HON. JUSTICE ADESUYI OLATERU-OLAGBEGI VS HON. CHIEF JUDGE OF LAGOS STATE & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: 3^RD DECEMBER 2018

SUIT NO. NICN/LA/396/2018

BETWEEN:

HON. JUSTICE ADESUYI OLATERU-OLAGBEGI

CLAIMANT

AND

HON. CHIEF JUDGE OF LAGOS STATE
HON. ATTORNEY GEN;ERAL AND

COMMISSIONER FOR JUSTICE LAGOS STATE

DEFENDANT

Representation:

B Olaogun SAN, with Adewumi Adisa appear for Claimant

CA Candide-Johnson SAN, with IA Onyebuchi, I Solanke appear for Defendant.

JUDGMENT

The Claimant by an Originating Summons dated 25^th July, 2018 brought pursuant to Order 3 Rules 3 and 16 (1) National Industrial Court Civil Procedure Rules 2017, S. 14 of Lagos Multi-door Courthouse Law 2015, Constitution of the Federal Republic of Nigeria (as amended) and under the inherent jurisdiction of this Court claims the following reliefs against the Defendants:

A DECLARATION that the Claimant is and remains the Chairman, Governing Council of Lagos Multi-Door Courthouse (LMDC) until the expiration of his current term of office on the 9^thJuly, 2020.
A DECLARATION that the Letter of purported termination of the Claimant’s appointment as Chairman, Governing Council LMDC dated 2^nd May 2018 authored by the 1^st Defendant is ultra vires, null, void and of no effect whatsoever being contrary to the provisions of S. 14 of the LMDC Law 2015.
A DECLARATION that the said purported termination of the appointment of the Claimant as the Chairman, Governing Council of LMDC is unconstitutional being gravely in breach of his fundamental human right to natural justice.
A DECLARATION that the overall supervision of LMDC is vested in its Governing Council whilst the overall supervision of the Governing Council is vested in the Claimant as Chairman pursuant to SS. 5 and 6 respectively of the LMDC Law 2015.
A DECLARATION that any and all appointments, directives and decisions purportedly taken following the purported termination of the appointment of the Claimant as Chairman Governing Council LMDC by the 1^stDefendant including the appointment of Hon. Justice (Mrs.) Oyefeso as Acting Chairman LMDC Governing Council are null, void and of no effect whatsoever.

The Claimant also seeks the following orders.

AN ORDER voiding the purported termination of the Claimant as Chairman Governing Council LMDC by the 1^stDefendant.
AN ORDER that the Claimant remains the Chairman of the Governing Council of LMDC until the expiration of his current term of office on the 9^thJuly, 2020.
AN ORDER setting aside all appointments, directives and decisions taken by the 1^stdefendant following the purported termination of the Claimant’s appointment as Chairman LMDC including the purported appointment of Hon. Justice (Mrs.) Oyefeso as Acting Chairman Governing Council LMDC Governing Council.
AN ORDER of perpetual injunction restraining the 1^stDefendant or any person for the time being occupying the office thereof, by his or herself, agent, or privies thereof from preventing, disturbing or restraining the Claimant in any form from performing the functions of the office of the Chairman, Governing Council of LMDC and from interfering in the activities and management of the affairs of LMDC until the expiration of the Claimant’s term of office on the 9^thJuly, 2020.

The grounds upon which the above orders are sought are that:

The Claimant was duly appointed as the Chairman of LMDC by Hon. Justice A. A. Phillips (Chief Judge of Lagos State, as she then was) by a letter dated 10th June 2014 for a term of 3 years (10^thJuly, 2014 to 9^thJuly, 2017).
The appointment was extended by Hon. Justice O. O. Atilade (Chief Judge of Lagos State, as she then was) by a letter dated 2^ndApril 2017 for a 2^ndterm of 3 years (10^thJuly, 2017 to 9^thJuly, 2020).
The two aforesaid Judges were at all material times respectively the predecessors in office of Hon. Justice (Mrs.) Opeyemi Oke, the current occupier of the office of the 1^stDefendant.
The 1^st Defendant is bound by the actions of her predecessors in office.
The 1^stDefendant has at all times material to this suit admitted and acknowledged the Claimant as the Chairman, Governing Council of LMDC.
The purported termination of the appointment of the Claimant by the 1^stDefendant by a letter dated 2^ndMay 2018 is un-constitutional, contrary to Rules of Natural Justice null, void and of no effect whatsoever.

The Claimant raised the following questions for determination:

Whether the Claimant is not the Chairman of the LMDC by virtue of the Letter of Appointment dated 10^thJune, 2014 under the hands of Hon. Justice A. A. Phillips, Chief Judge of Lagos State (as she then was) and the letter of re-appointment and extension of term dated 2^ndApril 2017 under the hands of Hon. Justice O. O.Atilade, Chief Judge of Lagos State (as she then was) until the expiration of his tenure on the 9^thJuly 2020.
Whether by virtue of S. 14 of the LMDC the purported termination of the appointment of Claimant via the 1^st Defendant’s letter dated 2^nd May, 2018 is not null and void being contrary to S .14 LMDC Law 2015 and contrary to the rule of natural Justice.
Whether the acts, and directives of the 1^stDefendant including her appointment of Hon. Justice (Mrs.) Oyefeso as Acting Chairman of LMDC Governing Council is not a nullity there being no role for her to act in and the position being un-known to the LMDC Law 2015 and liable to be set aside.

In response to the Originating summons, 1^st Defendant filed a Counter-affidavit dated 16^th August 2018, which was subsequently, by Order of Court, substituted for the one dated 20^th September 2018, deposed to by Omejuamobi Daniel Njoku, a Personal Assistant to the 1^st Defendant. In further response, 1^st Defendant brought a Notice of Preliminary Objection dated 13^th August 2018, challenging the jurisdiction of this Court, to hear this matter. The Notice of Preliminary Objection is brought pursuant to Order 18 Rule 2(2), Order 62 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure Rules), 2017, Sections 7 and 24(2) of the National Industrial Court of Nigeria Act, 2006 and under the Inherent Jurisdiction of the Court with. The Defendant/Applicant claims principally for an Order dismissing and/or striking out this suit for want of subject-matter jurisdiction.

The grounds for the Notice of Preliminary objection as enumerated by the Applicant in the Objection are that:

The National Industrial Court is a Court of limited jurisdiction, having power in respect only of the specific subject matter enumerated in the Constitution of the Federal Republic of Nigeria and the National Industrial Court Act 2006.
By virtue of section 254C (1) of the Constitution (Third Alteration) Act, 2010, the National Industrial Court is conferred with the exclusive jurisdiction to adjudicate matters relating to labour and employment, including trade relations and trade disputes. This very limited jurisdiction was further specified and circumscribed by Section 7 of the National Industrial Court Act, 2006.

iii. The subject matter of this suit, and the reliefs sought by the Claimant arise from the termination of the Claimant’s purported appointment as the Chairman of the Governing Council of the Lagos Multi Door Court House (LMDC) which is a statutory appointment under the Lagos Multi-Door Courthouse Law (LMDCL) of Lagos State 2007.

The relationship between the Claimant and the Applicant has never been or purported to be one of employer and employee. No contract of employment has been alleged or produced. Rather, the Respondent’s predecessor in officer, as the constitutional custodian of the judicial administration in Lagos State, purportedly appointed the Claimant as the Chairman of the Governing Council of the Lagos Multi Door Court House, being an administrative position within the judiciary and public service of Lagos State.
By virtue of section 91 of the Labour Act, a person exercising administrative, executive, technical or professional functions as public officers or otherwise is excluded from the definition of a “Worker”.
The subject matter of this suit is not within the jurisdiction of the National Industrial Court, as it does not fall within the range of disputes specified by Section 254C (1) of the Constitution (Third Alteration) Act 2010 and Section 7 of the National Industrial Court Act, 2006.

vii. This suit ought to be dismissed and or struck out for want of jurisdiction.

Defendant, in this application contends that Claimant is not an employee of any of the Respondents or the LMDC and has neither alleged nor produced any contract of employment or service. That the position of Chairman of the Governing Council of the LMDC is an administrative position and same cannot give rise to an employment dispute. The 1^st Defendant makes the point that Claimant was not paid any salary but only received travel and sitting allowance for any period spent on the business of the LMDC, in line with section 13 of the LMDC Law 2015. Claimant argues that the dispute is not an employment or labour dispute and that the National Industrial Court is a Court of enumerated jurisdiction as Section 254C (1) of the Constitution (Third Alteration) Act 2010 and Section 7 of the National Industrial Court Act, 2006 confer on this Court the exclusive jurisdiction to adjudicate only matters relating to labour and employment, including trade relations and trade disputes.

In his written address in support of the Notice of Preliminary objection, the Applicant raised the sole issue of “Whether the subject matter of this action is within the enumerated jurisdiction of the National Industrial Court of Nigeria?

Learned SAN, Counsel for Applicant stated that the only responsibility conferred on the Chairman of the LMDC is the overall supervision of the Governing Council as there is no real powers to be exercised and same is certainly not an executive or contractual position. Counsel added that it is important to state that the only reason why this suit was brought is to challenge the exercise of administrative powers by the Applicant but that these powers were not exercised in the capacity of an employer as the office of the Applicant/1^st Defendant is not an employer of labour. Applicant submits that this is not a matter which comes within the jurisdiction of the National Industrial Court as prescribed by statutes and rather the High Court of Lagos State is the appropriate forum for the resolution of this dispute.

