IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON THURSDAY THE 23 DAY OF MAY, 2019
SUIT NO: NICN/ABJ/350/2018
BETWEEN
HON. JUSTICE THERISA UZOAMAKA UZOKWE …………APPLICANT
AND
1.NATIONAL JUDICIAL COUNCIL (NJC)
2. AHMED GAMBO SALEH ESQ …..…. RESPONNDENTS
(SECRETARY, NATIONAL JUDICIAL COUNCIL)
REPRESENTATION
Nnamdi Nwokocha – Ahaaiwe Esq. for the applicant.
N.A. Idako with Aliyu Alhassan and M.N. Okpah for the respondents.
JUDGMENT
INTRODUCTION
By an originating motion dated 7/12/2018 and filed on 10/12/2018, brought pursuant to order 50 Rule 8 of the Rules of this court, the applicant prays for the following;
An Order of Mandamus Compelling the Respondents to accept lodgment of the App1icant’s Notice of Appeal, compile the certified true Copies (CTC) of the Record of Proceedings and furnish/transmit the processes to this Honorable Court, the National Industrial Court of Nigeria.
The respondents filed a memorandum of appearance on 12/2/2019 together with a notice of preliminary objection. The memorandum of appearance was later deemed as properly filed and served. The applicant filed a counter affidavit to the preliminary objection on 4/3/2019 to which the respondents filed a reply on 28/3/2019. By a motion on notice filed on 10/4/2019, the respondents sought for extension of time to file a written address in opposition to the applicant’s motion and same was granted on 11/4/2019.
STATEMENT OF RELEVANT FACTS.
The 1st Respondent investigated a petition against the applicant and gave its verdict on the 14th day of March 2018 recommending the compulsory retirement of the Applicant as the chief judge of Abia State. The applicant on the 12th day of June 2018 filed an Application in this honorable Court praying among others, for an order directing the Respondents to make available to the Applicant, Certified True Copies of the verdict among other processes which was granted by the court on the 20th day of July 2018. The respondents only delivered the verdict to the applicant but not the proceedings. On the 29th day of October, 2018, the Applicant’s Counsel’s went to lodge a Notice of Appeal at the 1st respondent through the office of the 2nd respondent but the 2nd respondent and his staff refused to accept the notice of appeal, they took only one copy and did not endorse receipt but they endorsed receipt on the forwarding letter and asked counsel to return after one week. On return after one week, counsel was informed by the 2nd respondent and his staff that they had written to their external solicitors for advice and would revert to him but never did. These facts gave birth to the present motion.
CASE OF THE APPLICANT
The facts above produced are the main depositions in this case and need no further reproduction. Submitting in his written address, learned N.U Nwokocha-Ahaaiwe Esq. argued that the Applicant has indeed made out a case for the grant of the reliefs sought by him. That the Applicant by the extant and express provisions of Section 254(1) (c) of the 1999 Constitution of the Federal Republic Nigeria (as amended) has a right of appeal from the decision of the 1st respondent made against her to this honorable Court. That by the combined provision of Order 50, Rules 1, 3 and 4 of the Rules of this honorable Court, Notices of Appeal are to be filed (lodged) in the Secretariat of an Administrative body such as the 1st Respondent which gave the verdict being appealed against. That it is the duty of such Secretariat to receive the Notice of Appeal as a filed process, certify them, prepare the Certified True Copies of the proceedings in the nature of a record of appeal and transmit same to this Honourable Court.
That where an Arbitral Body such as the 1st respondent refuses, neglects and/or fails to act in accordance with the foregoing, the appellant can come to this honorable Court for an order of Mandamus compelling, directing the Respondents to do the needful.
