IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
IN THE MATTER OF THE APPLICATION BY AUDU YUSUF FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS
DATED 31ST JANUARY 2017 SUIT NO: NICN/ABJ 49/2016
BETWEEN:
AUDU YUSUF APPLICANT
AND:
- HASSAN GBATIGBI
- AKOH BENJAMIN RESPONDENTS
- KOGI STATE UNIVERSITY
- COMMISSIONER OF POLICE, KOGI STATE
REPRESENTATION
- P. OCHEJA for the Applicant/ Respondent
- A. AKUBO SAN for the 1st-3rdDefendant
R U L I N G
The Applicant filed Fundamental Rights (Enforcement Procedure) on 4th May, 2016 for an order granting the following reliefs:
- A DECLARATION that the Acts of the Respondents: to wit: intimidation and threats of further arrest of the Applicant is illegal, unconstitutional and a gross violation of the Fundamental Rights of the Applicant as enshrined in Sec. 35(1) of the Federal Republic of Nigeria, 1999 (as amended) and Article 6 of the African Charter on Human and Peoples’ Right.
- A DECLARATION that the suspension of the Applicant by the 3rd defendant is illegal, unconstitutional and a gross violation of the Fundamental Rights of the Applicant as enshrined in Sec. 36(1) of the Federal Republic of Nigeria, 1999 (as amended) and Article 6 of the African Charter on Human and Peoples’ Right.
- AN ORDER of this Honorable Court directing the 3rd Respondent to withdraw the suspension letter against the Applicant and to restore the Applicant to the status quo ante.
- AN ORDER OF INJUNCTION restraining the 3rd defendant from suspending and or terminating the Appointment of the Applicant and to restore the Applicant to status quo.
- AN ORDER OF INJUNCTION restraining the respondents, their agents or privies from arresting and or detaining the Applicant.
- AN ORDER OF INJUNCTION restraining the Respondents, their agents or privies from further acts of harassment, intimidation and any other form of infringement of the fundamental rights of the Applicant.
- AN AWARD of #10,000,000.00 (Ten Million Naira) only against the Respondents jointly and severally as exemplary damages for the unbearable hardship and psychological trauma caused to the Applicant and the cost of this suit.
The Applicant’s process was accompanied by a WRITTEN ADDRESS IN SUPPORT OF APPLICATION wherein the Applicant raised the following ISSUES
- Whether there was a breach of the Fundamental Right of the Applicant.
- Whether the Applicant is entitled to the reliefs sought having recourse to the provisions of Order 2 Rule 1 of the Fundamental Rights) Reinforcement Procedure) Rules, 2009.
1st, 2nd and 3rd Respondents filed a NOTICE OF PRELIMINARY OBJECTION on 7th June, 2016 and dated 6th June, 2016 urging the Court to strike out the suit for being incompetent and for want of jurisdiction.
GROUNDS FOR THE OBJECTION
- The originating process filed by the applicant is invalid there being no such procedure under the Rules of this Honorable Court.
- The originating process was not served directly or personally on the 1st, 2nd & 3rd Respondents as envisaged by Order V Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 neither was leave to effect service by substantial means obtained by the Applicant pursuant to Order V Rule 7 of the Rules.
- The application was not fixed for hearing within 7 days with effect from the date it was filed, to wit, 4th May, 2016 in compliance with Order IV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and as such a spent force.
- Importantly, the case of the applicant is statute barred by virtue of Sec. 2 (a) of the Public Officers Protection Act.
- By reason of grounds 1, 2, 3 and 4 above, this Honorable Court lacks the jurisdiction to entertain this application and/or grant the reliefs sought by the applicant.
1st, 2nd and 3rd Respondents also filed a WRITTEN ADDRESS IN SUPPORT OF OBJECTION with the following ISSUES
- Whether the originating process filed by the applicant in this case on 4th May, 2016 on the basis of master and servant relationship between the applicant and the 3rd respondent was initiated by due process let alone valid and competent such that this Honorable Court has the jurisdiction to entertain it.