Claimant, in response to the Notice of Preliminary Objection filed a counter-affidavit and a written address where he adopted the sole issue raised by the 1^st Defendant. The Defendant/Applicant filed, in response to the Claimant’s counter affidavit and written address, Reply arguments on points of law. In the Reply, Defendant/Applicant argues that the jurisdiction of this Court, as provided in the Constitution, is with regards to disputes arising from the reward of persons whose employment positions are stated therein would be decided by the National Industrial Court and the list that follows is a list of rewards that can accrue to an employee.

By consent of the parties, it was agreed that this application be taken together with the substantive suit as permitted by Order 18 Rule 3 of the National Industrial Court Rules 2017. The preliminary objection was thus argued on same 1^st November 2018 before the Originating Summons.

The following documents were annexed to the affidavits and counter-affidavits, in furtherance of the cases and arguments of parties. They are numbered and stated here, for identification purposes, as follows:

Claimant’s Documents:

S/N	Name of Exhibit as marked by Claimant	Description of Exhibit	Documents now referred to as:
1.	Exhibit A001	Letter of Appointment of Claimant as Chairman Governing Council of the Lagos Multi Door Courthouse dated 10^th June, 2014	Exhibit C1
2.	Exhibit A002	Notice of Rescheduling of Governing Council Inauguration dated 25^th June, 2014	Exhibit C2
3.	Exhibit A003	Letter of Re-Appointment of Claimant to the Chairman Governing Council of LMDC dated 27^th April, 2017	Exhibit C3
4.	Exhibit A004	Letter from Chief Judge O. Oke dated 13^th April 2018	Exhibit C4
5.	Exhibit A005	Letter of purported Termination of Claimant’s Appointment dated 2^nd May, 2018.	Exhibit C5
6.	Exhibit A006	Claimant’s Response dated 16^th May, 2018.	Exhibit C6
7.	Exhibit A007	1^st Defendant’s letter dated 18^th May 2018.	Exhibit C7

Defendant’s Exhibits:

S/N	Name of Exhibit as marked by Defendant	Description of Exhibit	Documents now referred to as:
1.	Exhibit A	Applicant’s letter of appointment dated 10^th June, 2014	Exhibit D-A
2.	Exhibit B	Applicant’s letter of re-appointment dated 27^th April, 2017	Exhibit D-B
3.	Exhibit C	Letter dated 8^th March 2018, attaching Public Notice	Exhibit D-C
4.	Exhibit D	Petition dated 17^th February 2018	Exhibit D-D
5.	Exhibit E	1^st Respondent’s letter dated 13^th April 2018.	Exhibit D-E
6.	Exhibit F	Applicant’s letter dated 17^th April 2018.	Exhibit D-F
7.	Exhibit G	1^st Respondent’s letter to the Applicant dated 27^th April 2018.	Exhibit D-G
8.	Exhibit H	1^st Respondent’s letter to the Director of Human Resources, LSJSC.	Exhibit D-H
9.	Exhibit I	Letter of Termination dated 2^nd May 2018	Exhibit D-I
10.	Exhibit J	Letter reiterating termination dated 18^th May 2018	Exhibit D-J
11.	Exhibit K	Minutes of Meeting dated 19^th June 2018.	Exhibit D-K

CASE OF THE CLAIMANT

By the Affidavit in support of the Originating Summons deposed to by the Claimant, it is his case that the 1^stDefendant is a Public Office which is created by Sections 5(1) and 7 of the High Court Law, CAP 60, Laws of Lagos State and the current occupant is Hon. Justice (Mrs.) Opeyemi Oke while the 2^ndDefendant is the Chief Law Officer of the Government of Lagos State. His case is that until 24^thApril, 2014, he was a Judge of the Lagos High Court where he served diligently and meritoriously for thirteen years until his retirement from the bench on the 24^thApril, 2014 upon the attainment of the statutory retirement age of sixty five years. He continued to serve Lagos State diligently in various capacity after his retirement which include his appointment as Chairman, Governing Council Lagos Multi-Door Courthouse. He states that under the Lagos Multi-Door Courthouse (LMDC) Law 2007 or the amended 2015 version, his appointment is for a period 3 years which may be extended on expiration of same for a second term of another 3 years. That pursuant to Section 7(4) of the LMDC Law 2015 his tenure was extended by the succeeding Chief Judge of Lagos State, Hon. Justice O. O. Atilade for a 2^ndterm of 3 years from 10^thJuly 2017 and that during the pendency of his 2^ndterm in office as Chairman of the Governing Council of the LMDC, Hon. Justice Opeyemi Oke succeeded Hon. Justice Atilade as Chief Judge of Lagos State and as occupier of the office of the 1^stDefendant, Hon. Justice Oke received members of Council led by the Claimant in her chambers. The Claimant states that at all times material to institution of this suit he had dutifully performed his statutory duties as the Chairman of the Governing Council of LMDC and presided over 20 Council meetings in a period of about 4 years (2014 – 2018) at which the 2ⁿDefendant was either present or was represented. He states further that his appointment and authority as Chairman of the Council has never been challenged or questioned by anyone as the 1^stDefendant at all material times, acknowledged and related with him as Chairman of Council of LMDC which is evident in her letter dated 13^thApril, 2018. The 1^stDefendant by a letter to the Claimant dated 2^ndMay, 2018 stated that she had been advised by Lagos State Judicial Service Commission that there was no record of or recommendation of the Claimant’s appointment as Chairman of LMDC. The 1^stDefendant, by the said letter purportedly terminated his appointment as the Chairman of Council of LMDC in flagrant disregard of S. 14 of the LMDC Law 2015 and of the Rules of natural justice. The Claimant avers that from his inquiries made of Hon. Justices Phillips and Atilade respectively, both being the immediate successive occupiers of the office of the 1^stdefendant, Hon. Justice Oke, the present occupier of the office of the 1^stdefendant did not inquire from her predecessors about the records of the Claimant’s appointment nor did Justice Oke inform her predecessors in office that Lagos State Judicial Service Commission had informed her that they had no records of the Claimant’s appointment,

He contends that he has explored all reasonable means of resolving the matter particularly by Exhibit C6 and through emissaries but that the 1^stDefendant through Exhibit C7 foreclosed any resolution of the matter. It is the Claimant’s contention that it is in the interest of Justice to grant the orders sought by the Originating Summons as doing so will promote the Rule of law, preserve the sanctity of Nigeria’s Judicial system and the integrity of the respective offices of all the parties in this suit.

CASE OF THE 1^ST DEFENDANT

By Counter-affidavit deposed to by Mr. Omejuamobi Daniel Njoku(Personal Assistant to 1^st Defendant); it is the 1^st Defendant’s case that the Claimant’s appointment and subsequent purported re-appointment were neither based on the “recommendation” of the Commission, nor was it subject to the “terms and conditions” of the Commission, as provided by section 6 (a) and (2) of the LMDC Laws of 2007 and 2015 respectively. It is stated on behalf of 1^st Defendant that the Claimant’s purported “re-appointment” was unlawful firstly because it was predicated on an invalid appointment and such illegal appointment cannot be the basis of a lawful reappointment and secondly unlawful to the extent that the Claimant’s appointment and re-appointment were unilaterally done, without the recommendation or terms and conditions of the Judicial Service Commission of Lagos State hence making the Claimant’s appointment and reappointment invalid and liable to be terminated.

Mr. Njoku states that by a letter dated 8^thMarch, 2018, Hon. Mrs Hairat Ade-Balogun, a former Attorney-General of Lagos State and a Life Bencher, forwarded to the Honourable Chief Judge of Lagos State, a Public Notice for the registration of an organisation known as “Organisation of Professional Dispute Resolvers” contained in Guardian Newspaper published on 7^thMarch, 2018 which listed the Claimant as one of the Trustees of the Organisation with its listed objectives including serving the community by promoting and facilitating the development, acceptance and usage of alternative dispute resolution. He states that on 19^thMarch, 2018, the 1^stDefendant received another letter/petition dated 17^thFebruary 2018 from one Mubasiru Agbeniga Adebayo, an Associate Member of the Institute of Chartered Mediators & Conciliators of Nigeria, bringing the 1^st Defendant’s attention to the same publication and also expressing concern that the Claimant featured prominently in the list of the Trustees of an Organisation which was in direct competition with the Lagos Multi-Door Courthouse thus creating a manifest conflict of interests. Mr. Njoku states that the petitioner also raised concerns about one Mrs Caroline Etuk, a Director of the LMDC who was also on the list. He states that by the said letter it was stated that the objectives of the Organisation and the Lagos Multi Door Court House are similar and the petitioner implored the intervention of the Honourable Chief Judge in what may turn out to be an anomalous situation and an embarrassment to the administration of justice in Lagos State as an appointee to the office of the Chairman of the Council of the LMDC stands in a fiduciary relationship with that body and owes it a duty to act in good faith and in that body’s best interest and the action of the Claimant in accepting the position of a Trustee in an organization that is in competition with the LMDC undermines the position.

