/156 (Exhibit BB) and the Nigerian Research Institutes Act has the right to serve out his Five (5) year term. A keen scrutiny of the Exhibit BB reveals that claimant’s appointment is for a fixed term of service 5 years fixed tenure. Failing which the letter dated 4th of December, 2017 which sought to determine his appointment already declared null and void and of not effect, remains null, void and of no effect. I so find and hold.
I have held earlier that since the claimant’s letter of withdrawal of appointment has been declared null and void, exhibit DD has equally been held to be inadmissible meaning of which is that the claimant still remains the Director/Chief Executive of the 2nd defendant. The appropriate order to make in the circumstance is that the claimant still is and remains the Director/Chief Executive of the 2nd defendant till January, 2022. Claimant is therefore, entitled to his salaries, emoluments and all other entitlements as the Chief Executive of the 2nd defendant from 4th December, 2017 till date. I so find and hold.
Lastly, claimant is praying to the Court to grant a perpetual injunction to restrain the defendants from interfering with his appointment as the Director/Chief Executive of the 2nd defendant. It is apparent from the sound reasoning of the Court earlier in this judgment that the 1st defendant is in breach of the contract and his action has been held to be void, null and of no effect, he is therefore estopped from interfering with the appointment of the claimant until the expiration of his five year fixed tenure. However, in labour jurisprudence and employment relations, the Court cannot fetter the rights of the 1st defendant with injunctions in perpetuity. It is in consequence that I find and hold that claimant’s claim for perpetual injunction is discountenanced.
It is in the light of the above reasoning that I find that the claimant’s claims succeeds in the most part. For the avoidance of doubt, and for clarity purposes, I hereby declare and make orders as follows;
That the 1st defendant has the power under the extant laws to appoint Director/Chief Executive of the 2nd defendant.
That the appointment of the Claimant as Director/Chief Executive of the 2nd defendant vide a letter AGR BO3/1/156 dated 9th November, 2017 by the 1stdefendant is regular, valid and proper.
That the 3rd and 4th Defendants Acting as the Director/CEO of 2nd Defendant and the Executive Secretary of 2nd Defendant have no Locus Standi to challenge the claimant’s appointment.
That the withdrawal of the Claimant’s appointment from the 2nd Defendant by the 1st Defe ndant is null and void and of no effect.
That the claimant’s appointment as Director/Chief executive of the 2nd defendant is proper, valid and still stands
That the claimant is entitled to his salaries, emoluments and entitlements for the period between December 4th 2017 till date.
That claimant’s claim for perpetual injunction fails
Cost of N100,000 is awarded against the 1st, 2nd and 5th defendants severally.
All judgment sum are to be paid within 30 days of this judgment failing which it is to attract an interest of 10% per annum.
Judgment is accordingly entered.
Hon. Justice Oyebiola O. Oyewumi
Presiding Judge
