IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP,
Hon. Justice B.A. Adejumo, OFR
Date: 22ND JUNE, 2017
SUIT NO. NICN/ABJ/31/2016
BETWEEN:
- COMRADE BENSON EKASA
- COMRADE MENELE ZIADAM NZIDEE
————————-APPLICANTS
AND
- COMRADE KIRI MOHAMMED
(The National President of National Civil Service Union)
- THE NIGERIAN CIVIL SERVICE UNION
- THE REGISTRAROF TRADE UNION
—– —-DEFENDANTS
REPRESENTATION:
- A. EJEH, ESQ., WITH J.M. NWEKIBO (MISS), FOR THE CLAIMANTS.
- A. IDAKWO, ESQ., (HOLDING THE BRIEF OF DR. GARABA FETENGI), FOR THE 1STAND 2NDDEFENDANTS.
NO LEGAL REPRESENTATION FOR THE 3RD DEFENDANT
RULING.
The applicants by their Amended Originating Summons dated 9th day of May, 2016 but filed on 10/05/2016, are praying this Honourable Court for the orders/reliefs that are contained in pages 2- 3 of the summons.
In support of the Amended Originating Summons is a 33-paragraph affidavit to which ten (10) Exhibits, A to J, were annexed. Also in support of the summons is a written address which counsel relied on as his legal argument in support of the motion.
The 1st defendant filed a counter affidavit of 20 paragraphs on 16/06/ 2017 in opposition to the originating summons. Attached to the affidavit are Exhibits D1-D4. Also in support of the counter affidavit of the 1st defendant is a written address which counsel relied on as his written argument in opposition to the originating summons. I consider it pertinent to mention that the 2nd and 3rd defendants did not file any counter-affidavit in opposition to the originating summons.
In the course of proceedings in this case, this Honourable Court in its wisdom ordered parties to address it on the propriety or otherwise of the instant suit being heard and determined on affidavit evidence alone in spite of dispute of facts relating to allegation of forgery. It is pursuant to this directive of the court that parties filed their respective addresses.
The claimants’ written address on the issue was dated 23rd day of September, 2017 but filed on 27th day of September, 2017. Claimants’ reply on points of law in response to the defendants’ written address was dated 24/10/2016 and filed on the same date. The written address and the reply on points of law were settled by Stephen Apeh, Esq.; Emmanuel Okwoli Esq.; Ucholi Friday Ojefu, Esq. and Ede Jarius Otojah ,Esq., who are all counsel in Edge Chambers, Counsel to the claimants. The 1st and 2nd defendants’ written address dated 13/10/12 and filed on 24/10/2016 was settled by N.A. Idakwo, Esq., counsel for the defendants.
Counsel for the parties adopted their respective written address and prayed the court to grant their prayers. The matter was then adjourned for ruling.
Let me now review the submissions of counsel in their respective written addresses. I will start with the written address filed by the Claimants/Applicants.
In the claimants’ written address of 27/09/2016, counsel for the claimants commenced his argument by positing that in determining whether this matter could be heard by way of originating summons, the content of the originating summons, especially the issue raised therein and the affidavit in support of the application, and not the counter- affidavit of the defendants, should be considered.
He argued that the issues before the court are constitutional matters. He argued further that the essence of this suit is to determine the issues raised by the claimants in their originating summons which has nothing to do with forgery but rather it is for the court to basically determine whether a retiree can be a member of the union. Counsel referred to the cases of KADZI INTERNATIONAL LTD V. KANO TANNERY CO. LTD & 2 ORS (2004) 12 WRN PG. 131 RATIO 9 @ P 136-137.
It is claimants’ position, while relying on the above- cited case, that jurisdiction cannot be determined from the statement of defence, which in this case is the counter affidavit of the defendants. It is therefore argued that in order to determine whether the court has jurisdiction, it is the originating summons that ought to be considered and not the counter affidavit of the defendants.
He urged the court to determine all the issues/questions raised by the claimants in the amended originating summons and discountenance the defence of forgery put up by the defendants for the sake of justice.
The 1st and 2nd defendants in response to the claimants’ written address filed an address on 25/10/2016. The issue formulated for the 1st and 2nd defendant by their counsel is “whether a suit alleging forgery and other contentious facts can rightly be determined on affidavit evidence alone”? Defendants’ counsel answered the question in the negative.
The position of Defendants’ counsel was premised on the fact that the issues before the court are not limited only to constitutional issues. He contended that the main fact in contention is whether or not the 1st defendant had retired from Jigawa State Civil Service, which fact is not restricted to interpretation of the Union Constitution alone. He argued that the provision of the constitution of the Union did not state when the 1st defendant retired.