CASE OF THE RESPONDENTS
In the written address in opposition to the motion, the learned Dr. Garba Tetengi SAN cited six cases in his effort at defining Mandamus and submitted that this is not a situation or case where the Writ of Mandamus should issue against the Respondents. Counsel submitted that a Writ of Mandamus usually lies or issues from a Court of competent Jurisdiction, that in all cases it is the High Court that is competent to issue an order of Mandamus. It is a prerogative only available to the High Court whether Federal High Court or High Court of a State, not the National Industrial Court. Counsel relied on the case of ASSOCIATED DISCOUNT HOUSE LTD V THE HON.MINISTER OF THE FEDERAL REPUBLIC (2013) LPELR 20088(SC) and urged the court not to be misled that this Court has the power to issue an order of Mandamus.
Learned Counsel further submitted that assuming but not conceding that this is a Court imbued with the power to issue the Writ of Mandamus against the Respondents, the latter has no corresponding duty to perform the act because its proceedings are protected by OFFICIAL SECRETS ACT, CAP. 03, LAWS OF THE FEDERATION, 2004, the proceedings of the 1st Respondent are classified and not made public. That is the reason why all cases against the National Judicial Council before all the Courts in Nigeria, its proceedings have never been produced before the Courts and the Court have consistently taken Judicial Notice of this law and this fact, thus the corresponding duty by the Respondents, to perform the acts required by the order of Mandamus is not there and therefore an order of mandamus cannot issue.
That the applicant can obtain an effective relief at the Federal High Court thus an order of mandamus is not necessary in this case.
Counsel further submitted that the Court will not make an order of mandamus unless it is in public interest, not a private interest and the interest in this application is private not public. AMASIKE v REG. GEN.CAC (2010) LPELR 456(SC)
5. RESPONDENTS PRELIMINARY OBJECTION
The respondents filed a preliminary objection on 12/2//2019 praying for a Declaration that this suit as constituted is incompetent as the National Industrial Court is robbed of Jurisdiction to hear motion dated 7th December 2018 with motion number NICN/ABJ/350/2018.
2. An Order dismissing this suit for want of jurisdiction.
The grounds of the application are;
That the subject matter of this suit borders on exercise of the Constitutional duty of the 1st Applicant to discipline erring judicial officers and to recommend disciplinary action to the Governor of a state, or President, as the case may be.
That the 1st applicant received a petition against the respondent, investigated same and recommended the compulsory retirement of the applicant/respondent to the Governor of Abia State, which has already been acted upon.
The Appellant/Respondent seeks to Appeal the finding/verdict of the NJC panel by filing an appeal before the National Industrial Court of Nigeria, the motion no; NICN/ ABJ/350/2018 is filed in furtherance of the Appeal.
That it is the Federal High Court that has exclusive jurisdiction to hear and determine matters involving the removal of a judicial officer by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 ·
That the relationship between the Applicant and the Respondent is not clothed by an employer/employee relationship to confer jurisdiction on the National Industrial Court to determine issues arising over the statutory powers of the NJC to sanction erring judicial officers.
The 12 paragraph affidavit deposed to in support of the objection is a reproduction of the grounds of the objection and they shall not be reproduced.
The learned counsel for the objectors formulated a sole issue thus;
“Whether considering all the circumstance of this case and the supporting affidavit, the National Industrial Court has Jurisdiction to hear appeal over the National Judicial Council verdict in recommending the Appellant/Respondent for compulsory retirement.”
Learned counsel made submissions in line with the grounds of the objection and the affidavit.
Counsel submitted that the motive of that application is to act as a prelude to hearing an application intended to appeal against the verdict of the National Judicial Council. That the Mandamus application cannot lie where the Court lacks jurisdiction to hear the substantive appeal. That the Right of Appeal stated in the constitution has not conferred jurisdiction on the National Industrial Court to hear appeal over NJC verdict.
That the confidentiality of the proceeding of the NJC has made an appeal against the verdict of the NJC panel impossible as the record of proceeding is a privileged document.
Counsel concedes that the rules of this Court under Order 50 Rule 8 provide for the relief sought by thy Applicant compelling an inferior tribunal to submit records for the purpose of appeal, however, the Rules cannot give powers to the Court where the Act establishing the Court is silent as the Jurisdiction of a Court is conferred by the law establishing the Court.