It is further the case of the 1^st Defendant that the LMDC Law 2015 makes whoever occupies the office of the Chairman of the Governing Council of the LMDC an appointee of the 1^stDefendant and such appointee is required by law to send regular updates to the 1^stDefendant but however, the Claimant neither consulted with the 1^st Defendant, nor informed her of his decision to become a Trustee of an organisation which is in direct competition with the LMDC. That consequently on 28^thMarch, 2018, the 1^stDefendant asked the Applicant for his comments on the allegations by writing on the Petition and forwarding same to the Applicant. However, the 1^st Defendant did not elicit any response from Claimant. On 13^thApril 2018, the 1^stDefendant wrote again to the Claimant requesting for his urgent response which the Claimant replied to by letter dated 17^th April 2018 (Exhibit DF) wherein he acknowledged that the “Organisation of Professional Dispute Resolvers” and the “Lagos Multi-Door Courthouse” have the same objectives and confirmed that he had agreed to become a Trustee of the Organisation which necessitated the 1^stDefendant requesting the Claimant to vacate the office of the Chairman of the LMDC by Exhibit D-G in view of the very clear and apparent conflict of interests. However, the Claimant did not comply with the 1^st Defendant’s request.

Mr. Njoku states that in the same vein, on 27^thApril 2018, the 1^stDefendant vide Exhibit D-H wrote to the Director of Administration and Human Resources, Lagos State Judicial Service Commission, requesting for extract of minutes of meetings of the Commission where the Claimant’s appointment was discussed in line with the provisions of the 2015 Law as it became necessary for the 1^st Defendant to understand the “terms and conditions” of the Claimant’s appointment as stipulated by the Law, since he was appointed before she resumed office. By a letter dated 30^thApril 2018, the Director of Administration and Human Resources of the Commission informed the 1^stDefendant that the Claimant’s appointment was neither brought before, nor referred administratively to the Commission which led the 1^st Defendant to the irresistible conclusion that the Claimant’s purported appointment was not made in compliance with the LMDC Law. Consequently, the 1^st Defendant informed the Claimant that his appointment as the Chairman of the LMDC, not being in compliance with the LMDC Law, has been terminated and same was reiterated in Exhibits D-I and D-J respectively.

On 19^thJune 2018, the 1^stDefendant discussed the matter at a meeting of the Lagos State Judicial Service Commission where the Claimant’s termination was upheld, since the appointment did not follow the laid down procedure (Exhibit D-K). As a result, the Claimant’s termination having been approved by the Commission, the body vested by law to recommend the Claimant for appointment, Honourable Justice Josephine E. Oyefeso, a judge of the High Court of Lagos State, was appointed to cover the duties of the Chairman of the Governing Council of the LMDC in her capacity as the Vice-Chairman of the Governing Council, effective from 27^thApril 2018 as section 6 (3) (2) of the LMDC Law 2015 provides that the Vice-Chairman shall preside over the meetings of the Council in the absence of the Chairman.

According to 1^st Defendant, as at 10^thJune 2014, when the Claimant was purportedly appointed, the law expressly provided that the Chairman of the Governing Council shall be appointed by the Chief Judge upon the recommendation of the Judicial Service Commission of Lagos State, from two persons nominated by a reputable Dispute Resolution Organisation and the Claimant was not at any time, prior to his purported appointment in 2014, nominated by any reputable Dispute Resolution Organisation, nor recommended by the Lagos State Judicial Service Commission to the then Chief Judge for appointment. That, the purported 2017 reappointment of the Claimant was not done in compliance with the LMDC Law 2015 as the appointment was neither on the recommendation of the Commission, as stipulated by section 6 (1) and (2), nor subject to any terms and conditions as may be approved by the Commission.

CLAIMANT’S REPLY

In response to 1^st Defendant’s Counter-affidavit, Claimant filed a Reply Affidavit dated 26^th October 2018. Claimant notes that the fundamental issue raised in this suit is the legality of the 1^st Defendant’s purported termination of the Claimant’s appointment as the 1^stDefendant has no powers under the LMDC LAW 2007 or the amended 2015 version to terminate the Claimant’s appointment as Chairman of the Governing Council of LMDC.

On the issue of conflict of interest, Claimant, after referring to the objectives of the two bodies in contemplation, states that the Organisation of Professional Dispute Resolvers are not in competition with the LMDC, and as such, there could be no conflict of interest. Claimant also states that Exhibit D-C does not show that Mrs. Hariat Ade-Balogun, the Life Bencher, expressed any form of concern at the Claimant being linked as Trustee with OPDR. He states that Section 16(1)(C) of the LMDC LAW 2015 did not grant the 1^stDefendant any supervisory or managerial powers over the Chairman or members of the Governing Council of LMDC.

In response to Exhibit D-H, being 1^st Defendant’s letter to the LSJSC, requesting for information on any meeting where the appointment of the Claimant was discussed, Claimant points out that the response of the LSJSC was not Exhibited. He notes that from Exhibit D-K, it was the 1^st Defendant who “informed the Commission that there was irregularity in the appointment of the Claimant, whereas in the 1^st Defendant’s letter of purported termination of the Claimant (Exhibit C1/D-I) the 1^st Defendant stated that the Commission advised that there were no records of the Claimant’s appointment. That, whereas in paragraph 11.2 of Exhibit D-K, the 1^st Defendant stated that two petitions had been written against the Claimant by Life Benchers, the only Life Bencher who was seized of the matter is Mrs. H. A. Balogun. Claimant concludes that from Exhibit D-K, the 1^st Defendant materially misled the LSJSC, unilaterally investigated the issue of the Claimant’s appointment, prosecuted the claimant and reached the irresistible conclusion that the Claimant’s appointment was not made in compliance with the LMDC LAW. Claimant also notes that the 1^st Defendant had, in Paragraph 24 of his Counter affidavit stated that the Claimant is “an appointee of the 1^stDefendant” and still contends that the appointment of the Claimant made by her predecessors was “invalid ab initio.’

CLAIMANT’S ARGUMENT

In his Written Address in support of the Originating Summons, Claimant raised 3 issues for determination, to wit:

Whether the Claimant is not the Chairman of the Governing Council of LMDC by virtue of the Letter of Appointment dated 10^th June, 2014 under the hands of Hon. Justice A. A. Phillips, Chief Judge of Lagos State (as she then was) and the letter of re-appointment and extension of term dated 27^th April, 2017 under the hands of Hon. Justice O. O. Atilade, Chief Judge of Lagos State (as she then was) and remains Chairman until the expiration of his tenure on 9^th July, 2020.
Whether the purported termination of his appointment as Chairman via the 1^st Defendant’s letter dated 2^nd May, 2018 is not contrary to S.14 of LMDC LAW 2015, a breach of the rules of natural justice, un-constitutional and a nullity and liable to be set aside.

iii. Whether the acts and directives of the 1^st Defendant including the appointment of Hon Justice Oyefeso as Acting Chairman of LMDC Governing Council are not a nullity (a) as there is no vacancy in the office of Chairman and therefore no basis for appointment of an Acting Chairman and (b) for being contrary to the LMDC Law 2015 and liable to be set aside.

The Claimant contends that the peg on which all the Declarations and Orders sought in this summons hang is the question on whether or not the purported termination of the Claimant by the 1^stDefendant is valid or void.

He submits that his appointment is valid and regular having been made pursuant to the provisions of Sections 6, 7 and 15 of LMDC Law 2007 and 2015 respectively.

He further submits that:

The claim of Lagos State Judicial Service Commission (LSJSC) relied upon by the 1^st Defendant that there are no records of the appointment is not the same thing as saying that the appointment was not made according to Law or at all.
By addressing him as ‘Chairman’ of LMDC, 1^st Defendant had admitted his status and cannot now question it – Olateru-Olageyi v. Ogunoye (1996) 5 NWLR (Pt. 448) 332, Anasons Farms Ltd v. NAL Merchant Bank (1994) 3 NWLR (PT 331) 244 and also SS 20 and 24 (b) and (c) of Evidence Act 2011.
It is presumed under S. 168(1) of Evidence Act 2011 that whenever any official act is shown to have been done in a manner substantially regular, such as in the instant case where a Chief Judge gave an appointment to the Claimant as Chairman of Council under S.15(1) (b) of the LMDC Law 2015 and such appointment extended by another Chief Judge under S. 7(4) of the LMDC Law, it is presumed that the formal requisites for validity were complied with – Achu Takim Achu v. Civil Service Commission of Cross River State & Aor (2009) 3 NWLR PT 1129 at 475 ratio No 1.
The Claimant additionally enjoys the presumption that he was duly appointed, having presided over 20 meetings with the 2^ndDefendant in attendance personally or by proxy.
The 1^stDefendant as a corporation sole is bound by the act of Predecessor Chief Judges, and as such one successor cannot impugn or dis-inherit the act of a predecessor which was within the authority of office of that predecessor to make.
That the letter of purported termination is hearsay; as the LJSC has no powers of appointment of a Chairman under LMDC LAW 2015.
That the purported termination is unconstitutional and contrary to the rules of natural justice, as the predecessors in office of the 1^stDefendant and the Claimant were not given any notice of or opportunity to respond to the advice of the LSJSC – Tunsher v. Judicial Service Commission, Benue State (1997) 6 NWLR (PT508) 307 and NISER Council (1988) 3 NWLR (PT 807) 25. Claimant submits that the 1^st Defendant was the Investigator; Prosecutor and Judge of the whole issue without giving her predecessors and the Claimant, the opportunity to respond to, contradict or debunk the claim of the LSJSC. He relied on the case of Legal Practitioners Committee v. Chief Gani Fawehnmi (1985) 7 SC 178 where the Supreme Court nullified the proceedings and decision taken by the Legal Practitioner Disciplinary Committee against Chief Fawehinmi on the ground that the Federal Attorney-General was both the Accuser, Prosecutor and Judge in the matter; and the case of Orugbo v. Awor v. Bulara Una & Ors (2002) 16 NWLR (PT 792) 175 at 218 -219 paragraph A on the requirement of fair hearing.
That the letter of purported termination is self-indicting and self-defeatist as it first states that there was no record of the appointment of the Claimant which implies that there is no appointment at all and at the same time, purports to terminate the non-existent employment.
That Claimant’s appointment being of a statutory flavour, its determination must conform with the law. Claimant refers to the provision of s. 14 of the LMDC 2015.
That the purported termination is contrary to rule of public policy and that an appointee of a Public Office cannot be accountable for behind-the-scene actions of the appointing authority because the business of Government will suffer irreparably if appointees to public office defer acceptance thereto until they have concluded their private investigations to see if the appointing authority complied with all formalities. He suggest that in the case of a Judge, the letter of appointment is a representation to the appointee that all formalities were previously complied with until conclusively proved. He states that in that situation, the maker of the appointment cannot be the same person indicting the appointment as that would be absurd and contrary to public policy.
That the meeting of the LMDC summoned by the 1^st Defendant or Ag. Chairman is irregular as not complying with S. 6(3) (1) of the LMDC Law 2015. He submits further that it follows that all such irregular meetings and all decision taken thereat lack validity and are null, void and of no effect whatsoever.