Defendants’ counsel further argued that depositions in paragraphs 4-12 of the affidavit in support of the Originating Summons will reveal that the claimants only intend to mislead the court. He argued that the claimants will not be able to prove that the 1st defendant has retired. He posited that he who alleges must prove. He therefore argued that the onus is on the claimants to establish that the 1st defendant has retired.
Relying on the authority of AHMED V. MINISTER OF INTERNAL AFFAIRS (2003) 15 NWLR PT. 290 P. 239 @ 257-257 PARAS G-A , defendants’ counsel held the view that the documents presented before the court by the claimants cannot lead to a conclusive proof that the 1st defendant retired on January, 2016 and the next logical step for the court therefore is to hear evidence with a view to resolving the contentious issue of whether or not the 1st defendant has indeed retired. He further referred to the case BOHON V. ATTORNEY GENERAL, EDO STATE (1997) 5 NWLR PT. 505, 298.
Counsel argued that the 1st defendant in his counter-affidavit stated that the purported letter stating that he has retired from Jigawa State Civil Service in January, 2016 is a forged document. He contended therefore that allegation of fraud is one that a plaintiff must specifically plead and prove.
Defendants’ counsel argued that throughout the suit of the plaintiffs they have alleged that the 1st defendant made away with the Union funds, engaged in extra budgetary spending and condoned illegality in the union. He submitted that it would be unconscionable for the claimants to rely on the same document to resolve conflicts in their supporting affidavit. Counsel concluded that it would be inappropriate for the court to rule that the reliefs sought in the originating summons can be determined solely on the basis of the affidavit evidence.
It is the position of defendants’ counsel that originating summons is inappropriate where there is likelihood of substantial dispute of facts arising from claims in the originating processes. He cited the case of ADEYELU V. AJAGUNGBEDE III (2007) 14 NWLR PT. 1053 P.1 in support of his argument.
Counsel urged the court to strike out the suit for being fundamentally defective.
Claimants’ counsel in his response filed a reply on points of law on 24/10 2016 to 1st and 2nd defendants’ written address. Counsel cited the case of EZEIGWE V. NWAKALU (2010) 4NWLR P.159 @P.173 RATIO 14, and argued that originating summons procedure is adopted where the sole issue or principal question in issue is, or is likely to be that of construction of a written law or of any instruction made under any written law or deed, will, contract, or other document or some other question of law. He further cited the case of NWOKO V. EKERETE (2010) 4 NWLR P. 78 @P. 81 RATIO 1.
Claimants’ counsel in his argument posited that the core question before the court is “whether by the provisions of the constitution of the 2nd defendants, an elected official of the 2nd defendant who has duly retired and whose employment in the civil service of Nigeria has ceased, can continue to act as an official of the 2nd defendant?.” He posited that there is no dispute as to this issue /question before the court.
Counsel argued that the four constitutional questions for determination before the court are:
- Whether by the provisions of the constitution of the 2nddefendant, an elected official of the 2nd defendant who has duly retired and whose employment in the civil service of Nigeria has ceased, can continue to act as an official of the 2nd defendant?
- Whether the constitution of the 2nddefendant can be amended to allow the 1st defendant or any official who has duly retired and whose employment in the Civil service of Nigeria has ceased, to continue to act as the official of the 2nd defendant?
- Whether in view of the fact that the position of the president of the 2nddefendant is vacant, the 1st defendant having legally ceased to be in office as a result of his due retirement from Jigawa State Civil Service January, 2016, it is appropriate, equitable and justifiable for the 2nd Claimant, Comrade Menele Ziadam Nzidee who is the most Senior National Deputy president to be declared the acting president of the 2nd defendant, pending when election will be duly conducted sometimes in 2017?
- Whether the neglect or refusal or failure of the 1stdefendant to conduct National Executive Council (NEC) and National administrative Council (NAC) meetings in accordance with Rules 9 and 10 of the constitution of the 2nd defendant respectively, since 2014 to date, amounts to constitutional breaches.
The claimants’ counsel contended that only one of the four issues above relates to the 1st defendant. He posited that it would not serve the cause of justice if this court should decline to answer the posers simply because the defendants put up a mere defence of forgery in respect of age of the retirement of the 1st defendant even when they cannot put credible evidence concerning same before the court.
He urged this court to go ahead to entertain this suit by way of originating summons for the sake of peace and justice.