- Whether the claim of the applicant is not statute barred having regard to Sec. 2 (a) of the Public Officers Protection Act such that this Honorable Court lacks the jurisdiction to entertain this case.
ON ISSUE 1
Whether the originating process filed by the applicant in this case on 4th May, 2016 on the basis of master and servant relationship between the applicant and the 3rd respondent was initiated by due process let alone valid and competent such that this Honorable Court has the jurisdiction to entertain it.
Learned Counsel to the 1st, 2nd and 3rd Respondents P. A. Akuba SAN, submitted that a glance at the purported originating process filed by the applicant undoubtedly confirms that the originating process is not only strange but an abuse of court process. He urged the court to take judicial notice of the said originating process pursuant to Sec. 122 (2) (m) of the Evidence Act, 2011. UZODINMA v. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 28 @ 75. Contending further that the issue of employment is not a fundamental right under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). F.B.N. v. A.G. FED. (2014) 12 NWLR (PT. 1422) 470 @ 503, PARA. F, per AKomolafe-Wilson, JCA; TUKUR v. GOVT. OF TARABA STATE (1997) 6 NWLR (PT. 510) 549 @ 576-577, PARAS. H-A, Ogundare, JSC; AMALE v. SOKOTO LOCAL GOVT. (2012) 5 NWLR (PT. 1292) 181 @ 199, PARA. A, Fabiyi, JSC; GAFAR v. THE GOVT. OF KWARA STATE & 2 ORS. (2007) 4 NWLR (PT. 1024) 375 @ 398, PARAS. E-G, per Muhammed, JSC; EFFIONG v. EBONG (2006) 18 NWLR (PT. 1010) 109N @ 131-132, PARAS. H-C, per Omokri, JCA; DANGOTE v. C.S.C. PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 @ 162, PARA. E, per Karibi-Whyte.
The Learned Senior Advocate also submitted that the superior courts have in different cases deprecated inappropriate and arbitrary resort to Fundamental Rights (Enforcement Procedure) Rules in matters that are strictly contractual, tortious and/or in which the principal claim transcends breach of fundamental rights. OKECHUKWU v. ETUKOKWO (1998) 8 NWLR (PT. 562) 513 @ 534, PARAS. E-G, per Niki Tobi, JCA (as he then was); OPARA v. S.P.D.C.N. LTD. (2015) 14 NWLR (PT. 1479) 307 @ 357-358, PARAS. G-B, per Adah, JCA; ABDULHAMID v> AKAR (2006) 13 NWLR (PT. 996) 127 @ 147, PARAS. C-F, per Acholonu, JSC. Arguing that the Applicant cannot have the benefit of the Court exercising jurisdiction over his case having miserably failed to meet the condition precedent for the commencement of an action before this Honorable Court, as the law is settled on the importance of validity of originating processes in a proceeding. BRAITHWAITE v. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 15, PARAS. C-D, per Muhammad, JSC; OKARIKA v. SAMUEL (2013) 7 NWLR (PT. 1352) 37, PARA. C, per I.T. Muhammad, JSC.
It is also the contention of Counsel to the 1st, 2nd and 3rd defendant that failure to effect service of the originating process on the 1st, 2nd & 3rd Respondents directly or personally is fatal as it deprives this Honorable Court of jurisdiction to enter the case, as service of court process is one of the fundamental conditions precedent for the exercise of jurisdiction. SKEN CONSULT & ANOR. V. UKEY (1981) 1 SC 6 @ 26. Defence Counsel submitted that the operative word ‘shall” in Order IV Rule 1 of the Rules (Supra) is settled that it has mandatory connotation. NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518 @ 588, per Adekeye, JSC.
ON ISSUE 2
Whether the claim of the applicant is not statute barred having regard to Sec. 2 (a) of the Public Officers Protection Act such that this Honorable Court lacks the jurisdiction to entertain this case.