APPLICANTS COUNTER AFFIDAVIT TO PRELIMINARY OBJECTION
In the three paragraph counter affidavit of the applicant/respondent, he deposed that there is no appeal pending before this Court yet. That the jurisdiction of this Court to hear the appeal can only be ripe for challenge when the appeal is properly before the Court. That the appeal is in respect of matters which arose in the course of the employment of the appellant as a Chief Judge of Abia State.
In his written address, learned counsel submitted that the preliminary objection is completely premature as the said appeal is not yet before the Court at the moment. That his application for mandamus is predicated on order 50 Rules 1,2,3,4 and 8 of the Rules of this Court.
Counsel submitted that the Federal High Court does not have jurisdiction to hear the appeal arising out of matters connected with the employment of the appellant as its appellate jurisdiction is spelt out in section 28 of the Federal High Court Act and section 28(1)(d) provides for it’s jurisdiction over-
“The decision of any Body established by or under any other Federal enactment or law in respect of matter concerning which jurisdiction is conferred to such courts pursuant to this Act”.
That the National Industrial Court is the Court with jurisdiction over an appeal arising from matters connected with the employment of the appellant pursuant to section 254(c)(1)(ii) which confers exclusive jurisdiction on this Court over civil cause and matters relating to Appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations.
RESPONDENTS REPLY ON POINTS OF LAW
The reply of the objectors on point of law is merely a repeat of its earlier arguments except for the argument that the issue of jurisdiction can be raised at any time.
COURT’S DECISION
The first duty of this court is to consider the preliminary objection.
Whether the National Industrial court has the power to make an order of mandamus.
The first issue to consider is the argument of the objectors that this Court has no power to make an order of mandamus. Counsel submitted that a Writ of Mandamus usually lies or issues from a Court of competent Jurisdiction, that in all cases it is the High Court that is competent to issue an order of Mandamus. It is a prerogative only available to the High Court whether Federal High Court or High Court of a State, not the National Industrial Court.
The above argument presupposes that counsel considers the National Industrial Court to be inferior to a High Court. It is important to first note that this Court ,by reason of the 3rd alteration is one of the Superior Courts established for the Federation by section 6 of the Constitution and listed in section 6(5)(cc) of the 1999 Constitution as amended. The submissions of learned counsel is clearly without regards to Section 6(3) and 6(6)(a) of the Constitution which provides as follows;
6(3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) ((a) to (i) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.
6(6) The judicial powers vested in accordance with the foregoing provisions of this section—
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
As if the above Constitutional provisions were not enough for this Court to make an order of mandamus, counsel insists on seeing it in the Act establishing this Court. That being the case, it is apparent that counsel, for his comfort, if he read the Act at all, refused to read Section 17(1)(2) of the NICA 2006, which provides as follows;
1.The court shall have the power to make an order of mandamus requiring any act to be done or an order of prohibition prohibiting any proceedings, cause or matter, or an order of certiorari removing any proceedings, cause or matter into the court for any purpose.
2. The power conferred on the court by this section to make an order of mandamus, prohibition or certiorari may be exercised not withstanding that the order is made against an officer or authority of the Federal, State or Local government as such.
This provision is in pari materia with section 14(1)(2) of counsel’s favourite Federal High Court Act.
From the above statutory provisions, it is apparent that counsel’s submissions, that the National Industrial Court is not competent to make an order of mandamus except a High Court, is not a product of any legal research or legal conviction as it appears as clear as day light that counsel read neither the 1999 Constitution as amended nor the National Industrial Court Act 2006 before making his submissions. Wishful thinking and sentiment seems to lay more claim to counsel’s submissions.
I find and hold that this court is empowered to make an order of mandamus.
Whether a court can make an order of mandamus in respect of a case over which it has no jurisdiction.
