DAUDA v. D.G. NIA & ANOR
(2020)LCN/14054CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/A/1003/2018
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
AMBASSADOR M. DAUDA APPELANT(S)
And
1. THE DIRECTOR GENERAL, NATIONAL INTELLIGENCE AGENCY 2. NATIONAL INTELLIGENCE AGENCY (NIA) RESPONDENT(S)
RATIO
CAPACITY TO SUE AND BE SUED BEFORE ANY COURT OF LAW IN NIGERIA
As a general rule, only natural persons and juristic or artificial persons, such as bodies corporate or bodies created by statute, are competent to sue and be sued before any law Court. No action can be brought by or against any party who is not a natural person or persons accorded legal personality. See THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 31; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136; UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) LPELR – 40161 (CA).
Therefore, an action cannot be maintained against a Defendant who is not a legal person. Where it is clear that a Defendant or any party to a suit is not a legal person, the party must be struck out. PER AGIM, J.C.A.
JURISTIC PERSONALITY OF AN OFFICE OR ORGAN IN A STATUTORY BODY
This law is settled by a long decision of the juristic personality of an office or organ in a statutory body can exist by necessary implication from the fact that it exercises powers and functions that affect the rights of persons. See Carlen (Nig) Ltd v. University of Jus & Anor (1994) LPELR-832 (SC), Thomas v. Local Government Service Board (1965) NMLR 310 (SC), Anueyiagu & Anor v. Deputy Sheriff Kano (1962) 1 All NLR 52 (FSC) African Ivory Insurance Co. Ltd & Ors v. Commissioner of Insurance (1997) LPELR – 6248 (CA), Chairman, EFCC & Anor v. Littlechild & Anor (2015) LPELR – 25199 (CA), Solicitor General of Western Nig. V. Adedoyin (1973) UILR 143 and Kpebimoh v. The Board of Governors, Western Ijaw Teacher’s Training College (1966) 1 NMLR 130.
“We also draw this Honourable Courts attention to its decision per AYOOLA JCA (as he then was) which was rightly referred to by OSENI JCA in the above stated decision, AFRICAN IVORY INSURANCE COMPANY LTD & ORS v. COMMISSIONER FOR INSURANCE (1997) LPELR-6248 (CA):
“The proposition applicable to, the case at hand that can be distilled from the authorities can be shortly stated. Where a body or office is created by statute notwithstanding the absence of an express provision there as its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer a right to sue the officer or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from inavailability of means of redress should be the office exercising such powers or performing such function not to be subject to any kind of proceedings. On the other hand, if inability to sue or in order to enforce the powers vested in it or in support of the exercise of its functions will make the powers and functions ineffective a right to sue eo nomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 All NMLR 130, Thomas v. Local Government Service Board (1965) 1 All NLR 168 and Solicitor General Western Nigeria v.Adedoyin (1973) UILR 143, all of which have been discussed in Fawehinmi v. NBA (no. 2) (supra). That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from the threatened infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eo nomine.” PER AGIM, J.C.A.
PROCEDURE TO BE ADOPTED WHERE ANN OBJECTION IS RAISED TO THE JURISDICTION OF THE COURT IN A MATTER COMMENCED BY ORIGINATING SUMMONS
See Yaradua & Ors v. Yandoma & Ors (2014) LPELR – 24217 in which the Supreme Court held that-
“The procedure to adopt where an objection is raised to the jurisdiction of the Court in a matter commenced by originating summons is to consider the objection together with the substantive matter. Invariably, this would involve the consideration of not only the reliefs being claimed against the background of the facts deposed to in the affidavit in support of the originating summons but the totality of available evidence including the facts contained in the counter-affidavit(s) in opposition to the originating summons. See Adeleke v. OSHA (2006) 16 NWLR (Pt. 1006) 608, Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 75 @ 100 and Dapianlong V. Dariye (supra).” The approach of the trial Court also disregards the admonitions of our Supreme Court in Brawal Shipping vs. Onwudike Company 2000 6 SCNJ 508 at 522, Seven Up Bottling Company Ltd Vs. Abiola & Sons Bottling Company Ltd 2001 6 SCNJ 18 at 49, Ojogbue Vs. Nnubia 1972 6 SC 27 and Katto Vs. CBN 1991 9 NWLR (Pt. 214) 126 at 149 that trial and penultimate Courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted to the Lower Court for the trial of the issues not determined by it, if its decision on the only issue it determined is set aside in an appeal against that decision. PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This Cross-appeal No. CA/A/1003/2018 was commenced on 25-10-2018 when the cross-appellant filed a notice of Cross-appeal against the ruling of the National Industrial Court delivered on 12-10-2018 in Suit No. NICN/ABJ/136/2018 by O.Y. Anuwe J. The notice of Cross-appeal contains 3 grounds of appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows – Cross-appellant’s brief, Cross-respondents’ brief and Cross-appellant’s reply brief.
The Cross-appellant’s brief raised the following issues for determination-
1. Whether the Learned Trial Judge was right in law when he held that the office of the Director-General, National Intelligence Agency is not a creation of statute (Distilled from Ground 1)
2. Whether the Learned Trial Judge was right in law when he held that the Originating Summons procedure adopted by the Cross-Appellant was inappropriate (Distilled from Ground 2)
3. Whether the Learned Trial Judge was right in law when he ordered that the suit be converted to a Complaint and thereafter ordered parties to file
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pleadings in an action rooted in the construction of statute (Distilled from Ground 3).