The Learned SAN submitted that when an action is statute barred, it deprives the litigating party the right of action, the right of enforcement and the right to any judicial relief leaving the claimant with an empty right. FRED EGBE v. THE HON. JUSTICE J.A. ADEFARASIN (1987) ALL NLR 1 @ 21, per Oputa, JSC. He argued that the applicant did not maintain the action within three (3) months when the purported cause of action arose, to wit, June, 2015, thus, this is fatal to this action as failure of the applicant so to do renders his action completely stature barred. IBRAHIM v. JUDICAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT. 584) 1 @ 32; CRUTECH v. OBETEN (2011) 15 NWLR (PT. 1271) 588 @ 608-609, per Oredola, JCA; YARE v. N.S.W. & I.C. (2013) 12 NWLR (PT. 1367) 173 @ 191-192, per Galadima, JSC; HASSAN v. ALIYU (2010) 17 NWLR (PT. 1223) 547 @ 619, per Adekeye, JSC.
Submitting that the law is settled that the issue of jurisdiction is radically fundamental. ELELU-HABEEB v. A.G. FED. (2012) 13 NWLR (PT. 1318) 423 @ 511-512, per Adekeye, JSC; UTIH v. ONOYIVEWE (1991) 1 SCNJ 25 @ 49, per Bello, CJN; ADETAYO v. ADEMOLA (2010) 15 NWLR (PT. 1215) 169 @ 189, PARAS. C-F, per Muhammed, JSC.
The applicant in reaction filed a REPLY TO THE NOTICE OF PRELIMINARY OBJECTION OF THE 1ST – 3RD RESPONDENTS filed on 27th October, 2016 and dated 24th October, 2016.with the following ISSUES:
- Whether this Honorable Court has jurisdiction to entertain this matter.
- Whether the respondents have not misconceived this suit as a labour matter exclusively and not a Fundamental Right Enforcement issue.
ON ISSUE 1
Whether this Honorable Court has jurisdiction to entertain this matter.
Learned Counsel to the Applicant, Ocheja Esq. submitted that it is trite that jurisdiction is the authority which a court has to decide a matter before it. It connotes the entire basis of taking cognizance of matter presented to the court formally for the purpose of adjudication. ANYANWU v. OGUNUWE (2014) ALL FWLR (PT. 738) 1012 @ 1044, PARA. D.And that furthermore that jurisdiction is the live wire of any proceeding in court and everything done in the absence of jurisdiction is simply a nullity. MUSACONI LTD. V. ASPILALL (2014) ALL FWLR (PT. 710) 1276 @ 1292-1293, PARAS. D-F.
Counsel to the Applicant submitted that the provision of the Rule as to commencement of action in Fundamental Right issues are flexible and prescribed in Order 2 Rules, 2, 3 & 4, urging the Court to hold that the originating process is proper before this Court particularly as the matter was transferred from the Federal High Court, Lokoja. Contending that the 1st – 3rd Respondents are only dwelling on technicalities. OLORUNTOBA-OJU v. ABDUL-RAHEEM (2009) ALL FWLR (PT. 497) 1 @ 29, PARAS. G-H.
Learned Applicant’s Counsel on the issue of Public Officer’s Protection Act, submitted that the Fundamental Right proceedings enjoys a distinct position in our laws that no limitation law applies, citing Order III of the Fundamental Rights (Enforcement Procedure) Rules 2009. Learned Counsel to the applicant went on to arguing that the process filed on the 4th May 2016 doesn’t constitute a new suit
ON ISSUE 2
Whether the respondents have not misconceived this suit as a labour matter exclusively and not a Fundamental Right Enforcement issue.
Learned Applicant’s Counsel argued that where a law provides for a procedure for doing a particular thing, it must be followed with all intent and purposes hence, the procedure to be adopted to actualize and activate Rule 030411 (even not applicable in this circumstance) is procedurally provided for in Rules 030305 which the 3rd Respondent woefully neglected. Furthermore, that it re-echoes the provision of Sec. 36 of the 1999 Constitution.