1^ST DEFENDANT’S ARGUMENT

The 1^stDefendant raised a sole issue for determination as follows:

Whether the termination of the Claimant’s purported appointment for not complying with the mandatory provisions of the LMDC Law 2015 is a valid and proper exercise of constitutional and administrative powers of the 1^st Defendant?

In arguing the lone issue, the 1^st Defendant states that the position of the Chairman of the Governing Council of the LMDC is a creation of statute; the LMDC Law 2007; and subsequently, 2015. He argues that the Claimant was not at any time, prior to his purported appointment as the Chairman of the Governing Council of the LMDC in 2014, nominated by any reputable Dispute Resolution Organisation, nor recommended by the Lagos State Judicial Service Commission to the then Chief Judge for appointment in consonance with the Section 6 (1) of the 2007 Law and thus, the Claimant’s appointment was illegal, invalid and contrary to the clear requirement of the law. Defendant contends that the subsequent purported re-appointment was neither based on the “recommendation” of the Commission, nor subject to the “terms and conditions” of the Commission, as required by section 6 (a) and (2) of the LMDC Law 2015 and as such the Claimant’s purported reappointment is invalid and unlawful. Firstly, because it was predicated on an invalid appointment and such illegal appointment cannot be the basis of a lawful reappointment; and secondly, that assuming, (which is denied) that the initial appointment was valid, the “re-appointment” would still be null and avoid for failing to comply with mandatory statutory provisions as the purported reappointment was unilaterally done, without the recommendation or terms and conditions of the Judicial Service Commission of Lagos State thereby making such re-appointment invalid and liable to be terminated.

1^st Defendant further submits, in response to the grounds raised by the Claimant, as follows:

On the Presumption of regularity of appointment, 1^st Defendant submits that even a legal presumption is not a conclusive proof and that indeed, by section 168(1) and (2) of the Evidence Act is rebuttable. Learned SAN submits that a rebuttable presumption only allows the Court to reach a particular conclusion in the absence of evidence to the contrary and that it is not a mandatory deduction which the law directs to be made but merely a procedural device, which takes place of evidence in certain cases until the facts in lieu of which the presumption operates are shown. He refers to the case of Horsfall v. Amaizu & Ors and state that presumption of regularity is rebuttable by contrary evidence.
On the Claimant’s argument that the office of the 1^stDefendant is a corporation sole and that by law, any occupant is bound by the acts and decisions of their predecessors, learned SAN submits that 1^st Defendat is bound by the actions of her predecessors but however this is only in respect of actions that are valid and legal and that if the predecessors of the 1^stDefendants carried out acts that were not in compliance with the law, such acts would neither bind those predecessors nor the 1^stDefendant.
On the Claimant’s argument that Exhibit C1/D-I (the letter terminating his appointment) amounts to hearsay and therefore “bereft of legality”, Learned SAN for the 1^st Defendant submits that even from the Claimant’s own arguments, it is unclear how the letter is hearsay as there is no way the information in the official record of the Commission and extracted by its statutory head would amount to hearsay. He submits that if the Claimant’s argument is upheld, the Court would strike out the letter of termination and the Claimant would have no cause of action.
On the argument that Exhibit C1/D-I is “self-indicting and valueless” as it purports to terminate a non-existent appointment, Learned Senior Counsel submits that the 1st Defendant is not disputing the fact of the Claimant’s appointment but rather its validity.
On the Claimant’s argument that the termination of his appointment is unconstitutional and contrary to the rules of natural justice on the basis that he was not given any notice or opportunity to respond before the letter of termination was issued and served on him, and the Claimant’s claim that the 1^stDefendant all by herself, investigated the matter, prosecuted the matter and reached a finding without giving him any opportunity to debunk the Commission’s claim, 1^st Defendant submits that there were two pre-existing issues before the 1^stDefendant issued the letter of termination, the first being the issue of the Claimant accepting to become a Trustee in an organization that is in competition with the LMDC and the other the issue of non-compliance with the provisions of the LMDC in appointing the Claimant.

On the issue of becoming a Trustee, 1^st Defendant submits that the Claimant was given an opportunity to defend himself and by Exhibit D-F, he admitted that he had accepted to become a Trustee of Organisation of Professional Dispute Resolvers and also admitted that he was aware that the organisation shares the same objectives with the LMDC. 1^st Defendant states, however, that that was not the reason why Claimant’s purported appointment was terminated. That his appointment was terminated because it did not comply with the provisions of the LMDC Law 2015· The 1^st Defendant submits further that the evidence before the Court rebuts the argument that the 1^stDefendant abruptly terminated the appointment without first consulting with the Commission, as the Commission’s response clearly indicated that the law was not complied with and the nature of inquiry did not require any audience from the Claimant since there was no allegation against him or his person. Learned SAN submitted that the reason for which the Claimant was removed was as a result of actions or inactions beyond his control, and as such his perspective on the matter was irrelevant.

On the Claimant’s argument that his termination was an indictment on the 1^stDefendant’s predecessors, 1^st Defendant submits that Exhibit C1/D-A does not seek to indict anyone for acts done or undone but simply terminates an appointment that was done without recourse to the law.
On Claimant’s claims that the law provides that where the contractual relationship between the employer and employee is one with a statutory flavour, any action to retire the employee must be in compliance with the rule otherwise his retirement will be null and void, Learned SAN submits that this is not a case of employer/employee as the Claimant was neither an employee of the 1^stDefendant, nor that of the LMDC and that the Claimant was allegedly appointed to offer services to the LMDC. He submits also that the circumstance under which the Claimant was appointed was not on the basis of employment as envisaged by the Labour Act, neither is the relationship within the ambits of the matters within the jurisdiction of the National Industrial Court. 1^st Defendant argues that the Claimant was purportedly appointed to act in an administrative capacity as there was no contract of employment between the Claimant and the 1^stDefendant, and that the Claimant is not the employee of the 1^stDefendant nor was the Claimant a worker of the 1^st Defendant since the relationship between the Claimant and the 1^stDefendant is not one of employer/employee. 1^st Defendant submits that since the relationship between the Claimant and the 1^st Defendant is not one of employer/employee, it does not go to reason to say that it is an employment with statutory flavour. They submit that the termination of the purported appointment of the Claimant could not have been in accordance with the provisions for removal of a person who was validly appointed as that would amount to aiding an illegality and that the provisions of the LMDC Law relating to the removal of members of the council and the law that appointments with a statutory flavour can only be terminated in compliance with the provisions of the law would only apply to persons who are validly appointed and who lawfully occupy the position in contention.
On Whether the Claimant’s termination is contrary to public policy, 1^st Defendant submits that by section 9(2) of the LMDC Law 2015, the legality of the proceedings of the Governing Council will not be affected by any vacancy in the membership of the Council, or by any defect in the appointment of a member of the Council, or by reason that a person not entitled to do so took part in the proceedings. 1^st Defendant argues that it would be contrary to public policy to allow an illegality to continue simply because funds would be depleted.
On Claimant’s assertion that the 1^stDefendant who purportedly appointed him cannot indict his appointment, 1^st Defendant argues that 1^stDefendant has to inquire into a perceived illegality especially one which tends to put the judiciary in light of incompetence and aiding illegality and to bring it to order.

CLAIMANT’S REPLY

Claimant, in Reply, rebutted 1^st Defendant’ argument by restating his case/arguments. In addition, Claimant states that Exhibit D-K is an afterthought as the ratification came after the letter of 2^ndMay, 2018 had been written; and that it was the 1^stDefendant who unilaterally took the decision of the unlawful termination, introduced the subject at the meeting of LSJSC and practically overruled the weight and reasonable contribution of Mr. Rotimi Seriki. Claimant submits that the LSJC has been brought into the matter by the 1^stdefendant in order to glorify and lend support to the act of termination of the appointment of the Claimant.

COURTS DECISION

I have carefully considered the processes filed in the Originating Summons. I have also considered the processes filed in respect of the Preliminary Objection raised by the 1^st Defendant. The issues raised in both processes are consolidated in this judgment. I set the following issues down for consideration:

Whether the subject matter of this suit is within the jurisdiction of this Court. This issue is raised to resolve the Notice of Preliminary Objection;
Whether the appointment of the Claimant as Chairman of the Lagos Multi-Door Courthouse is valid;
Whether the termination of the Claimant by the 1^st Defendant is ultra vires, null, void and of no effect; and
Whether the Claimant is entitled to the Declarations and Orders sought.

Issue 1 – whether the subject matter of this suit is within the jurisdiction of this Court.

The issue of jurisdiction strikes at the root of the competence of the Court to determine a suit before it. It is therefore always necessary to determine it before every other issue that may arise in a suit. A Court’s jurisdiction to hear a suit breaks jurisdiction down into three components: whether there is jurisdiction over the person, whether there is jurisdiction over the subject matter, and whether there is jurisdiction to render the particular judgment sought. In this case, what has called for determination is whether this Court has jurisdiction over the subject matter. The Supreme Court in the case of Abubakar & ors V. Nasamu and ors [2012] 5 SCM, 1 held that:

jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding with the suit, the reason behind this being that issue one in the briefs of all the parties in the four consolidated appeals is jurisdictional in nature, it is mandatory to first and foremost resolve it one way or the other before proceeding to considering other issue in the appeals on the merit. The reason being that jurisdiction is a radical and crucial question of competence. Once there is a defect in competence, it is fatal and the proceedings are a nullity.

Then, in Lafia L.G. V. Exec. Govt. Nasarawa State [2013] ALL FWLR (pt 668) 956 S.C. @982 para H per Rhode- Vivour JSC pointed out that:

Jurisdiction is fundamental in every suit. It is a threshold matter, so once raised, must be decided quickly before anything else. This is so because if a Court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to a nullity. It is the life and soul of a case. It is so important that it can be raised at any time in the Court of first instance, on appeal, and even in the Supreme Court for the first time. It can also be raised suo motu provided counsels are given the opportunity to address the Court on it before a decision is taken.

A Court cannot confer or vest in itself jurisdiction not specifically conferred on it by a statute or the constitution. Onnoghen JSC in the case of Gafar v. Govt., of Kwara State (2007) 4 NWLR (Pt. 1024) 375 puts it this way:

“It is settled law that Courts are creatures of statute based on the constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed as jurisdiction cannot be implied nor can it be conferred by agreement of parties; see Ariyo v. Ogele (1968) 1 All NLR 1; Timitimi v. Amabebe (1953) 15 WACA 374; Osadebe v. A.-G., Bendel State (1991) 22 NSCC (Pt. 1) 137 at 160; (1991) 1 NWLR (Pt. 169) 525 at 572.

In Orhena Adugu Gbileve & Anor v. Mrs. NGUNAN Addingi & Anor (2014) LPELR-22141(SC) held that:

The jurisdiction competence of a Court has been well spelt out in the locus classicus case of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4); (1962) 2 SCNLR 34 where this Court laid down the proper guideline in determining the issue of jurisdiction of a Court and stating that a Court is competent when:-

(a) It is properly constituted as regards members of the Bench, and no member is disqualified for one reason or another,

(b) The subject matter of the case is within its jurisdiction and no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case comes before the Court initiated with due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction.

In this case, what has called for determination is whether this Court has jurisdiction over the subject matter of this suit. Section 254(C)(l)(K) of the 1999 Constitution of the Federal Republic of Nigeria and Section 7 of the National Industrial Court Act are the principal instruments that provide for the jurisdiction of this Court. They are reproduced hereunder:

Jurisdiction

254 C (I) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-

(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;

(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto;

(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;

(e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from;

(1) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;

(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;

(i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

(j) relating to the determination of any question as to the interpretation and application of any-

(i) collective agreement;

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

(iii) award or judgment of the Court;

(iv) term of settlement of any trade dispute;

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;

(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;

(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

Section 7 of the National Industrial Court Act 2006 provides:

Jurisdiction, etc.

(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-

(a) relating to-

(i) labour, including trade unions and industrial relations; and

(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and

(b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;

(c) relating to the determination of any question as to the interpretation of-

(i) any collective agreement;

(ii) any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute;

(iii) the terms of settlement of any labour dispute or organisational dispute as may be recorded in any memorandum of settlement;

(iv) any trade union constitution; and

(v) any award or judgment of the Court.

(2) The National Assembly may by an Act confer such additional jurisdiction on the Court in respect of such other causes or matters incidental, supplementary or related to those set out in subsection (1) of this section.

The afore-cited Constitutional and statutory provisions show the detailed jurisdiction of this Court. This has been confirmed by the Supreme Court in the case of Skye Bank PLC v. Iwu, (2017) LPELR-42595 where Aka’ahs JSC held:

… It was following on this decision that the Constitution was amended by the Third Alteration to the 1999 Constitution which recognized the Court as a specialized Court and provided in Section 254C the exclusive jurisdiction of the Court over all labour and employment issues.

Specialized Courts of limited and exclusive jurisdiction are seen as fulfilling a growing need for expertise in increasingly complex areas of law. The resolution of labour and employment disputes is guided by informality, simplicity, flexibility and speed. Specialized business Courts will no doubt play an important role in the economic development of the country.

The questions sought to be determined; Declarations and Orders sought to be made are already reproduced. The Preliminary Objection queries this Court’s jurisdiction to entertain the issues raised in this suit, in the light of the status of the Claimant. 1^st Defendant/Applicant’s position is that the Claimant, not being an employee of the Defendant, and there not existing a contract of employment, this Court cannot exercise jurisdiction over this suit. 1^st Defendant/Applicant concedes that Claimant holds an office established by a statute.

1^st Defendant refers to the definition of a worker in the Labour Act, and submits that it excludes persons exercising administrative, executive, or other functions, as public officers. However, it is to be noted that different statutes have defined a ‘worker’, or an ‘employee’ differently. See, for example, the expansive definition of an employee under the Employees’ Compensation Act 2010, which includes those excluded by the Labour Act, and section 48 of the Trade Disputes Act which expressly includes Public Officers; though excluded by the Labour Act. What this means is that it cannot quickly be concluded that a category of ‘workers’ are not to be considered as such, by reference to only the Labour Act.

Nigerian Courts have settled this by recognising the existence of three classes of employees; to include domestic servants, office holders and public officers, whose employments are usually regulated by statute. In the case of Seven-Up Bottling Company Plc v. Ajayi(2007) LPELR-8765(CA), the Court stated that:

There are roughly three categories of contract of employment; They are:

(a) those regarded as purely master and servant

(b) those where a servant holds office at the pleasure of the employer and

(c) those where the employment is regulated or governed by statute otherwise known as having statutory flavour See Olaniyan v. Unilag (1985) 2 NWLR PT. 9 AT 599 and the Supreme Court’s case of CBN v. Igwilo (2007) 14 NWLR 393.” Per SHOREMI, J.C.A (P. 23, paras. A-C)

Courts in Nigeria have continued to recognise the above stated categories of contract of employment. In Ufam v. I.M.T. (2007) 2 NWLR (Pt.1019), Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 504 at 529 – 530, paras. F – C (CA) the Courts restated this position of the law. See also Demshemino v. Council Federal Polytechnic Mubi & Anor(2013) LPELR-20845(CA), Salami v. Union Bank of Nigeria Plc(2010) LPELR-8975(CA).

The implication of the categorisation above is that all the classes referred to are engaged in contract of employment, though with different implications. Thus, whereas the terms of employment under a master and servant relationship is governed by the agreed terms of the parties, that regulated by statute is governed by the statute creating the position. This suggests that Claimant, by the jurisprudence of Nigerian labour practice, is engaged in employment regulated by statute; in this case, the Lagos Multi-Door Courthouse Law 2015.

The assertion that Claimant is not in an employment because he does not receive salary, presents salary as the only consideration for employment. As may be understood from contract law, whereas there must be consideration for a valid contractual relationship to exist, consideration may take any form, provided it presents sufficient value. See Mohammed v. Mohammed & Anor(2011) LPELR-3729(CA). Consideration was defined in Oyewale v. Lawal (2008) LPELR-4118(CA) as:

What then is consideration? At page 277 of Black’s Law Dictionary, consideration is defined as the inducement to a contract; the reason or material cause for a contract; some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other. Richman v. Brookhaven Servicing Corp. 80 Misc. 2d 563; 363 N.Y.S. 2d. 731, 733.

Perhaps I should still recall the definition of consideration by the learned author of ‘Chitty on Contracts, General Principles’ 25th Edition at page 100 para. 144. Therein, consideration is defined as:-

“Something of value which must be given, some detriment to the promises or some benefit to the promisor. Usually these detriment and benefit are merely the same thing looked at from different points of view. Thus payment by a buyer as consideration for the seller’s promise to deliver can be described either as a detriment to the buyer or as a benefit to the seller and conversely, delivery by a seller is consideration for the buyer’s promise to pay; it can be described either as a detriment to the seller or as benefit to the buyer.”Per FABIYI, J.C.A.(P.12, Paras.A-F)

Parties are agreed that Claimant was paid allowances for the position he occupied in the LMDC.

Therefore, that Claimant did not receive salary does not mean the office is not entitled to remuneration. I therefore do not accept the argument that the non-receipt of salary by Claimant, vitiates the statutory employment position of the Claimant.

In the case of Governor of Imo State & Anor v. Iwunze (2018) LPELR-CA/OW/311/2014, the Respondent’s Counsel contended that the respondent’s claim was with respect to removal from office and not payment of his salaries, and that the National Industrial Court thereby did not have jurisdiction. The Court of Appeal did not accept this submission and held that:

From the provision of the Constitution quoted above, I do not agree with the learned counsel for the respondent that the jurisdiction of the National Industrial Court is limited to non-payment of salaries and wages. First and foremost, the complaint of the respondent was that he was illegally removed from his office as a member of the Imo State Universal Basic Education Board, and he sought an order of reinstatement as one of his reliefs.

Where there is a dispute as to which kind of contract the parties entered, the Supreme Court, in the case of Shena Security Co. Ltd. Afropak Co. Ltd (2008) (18) NWLR (pt. 1118) 77, gave an inkling as to what could help in determining the dispute. The Supreme Court stated that:

[f] Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment.

Then, the issue of who employed the Claimant. That question is resolved by a reference to the LMDC Law and Exhibit C1/D-A. The LMDC Law first and foremost established the Lagos Multi-Door Courthouse and created the office of the Chairman, which Claimant occupied. It gave the Chief Judge of the State power of appointment of the Chairman of the LMDC upon the recommendation of the Judicial Service Commission of Lagos state. It did not create an office at the pleasure of the appointing authority; it rather created a term of office, hence the provision of three (3) year tenure of office renewable for a further term of three years. It provided for remuneration and allowances in section 13. Council, of which Claimant is Chairman, is required to give regular updates of the activities of the LMDC to the Chief Judge. The appointment and re-appointment of the Chairman are to be in compliance with the terms and conditions as may be approved by the Judicial Service Commission of Lagos State – See section 6 (2)(b). Finally, the law also makes provision for removal from office.

Here, the Chairman’s appointment derives from the authority of the Lagos State Judicial Service Commission. The terms and conditions of his appointment are as may be approved by the JSC, with reports periodically sent to the Chief Judge of Lagos State, who is the Chairman of the JSC. The removal of a member of Council is provided further in section 14. As shown from 1^st Defendant’s case, in trying to terminate the Claimant, 1^st Defendant sought approval or ratification of the JSC. What all these show is that an office is created, which falls within the classification ascribed with employment status by the Nigerian Courts; with the State Judicial Service Commission, directly and/or through the office of the Chief Judge of the State, exercising the authorities, ordinarily performed by employers.

The National Industrial Court, in my opinion, is the Court with jurisdiction to hear a case of this nature; having been imbued with subject matter jurisdiction over ‘employments’ and matters related and incidental thereto. The 1^st Defendant/Applicant having stated in his objection that:

The subject matter of this suit, and the reliefs sought by the Claimant arise from the termination of the Claimant’s purported appointment as the Chairman of the Governing Council of the Lagos Multi Door Court House (LMDC) which is a statutory appointment under the Lagos Multi-Door Courthouse Law (LMDCL) of Lagos State 2007.

1^st Defendant’s contention of non-compliance with the provisions of the Lagos Multi-Door Courthouse Law 2015, in the appointment of Claimant, further makes it an employment issue. All these make the appointment of Claimant fall under one of the three classes of EMPLOYMENT recognised by the Nigerian Courts. Therefore, Claimant’s appointment is a form of employment and that makes this suit properly instituted in this Court. All terminations of employment ‘appointment’, be it of master/servant relationship, employment with statutory flavour (as in this case) and employments at the pleasure of the appointing authority, all fall within the jurisdiction of this Court, to determine matters relating to or connected with such terminations and matters incidental thereto or connected therewith.

I need to point out that contrary to 1^st Defendant’s position in his ‘Grounds for the Preliminary Objection’ that “this very limited jurisdiction pursuant to section 254C(1) was further specified and circumscribed by Section 7 of the National Industrial Court Act, 2006; it was rather the limited jurisdiction in section 7 that was expanded by section 254C(1) to include causes and matters relating to employment. This was recognised by the Court of Appeal in the case of Hon. Justice Ayo Salami v. National Judicial Commission & 10 Others (2016) 7 ACELR 80 when it held that:

Section 254(1) of the 1999 Constitution (as amended) bestows exclusive jurisdiction on the NIC in all matters related, connected, incidental to labour, employment, trade disputes, industrial relations, and other ancillary matters that may arise out of same thus, the NIC has jurisdiction to the exclusion of the FHC & SHC on which hitherto had been within the confines of the concurrent jurisdiction of the State & Federal High Courts at first instance, as by using the word “notwithstanding” in section 254(C), the intention was to liberate the provisions of section 254C from the inhibitions of sections 251, 254, and 272 of the Constitution of 1999 (as amended).

In the case of University of Uyo & Ors v. Dr. Inih A. Ebong(2015) LPELR-25752(CA), in an appointment with statutory flavour, which had commenced at the Federal High Court, the Court of Appeal held that it is the National Industrial Court that has jurisdiction to entertain the suit. The Court of Appeal while remitting it back to the National Industrial Court held that:

It is incontestable that the above provisions in the ordinary meaning totally divest the Federal High Court and any other Court of jurisdiction in the subject-matter of this case and vests same exclusively in the National Industrial Court from its operational date of 4th March, 2011. The exclusive jurisdiction on labour matters conferred on the National Industrial Court by the Third Alteration to the Constitution of the Federal Republic of Nigeria has been confirmed by this Court in a number of decisions including its full panel. see COCA-COLA (NIG) LTD VS AKINSANYA (2013) 18 NWLR (PT 1386) 255.” Per ADAMU, J.C.A. (Pp. 27-29, Paras. E-B) –

Also, in the case of Kano State Government & ors v. Hon. Nasiru Muhammad (2016) LPELR-41334(CA), which I find to share some similarities with this case, the Plaintiff had sued the Defendants, claiming in part for:

A declaration that the action of the first Defendant conveyed in a letter dated 10th of June, 2011 directing the Plaintiff to hand over the affairs of the Board of Internal Revenue Kano Sate to the most Senior Director/Staff is ultra vires the powers of the Governor of Kano State, illegal, null and void.
A declaration that the action of the first and second Defendants in appointing the fifth Defendant as Chairman of Board of Inland Revenue Kano Sate when the Claimant tenure as prescribed by law has not ended or expired is invalid, illegal, null and void.

iii. An order that the Claimant is still and remains the Executive Chairman of Board of Internal Revenue of Kano State until his tenure expires in June 2015.

An order declaring the appointment of the fifth Defendant by the first and second Defendants when the Claimant’s tenure has not expired as invalid, null and void and of no effect.
An order that the interpretation placed on Section 10 item (f) of Kano State Revenue Administration Law 2010 by the agents of the first and second Defendants in directing the Claimant to hand over his position to another person is wrongful and not the intendment of the provision of the law.
An order directing the fifth Defendant to stop parading, presenting himself and performing the functions of Executive Chairman of Kano State Board of Internal Revenue.

vii. Injunction restraining the fifth Defendant or any other person or agent of the first and second Defendants from performing the functions of Executive Chairman of Kano State Board of Internal Revenue pending the determination of the substantive suit.

viii. Damages of N10 Million for wrongful termination of the Claimant’s syadtappointment as Executive Chairman Kano State Board of Internal Revenue.

The Court of Appeal, considered the subject matter of the suit, and held that it was not within the jurisdiction of the High Court. The matter was struck out since there was no provision in the High Court Rules empowering the Court to transfer matters to the National Industrial Court, where that High Court lacked jurisdiction. See further, Salami v. NJC & ORS(2014) LPELR-22774(CA), Mr. Bathelomew Odey Oniga v. Government of Cross River State & Anor (2016) LPELR-40112(CA), etc.

These cases, where the Court of Appeal, held that the National Industrial Court, has jurisdiction, were all cases where the appointments had statutory flavour. See the case of Lt. Cdr F. J. Ebohon (RTD.) v. Attorney General Edo State & Ors (2016) LPELR-41269(CA). This Court has recognised its jurisdiction over employments with statutory flavour and risen to assume jurisdiction in such cases. The cases cannot all be captured in this judgment. For instance: Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency SUIT NO. NICN/LA/303/2014, judgment delivered on JULY 10, 2017, Folayemi Lawrence Alonge v. West African Examination Council, Suit No. NICN/LA/277/2016 judgment delivered on October 5, 2017. Mr. A. A. Owolabi v. Local Government Service Commission, Ekiti State & Anors Suit No: NIC/LA/160/2011 Date Delivered: 2012-11-26; Widi Liman v. Attorney General of The Federation & 2 Ors. Suit No: NICN/ABJ/103/2018 Date Delivered: 2018-10-02, Aderonke Kehinde Oke Lagos State Government & 3 ORS Date Delivered: 2018-10-09.

Having found that the subject matter of this suit falls within the jurisdiction of this Court, I assume assume jurisdiction to determine the issues raised by the parties in this suit.

In Ebohon v. AG Edo State & ORS (2016) LPELR-41269(CA), the Court of Appeal cautioned Courts of law not to abdicate jurisdiction where it exists or has been conferred by Statute. See also Clemo v. MV ‘Arab’ (2002) 37 WLR 140 at 149 line 5.

Issue Two – Whether the appointment of the Claimant as Chairman of the Lagos Multi-Door Courthouse is not valid, legitimate or lawful.

This issue forms the principal basis for 1^st Defendant’s termination of Claimant’s appointment via ExhibitC5/D-I being Letter of Termination dated 2^nd May 2018. 1^st Defendant contends that the appointment of Claimant did not comply with the requirements laid down in the LMDC Law 2007 under which he was appointment and LMDC Law 2015 under which he was re-appointed. According to 1^st Defendant, there is no record of or recommendation by the Lagos State Judicial Commission regarding Claimant’s appointment.

The basis of this contention as deciphered from 1^st Defendant’s submission is that it did not comply with the procedure for appointment of Council members as provided in section 6 of the LMDC Law 2007 and retained in same section 6 of the LMDC Law 2015. That section requires that:

(1) The overall supervision of the Council shall reside in a Chairman who will be appointed by the Chief Judge of Lagos State on the recommendation of the Judicial Service Commission of Lagos State from two persons nominated by a reputable Dispute Resolution Organisation.

Parties are agreed that Claimant was appointed and re-appointed by the Chief Judge of Lagos State, as required by the above state Law. However, 1^st Defendant’s contention is that there is no proof that the provision requiring recommendation by the JSC of Lagos State was complied with. This then founds the basis of the assertion that the Claimant’s appointment is null and void ab initio. My question is, does the fact that there is no evidence of records showing compliance with the above provision, definitely mean that the said procedure was not complied with. My view is that, if 1^st Defendant asserts that Claimant was not appointed according to laid down procedure, it behoves the 1^st Defendant to prove this fact, as 1^st Defendant himself, concedes that it is not an issue the Claimant should know. Our evidential law is premised on ‘he who asserts; proves’. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA), Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC) and Section 131(1) & (2), Evidence Act, 2011.

This is because the Evidence Act 2011 at section 168(1) presumes regularity of any judicial or official act. It states:

(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

(2)When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.

It has been shown by Exhibit C1/D-A that the Chief Judge of Lagos State, on 10^th June 2014 appointed the Claimant to the office of Chairman of LMDC. It is also shown by Exhibit C3/D-B of 27^th April 2017 that Chairman was reappointed by the Chief Judge of Lagos State. There is no contention that the Claimant functioned as such until the expiration of the first tenure before he was reappointed.

According to the Court of Appeal in the case of Nduka & ors v. Sule (2013) LPELR-23629(CA) presumption of regularity is a principle applied in evidentiary evaluation that transaction made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise, where it has been proved that an official act has been done, it will be presumed until the contrary is proved, that the said act complied with any necessary formalities and that the person did it was duly appointed to do so.” Per ORJI-ABADUA, J.C.A. (P. 22, paras. A-B). See also Seamarine Int’l Ltd & Ors v. Ayetoro Bay Agency & Ors (2015) LPELR-24785(CA)

I have gone through the case of 1^st Defendant, and have not found: (1) proof that the appointment was not made in accordance with the LMDC Law; and (2) any rebuttal to the presumption which the law makes, that the appointment was regular. As stated in the case of Shitta-Bey v. A.G. Fed. (1998) 10 NWLR (Pt.570)392,

Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The learned authors of Phipson on Evidence. Eleventh Edition have this to say on the subject:

Exhibit D-H is a letter from 1^st Defendant to the Director of Administration and Human Resources of the Lagos State Judicial Service Commission dated 27^th April 2018, seeking confirmation if there was any time the appointment of Claimant was ever discussed at the Judicial Service Commission meeting in line with section 6(1) of the LMDC Law 2015. The letter did not state the reason for the request; nor is there evidence as to when the legality of Claimant’s appointment had become an issue. Exhibit D-I dated 2^nd May (the letter of termination of appointment) was then written by the 1^st Defendant to the Claimant. The letter states:

I am advised by the Lagos State Judicial Service Commission that there is no record of or recommendation by that body regarding your appointment as Chairman of the above statutory entity(referring to the LMDC). In effect; that your appointment was not in compliance with section 6(1) Lagos Multi-Door Courthouse 2015 and thereby not valid, legitimate or lawful.

Neither the advice; nor the basis for the advice, is before the Court. A few questions should naturally come to mind; did the recipient of Exhibit D-H, search through the minutes of meetings prior to the appointment of the 1^st Defendant, before stating that no records were found? Does the fact that ‘no records were found’ translate to no records exist or existed? Exhibit D-K, Minutes of the Meeting of Lagos State Judicial Service Commission held on 19^th June 2018 reported that the Chairman (1^st Defendant) informed the Commission that there was irregularity in the appointment of the Claimant. That information was not founded on any facts made available to the Commission. With all these unresolved queries, the only conclusion left to the Court in the circumstance, is to, in line with previous decisions as cited, and the Evidence Act, presume regularity of the appointment of the Claimant.

By all these, I find that the presumption of regularity operates in favour of the Claimant. I therefore hold that his appointment and re-appointment were made in accordance with the LMDC Law, and therefore valid.

Issue Three – Whether the termination of the Claimant by the 1^st Defendant is ultra vires, null, void and of no effect.

Having resolved that the appointment of Claimant was valid, the next issue in contest is the validity of the termination of the appointment of Claimant. Since both parties are in agreement that the appointment of Claimant is regulated by the LMDC Law 2015, we can only determine the legality or otherwise of the termination, by reference to that same law. It is of common knowledge that an employment with statutory flavour arises where the body employing the erson is under some statutory or other restriction as to the kind of contract which it makes and the grounds on which it can dismiss them. Where an appointment is regulated by statutory provision, such an appointment is said to enjoy statutory protection or statutory flavour. See The West African Examination Council v. Obisesan (2008) LPELR-8500(CA), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599; Shitta-Bay v. Federal Civil Service Commission (1981) 1 SC40. Such a contract of employment can only be terminated as provided in that statute.

The Claimant challenges the legality of the termination of his appointment, on the grounds, among others, that:

The termination was contrary to the LMDC Law, as 1^st Defendant has no powers to terminate the appointment of a Chairman or member of Council of the LMDC.
The termination is unconstitutional for being contrary to the rules of natural justice.

In response to (i) above, 1^st Defendant in his submission argued that:

The Claimant further claims that the law provides that where the contractual relationship between the employer and employee is one with a statutory flavour, any action to retire the employee must be in compliance with the rule otherwise his retirement will be null and void…

The termination of the purported appointment of the Claimant could not have been in accordance with the provisions for removal of a person who was validly appointed as that would amount to aiding an illegality.

The argument above does not, in my view, address the issue raised by Claimant; whether the termination should be in compliance with the LMDC Law. It only gives an excuse for the non-compliance with the law. However, having already found that the Claimant was validly appointed, I shall now consider the provisions of the LMDC Law for the termination of Chairman of the LMDC.

Section 14 of the LMDC 2015 (and section 8 of LMDC Law 2007 in same terms) provide for removal of members from Council in the following terms:

S14(1) OF THE LMDC 2015 Law Provides:

(1) “Removal of Members from Council

Any member of the Council may be removed by two-thirds majority of members of the Council after consultation and recommendation to the Chief Judge of Lagos State for any of the following reasons:-

misconduct;
absence from meetings;
inability to perform the functions of the office;
conviction of a fraudulent act; or
unsound mind.

“The Council by a majority vote will, after consultation, with the interest (if any), represented by that member recommend to the Chief Judge that such member be removed from the Council and the office declared vacant.”

The above provision is how a member of the Council of LMDC can be removed. It is the Council of the LMDC itself, that has the power to remove a member of that Council. This is in line with section 40 (Interpretation) of the LMDC Law which defines Council to mean the Governing Council of the LMDC constituted as provided for under section 5. Thus, though by S. 6(1) of the LMDC Law it is the Chief Judge that is empowered to appoint the Chairman of the Council on the recommendation of the JSC, the Chief Judge does not have the power of removal. The evidence before this Court, shows clearly that the above provision of the law was not complied with in the purported act of termination of the Claimant. This would mean that the termination of the Claimant was not in line with the provision of the statute governing his appointment. In line with a long list of cases, the termination is therefore, illegal, null, void and of no effect.

In the case of Adeniyi v. Ejigbo Local Government (2013) LPELR-22017(CA) , it was held that:

Where an employee is sought to be removed in a contract with statutory flavour of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statute. Any other manner of termination way is inconsistent with the relevant statute is null and void and of no effect.

See: Jubril v. Milad Kwara State (2007) 47 WRN 63 at 88. Obot v. C.B.N. (1993) 2 SCNJ 90 UBN V. UGBON (1995) 2 NWLR (Pt. 380) 647.” Per OWOADE, J.C.A. (P. 29, paras. A-D)

Also, in Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081(SC) the apex Court restated this principle thus:

The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See: Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (supra).