The Cross-respondents’ brief raised the following issues for determination-
1. Whether the Director-General, National Intelligence Agency is a juristic person who could sue and be sued in these proceedings (Ground One)
2. Whether the Lower Court was right in holding that the action ought not to have been commenced by way of Originating Summons (Grounds Two and Three).
I will determine this Cross-appeal on the basis of the issues raised for determination in the Cross-appellant’s brief.
Let me start with issue No. 1 which asks “Whether the Learned Trial Judge was right in law when he held that the office of the Director-General, National Intelligence Agency is not a creation of statute. “
The part of the ruling of the Trial Court complained against under this issue reads thusly- “In ground (x) of the grounds of the Defendants’ motion, it was mentioned that the 1st Defendant is not a juristic person and cannot be sued. Then in paragraph 17 of the affidavit in support of the motion, it was averred that the 1st
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Defendant is an appointment by the President of the Federal Republic of Nigeria. In his submission on this ground of the objection, learned SAN for the Defendants argued that the 1st defendant has been wrongly joined in this suit and that it ought to be struck out from the action. In his own submissions, counsel for the Claimant submitted that the 1st defendant is a person known to law as the office originated from and was created pursuant to Section 3(1) of the National Security Agency Act 1986.
The 1st Defendant in this suit is the Director-General, National Intelligence Agency. I have examined the provisions of the National Security Agencies Act, 1986 wherein the 2nd Defendant was established, but there is no provision in the Act establishing the office of Director-General of NIA. Section 3 (1) of the Act referred to by counsel for the Claimant only granted power to the President to appoint principal officers of the Security Agencies established in the Act. The section did not establish or create the office of DG NIA. However, upon examining the provisions of Sections 3 (1), 4 (2), (4), 7 (2) and 9 of Instrument No. NIA 1, it is clear to me that the
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Director-General of NIA is a mere appointment by the President. The office is not created by statute. Also, the appointment of Director-General of NIA by the President pursuant to the NSA Act or Instrument No. NIA 1 cannot confer juristic personality on the office. In my view, the 1st Defendant is neither a natural person nor a creation of statute.
As a general rule, only natural persons and juristic or artificial persons, such as bodies corporate or bodies created by statute, are competent to sue and be sued before any law Court. No action can be brought by or against any party who is not a natural person or persons accorded legal personality. See THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 31; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136; UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) LPELR – 40161 (CA).
Therefore, an action cannot be maintained against a Defendant who is not a legal person. Where it is clear that a Defendant or any party to a suit is not a legal person,
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the party must be struck out. I agree with the Defendants that the 1st Defendant is not a juristic person and thus not capable of being sued or made a party to this suit. Consequently, the 1st Defendant is hereby struck out from this suit.”
I have carefully read and considered all the arguments of both sides on this issue.
While Learned Counsel for the Cross-appellant contends that the vesting of the overall command of the National Intelligence Agency (2nd Respondent) in the 1st respondent as Director General of National Intelligence Agency by Article 3(1) of the National Security Agencies Decree 1986 gives the 1st Cross-respondent the juristic personality that enables it to sue or be sued eo nomine, that this so because the powers and functions are enormous, and the exercise of those powers certainly would affect the rights of persons, Learned SAN for the Cross-respondents argued that the 1st cross-respondent is neither a natural or juristic person or body corporate and so cannot sue or be sued by its name. Let me now determine the merits of the arguments of both sides.
It is obvious that the 1st respondent is an office in the 2nd
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Cross-respondent, a statutory body created by S.1(b) of the National Security Agencies Act (Cap N74 Vol. 9 LFN 2004 (updated 2010) and charged by S.2(2) (a) and (b) with the responsibility for-
“a) The general maintenance of the security of Nigeria outside Nigeria, concerning matters that are not related to military issues, and
b) such other responsibilities affecting national intelligence outside Nigeria as the National Defence Council or the President, as the case may be, may deem necessary.”
The 1st Cross-respondent is the head and overall Commander of the 2nd Cross-respondent by virtue of Article 3(1) of the National Security Agencies Decree 1986 and S.3(1) and 2(a) of the National Security Agencies Act (supra).
It is obvious that as the principal officer responsible for the overall command of the 2nd cross-respondent, it bears the overall responsibility for the general maintenance of the security of Nigeria outside Nigeria.
The juristic personality of the cross-appellant exists by implication from its creation or recognition and its vesting with the overall command of the National Intelligence Agency by the National
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Security Agencies Act. This law is settled by a long decision of the juristic personality of an office or organ in a statutory body can exist by necessary implication from the fact that it exercises powers and functions that affect the rights of persons. See Carlen (Nig) Ltd v. University of Jus & Anor (1994) LPELR-832 (SC), Thomas v. Local Government Service Board (1965) NMLR 310 (SC), Anueyiagu & Anor v. Deputy Sheriff Kano (1962) 1 All NLR 52 (FSC) African Ivory Insurance Co. Ltd & Ors v. Commissioner of Insurance (1997) LPELR – 6248 (CA), Chairman, EFCC & Anor v. Littlechild & Anor (2015) LPELR – 25199 (CA), Solicitor General of Western Nig. V. Adedoyin (1973) UILR 143 and Kpebimoh v. The Board of Governors, Western Ijaw Teacher’s Training College (1966) 1 NMLR 130.
