IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP,
Hon. Justice B.A. Adejumo, OFR…………………………………President
Date: 15TH DECEMBER, 2017
SUIT NO. NICN/ABJ/154/2015
BETWEEN:
- MARTINS OLUWAFEMI THOMAS
————–CLAIMANT
AND
- ATTORNEY GENERAL OF THE FEDERATION
- NATIONAL HEALTH INSURANCE SCHEME
———DEFENDANTS
REPRESENTATION:
OLABODE OLANIPEKUN, ESQ.,
with OPEMIPO OLORUNFEMI FOR THE CLAIMANTS.
O.S KARA, ESQ., FOR THE 1ST DEFENDANT
PAUL GOLU FOR THE 2ND DEFENDANT
RULING/JUDGMENT
The Claimants instituted this action vide Originating Summons dated 5th August, 2015 but filed on 6th August 2015. The claimant formulated the following issues for determination thus;
- Having regard to the clear provisions of Section 8 (2)(c) of the National Health Insurance Scheme Act, CAP N42 laws of the Federation, 2004 vis-à-vis the claimant’s letter of appointment dated 20th November, 2013, whether the claimant’s term of employment as the Executive Secretary of the 2nd defendant is fixed for a term of five years.
- Further to (1)supra and considering the clear provisions of the National Health Insurance Scheme Act, CAP N42 Laws of the Federation, 2004, particularly Section 8(1) and (2)(c) thereof read together with the claimant’s letter of appointment dated 20th November, 2013, whether the claimant’s employment/appointment as the Executive Secretary of the 2nd defendant pursuant to Section 8 (1) of the National Health Insurance Scheme CAP N42 Laws of the Federation, 2004 is an employment with statutory flavor.
- Having regard to the mandatory provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the constitution) read together with Article 7 of the African Charter on Human and People’s Rights (Ramification and Enforcement) Act, CAP A9 Laws of the Federation of Nigeria, 2004, whether the purported termination of the claimant’s employment as the Executive Secretary of the 2nd defendant vide a press briefing/statement or television broadcast made by the special Adviser on Media and Publicity to the President of the Federal Republic of Nigeria on Monday, April 27, 2015 without any hearing from the claimant is an infringement, breach and violation of the claimant’s right to fair hearing.
- If the questions in 1, 2 and 3 supra are answered in the affirmative, whether the termination of the claimant’s employment on Monday, April 27, 2015 as the Executive Secretary of the 2nd defendant is not irregular, unlawful, illegal, unconstitutional, null and void and of no legal effect whatsoever.
The reliefs sought against the Defendants jointly and severally are:
- A declaration that the claimant’s appointment on Monday, April 27, 2015 as the Executive Secretary of the 2nd defendant is fixed for a term of five years.
- A declaration that the claimant’s appointment on 20th November, 2013 as the Executive Secretary of the 2nd defendant pursuant to S.8 (1) of the National Health Insurance Scheme Act, CAP N42 Laws of the Federation, 2004 is an employment with statutory flavor.
- A declaration that the appointment of the claimant as the Executive Secretary of the 2nd defendant on 20th November, 2013 by the President of the Federal Republic of Nigeria cannot be terminated without first affording the claimant fair hearing or an opportunity to be heard.
- A declaration that the purported termination of the claimant’s employment on Monday, April 27, 2015 as the Executive secretary of the 2nd defendant without giving him an opportunity to be heard is in gross breach and violation of the claimant’s right to fair hearing.
- A declaration that the purported termination of the Claimant’s employment on Monday, April 27, 2015 as the Executive Secretary of the 2nd defendant is irregular, unlawful, illegal, unconstitutional, null and void and of no legal effect whatsoever.
- An order setting aside the purported termination of the claimant’s appointment as the Executive Secretary of the 2nd defendant done on Monday, April 27, 2015.
- An order reinstating the claimant as the Executive secretary of the 2nd defendant.
- An order reinstating the claimant as the Executive Secretary of the 2nd defendant so as to complete the remainder of his 5 year term out of which he had only spent 1 year, 4 months and 7 days.
- in the alternative to orders 7 and 8, supra, an order mandating the defendants to compute and pay the claimant the totality of all his salaries, benefits, emoluments and entitlements for the unused part of his term of office.
- Interest on the sum in 9, supra, at the rate of 17% per annum from April 27, 2015 up till final Judgment and at the rate of 20% per annum from judgment date till final settlement.
- An order of perpetual injunction restraining the defendants either by themselves, officers, agents, servants, privies or through any person or persons howsoever acting on their behalf from implementing, acting on, or giving effect to the purported termination of the claimant’s employment done on April 27, 2015.
- An order of perpetual injunction restraining the defendants either by themselves, officers, agents, servants, privies or through any person or persons howsoever acting on their behalf from treating and/or continuing to treat the claimant as a removed Executive Secretary of the 2nd defendant or presenting or holding the claimant out to the public or any person at all as a removed Executive Secretary of the 2nd defendant.
- A sum of Five Billion Naira (N5,000,000,000.00) on the footing of aggravated and/or exemplary damages.