The learned counsel for the objectors argued that the Mandamus application cannot lie where the Court lacks jurisdiction to hear the substantive appeal. The learned applicants counsel response is that the appeal is not yet before this court and so the jurisdiction of this court cannot be determined now.
The order of mandamus is being sought to compel the respondents to accept the notice of appeal, to compile record of proceedings by way of records of appeal and to transmit same to this court in respect of an appeal to this Court as evidenced by applicant’s exhibit CSO1.
From the very prayer, it is clear that no appeal has been lodged and therefore the question of whether or not this Court has jurisdiction to entertain the appeal has not yet arisen for determination at this stage. The situation may or may not have been different if the notice of appeal had already been lodged.
Order 50 Rule (1)(1) of the Rules of this Court provides;
1(l) Every appeal to the Court shall be bought by way of notice of appeal and shall be lodged in the Arbitral Tribunal or with the Registrar of Trade Unions, Secretary of any-Commission or Board of Inquiry or Administrative Body or Panel or any Authority or Committee or Association or the board empowered to implement the Employee’s compensation Act 2010 or any other institution vested with power to deal with any matter arising from the jurisdiction of the court (in this Order referred to as the arbitral body) within thirty (30) days of the decision, award or recommendations, appealed from. (Underlining supplied)
I am not in any doubt therefore that the powers conferred on any Court to make any order, relates only to matters over which jurisdiction is conferred on such a Court. A Court must therefore consider whether it has jurisdiction over the substantive matter before it, before making any order or exercising any judicial power relating to the exercise of a right in the matter. See EGUNJOBI V FRN (2012) 12 SC (PT.IV) 148 where the court held;
“A Court that lacks the vires to entertain a suit cannot exercise Judicial powers thereon”. See also HON.JUSTICE ISA AYOOLA SALAMI OFR V NATIONAL JUDICIAL COUNCIL (2016)7 ACELR P80 at101.
However, the above authorities are in respect of matters before the Court. The present intended appeal is not yet before the Court, it has not been lodged. The question of the jurisdiction of this Court to entertain the motion cannot therefore be anchored on the want of jurisdiction to entertain the main appeal.
The application for an order of mandamus is with respect to an appeal intended for this Court and the refusal to accept the notice of appeal and transmit records to this Court is sufficient for the applicant to apply to this Court for an order of mandamus under order 50 Rule 8 of the Rules of this Court. That fact is also sufficient for this Court to exercise jurisdiction in exercising its discretion to refuse or make an order of mandamus to that effect.
Supposing that I am under a duty to consider the jurisdiction of this Court over the intended appeal at this stage, it will be my finding that this Court has the jurisdiction to entertain the appeal.
By the authority of HON.JUSTICE ISA AYOOLA SALAMI OFR V NATIONAL JUDICIAL COUNCIL (2016)7 ACELR P80 at pp99 and 100, it is the claim or case of the plaintiff as stated or endorsed in the writ of summons or statement of claim or any other originating process, not the facts averred in the statement of claim or affidavit evidence to be relied upon by the plaintiff that will be considered in determining the jurisdiction of the court.
I have looked at the claim or reliefs claimed by the appellant in the proposed appeal, exhibit CSO1, they are for;
1. An order setting aside the decision of the NJC dated 14th day March, 2018.
2. An order setting aside the compulsory retirement of the appellant as chief judge of Abia state, and
3. An order reinstating the appellant as chief judge of Abia state.
The reliefs sought by the appellant, now applicant/respondent, are matters within the exclusive jurisdiction of this Court by reason of Section 254C (1)(a) and (L)(ii) of the Constitution of the Federal Republic of Nigeria 1999 as amended which confers jurisdiction on this Court in civil causes and matters-
(1)(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 1abour, employee, worker and matters incidental thereto or connected therewith;
(L)(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade union or industrial relations;
The NJC, the 1st respondent/objector, is an administrative body and it has made a recommendation for the compulsory retirement of the applicant/respondent and the recommendation so made is based on a matter arising from or connected with labour and the employment of the applicant/respondent who has been compulsorily retired and now seeks a nullification and reversal thereof. This makes it a matter within the exclusive jurisdiction of this Court.