“We also draw this Honourable Courts attention to its decision per AYOOLA JCA (as he then was) which was rightly referred to by OSENI JCA in the above stated decision, AFRICAN IVORY INSURANCE COMPANY LTD & ORS v. COMMISSIONER FOR INSURANCE (1997) LPELR-6248 (CA):
“The proposition applicable to, the case at hand that can be
7
distilled from the authorities can be shortly stated. Where a body or office is created by statute notwithstanding the absence of an express provision there as its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer a right to sue the officer or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from inavailability of means of redress should be the office exercising such powers or performing such function not to be subject to any kind of proceedings. On the other hand, if inability to sue or in order to enforce the powers vested in it or in support of the exercise of its functions will make the powers and functions ineffective a right to sue eo nomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 All NMLR 130, Thomas v. Local Government Service Board (1965) 1 All NLR 168 and Solicitor General Western Nigeria v.Adedoyin
8
(1973) UILR 143, all of which have been discussed in Fawehinmi v. NBA (no. 2) (supra). That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from the threatened infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eo nomine.”
This position of the Law was earlier adopted by the Supreme Court in the case of CARLEN (NIG) LIMITED v. UNIVERSITY OF JOS & ANOR (1994) LPELR-832 (SC) Per OGUNDARE JSC.
“From all I have been saying above, I hold the view that upon the reading of the university of Jos Act as a whole, both the council of the University and the Vice Chancellor, are by implication, given juridical personality that enables each of them to sue and be liable to be sued eo nomine. The Learned trial Judge had held that the second defendant, that is the council of the university can be sued and is a proper party to this action. I entirely agree with the judgment of Ahinche J. and find myself
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unable to accept the judgment of the Court of appeal which held to the contrary. Having concluded as above, I must necessarily disagree with the decision of the Court below which held that the two defendants were not proper parties to the present proceedings.” Pp. 31-32, paras G-C)
The suit leading to this appeal was commenced by originating summons accompanied by a supporting affidavit and documentary evidence. The defendants (respondents herein) filed their counter affidavit accompanied by documents in opposition to the originating summons.
The claimant filed a further affidavit and a further and better affidavit in response to the defendants’ counter affidavit. The defendant also applied by a motion on notice for-
“i. An order striking out the suit in its entirety for lack of jurisdiction or, alternatively,
ii. An order dismissing the action for being an abuse of the process of the Honourable Court or, alternatively,
iii. An order striking out the name of the 1st Defendant from the suit “
The grounds for these objections were stated on the motion as follows: –
i. The jurisdiction of the Honourable
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Court was not validly and competently activated, owing to failure to comply with a condition precedent to the commencement of the action
ii. By virtue of Section 8(4) of Instrument No NIA 1 made pursuant to Section 6 of the National Security Agencies Act, 1986, an officer who is dissatisfied with the decision of the Senior Staff Disciplinary Committee of the 2nd Defendant ought to first appeal against the decision to the National Security Agencies Appeal Committee (NSAAC) established under Section 7 of the Instrument No. NSA 2.
iii. By his own showing the Claimant had activated the aforesaid appeal as per Exhibit KGA3 attached to the Originating Summons, but failed to await the hearing and determination of the appeal by the NSAAC before commencing this action.
iv. The right of the Claimant to challenge the decision of the 2nd Defendant has accordingly not crystallized, having regard to the Claimant’s failure to comply with the condition precedent of completing the appeal process.
v. The Court is incompetent to entertain this suit because the action was not initiated by due process of law.
vi. The proper mode of commencement of
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the action should have been by way of an application for Judicial Review rather than a declaratory action by Originating Summons simpliciter.
vii. Within a month of filing his appeal, i.e. on or about April 3, 2018, and while the aforesaid appeal was (and is) being considered by the NSAAC, the Claimant issued Notice of Intention to Commence This Action.
viii. By filing this suit on or about May 11, 2018, during the pendency of the appeal to the NSAAC, the Claimant had thereby initiated two parallel proceedings for the ventilation of same grievance, an action which amounts to a gross abuse of the process of this Honourable Court.
ix. Actions allegedly carried out by the 1st Defendant were done as agent of disclose principals, i.e. The President and Commander-In-Chief of the Armed Forces of Nigeria and the National Intelligence Agency, the 2nd Defendant.
x. The 1st Defendant, being not a juristic person, cannot be sued.
The motion is supported by an affidavit and a further affidavit and a written address of the objection. The claimant filed a counter affidavit and a written address opposing the objection.
On the 26-6-2018 both sides
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argued on whether the suit and the preliminary objection be heard and determined together. The Trial Court held thusly- “The Preliminary objection will be taken along with the originating summons on the next adjourned date. Parties are therefore ordered to complete their processes with respect to both the originating summon and the Preliminary objection before the next adjourned date.“
On 17-7-2018, both sides inter alia identified all their respective processes filed in respect of the substantive and the preliminary objection. The trial Court then proceeded to order thusly- “you may proceed to adopt your processes as identified above. Both sides then adopted all their said processes and made oral arguments in support of their respective cases. The Trial Court then adjourned the case to 12-102018 for judgment. But on that date, 12-10-2018, it rather rendered a ruling on only the objection and did not consider the merits of the substantive suit. In its said ruling, the trial Court struck out the 1st defendant from the suit and ordered that the suit is converted to one originated by complaint and ordered the parties to file pleadings.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned counsel for the appellant argued that the Trial Court misdirected itself when it held that the originating summons procedure adopted by the cross appellant was inappropriate and proceeded to order pleadings in a matter already conceded by the cross-respondents, that the questions in controversy for determination are simple questions of construction that do not call for settlement of pleadings, that the cross-respondents having admitted that they did not comply with the law guiding the dismissal of senior officers of the agency, the trial Court should have proceeded to enter judgment in favour of the cross-appellant and not to order the parties to file pleadings, that admitted facts need no further proof, that there was no basis for the trial Court to seek further evidence before granting the reliefs sought by the claimant, that the trial Court violated the cross-appellant’s right to fair hearing when it failed to enter judgment for him and rather turned around to order pleadings, that the questions concerned the interpretation of the National Securities Agency Act 1986 and whether the cross-respondents complied with the provisions of the said
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Act in dismissing the cross-appellant, that the commencement of the suit for the determination of those questions complied with Order 3 Rule 3 of the National Industrial Court Civil Procedure Rules 2017, that it would amount to an undue delay of justice for the cross-appellant to be made to approach the Court by another method that would protract the trial and violate the cross-appellant’s right to fair hearing guaranteed by S.36(1) of the 1999 Constitution.
Learned SAN for the cross-respondents argued replicando that the trial Court was right in holding that the suit should not have been commenced by originating summons, that the cross-respondents counter-affidavit show that there are issues of fact to be resolved which are substantially contentious, that in proceedings where facts are likely to be in dispute, it is improper to commence such as action by originating summons, the affidavits from both sides conflict on the law that applied to the dismissal of the cross-appellant, on whether the cross-appellant was Acting Director General of the National Intelligence Agency and on the status of retired directors, that the Cross-appellant did not
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comply with the established due process for the dismissal of senior officers, that even if the Cross-Respondents are deemed not to have followed the Agency Discipline Manual strictly, having regard to the circumstances surrounding the Cross-Appellant’s removal, they gave perfect excuses why it was impossible to do so and why they could not be expected to harbour the Cross-Appellant in the circumstances, having regard to the sensitive nature of the Cross-Respondents’ organization, that the doctrine of necessity raised by the Cross-Respondent was an issue which could not have been ignored by the Lower Court, no matter what the Cross-Appellant says, and that it was a holistic consideration of all the above conflicts in the Affidavits of the contending parties and the fresh issues raised by the Cross-Respondents which impelled the Learned Lower Court Judge to hold as His Lordship did, that it was not appropriate for the Originating Summons to be heard under Originating Summons procedure; that the case was beyond were interpretation of provisions of the NSA Act and that the Respondent sought some declaratory reliefs principally directed at pronouncing
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that his dismissal was unlawful and an order reinstating him to service that a declaratory action is never decided without calling oral evidence.
Let me now determine the merits of the above arguments of both sides.
Let me start with issue of the nature of the questions raised for determination in the originating summons and the reliefs claimed for therein to determine if those are the kind of issues that can be determined by a suit commenced by originating summons.
The four questions raised for determination in the Originating Summons read thusly –
1. Whether the procedure adopted by the Defendants in the process leading to the purported dismissal of the Claimant is in compliance with Articles 8(1) and (2) of the National Securities Agency Act (CAPS. 278) 1986?
2. Whether in view of the extant provisions of Article 8(1) and (2) of the National Security Agency Act (CAPS. 278) 1986, retired Directors of the National Intelligence Agency are competent to sit as members in the Senior Staff Disciplinary Committee (SSDC) and if not, whether the failure of the Defendants to set up a competent Senior Staff Disciplinary Committee (SSDC) to look
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into the allegations levied against the Claimant constitutes a violation of his Constitutional right to fair hearing?
3. Whether the purported letter of dismissal of the Claimant issued by the Defendants on the 6th day of March, 2018 is not unlawful, null and void and of no effect whatsoever?
In the circumstance of affirmative answers to Questions 1 – 3 above, whether the Claimant is not entitled to be reinstated as Director of the 2nd Defendant?
The reliefs sought for in the Originating summons are as follows –
“1. A DECLARATION that the procedure adopted by the Defendants in the process leading to the purported dismissal of the Claimant falls short of the provisions of Articles 8(1) and (2) of the National Securities Agency Act Cap. 278 LFN) 1986 and is null and void.
2. A DECLARATION that by virtue of the provisions of Articles 8(1) and 2 of the National Securities Agency Act (Cap. 278 LFN) 1986, retired Directors and former members of the National Intelligence Agency are not competent to sit as members in the Senior Staff Disciplinary Committee (SSDC).
3. A DECLARATION that the failure of the Defendants to set up a
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competent Senior Staff Disciplinary Committee (SSDC) to look into the allegations levied against the Claimant is a violation of the Claimant’s Constitutional right to fair hearing.
4. A DECLARATION that the purported letter of dismissal of the Claimant issued by the Defendants on the 6th day of March, 2018 is unlawful, null and void and of no effect whatsoever.
5. AN ORDER reinstating the Claimant as a Director and the Acting Director General of the 2nd Defendant.
6. AN ORDER for the payment of the Claimant’s salaries and entitlements from the period of his unlawful dismissal to the point of his reinstatement.”
It is obvious that ex facie, the above questions and reliefs essentially deal with the interpretation and application of Article 8(1) and (2) of the National Security Agencies Act and whether the dismissal of the cross-appellant complies with the said provisions of that Act. These questions and reliefs fall within the class of matters that can be tried in a suit commenced by Originating Summons by virtue of Order 3 Rule 3 of the National Industrial Court Civil Procedure Rules 2017 which provides that-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any Constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria.”
Let me now consider if the cross-respondents’ counter affidavit admitted that their dismissal of the cross-appellant did not comply with the process of dismissal of senior officers provided for in the National Security Agencies Act or contains facts that are irreconcilably in conflict with the facts in the affidavit in support of the Originating Summons, that render it impossible to determine the questions raised for determination in the Originating summons without resolving the conflicts in the affidavits.
The cross-appellant deposed in paragraphs 11 to 20 of the affidavit in support of the Originating Summons thusly-
“11. Upon my removal as Acting Director General
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of the 2nd Defendant, I maintained my position as a Director and in fact the most Senior Director of the 2nd Defendant until my unlawful dismissal.
12. While serving as Director of the 2nd Defendant, I received a letter dated 6th March, 2018 stating that I was dismissed from service in line with the recommendation of the Special Management Staff Disciplinary Committee (SMSDC). The said letter is here shown to me and same is marked Exhibit KGA2.
13. The said letter of dismissal did not specify the grounds in support of the charges against me, neither was any explanation given for the conclusion reached by the Committee. Notice is hereby giving to the Defendants to produce the recommendation of the Special Management Staff Disciplinary Committee (SMSDC).
14. The Committee purportedly set up to investigate the charges against me was illegally constituted in violation of the law that is, the National Security Agency Act (Cap. 278 LFN) 1986 which in Article 8 provides as follows:-
“Article 8(1): The power to discipline the senor officer of the Agency on Grade Levels 08 and above (to be exercised in accordance with existing Agency
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Regulations and civil Service Rules where applicable) is vested in the Senior Staff Disciplinary Committee (SSDC) hereby established. Article 8(2): The senior staff Disciplinary Committee shall comprise the following members-
(a) The two Deputy Directors-General with the most senior among them serving as chairman while in the Absence of the two Deputy Directors-General, the most senior director shall serve as Chairman.
(b) Directors in the Headquarters
(c) Assistant Director, Legal Services
(d) Assistant Director Personnel who shall serve as Secretary”
15. Contrary to the above provision of the law, the Committee appointed to investigate the allegations against me comprised of the following persons, who are not qualified as they are all retired Directors:
a. Amb. J.k. Shinkaiye, a retired Director of the Agency
b. Amb. Haruna Wando, a retired Director of the Agency
c. Amb. Philip Dauda, a retired Director of the Agency
d. Amb. Okoye, a retired Director of the Agency.
e. Peter Idako, a Secretary of the Committee, an officer on grade Level 13, a position lower than that of Assistant Director as required
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under the law and the regulations.
16. I was not giving the opportunity to defend myself before ay competent disciplinary committee.
17. I know as a fact that the 1st Defendant does not have discretion to appoint persons other than those authorized by law to sit on the Committee.
18. Upon receipt of the purported letter of dismissal, I appealed to the National Security Agencies Appeal Committee (NSAAC) headed by the National Security Adviser in line with Article 8(4) of the National Security Agencies Act. A copy of my letter dated the 12th day of March, 2018 duly received by one Sani Abubakar Halliru of the office of the National security Adviser is here shown to me and marked Exhibit KGA3.
19. The letter referred to as Exhibit KGA3 in paragraph 18 above elicited no response till date.
20. On the 3rd day of April, 2018, I instructed my lawyers to write to the Defendants notifying them of my intention to seek legal redress. A copy of the letter written by my lawyers dated the 3rd day of April, 2018 which was received same day by one Jummai Peter a staff of the 2nd Defendant is here shown to me and marked Exhibit KGA4.”
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The cross-respondents responded to the above depositions in paragraphs 6 to 24 of their counter-affidavit as follows-
“6. It is not true, as stated in paragraphs 1 and 7 of the Claimant’s affidavit, that the Claimant’s dismissal with effect from March 6, 2018, was a purported dismissal, because the Claimant was properly dismissed by the President and Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria (Mr. President) acting upon the recommendation of the Special Management Staff Disciplinary Committee (SMSDC) of the 2nd Defendant, whose report which was unanimously upheld by the Senior Management Committee (SMC) of the same 2nd Defendant. a copy of the Claimant’s Letter of Dismissal is now produced and shown to me marked “IY1”
7. It is not true, as stated in paragraphs 8, 9, and 10 of the Claimant’s affidavit, that the Claimant was at any time designated as Acting Director-General of the 2nd Defendant; rather, he was made to coordinate the affairs of the Agency as the Most Senior Director and thus his 56-day-stint was purely a bureaucratic routine, for which reason there was no official
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letter of appointment issued to him.
8. It is not true as stated in paragraph 13 of the Claimant’s affidavit, that the letter of his dismissal did not specify the grounds in support of the charges against him because paragraph 1 of the letter of dismissal (Exhibit IY1) specified as follows:
“you will recollect that a Special Management Staff Disciplinary Committee (SMSDC) was set up by the DG NIA, sequel to the decision of the Senior Management Committee (SMC) on 19th January, 2018, arising from its discussion on the wave of unbridled leakage of official documents and related publication of falsehood concerning the affairs of the Agency, as well as the unauthorized movement of funds from the Agency’s Vault. You will recall that, despite assuring you of the seniority of the composition of the Committee, you ignored its repeated invitation to appear before it to state your cases.”
9. It is also not true as stated in paragraph 13 of the Claimant’s affidavit, that the letter of his dismissal did not give any explanation for the conclusion reached by the Committee because paragraph 2 of the letter of dismissal (Exhibit
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IY1) stated as follows:
“The Special Management Staff Disciplinary Committee investigated the developments and found that you have violated various sections of the Agency Rules and Regulations, included:
i. Breach of Confidentiality
ii. Violation of Oath of Secrecy/Allegiance
iii. Violation of the Provision of Section 72 on “Misapplication of Agency Funds
iv. Disobedience to Lawful Orders
v. Unlawful Petition
vi. Falsehood and Prevarication
vii. Injurious Rumour Peddling; and
viii. Violation of Section 108 (1) on Unauthorized Publication in the Media”
10. I know that by Section 3(1) of Instrument NO. NIA1 the 1st Defendant is appointed by the president and Commander-In-Chief of the Armed Forces of Nigeria.
11. I know that by Section 3(2) of the aforesaid Instrument the tenure of the 1st Defendant is a term of four years in the first instance and may be re-appointed for a further final term of four year by Mr. President.
12. I now that Instrument No. NIA1 which provided for the office of the 1st Defendant provided, in the same vein, for the offices of two Deputy Directors-General of
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the 2nd Defendant and such number of Directors as may be determined by the President, Commander-in-Chief of the Armed Forces.
13. I know that just like the 1st Defendant, and by virtue of Section 4(2) and (4) of Instrument No. NIA1, the appointment and removal of the Deputy Directors-General and the Directors of the 2nd Defendant and the assignment of such areas of responsibilities and their deployment are done upon the approval of Mr. President.
14. I know that the decision of the SMSD and the SMC recommending the Claimant’s dismissal which were taken by Committees of the 2nd Defendant and were subject to the approval of Mr. President for the validity and Mr. President indeed approved the recommendation.
15. I know that the Claimant’s dismissal from service was by letter written on behalf of the 2nd Defendant upon the approval of Mr President. An extract from developments in the agency since my appointment as DG NIA and the Letters of Approval for Dismissal of the Claimant by Mr. President are now produced and shown to me marked “IY5” and IY5A” respectively.
16. I know that contrary to the assertion of the
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Claimant at paragraph 14 of his affidavit, issue of discipline of the category of staff to which the Claimant belonged (and, indeed all other staff of the 2nd Defendant) is governed by, Articles 57 to 59 of Chapter Seven of Agency Regulations 2017 which came into force on or about March 8, 2017 (also known as Agency Discipline Manual).
17. The aforesaid Agency Discipline Manual provides as follows with regards to the composition of Management Staff Disciplinary Committee (MSDC):
“CHAPTER SEVEN DISCIPLINE
General Principles
57. (1) The provisions contained under this Chapter shall be the rules governing discipline in the Agency and may be cited as the Agency Discipline Manual.
(2) The Agency Discipline Manual shall have binding force on all staff of the Agency including retired staff who shall be required to voluntarily affirm and declare in their respective Retirement Bonds willingness to be bound by the provisions of the Agency Discipline Manual while in retirement.
(3) Where the Agency Discipline Manual is silent on any issue of discipline, the Director-General may in writing, permit recourse to the Public Service Rules,
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Foreign Service Regulations or anybody of rules in force in other security agencies.
Establishment of Disciplinary Committee
58. (1) The power to try and punish acts of indiscipline under this Chapter shall be vested in the following organs to be constituted on the authority of the Director-General:
a. Management Staff Disciplinary Committee (MSDC)
b. Senor Staff Disciplinary Committee (SSDC); and
c. Junior Staff Disciplinary Committee (JSDC).
(2) without prejudice to Subsection (1) above, Directors and Heads of Departments are empowered to exercise disciplinary control over their subordinates and award any penalty prescribed in “The Regulations” provided that such penalty does not include interdiction, suspension, deferment of promotion, loss or seniority, demotion, termination of appointment and dismissal from service.
Powers and Composition of Management Staff Disciplinary Committee
59. (1) The competent authority for the exercise of disciplinary control over Management Staff, whether serving or retired, shall be the Management Staff Disciplinary Committee, which shall comprise the following:
(a) The Deputy-Director-General (Administration) and the Deputy –Director –General (Operation)
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(b) Three (3) most senior Directors in Service
(c) Two (2) retired Directors of the Agency to be appointed by the Director-General
(d) The Director of Administration who is to serve as the Secretary and
(e) The Head of Legal Department to serve as Judge Advocate without any right to vote.
(2) The MSDC shall be chaired by either of the two (2) Deputy Directors-General
(3) The quorum for the meeting of the MSDC shall be five
(4) for the purpose of this Section, a Management Staff is any on, or who retired on, GL 17.”
18. Retired Directors and Officers of the 2nd Defendant are never seen as outsiders, but rather as reservists who are called upon from time to time to carry out functions for the 2nd Defendant and that, inter alia, accounts for why they remain bound by the Agency’s Oath of Secrecy, even in their retirement.
19. I know that, it was factually and conventionally impossible for the 2nd Defendant to compose the Disciplinary Committee to investigate the Claimant’s case in compliance with the
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aforementioned Section 59 of the Agency Discipline Manual for the following reasons:
“a) as at 15th January, 2018, no Deputy Director-General had been appointed for the Agency following retirement from service, of two (2) erstwhile Deputy Directors-General (DDGNIAs) in November 2017
b) Ambassador Mohammed DAUDA was the most senior officer in the Agency as at 15th January, 2018;
c) All of the (most) senior Directors in the Agency as at 15th January 2018, were subordinate in rank to Amb. Mohammed DAUDA.”
20. I know that, additionally, interest of the service did not also make it possible for the Claimant or any Senor Management Staff to appear before their subordinates in disciplinary proceedings.
21. I know that the Claimant himself was concerned about his Seniority to the Directors that were still in Service, a view that he expressed in one of his responses to the Agency’s invitation for him to appear before disciplinary Committee. A copy of the Claimant’s aforesaid letter is produced and shown to me marked “IY6”.
22. I know that notwithstanding the impossibility of complying with Section 59 of
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the Agency Discipline Manual, the very sensitive nature of the activities of the 2nd Defendant, and, more importantly, the potential jeopardy to the security of the Nigerian nation which will result where a staff of questionable integrity is allowed to remain in service and operate freely does not permit the 2nd Defendant to delay issue of discipline.
23. I know that in the circumstances, the 2nd Defendant had to result to the doctrine of necessity by constituting the Disciplinary Committee of Five (5) retired Directors, all senior to the Claimant in rank, to serve on the Special Management Staff Disciplinary Committee, including a representative of the Legal Department, as Judge-Advocate; who was not the Secretary of the Committee as claimed by the Claimant.
24. I know that by the very nature of the functions of the 2nd Defendant which involves the protection, promotion and enhancement of Nigeria’s Security and national interests, its activities (some of which involve overt operations, conduct of espionage and counter intelligence) are not supposed to be subject to open, public scrutiny and intervention in the overall interest of the security
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of Federal Republic of Nigeria.”
It is clear from this juxtaposition of the above mentioned affidavits, that the counter affidavit of the cross respondents admitted that the special management staff disciplinary committee (SMSDC) that tried the allegations against the claimant and recommended his dismissal from service consisted of retired directors of the 2nd respondent and an officer on Grade Level 13 as its Secretary. Rather the cross-Respondents contend that Articles 57 to 59 of chapter seven of the Agency Disciplinary Manual that came into force on 8-3-2017 that govern the dismissal of staff of the 2nd respondent and not Article 8(1) of the National Security Agencies Act and that it was right to constitute the MSDC with retired directors as it had become impossible to constitute it to try the claimant’s case for lack of serving officers that were senior to the claimant.
In the face of the cross-respondents’ admission that the SMSDC or the SSPC that tried the charges against the cross-appellant and recommended his dismissal was constituted by retired directors and an officer on salary Grade level 13 as Secretary, the question
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that arose for determination was whether the said SMSDC or SSDC was constituted in compliance with Article 59 of the Agency Discipline Manual or Article 8(2) of the National Security Agencies Act. The materials to enable the determination of this question are the National Security Agencies Act, the Agency Discipline Manual, the letter dismissing the cross-appellant, the correspondences exchanged between the cross appellant and cross respondents, cross appellant’s appeal to the National Security Adviser, the letter from the National security Adviser to the Cross respondents, the cross respondents letter to the National Security Adviser, the reports of the SMSDC and or SSDC.
All these materials were in evidence before the trial Court, as exhibits that accompanied the respective affidavits. No further evidence was required to try this question. The trial Court should have gone ahead to determine this question on the evidence before it and the laws as contained in National Security Agencies Act and the Articles 57 to 59 of chapter seven of the Agency Regulations 2017. The dispute as to the applicable law, is a matter of law that should be resolved by
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considering the contents of the respective laws relied on by each side. No evidence is required to resolve that issue.
The conflict between the respective affidavits of both sides on whether the cross-appellant was at any time Acting Director General of the 2nd Respondent is one that can be resolved by reference to the letters of appointment and other documents already exhibited with the respective affidavits. The claim that it was at the time impossible to constitute a Disciplinary Committee consisting of serving officers senior to the cross-appellant is triable on the affidavit evidence before the Trial Court and did not require any further evidence to try it. The issue that interest of service made it impossible for the cross-appellant or any senior management staff to appear before a committee constituted by his subordinates, the issue that allows the cross-appellant remain in service would put the national security in jeopardy which raised by the cross-respondents were easily triable on the available evidence before the Trial Court and did not require any further evidence to try them.
The conflict between the respective affidavits of both sides
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on whether the letter of dismissal specified the grounds for the charges against him is obviously one that can be easily resolved from the dismissal letter attached to the affidavits and does not required any further evidence to resolve it.
It is glaring from the affidavit evidence before the Court that the conflicts between the respective affidavits could be easily resolved on the affidavits without the need for further evidence. It is glaring that the factual disputes in the affidavits are not substantial. The holding of the Trial Court that there is likely to be substantial disputes of facts in the case is wrong. There was no basis for its reliance on Order 3 Rule (17)(1) of the National Industrial Court Civil Procedure Rules 2017 which provides that-
“…where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by complaint as provided for in Rules 8 and 9 of this Order.”
The suit was properly commenced by Originating summons.
It was wrong for the trial Court to have ordered that the suit be converted to one commenced
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by complaint and that the parties file pleadings. There was no basis for these orders, since the questions raised for determination in the suit could be easily determined on the affidavit evidence before the Court. The decision and orders of the trial Court have the effect of protracting the trial of the suit as the processes and trial would start afresh. This clearly assaults the claimants fundamental right to have his claim determined within a reasonable time, which right is given to him by S.36(1) of the 1999 Constitution which provides that-
“(1) – In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Assuming the affidavits had raised substantial disputes of facts, if the dispute can be easily resolved on the affidavits, as in this case, it would be wrong for the trial Court that had conclusively heard the merit of the suit together with the preliminary
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objection and adjourned the case for judgment, to refuse to determine the merit of the dispute and turn around to order that the parties file pleadings commencing the case afresh on the ground that Order 3 Rule 17(1) of the National Industrial Court Rules provides that suit that raise substantial dispute of fact shall not be commenced by originating summons. This judicial approach amounts to an undue reliance on Order 3 Rule 17(1) when there is nothing to show that any party would suffer injustice if the disputes are determined on the affidavits. In any case procedural rules of Court, even if couched in mandatory terms are not sacrosanct and mandatory and would be avoided if its strict application would protract or delay the trial and determination of the suit or defeat the justice of the case in some way. That is why Order 1 Rule 9(2) of the NIC Civil Procedure Rules provide that- “Application of regulations of rules by Court and Departure from Rules of Evidence.“ The judicial principle established by an unending line of judicial decisions is to allow the use of originating summons to commence cases in which the substantial disputes of
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facts therein can be resolved on the affidavits and the accompanying exhibits. See Governor of Kogi State & Ors v. Alhaji Nuhu Ahmed & Ors (CA/A/810/2017 delivered on 20-5-2019) in which this Court held that- “Ordinarily, proceedings may commence by originating summons where the main issue is or likely to be one of construction of a written law or of an instrument made under any written law or of any deed, will, contract or other document or some other question of law or there is unlikely to be a substantial dispute of law. But in practice, its use is not limited to only where the main issue is one of construction of a written law or an instrument made under any written law or any deed, will, contract other document or some other question law. The established judicial principle is to allow its use in cases where the substantial disputes of facts can be resolved on the affidavits and the accompanying exhibits without the need to recourse to oral evidence to resolve them. “
Having adjourned the case for judgment after conclusively hearing the merit of the suit and preliminary objection, the trial Court should have determined the merit of
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the suit together with the objection. See Yaradua & Ors v. Yandoma & Ors (2014) LPELR – 24217 in which the Supreme Court held that-
“The procedure to adopt where an objection is raised to the jurisdiction of the Court in a matter commenced by originating summons is to consider the objection together with the substantive matter. Invariably, this would involve the consideration of not only the reliefs being claimed against the background of the facts deposed to in the affidavit in support of the originating summons but the totality of available evidence including the facts contained in the counter-affidavit(s) in opposition to the originating summons. See Adeleke v. OSHA (2006) 16 NWLR (Pt. 1006) 608, Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 75 @ 100 and Dapianlong V. Dariye (supra).” The approach of the trial Court also disregards the admonitions of our Supreme Court in Brawal Shipping vs. Onwudike Company 2000 6 SCNJ 508 at 522, Seven Up Bottling Company Ltd Vs. Abiola & Sons Bottling Company Ltd 2001 6 SCNJ 18 at 49, Ojogbue Vs. Nnubia 1972 6 SC 27 and Katto Vs. CBN 1991 9 NWLR (Pt. 214) 126 at 149 that trial and
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penultimate Courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted to the Lower Court for the trial of the issues not determined by it, if its decision on the only issue it determined is set aside in an appeal against that decision.
In the light of the foregoing, issues Nos. 2 and 3 are resolved in favour of the cross-appellant.
On the whole, this appeal succeeds as it has merit. It is allowed. The orders made by the National Industrial Court in its ruling of 12-10-2018 in Suit No. NICN/ABJ/136/2018 striking out the 1st defendant, converting the suit to one originated by complaint, ordering pleadings are hereby set aside.
It is hereby ordered that the hearing of the suit on merit should proceed on the originating summon as constituted in an accelerated manner.
The cross-respondents shall pay costs of N100,000.00 to the cross-appellant.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.
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I am in complete agreement with the reasoning and conclusion that this cross-appeal has merit. I too do allow this appeal and I abide by the consequential orders inclusive of the order as to costs as made thereat.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
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Appearances:
Edidiong Usuruan Esq. with him, Linus Akwaji, Esq., Doncan O. Esq., Getrude Njah, Esq., Innocent E. Esq. For Appellant(s)
WALE ADESOKAN, SAN with C.N. Ugwu Esq. For Respondent(s)