In support of the Originating Summons is a 31-paragraph affidavit to which twelve (12) Exhibits and a written address were attached thus;
- Exhibit FM1- Bachelor of Medicine Certificate form University of Jos dated 27th September, 1988.
- Exhibit FM2- Master in Business Administration in Financial Management certificate form Lagos State University dated 27th November, 2007
iii. Exhibit FM3- Admission certificate into West African College of Surgeons dated 25th February, 2000
- Exhibit FM4- Admission Certificate into West African College of Surgeons dated 30th January, 2012
- Exhibit FM5- Claimant’s curriculum vitae
- Exhibit FM 6- Letter of Appointment as commissioner dated June, 2007.
vii. Exhibit FM7- Letter of appointment as commissioner dated 28th August, 2009.
viii. Exhibit FM8- Letter of appointment as Executive Secretary of the 2nd defendant dated 20th November, 2013
- Exhibit FM9- Page 8 of This Day Newspaper of April, 2015
- Exhibit 10- Page 7 of Punch Newspaper of April 28, 2015
- Exhibit FM11- Page 13 of the Nigerian Tribune Newspaper of April 28, 2015
xii. Exhibit FM12- Page 6 of the Daily Sun Newspaper of April, 28, 2015
The claimant’s counsel adopted the four (4) issues submitted for determination in the originating summons in the written address in support of the originating summons
The 2nd Defendant filed a counter affidavit of 8 paragraphs to which was attached one annexure and a written address in opposition to the originating summons. The 2nd defendant further filed a notice of preliminary objection. The Preliminary Objection is challenging the jurisdiction of this Honourable court to entertain this suit as constituted.
The grounds for the Preliminary Objection are that:
- The claimant has no cause of action against the 2nd defendant/applicant
- That the 2nd defendant/applicant was improperly joined.
In support of the Preliminary Objection is 11-paragraph affidavit and written address which the 2nd defendants relied on as its argument in support of the Preliminary Objection. The 2nd defendant prayed the court to strike out the name of the 2nd defendant having being wrongly joined as a party to this suit. 2nd defendant further urged the court to make any such order or orders as the court may deem just in the circumstances of this suit.
The claimant’s 8 paragraphs counter affidavit in opposition to the 2nd defendant’s Preliminary Objection was filed on 19/01/2016. In company of the counter affidavit is a written address. The position of the claimant is that the entire submission of 2nd defendant is frivolous and unmeritorious. He urged the court to discountenance same in its entirety.
Claimant further filed a reply on points of law in opposition to the 2nd defendant’s written address and urged this Honourable Court to discountenance the submission of defendant’s counsel.
1st defendant filed a counter affidavit of 8 paragraphs in opposition to the Originating summons. Attached to the counter affidavit are one annexure and a written address. In response to the written address of the 1st defendant in support of its counter affidavit, the claimant filed a reply on points of law which was settled by Olabode Olanipekun, Esq. The reply on points of law was dated and filed on 24/02/2016.
Let me now review the submissions of counsel in their respective written addresses. I will start with the written address filed by the Claimant in support of the Originating Summons.
The claimant’s counsel formulated four issues for determination thus:
- Having regard to the clear provisions of Section 8 (2)(c) of the National Health Insurance Scheme Act, CAP N42 laws of the Federation, 2004 vis-à-vis the claimant’s letter of appointment dated 20th November, 2013, whether the claimant’s term of employment as the Executive Secretary of the 2nd defendant is fixed for a term of five years.
- Further to (1)supra and considering the clear provisions of the National Health Insurance Scheme Act, CAP N42 laws of the Federation, 2004, particularly Section 8 (1) and (2)(c) thereof read together with the claimant’s letter of appointment dated 20th November, 2013, whether the claimant’s employment/appointment as the Executive Secretary of the 2nd defendant pursuant to Section 8 (1) of the National Health Insurance Scheme CAP N42 laws of the Federation, 2004 is an employment with statutory flavor.
- Having regard to the mandatory provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the constitution) read together with Article 7 of the African Charter on Human and People’s Rights (Ramification and Enforcement) Act, CAP A9 Laws of the Federation of Nigeria, 2004, whether the purported termination of the claimant’s employment as the Executive Secretary of the 2nd defendant vide a press briefing/statement or television broadcast made by the special Adviser on Media and Publicity to the President of the Federal Republic of Nigeria on Monday, April 27, 2015 without any hearing from the claimant is an infringement, breach and violation of the claimant’s right to fair hearing.
- If the questions in 1, 2 and 3 supra are answered in the affirmative, whether the termination of the claimant’s employment on Monday, April 27, 2015 as the Executive Secretary of the 2nd defendant is not irregular, unlawful, illegal, unconstitutional, null and void and of no legal effect whatsoever.
Arguing issue 1 and 2 together, counsel submitted that the claimant’s employment as the Executive Secretary of the 2nd defendant is for a fixed term of five years in the first instance. He argued that a combined reading of the clear and unambiguous provisions of Section 8 (1) and (2)(c) of the Health Insurance Scheme Act, CAP N42 Laws of the Federation, 2004. Citing the case of OGIDI V. STATE (2005) 9NWLR PT. 918 P. 256 @327, counsel argued that the repeated use of the word “shall” in Section 8 of the NHIS Act connotes compulsion, peremptoriness, mandatoriness, and the so commanded by the word “shall” is inconsistent with the principle of discretion or facultative inferences.
It is the argument of claimant’s counsel that the appointment of the claimant is laced with statutory flavor and protection. He submitted that the NHIS Act did not contemplate and/or provide for the termination of the claimant’s appointment until after the expiration of his five years term in the first instance which is renewable for another term of five years. Citing the cases of PHCN V. OFFOELO (2013)4 NWLR PT. 1344 P. 380 @417, ALHASSAN V. ABU, ZARIA (2011) 11NWLR PT.1259 P.417 @ 462; GOV., EKITI STATE V. AKINYEMI & ORS (2011) 17 NWLR PT. 1276 P. 373 @ P.403-404, counsel argued that the termination of the claimant’s employment before the expiration of his 5 year tenure is a manifestation of gross non-compliance with the provisions of the NHIS Act. He submitted that the procedure for termination of the claimant as Executive Secretary of the 2nd defendant was not followed.
Counsel urged the court to resolve the issues posed for determination in favour of the claimant and grant all the reliefs sought in the originating Summons.
On issue 3 i.e. Having regard to the mandatory provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the constitution) read together with Article 7 of the African Charter on Human and People’s Rights (Ramification and Enforcement) Act, CAP A9 Laws of the Federation of Nigeria, 2004, whether the purported termination of the claimant’s employment as the Executive Secretary of the 2nd defendant vide a press briefing/statement or television broadcast made by the special Adviser on Media and Publicity to the President of the Federal Republic of Nigeria on Monday, April 27, 2015 without any hearing from the claimant is an infringement, breach and violation of the claimant’s right to fair hearing, counsel argued that the claimant’s appointment could not have been terminated without first affording him an opportunity to be heard.
He posited that termination of appointment of the claimant in the manner it was done is a clear case of breach of fair hearing. He argued that the common law principle of fair hearing is the pillar of natural justice which has been domesticated in no unclear terms in the Constitution of the Federal Republic of Nigeria.
Citing Section 36 (1) of the CFRN (as amended), Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAP A9 Laws of the Federation of Nigeria, 2004, cases of MILITARY GOVERNOR OF LAGOS STATE & ORS V. ADEYIGA (2012) 5NWLR PT. 1293 P. 291 @ 335, LPDC V. FAWEHINMI (1985) 2NWLR PT. 7 P.300 @387, EDWIN OGBA V. THE STATE (1992) 2 SCNJ 106, 121, OSAYOMI V. STATE (2007) 1NWLR PT. 1015 P. 352 @ 372-373, counsel submitted that hearing, like in the instance, must be fair in the eyes of the law and any reasonable bystander and that the test of fair hearing is reasonableness.
Counsel argued that in the instant case there was absolutely no hearing at all and therefore put the circumstances of the case on a higher pedestal of illegality and it becomes clear that the claimant’s statutorily-protected employment was purportedly terminated by the President in absolute disregard for the principles of fair hearing. Citing the case of UZUDA V. EBIGAH (2009) 15NWLR PT. 1163 P.1 @ 5, 19, 21 AND IDAKWO V. EJIAGA (2002) 13NWLR PT. 783 P. 156 @ 167, counsel submitted that the purported termination is illegal, unlawful, wrongfully done and unconstitutional and as such, it is bound and fated to be set aside and the claimant reinstated.
Learned claimant’s counsel further submitted that in consonance with the position of court in the case of FMC, IDO EKITI V. ALABI (2012) 2NWLR PT. 1285 P. 411 @ 438, 443, 447 & 463, Nigerian court’s hardly hesitate to set aside purported terminations as the instant where the right to fair hearing of the employee was trampled upon regardless of who the employer is, more so in an employment with statutory flavor. Counsel further referred to the case of PHCN V. ALABI (2010) 21 NLLR PT. 58 P.1 @ 15; EZENWA V. KSHMB (2011) 9 NWLR PT. 1251 P. 89 @126 -127; OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13NWLR PT. 1157 P. 83 @ 145; OLUFEAGBA & ORS V. ABDUL RAHEEM V. ABDUR-RAHEEM & ORS (2010) 20 NLLR PT. 56 P.140 @ 190, to reinforce his position.
Counsel further argued that any process that is vitiated by breach of fair hearing is liable to be set aside. Counsel cited the case of OVUNMO V. WOKO (2011) 17NWLR PT.1277 P. 522 @ 549; ADIGUN V. A.G. OYO STATE (1987) 1 NWLR PT. 53 P. 678; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT (1992) 2NWLR PT. 226 P.661 @684; NDAYAKO V. DANTORO (2001) 13NWLR PT. 889 P. 187 @216 and argued that upon the claimant’s employment and resumption of office as Executive Secretary of the 2nd defendant, he acquired a vested right in that office.
Counsel submitted that the purported termination of the claimant’s employment, being challenged in this suit, is null, void, and of no effect whatsoever. Counsel urged this Honourable Court to resolve the