Accordingly, supposing that this court can rightly consider its jurisdiction to entertain the proposed appeal (which is not yet before this Court) before deciding whether or not to entertain this motion, it would still be my finding that this Court has jurisdiction to entertain the appeal, thus this motion.
The basis upon which the jurisdiction of this Court to entertain this motion is being challenged does not hold water and the argument fails.
Whether the records of proceedings of the NJC is a privilege document protected by the official secrets Act, CAP 03, LFN 2004.
Learned counsel for the respondents /objectors has argued that the confidentiality of the proceeding of the NJC has made an appeal against the verdict of the NJC panel impossible as the record of proceeding is a privileged document covered by OFFICIAL SECRETS ACT, CAP. 03, LAWS OF THE FEDERATION, 2004. Sections 1(a) (b) and 9(1) of the OFFICIAL SECRETS ACT, CAP. 03, LAWS OF THE FEDERATION, 2004 provide as follows;
(1) Subject to subsection (3) of this section, a person who—
(a) transmits any classified matter to a person to whom he is not authorised on behalf of the government to transmit it; or
(b) obtains, reproduces or retains any classified matter which he is not authorised on behalf of the government to obtain, reproduce or retain, as the case may be,
is guilty of an offence.
9(1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say—
“classified matter” means any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria;
Learned counsel for the objectors did not supply any authority, statutory or judicial to show that the record of proceedings of the NJC is a classified or privilege document. I have read the entire 10 sections of the OFFICIAL SECRETS ACT, CAP. 03, LAWS OF THE FEDERATION, 2004, I find nothing in it that makes proceedings of the 1st defendant an official secret or privilege document, in the absence of any statutory or judicial authority to that effect, I cannot take judicial notice of such a fact.
I am also of the firm view that production of a document(such as disciplinary proceedings of the 1st respondent) to the Court in the course of litigation as required in this case cannot and does not amount to disclosure of such document to the public neither can it be prejudicial to the security of Nigeria.
The proceedings of the NJC in this context is none other document than the comprehensive report of the NJC investigating committee referred to in regulations 16(1) and 16(3) of the Regulations of National Judicial Council 2014 (now regulations 23(1) and 23(3) of the 2017 Regulations) which requires a copy of same to be forwarded to a judge under investigation in the following words;
Regulation 16(1)
The Council shall before it considers the report of the investigating Committee forward a copy of the report to the subject Judge.
Regulation 16(3)
The investigating committee shall submit…a comprehensive report of its investigation, including its findings and recommendation for council action.
The above regulations demystify the notion that the proceedings of the NJC is a privilege document not to be produced for the purpose of a Court proceedings. The applicant has a legal right to the proceedings of the NJC. See HON. JUSTICE BASSEY TAMBU EBUTA V NJC AND 3 ORS unreported suit NO. CA/A/708/2017 delivered on 11/12/2018 where the Court of appeal held that the provisions of the 2014 regulations were mandatory and held that the appellant had a right to the said report.
See also the judgment of my lord, Justice E.N. Agbakoba in HON. JUSTICE MOHAMMED LADAN TSAMIYA V NJC AND 2 ORS unreported suit NO.NICN/ABJ/435/2016 delivered on 5/2/2019 following the case of EBUTA V NJC supra.
Further demystifying counsel’s argument is the provision of Regulation 27 of the Judicial Discipline Regulations, 2017 which provides as follows;
The Council may publish the information about disciplinary proceedings or the decision of the Council in disciplinary proceedings. Publication for this purpose means any form of communication which is addressed to an individual, a section of the public or the public at large.
This argument also fails.
On the whole, the preliminary objection is lacking in merit and same is hereby dismissed.