On the applicability of the doctrine of fair hearing to proceedings of administrative bodies, counsel relied on the case of J.S.C. CROSS RIVER STATE v. YOUNG (2014) ALL FWLR (PT. 714) 40 @ 54, PARAS. C-E. and Applicant’s Counsel cited the case of ORANEZI v. NGIGE (2014) ALL FWLR (PT. 760) 1350 @ 1384, PARA. D for the definition of fair hearing. Urging the Court to hold that the question complained of by the Applicant is solely the refusal of the 3rd Respondent to hear him and verify the content of the letter from the 4th Respondent and not any labour matter whatsoever. CADBURY (NIG.) PLC. V. ONI (2013) ALL FWLR (PT. 665) 251, PARAS. A-D.
The 1st -3rd defendant filed their reply on point of law tagged ‘1ST – 3RD RESPONDENTS’ REPLY ON POINTS OF LAW TO REPLY OF THE APPLICANT DATED 26TH October, 2016’ (filed on 1st November, 2016).
ON ISSUE 1
Whether this Honorable Court has jurisdiction to entertain this matter.
The Learned SAN argued that the Applicant’s contention is thoroughly misconceived, submitting that it is settled law that the Enforcement of Fundamental Rights does not fall within the jurisdiction of the National Industrial Court and as such, this Court is incompetent to determine this case. S.S.A.U.T.H.R.I.A.I. v. OLOTU (NO. 2) (2016) 14 NWLR (PT. 1531) 1, per Adumein, JCA @ Pp. 17 -19, PARAS. C-A; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 241.
ON ISSUE 2
Whether the respondents have not misconceived this suit as a labour matter exclusively and not a Fundamental Right Enforcement issue.
The Learned SAN submitted in rebuttal that it is settled law that courts cannot widen or expand the extent of power expressly defined by the Constitution. ANSA v. R.T.P.C.N. (2008) 7 NWLR (PT. 1086) 421 @ 446, PARA. B, per Omokri, JCA. He submitted that Sec. 36 (1) of the Constitution; Rules 030305, J.S.C. CROSS RIVER STATE v. YOUNG (2014) ALL FWLR (PT. 714) 40 @ 54, PARAS. C-E; ORANEZI v. NGIGE (2014) ALL FWLR (PT. 760) 1350 @ 1384, PARA. D; CADBURY (NIG.) PLC. V. ONI (2013) ALL FWLR (PT. 665) 251, PARAS. A-D, relied upon by the Applicant are of no moment, urging the Court to discountenance same.
The Court’s Decision
On the 13th December 2016 parties adopted their written statements on oath and the matter was adjourned for Ruling.
Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. Before I deal with the merit of this application I need to address a contention of the 1st – 3rd defendants in the 2nd ground of their objection as to personal service. The Learned Authors Offornze D. Amucheazi and Paul U. Abba in their book “THE NATIONAL INDUSTRIAL COURT OF NIGERIA – LAW, PRACTICE and PROCEDDURE.”© 2013 Wildfire Publishing House at page128 addressed this very point in their treatment of the manner of Service of origination processes in this court, thus “ The manner of service of originating processes or any other process in the NIC is relatively flexible and less rigid than the requirement for service in the High Court. There is no mandatory requirement for personal service of processes on the defendant and the party is slowed to adopt the easiest means of service of the process on a defendant without the need for leave of court”.
Or 7 Rule 1 NICR Rule 2007 provides
SERVICE OF ORIGINATING PROCESS
- (1) Any notice or any other documents required or authorized by these rules to be served or delivered to any person may be served on that person personally or sent by registered post or courier or left at that persons address for service or, where no address for service is given, the registered office, principal place of business or last known address…..
(2)……
(3)……
- (1)…….
(2) Where a party is represented by a Legal Practitioner, service of court process may be made on such Legal Practitioner or person under his or her control.