Chapter 2 Section 8 Paragraph 020810(i) of the Public Service Rules provides:

“The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier.” Per KEKERE-EKUN, J.C.A. (Pp. 31-32, Paras. F-B)

The Claimant also alleged that the termination of his appointment is unconstitutional and contrary to the rules of natural justice on the basis that he was not given any notice or opportunity to respond before the letter of termination was issued and served on him; and that the 1^st Defendant all by herself, investigated the matter, prosecuted the matter and reached a finding without giving him any opportunity to debunk the Commission’s claim. 1^st Defendant’s response is that there were two pre-existing issues before the 1^st Defendant issued the letter of termination. The first was the issue of the Claimant accepting to become a Trustees in an organization that is in competition with the LMDC; the other the issue of non-compliance with the provisions of the LMDC in appointing the Claimant. Defendant states that on the issue of becoming a Trustee, the Claimant was given an opportunity to defend himself, but that that was not the basis of the termination of his appointment. 1^st Defendant states that the Claimant’s appointment was terminated because his appointment did not comply with the provisions of the LMDC Law 2015. 1^st Defendant argues that he has placed before the Court, evidence which rebuts the argument that he abruptly terminated the appointment without first consulting with the Commission. 1^st Defendant also states that the nature of inquiry did not require any audience from the Claimant as there was no allegation against him or his person.

I have considered 1^st Defendant’s response to this and finds, as stated by the 1^st Defendant, that none of the persons whose acts and appointment were in issue was consulted or invited before coming to the conclusion of the illegality of Claimant’s appointment. The evidence in Court shows a request for information made to the JSC without a corresponding evidence of a response by that Commission. Evidence also shows that it was 1^st Defendant that informed the JSC that Claimant’s appointment was not regularly made, and not the other way round. There is also no proof of consultation with the Council, as required by the LMDC Law. 1^st Defendant clearly admitted that Claimant was not given audience in the determination of the status of his appointment, nor were the predecessors in office, whose actions were being ‘investigated’, invited or requested to make clarifications. In the case of Ebe v. Ebe [2004] 3 NWLR (Pt.860)215, the Court held that:

… a hearing can only be said to be fair when all the parties in the case or dispute are given a hearing or an opportunity of a hearing. If any of the parties is refused or denied a hearing or is not given an opportunity of being heard, such a hearing cannot qualify as fair hearing. See Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644 and Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458. It is also the law that the effect of denial of fair hearing by a Court is to render its proceedings including its judgment a nullity.” Per MOHAMMED, J.C.A. (Pp. 33-34, paras. F-D)

Further, the Court of Appeal, in Nosa Akintola Okungbowa & Ors v. Governor of Edo State & Ors(2014) LPELR-22135(CA) explicitly held on the principle of fair hearing that:

The rules of fair hearing are fundamental and cannot be dispensed with under any circumstance. Section 36(1) of the 1999 Constitution clearly states as follows;

“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.”

In my view, the circumstances of the termination required that all the parties involved be given an opportunity to state the circumstance of the appointment; especially, in the absence of “any record of or recommendation” of or/for the Claimant’s appointment. I find that the termination of the Claimant was contrary to the rules of natural justice.

However, whether the requirements of fair hearing was breached or not is no longer important, as it has already been held that the termination is illegal, null and void, by virtue of non-compliance with the LMDC Law.

The decision in Demshemino v. Council Federal Polytechnic Mubi & Anor (2013) LPELR-20845(CA) captures the implication of a finding that a termination is illegal. The Court of Appeal stated that:

However, herein on Appeal since I have held the considered view that the Appellant’s removal from his appointment is/was wrongful, illegal, unconstitutional, invalid, ultra vires, null and void the powers of the Respondents’ Council in that the Appellant was not afforded the opportunity to defend himself on the allegations made against him as required by Section 17 (1) of the Federal Polytechnic Act, which must have culminated in the purported decision to dispense with his employment; on the authorities of Shitta-Bey v. Federal Civil Service Commission (1981) 1 S.C. 40; Iderima V. Rivers State Civil Service Commission (2005) ALL FWLR (pt. 285) 431; which followed the locus classicus of Hart V. Military Governor of Rivers State (1976) NSCC (Vol. 10) 222; even without asking, this Court can order reinstatement as a consequence of setting aside of the wrongful termination of the Appellant’s appointment. See Balogun v. University of Abuja (supra).

In Nnoli v. UNTH Management Board (1994) 13 KLR (pt.25) 1613 at paragraphs 13 – 35 per Onu, JSC; commenting on the claim by the Respondent that she was 45 years old when she was prematurely retired from her office or employment, held that the act of termination from service of the Appellant was rightly in his view declared null and void and that the effect was that the Respondent was entitled to return to her duty post.

In the view of Uwaifo, JCA (as he then was) who delivered the lead judgment of the Court of Appeal from where the Appeal emanated to the Supreme Court warranting the decision of Onu, JSC; who hailed the decision of Uwaifo JCA as having put the matter admirably beyond per adventure inter-alia:-

“A look at the reliefs sought by the Plaintiff reveals that they are for declarations that the retirement was invalid that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void, that is to say that the decision retiring her from the services of UNTH was declared to be no decision… It is as if she was never retired from her services. The Plaintiff’s contract of employment was in these circumstances of this case unilaterally repudiated by defendants. She refused to accept repudiation in the prompt manner she wrote to the Defendants to this effect there is nothing standing on her way to have her job or office back with all the attendant rights privileges and benefits. In other words she is entitled to be restored to her status quo-ante.” See per Munkata Coomassie, JSC in I.H.A.B.U.M.B. v. Anyip (2011) 12 NWLR (pt. 1260) 1 of 18 para. H.” Per AGUBE J.C.A. (Pp. 61-63, paras. E-E)

See further Benin Electricity Distribution Company Plc. V. Esealuka(2013) LPELR-20159(CA) where the Court held that:

There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F)

Having noted the implication of finding and holding the termination as null and void, I now proceed to consider the 4^th issue for determination.

Issue 4 – Whether the Claimant is entitled to the Declarations and Orders sought.

The Claimant’s 1^st relief is for A DECLARATION that the Claimant is and remains the Chairman, Governing Council of Lagos Multi-Door Courthouse (LMDC) until the expiration of his current term of office on the 9^th July, 2020. Based on the finding that the termination of Claimant’s appointment was illegal, null and void; the effect is as if the termination never took place. It is therefore hereby declared that the Claimant is and remains the Chairman, Governing Council of Lagos Multi-Door Courthouse (LMDC) until the expiration of his current term of office on the 9^th July, 2020.

Claimant’s 2^nd Relief is for A DECLARATION that the Letter of purported termination of the Claimant’s appointment as Chairman, Governing Council LMDC dated 2^nd May 2018 authored by the 1^st Defendant is ultra vires, null, void and of no effect whatsoever being contrary to the provisions of S. 14 of the LMDC Law 2015. Having found that the procedure laid down in section 14 of the LMDC Law 2015 for the removal of the Claimant was not complied with, it is hereby Declared that the Letter of purported termination of the Claimant’s appointment as Chairman, Governing Council LMDC dated 2^nd May 2018 authored by the 1^st Defendant is ultra vires, null, void and of no effect whatsoever being contrary to the provisions of S. 14 of the LMDC Law 2015.

Claimant’s 3^rd Relief is for A DECLARATION that the said purported termination of the appointment of the Claimant as the Chairman, Governing Council of LMDC is unconstitutional being gravely in breach of his fundamental human right to natural justice. Having found that Claimant was not given fair hearing in the determination of the question of the illegality of his employment, it is hereby declared that the said purported termination of the appointment of the Claimant as the Chairman, Governing Council of LMDC is unconstitutional being gravely in breach of his fundamental human right to natural justice.

Claimant’s 4^th Relief is for A DECLARATION that the overall supervision of LMDC is vested in its Governing Council whilst the overall supervision of the Governing Council is vested in the Claimant as Chairman pursuant to SS. 5 and 6 respectively of the LMDC Law 2015. I decline to make this Declaration as its purport and effect, in relation and consideration of section 15 were not put in perspective, and therefore the Court was not addressed on it.

Relief 5 is for A DECLARATION that any and all appointments, directives and decisions purportedly taken following the purported termination of the appointment of the Claimant as Chairman Governing Council LMDC by the 1^st Defendant including the appointment of Hon. Justice (Mrs.) Oyefeso as Acting Chairman LMDC Governing Council are null, void and of no effect whatsoever. I decline to make the Declaration sought as a blanket Declaration on the nullity of all appointments, directives and decisions of which are not before me; especially where rights of third parties, may be have been affected. In addition, by section 9(2) of the LMDC Law 2015, the legality of the proceedings of the Governing Council will not be affected by any vacancy in the membership of the Council, or by any defect in the appointment of a member of the Council, or by reason that a person not entitled to do so took part in the proceedings. However, in respect of the appointment of Hon. Justice (Mrs.) Oyefeso, the fact of the subsistence of the position of Claimant as Chairman of the LMDC, evidently means that her position as Ag. Chairman never existed.

In consequence of the above Declarations, I hereby Order as follows:

That the purported termination of the Chairman Governing Council LMDC by the 1^st Defendant is void.
That the Claimant remains the Chairman of the Governing Council of LMDC until the expiration of his current term of office on the 9^th July, 2020.
The 1^st Defendant or any person for the time being occupying the office thereof, by his or herself, agent, or privies thereof is restrained from preventing, disturbing or restraining the Claimant in any form inconsistent with the provision of the LMDC Law 2015, from performing the functions of the office of the Chairman, Governing Council of LMDC and from interfering in the activities and management of the affairs of LMDC, in any manner inconsistent with the LMDC Law, until the expiration of the Claimant’s term of office on the 9^th July, 2020.

Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice Elizabeth A. OJI PhD