I have given conscientious consideration to the processes filed, submissions of counsel and authorities referred to and I consider it safe at this juncture to proceed to determine the application/issue under consideration.
The issue here is “whether this Honourable court can entertain this suit as constituted by way of originating summons in view of allegation of forgery”. It is my view that there is no controversy as to the issue for determination. I therefore consider it convenient to adopt the issue as formulated by the claimants’ counsel in his address.
Parties in this suit have argued for and against the propriety of this suit being heard and determined by originating summons. The position of the claimants is that the instant suit is one that could be determined on affidavit evidence. His position is premised on his belief that the instant suit is to be determined on the content of the originating summons, the issues raised therein and the affidavit in support of the originating summons, and not the Counter- affidavit of the defendants.
He further holds the position that it is not mandatory for the court to answer all issues raised in the originating summons. He argued that the court is at liberty to abandon the issues considered to be controversial in the originating summons. He urged the court to go ahead to answer the issues it considers not controversial thereon, instead of declining to hear or entertain the entire suit.
The defendants hold a contrary view to that of the claimants on this issue. The defendants are of the view and argued that originating summons application is inappropriate in the circumstances of this suit in view of substantial dispute of facts arising from claims in the originating summons of the claimants.
I consider it pertinent to mention that the position of the claimants that, it is only the content of the originating summons, the issues raised therein and the affidavit in support of the originating summons, and not the Counter- affidavit of the defendants, that should be considered in the determination of this case, is untenable and unconvincing, considering the facts and circumstances of this case. My disagreement is premised on the fact that a court of law is under an obligation to do justice between parties before it. It is also trite that a court or tribunal must consider all facts and evidence adduced by all parties before it to arrive at a just decision, once issues are joined by such parties. I therefore do not agree with this view of the claimants.
In the instant case, issues are deemed to have been joined by the parties, especially the issue of forgery, and it is therefore not possible for this court to decide the issues before it on the sole basis of the originating summons, affidavit in support and Exhibits attached to the affidavit alone. The counter affidavit of the defendant and the attached Exhibits are also crucial and important documents that the court must consider for it to arrive at a just determination of this suit. This was the position of the Supreme Court in the case of A.G. LEVENTIS (NIG.) PLC V. AKPU (2007) 17 NWLR PT. 1063 P.416 RATIO 15 @ P436 PARADRAGH D-H where it was held that “ It is the duty of lower courts, to consider all issues placed before them”. It was further held by the apex court in the case of YUSUF V ADEGOKE (2007) 11 NWLR PT. 1045 P. 332 RATIO 16 that “all courts including the supreme court must never leave any issue or issues by a party or parties to a suit without hearing or determining same before concluding the case”
It is important to reiterate that originating summons is issued where the issue for determination in a case centers on interpretation law and not where facts are or may likely be in dispute. In the case of ADEYELU V. AJAGUNGBADE III (SUPRA) 14 NWLR PT. 1053 P. 3 RATIO 2 @ P. PARA. D, it was held by the Supreme Court that “originating summons is an unusual method of commencing a proceeding in the High Court, and it is confined to cases where special statutory provisions exist for its application. Furthermore it should not be used to commence hostile proceedings where the facts are in dispute. In the instant case, there was a dispute between the parties over the facts. In the circumstance, the suit should not have been commenced by way of originating summons”
It is therefore not in dispute that where a suit involves substantial dispute of fact then such a suit cannot be commenced by originating summons.
It is also beyond doubt that at the nerve- center of the dispute between the parties in this suit is whether the 1st defendant has duly retired from the civil service or not and whether he is eligible to hold the position of the president of the 2nd defendants. For the avoidance of any doubt, let me take the liberty to make specific reference to some paragraphs of the affidavit in support of the originating Summons on which the claimants have placed heavy reliance:
PARAGRAPH 8: That the 1st defendant joined the civil service of jigawa state in the year 1981, which by implication would retire in 2016.
PARAGRAPH 9: That the 1st defendant stated his date of employment into the jigawa State Civil Service during an interview he duly granted in year, 2012 which was published at page 3 of the August 2012 edition of the Public Service Search Light, the official publication of the 2nd defendant, and by implication due to retire in 2016. The copy of the said Public Service Search Light is hereby attached and marked as EXHIBIT A.
PARAGRAPH 10: That furthermore, a letter from the Head of Civil Service, Jigawa State dated 26/10/2015 confirming the 1st defendant’s retirement date which is January, 2016is hereby attached and marked EXHIBIT B.
PARAGRAPH 11: That I know of fact and it is open secret in our union that the 1st defendant has duly retired from service since January, 2016.
The above extract, to my mind is the crux of the case of the claimants. The defendants, especially the 1st defendant, holds a contrary view on this issue and I will also take the liberty to make reference to some paragraphs of the defendants’ counter affidavit in opposition to the amended originating summons, where in it was deposed thus:
PARAGRAPH 4: That the allegation by the Claimants that I am due to retire January 2016 is false. Exhibit “A” has not disclosed the date of my entry into the civil service. I had never mentioned in any interview the date of my entry into service. My letter of offer of permanent and pensionable appointment is attached herewith and marked Exhibit “D1”.
PARAGRAPH 5: That the claimants as well as other concerned members of the Union had written a petition to the Ag. General Secretary of Nigerian Civil Service Union on 15th January, 2016, complaining inter-alia that I intend to remain president of the Union, even after retirement from the Civil Service in January, 2016.
PARAGRAPH 6: That according to the claimants and some concerned members of the Union the information as to the date of my retirement was contained in a letter from the office of the Head of Service, Jigawa State Ref.No. AP/631/EST/21 Vol.2 dated 26th October, 2015.
PARAGRAPH 7: That I was told by the Ag. General Secretary of Nigerian Civil Service Union, Comrade F.C. Ifoh, which information I verily believe to be true that on receipt of the petition and the allegation of my retirement, he wrote to the Head of Civil Service Jigawa State on January, 2016, requesting for clarification of the purported letter emanated from his office. A copy of the letter is attached hereto and marked as Exhibit D2.
PARAGRAPH 8: That in response, the Head of Civil Service of Jigawa State wrote back the Ag. General Secretary on 25th January, 2016 that the said letter did not emanate from them and I was still in the service of Jigawa State Government. A copy of the letter is attached hereto and marked as Exhibit D3.
PARAGRAPH 9: Furthermore the purported letter said to have been written by the General Secretary of the Nigerian Labour Congress to the Head of Civil Service of Jigawa state which elicited the purported response that I had retired from service since January, 2016 was equally forged. The letter written by the General Secretary of the Nigerian Labour Congress denying authorship and dated 25th January, 2016, is hereto attached and marked as Exhibit D4.
Contrary to the position of the claimants, a careful reading and understanding of the facts contained in the affidavit and counter affidavit of the parties extracted above will reveal that the issues in this suit go beyond mere interpretation of constitutional provision but that it also raises substantial issues and dispute of facts. I am of the view that the issue of the 1st defendant’s retirement from the Civil Service of Jigawa State Government and the issue of forgery of documents are issues that are not within the category of the cases to be determined by affidavit evidence. I am of firm view that this issue can never be resolved by affidavit evidence only.
Let me reiterate again that where issues for determination is one that raises or involves dispute of facts, then the matter must be commenced by way of general form of complaint. Based on all that I have said above, I agree with the defendants that there are prospects of substantial dispute of facts in the originating summons and I so hold.
I have however considered it just to resist the temptation to strike out this matter on the ground that it is fundamentally defective as urged by the defendants. The position of the defendant, in my view, can never meet the end of justice. In the case of ADEYELU V. AJAGUNGBADE III (2007) 14NWLR PT. 1053 P. 3 RATIO 2 @ P. 8 PARA. D, it was held that “the proper order a trial court should make where it finds that a suit before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such or pronounce on the merit of the suit”
In consonance with the position of the Supreme Court in Adeyelu’s case cited above, Order 3 Rule 17 (2) of the National Industrial Court (Civil Procedure) Rules, 2017, provides that “where in the opinion of the court, a suit commenced by originating summons raises substantial issues and dispute of facts, the court shall not strike out the matter, but may order its conversion to complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the rules of the court governing trial”.
Having come to a finding that the case involves substantial issues of fact, and in compliance with the decision of the apex court in Adeyelu’s case (Supra) and the Rules of this Court, I hereby order parties to file their respective pleadings.
Accordingly, the claimants are hereby ordered to file and serve their statement of facts and other necessary processes on the defendants within fourteen (14) days from the date of this ruling. The defendants are also ordered to file and serve their statement of defence and other necessary processes on the claimants within fourteen (14) days from the date of the service of the claimants’ processes on them. The claimants may, if they deem it necessary, file a reply to the statement of defence of the defendants 14 days from the date of the service of the statement of defence on them.
I award no cost.
…………..………………………………………………
Hon. Justice B. A. Adejumo, OFR
President,
National Industrial Court of Nigeria