Merits of the originating motion
Turning to the merits of this application, the following issues; 1.Whether the National Industrial court has the power to make an order of mandamus. 2. Whether the records of proceedings of the NJC is a privilege document protected by the official secrets Act, CAP 03, LFN 2004, raised by the respondents in their written address in opposition were also raised in the objection just ruled upon and such issues will not be set out and determined again herein, the findings and holdings of the Court on these issues already made while considering the objection are hereby adopted herein in respect of these issues.
The granting or refusal of an order of mandamus is at the discretion of the Court and such discretion must be exercised judicially and judiciously. Counsel submitted that the Court will not make an order of mandamus unless it is in public interest, not a private interest and the interest in this application is private not public.
In MUHAMMED MUBARAK ALI v. CENTRAL BANK OF NIGERIA & ORS
(2016) LPELR-41611(CA) the court of appeal held;
It was held, by the Supreme Court in the case of Associated Discount House Ltd v FCT Supra that the principal purpose of the writ is to remedy defects of justice, adjuring Courts to always bear this principal purpose in mind. It should be used, the Court held, where there is refusal to perform a duty.
Holding otherwise, would mean that a case, such as Shitta Bey v Federal Public Service Commission Supra, which was for an order of mandamus to compel the Federal Public Service Commission to issue a directive for the employee’s resumption of duty in line with an earlier judgment of the Court declaring his suspension and retirement from service as illegal, null and void, would never have been granted, on the ground that it was a private matter, being between an employer and employee.
Interpreting this doctrine as the lower Court and Respondents’ Counsel desire, would also mean that this order should not have been allowed in the case of CBN v Amao Supra. In that case, the Respondents at the trial Court were granted declarations as to the invalidity of the form of payment of pension as being contrary to the conditions that governed their employment. An order of mandamus was granted directing the Appellant to pay to the Respondents all accrued pensions on emoluments earned. An appeal from the judgment of the Court of Appeal affirming this judgment was dismissed by the Supreme Court.
The implication of the above case on the present case is that an order of mandamus can rightly be made to enable the claimant pursue his rights as guaranteed by law. I so find and hold.
By a combined reading of Section 254C (1)(a) and (L)(ii) of the 1999 constitution as amended and Order 50 Rule 1 of the Rules of this Court, it is not in doubt that the respondents owe a duty to the applicant to produce for him records of appeal. Similarly, by the uncontroverted depositions of the applicant, it is clear that he has made a demand for the performance of that duty and it has been refused.
It is also not in doubt that by Order 3 Rule 13 of the Rules of this Court, the applicant has an option of filing a complaint. Order 3 Rule 16(3) of the Rules of the Court also provides as follows;
16(3) Where the claimant complains against an award or decision of an Arbitral Tribunal, Board of inquiry, decision of the Registrar of trade Unions or decision of the Board empowered to implement the Employee’s Compensation Act, 2010 or any other authority in respect of any matter within the jurisdiction of the Court (hereinafter referred to as Arbitral Body), the complaint shall be accompanied by a Record of Appeal, which shall comprise:
The Notice of Appeal against the decision of the Arbitral Body being complained of;
Certified True copies of all the processes exchanged by the parties at, or the representations made to the lower Tribunal;
Certified True Copies of the record of proceedings before the Arbitral Body(where applicable);
Certified true Copy of the Award or decision of the Arbitral Body; and
Appellant’s brief Argument.
The above Rules show that even when the claimant decides to file a complaint in line with the above Rule, he is going to need a record of appeal. There is therefore a compelling need for an order of mandamus and the applicant is entitled to an order of mandamus in the circumstance of this case to enable the applicant pursue his rights before this Court. I so find.
COURT ORDER
On the whole, the application has merit, it succeeds and the Court hereby makes the following order;
An Order of Mandamus Compelling the Respondents to accept lodgment of the App1icant’s Notice of Appeal, compile the Certified True Copies (CTC) of the Record of Proceedings and furnish/transmit the processes to this Honorable Court, the National Industrial Court of Nigeria.
I make no order as to cost.
This is the judgment of the Court and it is entered accordingly.
……………………………….
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA
