LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Dr. Kolapo Babatunde Adeogun -VS- Federal College Of Education,

admin 0

IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  MONDAY 28THOCTOBER 2019        SUIT NO.: NICN/LA/419/2017

 

BETWEEN

  1. KOLAPO BABATUNDE ADEOGUN          CLAIMANT

AND

  1. FEDERAL COLLEGE OF EDUCATION (TECHNICAL)

AKOKA

  1. CHAIRMAN, GOVERNING COUNCIL FEDERAL           DEFENDANTS

COLLEGE OF EDUCATION (TECHNICAL) AKOKA                                                                          

  1. REGISTRAR, FEDERAL COLLEGE OF EDUCATION

(TECHNICAL) AKOKA

 

Representation:

OtumbaMA Ogunleye, with P Okugbeni

Ambrose Nwabueze,with NO Akhuamheokhum and NN Oghemekowhegba

 

JUDGMENT

  1.  Introduction:

By a Writ of Summons dated 30/8/2017 and other accompanying processes, claimant instituted this suit against:

 

  1. 1.ObiomaIhenacho (Chairman, Governing Council of F.C.E [T] Akoka)
  2. Mr.Rasheed A. Dada (Registrar, Federal College of Education [Technical] Akoka)
  3. Federal College of Education (Technical) Akoka

In response, defendants filed aStatement of Defence dated 31/10/2017 and other accompanying processes together with a Notice of Preliminary Objection also dated 31/10/2017, by which the defendants challenged the suit (as constituted) and prayed the court to strike out the names of 1st and 2nd defendants from the suit.

By Ruling delivered by the Court on 18/1/2018, the application of the defendants was granted and the names of 1st and 2nd defendants were struck out from the suit. Claimant subsequently brought an application dated 22/1/2018, for an order to join Chairman, Governing Council Federal College of Education [Technical] Akoka, and Registrar, Federal College of Education [Technical] Akoka, in the suit and the application was granted.  They were consequently joined in the suit as 2nd and 3rd Defendants by Order of Court of 22/2/2018.  Claimant and defendants subsequently filed their consequential amendments dated 6/4/2018 and 20/4/2018 respectively.  The claimant claims the following reliefs:

  1. A DECLARATION that the defendants’ directives contained in the internal memoranda dated 30th June and 21st July 2017 respectively and suspending payments of the claimant’s salaries are ILLEGAL, UNLAWFUL, ULTRA VIRES the powers of the defendants and to that extent are NULL and VOID.
  2. A DECLARATION that the directives directing the claimant to withdraw cases he has in court in respect of disputes over the management of Edutech Model Cooperative Society Limited are an infringement of the claimant’s rights to fair hearing as guaranteed in section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
  3. AN ORDER of PERPETUAL INJUNCTION to restrain the defendants jointly and severally from further interfering with the prompt payment of the claimant’s salaries and emoluments.

  1. Trial commenced on 22/5/2018. Claimant adopted his Statement on Oath dated 6/4/2018 and tendered the following documents which were admitted and marked as exhibits, thus:

1st Defendant’s letter of 28/6/2017                                              Exhibit C1

1st Defendant’s internal memo dated 30/6/2017                    Exhibit C2

1st Defendant’s memorandum dated 21/7/2017                    Exhibit C3

Claimant’s letter dated 5/11/2015                                                ExhibitC4

Claimant Solicitor’s letter dated 6/11/2015                              Exhibit C5

Thereafter, the claimant was cross-examined and he closed his case.The defendants opened their defence on 15/1/2019 and closed on the same date. The defendants’ first witness, Mr.FasinaAbiodun, DW1, adopted his Statement on Oath dated 22/4/2018, and tendered the following documents which were admitted and marked as exhibits thus:

Letter dated 5/12/2014, from the Lagos State Ministry of Agriculture and Co-operatives to the Provost of the 1st Defendant, admitted as exhibit D1.

1st Defendant’s letter dated 22/8/2016, to the Federal Ministry of Education, admitted as exhibit D2.

Ministry of Education’s reply dated 21/12/2016, to the 1st Defendant, admitted as exhibit D3.

1st Defendant’s letter dated 29/12/201,6 to the Claimant, admitted as exhibit D4.

1st Defendant’s letter dated 25/1/2017, to the Claimant, admitted as exhibit D5.

Letter dated 2/6/2017, from the management of Edutech Model (Akoka) Staff Co-operative Multipurpose Society Ltd. (the Co-operative), to the Provost of the 1stDefendant, admitted as exhibit D6.

1st Defendant’s Internal Memoranda both dated 30/6/2017, directing the stoppage of salary and communicating the stoppage of salary to Claimant and others, admitted as exhibit D7.

1st Defendant’s Internal Memorandum dated 14/7/2017, communicating embargo on the payment of salary of Claimant and others, admitted as exhibit D8.

Thereafter, DW1 was cross-examined.  Defendants’second witness Engr. James AdedejiAdeneye (DW2) also adopted his Statement on Oath dated 22/4/2018.  He relied on the documents already admitted through DW1.  He was cross-examined after which the defendants closed their case.  Parties adopted their final written addresses on the 23rd of October 2019 and the matter was adjourned for judgment.

3.Facts of the Case:

The claimant is a senior lecturer with the 1st defendant and was at material times the President of Edutech Model Akoka Cooperative Multipurpose Society Limited. Sometime in June 2017, he was invited by the defendants in relation to the crises that had engulfed Edutech Cooperative Society. He informed the defendants that they could not interfere in the crises as the cooperative society was independent and subject only to the jurisdiction of the Director of Cooperatives in the Ministry of Agriculture of Lagos State. He further informed the defendants that matters had even been escalated into litigation as there were pending cases in court.  He was shocked when defendants’ issued directives that his salaries be suspended pending resolution of the Edutech cooperative issues and that parties should withdraw cases pending in court and at the EFCC.

            Defendants however contend that as membership of Edutech Model (Akoka) Staff Cooperative Multipurpose Society Ltd (the Cooperative), is exclusive to the staff of the 1st defendant and the cooperative operates in and from the 1st defendant, the 1stdefendant has a duty to ensure that there is no breakdown of law and order in the institution and also to ensure saneness in the cooperative.  They would thereforenot shut their eyes to the festering crisis in the cooperative and the need to discipline any of its erring staff (including the claimant), so as to protect the image, integrity and reputation of the 1st defendant institution.

  1. Arguments of Counsel:

Counsel for defendant, in their final written address formulated the following issues for determination:

  1. Whether from the pleadings, reliefs sought and the evidence led in this suit, the 2nd and 3rd defendants who are mere agents of a disclosed principal (1st defendant), are necessary parties to warrant their being joined in the suit by the claimant?
  2. Whether the claimant is entitled to the reliefs sought against the defendants in this suit?
  3. 5.Defendants argued under issue one that an agent of a disclosed principal cannot be sued when the said agent acts within the scope of his authority. They submit that a person does not become a necessary party in a suit merely because he is the one to implement whatever decision of court. They relied on the case of Okolo v. NwaforOrizu College of Education, Anambra State &OrsOrs (2015) 62 NLLR, Part 218 P. 399 at 406-407).
  4. On whether the claimant is entitled to the reliefs sought against the defendants in this suit, defendants submit that where a party approaches a court seeking declaratory reliefs, the burden of proof is on such party to satisfactorily establish his entitlement to such declaration(s). They submit that the claimant in this suit has failed to prove his entitlement to relief one sought in this suit.

On relief two, defendants submit that a prayer for the declaratory reliefs sought by the claimant ought to be premised primarily on breach by the defendants of the terms and conditions of claimant’s employment and not (as was done in this case), on an infringement of the claimant’s right to fair hearing as guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. They submit that the prayer of the claimant, as couched, is primarily an allegation of breach of claimant’s fundamental human rights as enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which ought to have been brought under the special enforcement procedure provided therein for the enforcement of fundamental rights and which is not within the ambits of the jurisdiction of this honourable court.

  1. 7.On relief three, defendants submit that the success or otherwise of this prayer is dependent on the fate of claimant’s relief number one.  Adopting their argument against claimant’s relief number one, defendants urged the court to refuse claimant’s relief number three.
  2. On their part, counsel for claimant in their final written address, formulated a sole issue for determination; which is whether the claimant is entitled to the reliefs sought in his Amended Writ of Summons. On defendants submission of lack of proof of relief one, claimant submits that since this suit is not a suit in respect of termination or dismissal from employment, that the failure to plead or tender a contract is not fatal to the claimant’s case.
  3. On relief two, claimant submits that by virtue of the Section 254C (1) (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by the 3rdAlteration Act) this court has the exclusive jurisdiction to deal with any matters relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations etc.
  4. Claimant, with respect to relief three submits that having argued that the defendants are not entitled to interfere with payment of his salaries; he is entitled to the grant of the consequential relief to prevent future attempts to further tamper with or deny him his wages/salaries.

DECISION:

  1. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel.  I adopt the following issues for determination:

  1. Whether the 2ndand 3rddefendants are necessary parties to warrant their being joined in the suit by the claimant?
  2. Whether the claimant is entitled to the reliefs sought against the

             defendants in this suit?

  1. The defendants had, in their final address submitted that 2nd and 3rddefendants be struck out because as agents of a disclosed principal, they cannot be sued when they acted within the scope of their authority. They referred to the Ruling of this court on 18th January 2018 founded on their application that the original 1st and 2nd defendants be struck out from the suit, for not being juristic persons; and submit that it was an abuse of court process for the claimant to have sought to add the present 2nd and 3rd defendants, as parties.  I have referred to the said Ruling of this court; and disagree with defendants that claimant was wrong to have brought the application to add the 2nd and 3rd defendants; and that it is an abuse of court process.  In the first place, in the Ruling of 18th January 2018, the 1st and 2nd parties were struck out on the application of the defendants that they are not juristic persons.  In that application, the defendants also sought that the suit be struck out entirely after the striking out of 1st and 2nd defendants, on the ground that striking out the names of the 1st and 2nddefendants/applicants for not being juristic persons, the claimant/respondent’s suit will not disclose any reasonable cause of action against the 3rd defendant (now the 1st defendant) as no specific relief was sought against it, rather the claimant’s reliefs/prayers against the defendants were intertwined, mixed and un­-severable. They submitted (in that application) that even though the third relief claimed against the defendants is joint and several, such prayer cannot stand alone as the relief of perpetual injunction must be premised on some declaration of right.  Having argued thus in that application, I find it inconsistent and an abuse of all the basis for making that application, to now argue that the 2nd and 3rd defendants be struck out for being agents of a known Principal.  Further, at the application for the joinder of the 2nd and 3rd defendants, counsel did not oppose the application.  This, I presume was because defendants in their preliminary objection had noted, as stated in the Ruling of 18/1/19 that:

They submit however that the Chairman, Governing Council of F.C.E [Technical]’ Akoka, Yaba, Lagos and Registrar, Federal College of Education [Technical] Akoka, Yaba, Lagos, are juristic persons being offices created by the law establishing the 3rd Defendant and therefore can sue and be sued in that capacity.

The defendants having argued in their preliminary objection that the suit cannot stand against the 1st defendants alone, and having conceded that the 2nd and 3rd defendants are juristic persons, I find that they are precluded from raising and arguing against the joinder of the 2nd and 3rd defendants at this stage.  In any case, and as Ruled in that application:

On the 2nd issue, the Rules of this Court, Order 13 Rule 4 and 14(1) provide that:

  1. Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

14.—(1)  No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.

The Supreme Court while applying Order 9 Rule 14(1) & (3) of the Federal High Court (Civil Procedure) Rules 2009, which are in parimateria with Order 13 Rule 14(1) of the Rules of this court, in the case of Chief Maxi Okwu&Anor v. Chief Victor Umeh&Ors, (2015) LPELR-26042(SC) held that:

From the above provision, it is clear that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the court to adjudicate on the matter before it. The provision allows the court to hear the matter as regards the rights and interest of the parties actually before the court.

For the above reasons, I find the arguments made pursuant to the above stated issue one, as untenable in the circumstances of this suit.

  1. 13.Issue two is whether the Claimant is entitled to the reliefs sought against the defendants in this suit.  I determine this issue by considering each of claimant’s relief.  Relief one is for a DECLARATION that the defendants’ directives contained in the internal memoranda dated 30th June and 21st July 2017 respectively and suspending payments of the claimant’s salaries are ILLEGAL, UNLAWFUL, ULTRA VIRES the powers of the defendants and to that extent are NULL and VOID.  In ordinary parlance, when an act is sought to be declared illegal, unlawful and ultra vires the powers of any authority; it presupposes that the alleged illegal act is contrary to or forbidden by law (a particular law); that an act is unlawful when it is not conforming to, permitted by, or recognized by law or rules(particular law or rule) and an act is ultra vires the powers of a body or an authority, when such body or authority acted beyond its powers as stipulated in a law or some other legal instrument.

The Supreme Court, in the recent case of Kwara State Judicial Service Commission &Ors v. Miss YetundeZainabTolani(2019) LPELR-SC.63/2010 judgement which was delivered on 1st February 2019held on the meaning of unlawful:

The Blacks Law Dictionary, by Bryan A. Garner 8th Edition, page 1644 at page 1574 had defined “WRONGFUL” and “UNLAWFUL” to be thus:- “Wrongful” (i) Characterized by unfairness or injustice, (ii) Contrary to law or unlawful (wrongful termination)” and “Unlawful” ‘(1) Not authorised by law, illegal (2) Criminality, punishable (3) Involving moral turpitude” Per PETER-ODILI, J.S.C. (P. 18, Paras. B-D)

It is expected that an allegation of illegality, unlawfulness and ultra vires action should be made with reference to a law or a document, to which the defendants acted contrary.  In the case of Oguntuwase v. Jegede(2015) LPELR-24826(CA), the Court of Appeal stated that:

The law is settled that before a claim can be said to be ex-facie tainted with illegality, it must be clearly apparent and unequivocal from the claim, that what the Court is being called upon to entertain is illegal and in breach of specific statute or law. Thus, for example, a contract for the supply of poison, has been held not to be ex-facie illegal and that the onus to prove illegality lay on the person claiming such defence. See- AGBAKOBA V. MEKA (1962) NNLR 1.” Per AKINBAMI, J.C.A. (Pp. 38-39, paras. G-B)(underline, my emphasis)

The law is also settled that whoever intends to make claims based on illegality must not only plead the illegality, he is also required to set out the particulars of the illegality in his pleadings.” Per AKINTAN, J.S.C. (P. 18, Para. E)inW.C.C. Ltd. v. Batalha (2006) 9 NWLR (Pt.986) 595 .

14.It is a basic principle of law that a party seeking reliefs from the court has the duty to prove, to the satisfaction of the court, that he is entitled to such reliefs and where he fails to satisfactorily do so; his claims/reliefs are liable to be denied/refused.  Claimant in his relief just sought for a declaration that certain acts of defendants are illegal, unlawful and ultra vires without referring the court to the law, which the said act violates or leading evidence to show the basis of the ultra vires action.  I do not find evidence on which to rely to begin a consideration of the illegality, unlawfulness or otherwise of the actions of the defendants.  None of the exhibits tendered by claimant seeks to establish these facts, nor is there any evidence to assist the court in making any finding on it.  This court cannot begin to imagine and assume facts.  As held in Adegbite v. State, (2017) LPELR-42585(SC):

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.”Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

 

15.It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC &Anor. v. Littlechild&Anor (2015) LPELR-25199 (CA) &Section 131(1) & (2), Evidence Act, 2011.Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  In his evidence, Claimant tendered exhibitsC1 – C5, which are letters inviting him to a meeting with the Provost of the 1st Defendant and subsequent letters from the 1st defendant to the claimant notifying him of the suspension of his salaries by the 1st defendant.   These pieces of evidence, in no way, support the relief sought as it failed to establish the source of claimant’s rights allegedly breached by the defendants.   In the absence of the laws breached by the defendants, and/or any instrument of agreement between the parties, like an instrument evidencing the terms and conditions of the employment relationship between parties, this Court is unable to relate the acts of the defendants to any legal instrument in order the gauge the unlawfulness, illegality or ultra vires nature of the acts.  I therefore find and hold that the claimant has failed to prove that the actions of the defendants areillegal, unlawful and ultra vires their powers and to that extent are null and void. Accordingly, relief one is declined.

  1. In claimant’s relief no. 2, he is praying for a declaration that the directives directing the claimant to withdraw cases he has in court in respect of disputes over the management of Edutech Model Cooperative Society Ltd are an infringement of his right to fair hearing as guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. Defendants had argued that fundamental human rights matters, per se, are not within the jurisdiction of this court.  I do not agree with the defendants.  By virtue of Section 254C (1) (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by the 3rd alteration) the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
  2. d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine.

The argument that this court does not have jurisdiction to enforce the fundamental human rights of the claimant, is unfounded, as the relief sought by claimant are clearly accommodated by the above provision of the constitution.  This relief is related and connected with a dispute over the application of section 36 of the constitution and relates to his employment.  I so hold.

  1. The question now is whether the claimant is entitled to this 2ndrelief.  Defendants submitted that to be entitled to such declaratory relief sought in relief no. 2, claimant ought to have first pleaded and proved, to the satisfaction of the court, a breach by the defendants  of his contractual rights embodied in his contract of employment with the 1st defendant. They referred to the case of Akindoyin v. UBN (2015) 62 N.L.L.R. (Pt 217) p. 259, where this Court, per Hon. Justice B.B. Kanyip, cited and followed the judgement of the Supreme Court in BukarModuAji v. Chad Basin Development Authority &Anor (2015) LPELR-24562 (SC) that:

                                The waving of flag of a breach of the constitutional rights to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, a claimant must first plead and prove his conditions of service before any talk of fair hearing can be entertained. The conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination.

The decision in the above cited case represents the law, in the circumstance stated therein.  In this case however, there has been no complaint of wrongful termination of or dismissal from employment.  The defendants acknowledging this difference had argued that:

The kernel of the decision, with due respect, is the necessity for the complaining party to place before the court the conditions of service from which the wrongfulness or otherwise of the actions/omissions complained of, can be determined. In other words, it is our respectful submission, that it is not only in cases of complaint of wrongful termination of or dismissal from employment that the decision applies but rather, the requirement to furnish the conditions of service will apply in all cases where it is necessary that such conditions of service be placed before the court to enable the court to interprete the rights and obligations arising therefrom and make appropriate orders.

  1. I do not agree with Counsel’s argument above. In this case, the status and relationship of the parties are not in contention; nor is what is complained of, one that would be dependent on the contract document.  Rather, what I believe is important as proof, are the facts constituting the breach of the fundamental right to fair hearing.  Claimant has not alleged that he was deprived of being heard by defendants in any process established by their contract of employment, rather, that he was directed by defendants to withdraw cases he has in court in respect of disputes over the management of Edutech Model Cooperative Society  Limited; and that this infringes his rights to fair hearing as guaranteed in section 36(1) of the CFRN.  That section provides that:
  2. Right to fair hearing

(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.

Claimant has not furnished evidence of how the defendants deprived him of his right to fair hearing.  In an allegation as the one made above, it is expected that claimant should furnish facts showing how and when the defendants deprived him of his right to be heard.  It presupposes that defendants determined claimant’s civil rights and obligations without giving him appropriate opportunity to be fairly heard.  I do not find that that is the situation in this suit.

What claimant relies on in proof of the allegation of violation of the right to fair hearing is the internal memorandum from the 3rd defendant dated 21st July 2017(exhibit C3)

19.Parties are in agreement that this document and the content was made in the course of efforts to resolve the crises which had engulfed the EdutechModel (Akoka) Cooperative Multipurpose Society.  This is also evident from exhibits C1 – C5.  In exhibit C3, 3rd defendant conveyed Council decision on the crises, and in paragraph iii states as follows:

That all the parties involved in Edutech crises must step down all cases in court, Police stations and EFCC immediately.

From the evidence before this court, the above decision was addressed to ‘all parties’ involved in the crises.  Claimant has not shown how this directive infringed section 36(1) of the constitution; nor how it took away or purport to take away the right of the parties.    Neither the laws establishing the defendant, nor the contract or conditions of employment of the parties is before this court.  Additionally, claimant himself stated in evidence that:

Yes, I have cases in courts and in the police over issues relating to the cooperative.  I cannot state the names of the courts and police stations.  Yes, I attend courts and police stations in prosecution of these cases for justices.

20.To me, apart from not placing before this court, how section 36(1) reproduced above was infringed, claimant by his evidence showed that he still has cases in court and in police stations.  Claimant by that showed that the decision of the Council was not one that took away his right to approach the courts to ventilate his grievances.  As a result, I find that claimant has not proved that his right to fair hearing, as enshrined in section 36(1) of the CFRN was infringed by defendants.  I therefore decline the order sought.

21.Claimant’s relief number three is for an order of perpetual injunction to restrain the defendants, jointly and severally, from further interfering with the prompt payment of the claimant’s salaries and emoluments.The success or otherwise of this prayer is dependent on the fate of claimant’s relief number one.  Relief one having failed due to lack of proof, this relief cannot stand and therefore fails.

In summary, the entire action fails and is hereby dismissed.   Judgment is entered accordingly. I make no order as to cost.

…………………………………

Hon. Justice Elizabeth A. OJI PhD

admin

Website:

Related Story