Mr. Austin Ozoya Osifoh -VS- Auchi Polytechnic Auchi and 5 Others

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE: HONOURABKE MR. JUSTICE SANUSI KADO

22^ND DAY OF JUNE 2018

SUIT NO. NICN/ABJ/270/2017

BETWEEN:

Austi Ozoya Osifo ………………………………………………………….. Claimant/Respondent.

AND

Auchi Polytechnic Auchi,
Governing Council, Auchi Polytechnic Auchi,
Rector Auchi Polytechnic Auchi,
The Registrar Auchi Polytechnic Auchi Defendants/Appliants
Olukoye Oluseun (Chairman Senior Staff Disciplinary Committee),
Mr. Iziren Samson (Secretary Senior Staff Disciplinary Committee).

REPRESENTATION:

RULING/JUDGMENT.

The Defendants/Applicants filed this motion on notice pursuant to Order 11 Rule 1 of the Rules of this Honourable Court seeking for:

An order striking out this suit i.e. Suit No. NICN/ABJ/270/2017: Mr. Austin Ozoya Osifo v. Auchi Polytechnic, Auchi & Ors. for want of reasonable cause of action and for being an abuse of the process of the Honourable Court. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.

The grounds for the objection-

The management received a letter from a student of the 1^st Defendant/Applicant alleging that the Claimant/Respondent had a meeting with some executives of the student union government of the 1^st Defendant and some cultist with a view to cause riot and disturbance in the polytechnic if the 1^st Defendant implements its policy of no school fees no exam.
The Claimant/Respondent promised to handsomely reward these persons if they assist him to cause riot and disturbance in the school.
There was also an intelligence report from the state Intelligence Investigation Bureau (SIIB) unit of the Nigeria Police Force, Auchi Area Command Edo State which conformed the alleged plans by the Claimant/Respondent to cause riot and disturbance in the polytechnic’s community.
Upon receipt of the above, the management of the 1^st Defendant/ Applicant referred the cases to the Chief Security Officer (CSO) of the Polytechnic for proper investigation.
The Clamant/Respondent was then invited by the Chief Security Officer of the Polytechnic for interrogation. The Claimant appeared before the panel set up by the CSO and made a very scanty statement but refused to give any evidence.
Following the report of the CSO, the Clamant/Respondent was subsequently issued with query dated 13^th July, 2017 by the management of the Polytechnic, to which the Clamant/Respondent responded vide his reply to query dated 13^th July, 2017.
After due consideration, the query issued to the Clamant/Respondent and his reply thereto were sent to the, Senior Staff Disciplinary Committee (SSDC) which is a standing investigative Committee of the 1^st Defendant/Applicant for discreet investigation.
The Clamant/Respondent appeared before the Senior Staff Disciplinary Committee and was he afforded the opportunity to defend himself, instead he informed the SSDC that he had already written to the 2nd Defendant and will not give any evidence before the SSDC until he gets replies from the 2^nd Defendant/ Applicant.
No disciplinary action has been taken against the Clamant/Respondent by the Defendants before the Claimant/Respondent filed the instant suit.
All that the above steps taken by the Defendants/Applicants are mere preliminary investigation to ascertain whether there is any case against the Claimant/Respondent that can be referred to the 2^nd Defendant/Applicant which is the body statutory empowered to take disciplinary action against any senior academic staff.
The Claimant/Respondent did not give the 2^nd Defendant the opportunity to resume sitting and consider his complaint before filing this suit and obtained an interim injunction against the 2^nd Defendant restraining it to look into the matter he submitted to them vide his letter.
The Claimant/Respondent did not exhaust all available local remedy before commencing this suit, hence the Claimant/Respondent’s suit is premature, abuse of the process of this Court and liable to be struck out.

The application is supported by a 25 paragraphs affidavit depose to by Mr. Cornelius S. Garuba, the Deputy Registrar and Senior Staff Establishment of the 1^st Defendant/Applicant. A written address also accompanied the motion on notice.

Sunday Iyemeake, Esq; Counsel for the Defendants/Applicants in his oral submissions before the Court relied on all the averments contained in the affidavit in support of the motion on notice, together with the documentary exhibits attached thereto, as well as the reply on points of law. Counsel also adopted the written address as his argument on the application.

In the written address counsel submitted solitary issue for determination, to wit:

‘‘Whether the Claimant/Respondent’s suit is not incompetent and liable to be struck out’’.

ARGUMENT.

In arguing the issue for determination Counsel submitted that Jurisdiction being the threshold of judicial power and by extension extrinsic to the adjudication of any matter, the court must first and foremost satisfy itself that it has jurisdiction before it can proceed to determine any cause or matter on the merit. It is the very basis on which any court or tribunal tries a case. It is the lifeline of all trials. Counsel referred to the case of Madukolu v Nkemdilim (1961) 2 NSCC 374 at 379, and submitted that a court will have and exercise jurisdiction when the following conditions exist:-

It is properly constituted as regards numbers and qualifications of the members of the bench; and no member is disqualified for one reason or another; and
The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Counsel further place reliance on the following authorities:

1) OKEREKE V YAR’ADUA Okereke v Yar’ Adua (2008) 12 NWLR (Part 1100) 95

2) Tukur v Taraba State (1997) 6 SeN] 81

3) Nashtex Int’l Ltd v Habib Bank (Nig) Ltd (2007) 17 NWLR (Part
1063) 308.

4) Diamond Bank Ltd v Ugochukwu (2008) 1 NWLR (Part 1067) 1.

It is also contended by Counsel that the issue of objection to jurisdiction can be taken or raised at any stage of the proceedings and once it is raised, the court hearing the matter must be resolve it first before taking any further step in the matter, on this submission Counsel place reliance on the following judicial authorities:-

Alintah v. FRN (2010) 6 NWLR (Pt.1191) 508 at 527
Ecobank (Nig.) Pic v. Intercontinental Bank PIc (2012) 5 NWLR (Pt.
1293) 219 at 234.
Odessa v. FRN (No.2) (2005)10 NWLR (Pt. 934) 528 at 558-559.

It is the Defendants/Applicants’ contention that the Claimant/Applicant’s suit as presently constituted does not disclose any reasonable cause of action. On the meaning of cause of action Counsel while relying on decided cases submitted that a cause of action is the entire set of circumstances or facts giving rise to an enforceable action. It is the entire factual situation the existence of which entitles a person to obtain from a court remedy against another person. For this proposition of the law, counsel cited and relied on the following judicial authorities:-

Rockshell Int’l Ltd v Br Q.S. Ltd (2009) 12 NWLR (Part 1156) 640 at 665 paras F, Williams v Williams (2008) 10 NWLR (Part 1095) 364 SC, P.N. Udoh Trading Co. Ltd v Abere (2001) 5 SC (Part 11) 64; (2001) 11 NWLR (Part 723) 114, Nwankwo v Ononeze – Madu (2009) 1 NWLR (Part 1123) 671 at 702 paras F – H, Kwara State v Olawale (1993) 1 NWLR (Part 272) 645 at 663 paragraphs A – C, C.B. Ltd v Intercity Bank Pic (2009) 15 NWLR (Part 1165) 417 at 457 – 458 paras H – C. Again, in the case of Rinco Construction Co. Ltd v Veepee Industries Ltd (2005) All FWLR (Part 264) 816 at 822; (2005) 9 NWLR (Part 929) 85, the apex Court held thus:

“Cause of action is the entire set of circumstances giving rise to an enforceable claim, it is in effect the fact or combination of facts which give rise to a right to sue, and it consists of two elements:

(a). The wrongful act of the defendant which gives the plaintiff his cause of complaint; and

(b). The consequent damage.”

It is contended further that for cause of action to accrue in favour of the Claimant to warrant the exercise of jurisdiction by the court, the facts must ex – facie clearly reveal an enforceable right in favour of the Claimant. The facts must establish an infraction of the alleged right of the Claimant and the consequent damage done to the Claimant for a cause of action to be said to exist in his favour. On this area of the law Counsel referred the Court to the following judicial authorities:

Osigwe v. PSPLS Mgt Consortium Ltd (2009) 3 NWLR (Part 1128) 378; Ojukwu v. Yar’adua (2009) 12 NWLR (Part 1154) 50 at 131, Adimora v Ajufo and others (1988) 3 NWLR (Part 80) 1, Muomah v. Spring Bank pic (2009) 3 NWLR (Part 1129) 553.

It is settled position of the law that the only document this court is entitled to look at this stage in deciding whether there exist a reasonable cause of action is the reliefs of the Claimant/Respondent as endorsed on his complaint. For ease of reference the reliefs being claimed by the Claimant/Respondent are reproduced below:

A declaration that the harassment, threats, torture of the Claimant and the denial of hid right to fair trial and fair hearing by the 3^rd, 5^th and 6^th Defendants and continuing violation of same is unconstitutional and infringes the provisions of sections 34(1), 36(1) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
A declaration that the 2^nd defendant is bound by law to respondent (sic) to the representation made to it by the Claimant by his several letters dated 20^th July, 2017 and 11th August, 2017.
A declaration that the charges brought against the claimant before the Senior Staff Disciplinary Committee, (SSDC) are unknown to the Federal Polytechnic Staff Manual 1990 and the Federal Polytechnic Act Cap, F17 Laws of the Federation of Nigeria, 2004.
A declaration that the SSDC has not been constituted in such a way
as to secure its independence and impartiality.
An order that the 2^nd and 3^rd defendants disband the SSDC as constituted at present.

ALTERNATIVELY

An order prohibiting the 5^th and 6^th defendants and all those they represent from further trying the Claimant or submitted any report/recommendation based on its purported trial of the Claimant.
An order prohibiting the 2^nd defendant from accepting, considering, acting on, implementing any report/recommendation submitted or made to it by the 4th and 5^th defendants and all those they represent.

In the instant case, it is submitted that it cannot be said that there exists the complete act to give rise to any reasonable cause of action. There is also no established infraction of the Claimant/Respondent’s right.

According to Counsel from the facts of the case, the management of the 1^st Defendant/Applicant received Exhibits A1 and A2 wherein it was revealed that the Claimant/Respondent held meeting with some executives of the Student Union Government and some cult group members with a view to cause riot and disturbance in the 1^st Defendant/Applicant and disrupt the implementation of the 1^st Defendant’s policy of No School No Exams. The management of the 1^st Defendant referred the case to the Security unit for investigation. The Claimant/Respondent was consequently invited by the Chief Security Officer who afforded the Claimant the opportunity to react to the letter and intelligent report. The Claimant made statement to the panel headed by the CSO.

Consequent upon the report of the Committee, the Claimant/Respondent was issued with query vide Exhibit A4 and he reacted to the query vide Exhibit A5.

After due consideration of the Claimant/Respondent, the management of the 1^st Defendant/Applicant referred the case to the Senior Staff Disciplinary Committee for discreet investigation and forwarded the query and reply to it. Upon the invitation by the SSDC, the Claimant/Respondent appeared before the SSDC the Claimant/Respondent maintained that he will not make any statement before the SSDC until the 2nd Defendant/Applicant replies the
letter he wrote to the 2nd Defendant/Applicant.

Without waiting for the 2nd Defendant/Applicant to consider his protest letters vis-à-vis the SSDC Report, the Claimant/Respondent rushed to court to file the instant suit and obtain an interim injunction to restrain the 2nd Defendants from hearing and determining the same matter he has laid before it vide his letter dated 1^st August, 2017.

It is very important to note that it is the 2nd Defendant/Applicant that is the body statutory empowered to discipline senior academic staff like the Claimant/Respondent in line with the Federal Polytechnic Act Cap F17 Laws of the Federation of Nigeria, 2004 and the Federal Polytechnic Staff Manual, 1990. According to Counsel that being the case, it is obvious that the Claimant has not been tried for any misconduct or offence as at the time this suit was filed. The 2nd Defendant has not even considered the report of the Chief Security Officer or the SSDC nor the alleged protest letters by the Claimant/Respondent as at the time of filing of this suit. Consequently, it is submitted that the Claimant’s right has not been infringe upon in any way. Preliminary investigation by an investigating body like the panel headed by the Chief Security Officer of the 1^st Defendant and SSDC which is not a statutory empowered body cannot be said to be infringement of the Claimant/Respondent’s right. For this contention, we place reliance on the Supreme Court of Nigeria’s decision in UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 376 at 404 where the apex court Coram Onu, JSC, (as he then was) held as follows:-

“his appeal to the court of appeal was similarly dismissed; whereupon he further appealed to this court which unanimously allowing his appeal held, inter alia that in the observance of the principles of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigation Panel which has no statutory powers, and the action on the recommendation by statutory body with requisite statutory powers. Whereas the recommendation of the investigation Panel will not affect the civil rights and obligation of the appellants, the acting upon such recommendation does. Hence, the implementation of the recommendation must comply, with the rules of Natural Justice. See also Aiyetan v. NIFOR (1987).

It is trite that no court can stop or gag the power of an employer to discipline its staff. The court can only intervene where the employee is not afforded fair trial. In the instant case trial has not even commenced for the court to determine whether the Claimant/Respondent was accorded fair hearing. All that has been done is mere preliminary investigation, as it is the 2nd Defendant that has the power to try and take disciplinary measure against any senior staff of the 1^st Defendant. That power has not been exercise. On this submission Counsel place reliance on the following judicial authorities:

Unreported decision of this court in Suit No. NICN/ ABJ/258/16: Mr. Friday Igbinosun Ese v. The Rector, Auchi Polytechnic, Auchi & Ors. delivered on 29^th September, 2017.
Unreported decision of this court in Suit No. NICN/ABJ/ 311/2016: Mr. Obomeghie Idris Adam v. The Rector, Auchi Polytechnic, Auchi and Ors. delivered on 10^th July, 2017.

According to Counsel, the Committee set up by the Chief Security Officer and the SSDC are not statutory body vested with disciplinary powers but the 2nd Defendant/Applicant. Consequently, it is submitted the Claimant/Respondent case as presently constituted is nothing but a ruse to cloth this court with jurisdiction where none exist.

Counsel also submitted that assuming but without conceding that the Committee set up the Chief Security Officer of the 1^st Defendant and the SSDC are bound by the strict rule of Natural Justice in their preliminary investigation, it is submitted that the Claimant/Respondent’s suit is still devoid of merit as the Claimant/Respondent from his own showing was given opportunity to defend himself by the Chief Security Officer and the SSDC.

It is the contention of Counsel that from the totality of the reliefs of the Claimant/Respondent, the Claimant/Respondent wants to use the instrumentality of the Court to shield himself from lawful investigation by his employer. This court as well as other superior court has always warned itself not to allow parties to drag the court to areas that are outside the scope of its jurisdiction but exclusive to academic bodies. In support of this contention Counsel, Counsel relied on the decision in the case of Inuwa v. Bayero University Kano &Anor (2016) LPELR-41615(CA), where it was held as follows:-

‘‘… too often nowadays, ever since the case of Garba v University of Maiduguri (supra), many litigants have tended to inundate the Courts with frivolous claims and have tried to invest the Court with powers to run a university usually described as Ivory Tower with their strange claims. A university is a place of great lea’ n~ and research. I would view with consternation and trepidation the day the court would immerse itself into the cauldron of academic issue s which is an area it is not equipped to handle the danger posed by such venture is better imagined than expressed “(emphasis mine).

It is submitted by Counsel that from the Claimant/Respondent’s reliefs the Claimant wants this court to disband the SSDC and probably appoint persons to the Committee or empower him to appoint members of the SSDC. The Claimant wants this court to believe that investigation of the conduct of an employee by the employer amounts to harassment, threat and torture. What is spurious claim? Counsel urged the Court to decline such unholy and bizarre invitation by the Claimant/Respondent.

Counsel submitted that upon the above, no reasonable cause of action has accrued in favour of the Claimant/Respondent as at the time of filing this suit. There exists no infraction of any of the rights of the Claimant/Respondent to warrant exercise of the jurisdiction by this Honourable Court.

Counsel submitted, that it is settled position of the law that where no reasonable cause of action is revealed, the jurisdiction of the court to entertain the matter is thereby affected. For this settled position of the law, we draw the court’s attention to the following judicial authorities:

Utih v Onoyivwe(1991) 1 NWLR (Part 166) 166 at 216, Daily Times (Nig) Pic v. os. V. Ltd (2014) 5 NWLR (Part 1400) 327 at 359, Utih v. Onoyivwe (1991) 1NWLR (Pt. 166)
166 at 216, 1,
Azuh v. UBN Pic (2014) 11 NWLR (Part 1419) 580 at 614, Counsel further contended that where the court comes to the conclusion that no reasonable cause of action is established, the court is entitled as a matter of law to strike out the matter. Counsel place reliance on the following judicial authorities:-
Ojukwu v. Yar’Adua (Supra) at 132, 2. Jegede v Akande (2014) 16 NWLR (Pt 1432) 43 at

Counsel urged the court to discountenance the attempt by the Claimant/Respondent to rake up the baseless and feeble case to protect himself from lawful investigation by his employers. It is trite that the Court will not allow any party to use its machinery as a shield for his misconduct.

On this contention, Counsel cited the following judicial authorities:-

Gbadamosi v. Akinloye (2013)15 NWLR (Pt.1378) 455 at 478 where the apex court coram Onnoghen ,SC, (as he then was) held as follows:-

“Fortunately, this is a court of law which has absolutely nothing to do with magic or abracadabra neither does the court allows itself to be used as an engine for the perpetuation of fraud, in whatever guise’’.

Dragetanos Const. (Nig) Ltd v.FMV Ltd (2011) 16 NWLR (Pt. 1273) 308 at 382 where the Court of Appeal coram Agube, ,CA, held as follows:-

‘‘I think that the 1^st Respondent characteristically as smart Alec, were and are only trying to pull a fast one as usual to escape the consequences of their ineptitude thereby running away with appellant’s money for a job not done. If the lower court obliged them such a leeway, this court as had been found earlier, shall not allow itself to be so used as a vehicle of injustice”

It is the contention of Counsel that the court cannot stop an employer from discipline his employee. The court can only intervene where due process is not followed.

It is also the contention of Counsel that the Claimant/Respondent’s suit is totally bereft of substance and premature. The Claimant/Respondent claims to have written protest letters to the 2^nd Defendant/Applicant which has the statutory responsibility to discipline senior academic staff of the 1^st Defendant/Applicant on 1^st August, 2017 and commenced this suit when 2nd Defendant has not considered his protest letters or the report of the SSDC. As at the time the Claimant filed the present suit, no determination has been made by the 2nd Defendant as to whether the Claimant should be tried for any misconduct in line with the provisions of section 17(1) of the Federal Polytechnic Act, Cap F17 Laws of the Federation of Nigeria, 2004 which provides that it is only when it appears to the Council that person should be removed from office that the trial procedure stipulated in the Act as well as the Manual is to be activated. For ease of reference the above provision of the Act is reproduced below:-

“If it appears to the council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the institution other than the Rector should be removed from office on the ground of misconduct or inability to perform that function of his office, the Council shall-

give notice of those reasons to the person in question
afford him an opportunity of making representations in person on the matter to the Council; and
if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-
if he an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council, or
for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and

III. For the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.

and if the Council, after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the direction of the Council”

The process of preliminary investigation and issuance of query are not the responsibilities of the Council. In Bamgboye v. University of Ilorln (1999) 10 NWLR (Part 622) 290 at 353 para B the apex court coram Ayoola JSC, while interpreting a similar provision of the University of Ilorin Act had this to says:-

“I venture to think that although it may appear to it by any other means, usually it is when the Council would have received the report and recommendations of the Committee that it would “appear” to it that there are reasons for believing that the members of staff concerned deserved to be removed from his office or employment on the ground of misconduct’’.

It is only after the consideration of report of SSDC that it can appear to the Council that disciplinary action should be commenced against an academic staff of the 1^st Defendant. The Claimant/Respondent by his claim wants this court to stop the 2nd Defendant from carrying out its statutory duties. The Council haven not considered the report of the SSDC nor has it come to determination that the Claimant/Respondent should be tried for any misconduct, it is submitted that the Claimant/Respondent’s suit is premature and devoid of merit, Counsel urged the Court to so hold.

Further, it is contented that the Defendants/Applicant are not investigating any criminal offence against the Claimant/Respondent but for his misconduct in attempting to instigate students against the Management of the 1^st Defendant/Applicant and frustrate the implementation of the Polytechnic’s policy of No School Fees No Exam. Where the misconduct of the employee falls within the jurisdiction of the employer, the employee can be investigated and dismissed without being held to be trying a criminal charge. On this submission Counsel cited the Court of Appeal decision in Mr. O. Eno Osagie v. New Nigeria Bank Pic (2004) LPELR-5894 (CA) where the Court of Appeal coram, Augie ICA, (as he then was) held as follows:-

“Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge. See Uzoho v. Task Force on Hospital Management (2004) 5 NWLR (pt. 867) 627 where the court held that where an allegation of misconduct by an employee can be proved without the need to find the employee guilty of acts amounting to criminal offence, a disciplinary tribunal can investigate the allegation without being held to be trying a criminal charge. That the prosecution of an employee before the law court is not a sine qua non to the exercise of power of summary dismissal by an employer was brought out clearly by the Supreme Court in Yusuf v. Union Bank of Nigeria (1996) 6 NWLR (Pt 457) 632, where Wali, ISC stated as follows- “On the issue of fair hearing which the appellant belatedly introduced, it is my considered view that before an employer can dispense with the services of his employee under the common law all he needs to do is to is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed is being dismissed involves accusation of crime”

Counsel submitted that Misconduct is defined in Chapter 3, Section 3 Rule 030301 of the Public Service Rule as an act of wrong doing or improper behaviour which is inimical to the image of the service and which can be investigated and proved. In section 4 of the above Chapter of the Public Service Rule, rule 030402 (t), sabotage is listed as an act of serious misconduct.

Counsel urged the Court to hold that the Defendants/Applicants are not investigating the Claimant for any criminal Offence but for misconduct which is within the competence of the Defendants/Applicants so as to ensure adequate security in the 1^st Defendant/Applicant’s Polytechnic.

There is no iota of law supporting the Claimant/Respondent’s suit. Undoubtedly, the Claimant/Respondent’s case is not only devoid of a reasonable cause of action, it is also premature, incompetent and an abuse of the process of this Court. On this contention Counsel rely on the Supreme Court of Nigeria’s decision in Ojo & Others v The Attorney General of Oyo State & Others (2008) 15 NWLR (Part 1110) 577; (2008) LPELR – 2379 (SC) at pages 14, paragraphs C – D.

Premised upon the foregoing submissions, Counsel urged this Court to uphold the Defendants/Applicants’ objection and strike out the Claimants/Respondent’s case.

In view of the foregoing submissions, Counsel urged this Court to resolve the sole issue for determination in favour of the Defendants/Applicants and consequently strike out the Claimant/Respondent’s case i.e. Suit No. NICN/ABJ/270/17 on the following grounds:-

The Claimant/Respondent’s case does not disclose any reasonable cause
of action.
The Claimant/Respondent’s case constitutes an abuse of the process of
court.
The Claimant/Respondent’s case is premature and incompetent.

OPPOSITION BY THE CLAIMANT

In opposition to the Defendants/Applicants’ application challenging this suit for non-disclosure of a reasonable cause of action, the Claimant/Respondent filed an amended written address. In the amended written address lone issue was submitted for determination, to wit:

‘‘Whether the Claimant’s suit does not disclose a reasonable cause of action’’.

G.A. A. Imuzai, Esq; Counsel for the Claimant/Respondent after adopting the amended written address as his argument submitted that they are not quarreling with power of discipline, but oppose to the procedure adopted by the Defendants in taking disciplinary action against the Claimant. It is the submission of Counsel that the claimant’s case is as contained in the Statement of facts; and, it is, that he is the victim of a witch hunt by the 3^r^d defendant who want him out of the race for the position of Rector of the 1^st defendant and is using the organs of the Polytechnic and in some cases outsiders to harass, intimidate, bring false charges against him and to deny him a fair hearing of the allegations against him by using his friend and loyalist to try him I and by denying him the opportunity to confront his accusers. All of these is because the claimant is a nephew to one Dr, Sule Olohi Ohikhena who like the 3^rd defendant is vie for the office of substantive Rector which 3^rd defendant occupies in an acting capacity. Furthermore laid down Disciplinary procedure is being circumvented in favour of flawed, unconstitutional processes.

It is the contention of Counsel that the conceptual framework of the, claim that the claimant’s suit does not disclose a reasonable cause of action, is to expose the conceptual error upon which this applicants’ application is based. Counsel submitted that a cause of action is the aggregate of fact giving rise to the claimant’s claim which facts state the infractions complained of and the reliefs sought. On this submission Counsel referred to the Supreme Cases of CBN V UMEOGUAGO (2004) 11 MJSC 129, CHEVRON (NIG) LTD V L.D. (NIG) LTD, (2007) 10 MJSC 103 @ 105 & 108 PARA F – G, BELLO VS ATIORNEY GENERAL OF OYO STATE (1986) 5 NWLR (PT 45) 828 @ 876, SOCIETY BIC S.A & ORS V CHARZIN IND. LTD (2014) 2 MJSC (PTll) 1 @ 4 RATIO 1 & 31 PARAS A – D and RINCO CONST CO. LTD VS VERGER IND. LTD (2005) 9 MJSC 197 @ 203 D-G

It is the submission of Counsel that in this case the wrongful acts consists of the adoption of disciplinary procedure inconsistent with Federal Polytechnic manual 1990 and the provisions of the Federal Polytechnics Act and the serial violation of the Constitutional provisions of fair hearing and the rules and principles of natural justice

Counsel submitted that having defined a cause of action the next point is: what is to be looked at or examined in order to determine whether there is a cause of action in a particular case. Counsel submitted that it is the claim of the Claimant that will be considered by the Court in determining whether a cause of action has been disclose or not and not the defence of the Defendant. On this submission Counsel relied on CBN V MEODUAGU (SUPRA) PARAS C -G @136, 7 – Up Bottling Company Ltd & Ors V Abiola and Sons Bottling Co. Ltd. (2001) 13 NWLR (PT 730) 469 @ 495. In Olabode V Otubu (2001) 7 NWLR (PT 712) 256 @ 276 this court held that in determining whether or not pleadings disclose any reasonable cause of action, the trial court will only examine the Writ of Summons and Statement of claim. It will not examine the statement of defence or any defence by way of affidavit.

It is the contention of Counsel that this Honourable Court is bound and restricted to examine to determine the existence or absence of a reasonable cause of action in the substantive suit and where to locate these materials. Referred to the Statement of Facts particularly paragraphs 9 – 62, and submitted that these averments set out profusely the facts and infractions that form the basis of claimant’s and the relief he seeks. These facts and infraction include but are not limited to the following:

The fundamental legal issue of whether the proper procedure was adopted by the defendants/applicants in the disciplinary proceeding against the claimant/respondent for the misconduct alleged against him is a legal issue.
The non-observance of the principles of natural justice and fair hearing and non-adherence to procedures laid down in statutes and the Federal Polytechnic. Manual 1990 of the 1^st Defendant/applicant in ‘proceeding against the claimant/respondent for allegation of gross misconduct. Is a triable matter and postulates a reasonable cause of action. The serial breaches of the Constitutional provisions on fair hearing. See paragraphs 44 – 57 of the Amended Statement of Facts.
The legality of the three step procedure adopted by the defendants in proceeding against the claimant or the alleged acts of gross misconduct. See paragraphs 53- 57 of the Amended Statement of Facts.
The legality of the proceedings an investigations carried out by the Security department’s workers who are employees of Falzal Security & Guards Limited, the Security Company engaged by the 1^st defendant for security matters. See paragraph 15 of the claimant’s statement of Facts

According to Counsel there is also the issue of the procedure adopted by the defendants in pursuit of the discipline of the claimant for gross misconducts and the following incidental questions: is the investigation/proceedings by non-members of staff of the 1^st defendant in the persons of employees of a Contractor to the Polytechnic in charge of security matters permitted by the extant statutes and regulations? Is the SSDC vested with the powers to conduct the kind of proceedings it undertook in this case? Is the 2^nd defendant permitted to use the proceedings and findings of the 5^th and 6^th defendants as the basis for its proceedings against the claimant?

It is the contention of Counsel that the Police Intelligence Report was damaging hearsay yet the claimant was not allowed to know and confront his accusers whose evidence was taken behind the back of the claimant. All of these form the basis of the Security department’s report which went to the 3^rd defendant and came before the SSDC and which formed part of its body of evidence relied upon by the SSDC and which formed part of its report which it presented to the 2^nd defendant on the basis of which it invited the claimant by its two letter dated 13^th and 14th September 2017 and titled respectively Notice of Gross Misconduct and RE: Notice of Gross Misconduct make it clear that the SSDC report had been submitted to the 2^nd defendant.

Counsel submitted that the claim as endorsed on the complaint no doubt postulate not just a cause of action but a reasonable one at that:

It is the contention of Counsel raising issue of reasonable cause of action presuppose that the Defendants have admitted the averments in the statement of facts. It is the submission of Counsel that in the light of the admission of these facts which the Claimant has set out in his Statement of Facts, it cannot be gainsaid that a reasonable cause of action has been disclosed by the claimant. Counsel submitted that the grounds upon which this application was brought clearly in breach the long standing position of the Supreme Court in the decisions cited above as to what should be the basis of an application of this nature and what material to look at and where to locate them. It is submitted that at this point in this suit the motion and affidavit are worthless papers that this court cannot look at and must of necessity shut its eyes to them. It is well established that at the stage of determining whether a cause of action exists in a suit the applicant is not called upon to offer a defence to the substantive suit. The applicants are to keep their gun powder dry. In this case the applicants have prematurely launched a battery of fire power against a non-existing target. The applicants fell into deep conceptual error in treating their application as an opportunity to dispute the Claimant’s claim thus missing the very significant implication that for the purpose of the application the applicants are taken to have admitted the facts allege by the claimant in his Statement of Facts and cannot therefore be heard to resile from that admission and dispute the facts pleaded by the claimant. The other point the applicant sought to score by their copious affidavit and exhibits in support of motion is that the claimant at best has a weak or bad case. The application is also not the stage for that. It is trite law that the weakness of the plaintiff’s case is not a relevant consideration when the question is whether or not the Statement of Claim discloses a reasonable cause of action: MOBIL V ,LSEPA (2003) I MJSC 112@ 117 118 RAIO 11 & 132 PARA B – C. See also the case of CHEVRON (NIG.) LTD V LD (NIG) LTD (2007) 10 MJSC 103 @ 106 RATIO 4 & 121 PARA ‘G where the Supreme Court per Oguntade JSC made the point that whether a cause of action will succeed or fail is not taken into account while considering whether a cause of action has been shown. A cause of action is valid irrespective of the strength or weakness of the plaintiff’s case. In view of the foregoing, it is submitted that the applicants have nothing before this Honourable Court on which their application can be founded as the grounds stated on the face of the motion paper, the supporting affidavit and the exhibits are irrelevant to the proceeding at this stage. Similarly the written address of the Applicants is worthless in so far as it is based on the grounds stated on the face of the motion paper, the supporting affidavit and exhibits. The written address amounts to putting something on top of nothing and must fall to the ground. Counsel urged the court to so hold.

It is the submission of Counsel that it is now beyond question and doubt that a body acting in a quasi – judicial or judicial capacity must follow due process, conform to the Constitutional provisions on fair hearing and the rules and principles of natural justice. As is now notoriously known, when some members of the Oyo State House of Assembly who were less than the full house (some members having been suspended days earlier) sat at a hotel and impeached the then Oyo State Governor, Senator Rashidi Adewolu Ladoja, the Supreme Court held that unless the procedure for impeachment was followed to the letter and the members sat at their usual place of business their proceedings were null and void. See INAKOJU V ADELEKE (2007) 2 MJSC 1. No one can quarrel with the right of the 1^st defendant to discipline its staff. The claimant is evidently not. Nonetheless, the disciplinary procedure adopted must be proper and in accordance with due process and extant regulations and laws. In claimant’s case it is not and that is the grouse of the claimant and that is claimant’s cause of action.

One of the allegations made by the claimant is that he is a senior academic member of staff of the Polytechnic and he was invited to appear before ad hoc staff of a contractor engaged by the 1^st defendant to provide security for the purpose of being investigated. See paragraphs 1, 11, 12 and 15 of Statement of Facts and the Letter dated 22^nd June 2017 from the Security department to the claimant fronted loaded by the claimant. Apart from being akin to inviting casual workers of the judiciary or junior staff such as messengers and security men or for that matter staff of a security company engaged as contractor to provide security in the court premises, to subject a judge to investigation, the procedure is unknown to extant regulations and all relevant laws on the subject. Similarly the three step disciplinary procedure of Investigation, proceedings by the Senior Staff Disciplinary Committee (SSDC) and invitation of the claimant by the 2^nd defendant to show cause based on the report of the SSDC is unknown to the Federal Polytechnic Staff Manual 1990 and the Federal Polytechnics Act. Even if the three step procedure is a proper, lawful one there must be compliance at every step with the Constitutional Provisions of fair hearing and fair trial and the fundamental rules and principles of natural justice, which is not the case. See paragraphs 64 -69 of Statement of Facts. From the pleadings of the claimant, it is clear that the Senior Staff Disciplinary Committee (SSDC) did not accede to claimant’s plea to be given time to prepare his defence and call his witnesses whom he could not reach because of the short notice, he having appeared same day he was invited to appear before it; failure and refuse to record his defence in spite of his protests when he proceeded to offer it; refusal to allow the claimant meet and confront the persons accusing him of adultery as well as those who alleged that he had a meeting with them in a Degap Hotel; irate disposition of the members of the panel who accused the claimant unjustly of rudeness and told him to save his breathe, that the committee was not a Court and when he gets his letter of dismissal he can go to court and invoke whatever rights he wishes. See paragraphs 52 – 44 of Statement of Facts These are allegations of disciplinary procedure in breach of the rules of fair hearing in the disciplinary process on an occasion regarding allegation that clearly put the claimant’s job and means of livelihood on the line. The procedure of investigation by the Security Unit and “trial” by the SSDC are not approved by any law or regulation and even if they are the procedure must be by competent persons and must embrace the rules of fair hearing. The panel must be impartial and fair. It is when these are .done that the outcome can be said to be unimpeachable. Where the procedure falls short of these requirements, that fact itself generates a cause of action. The distinction between procedure and proceedings and their relationship was stated by NIKI TOBI JSC in INAKOJU V ADELEKE (20’07) SUPRA @ PAGE 70 PARAS B – C thus:

‘‘Procedure is the set of actions necessary for doing something. It is also the method and order of directing business in an official meeting. On the contrary, proceedings are the record of activities. In this definition, procedure generally comes before proceedings. Putting it in another language, proceedings are built on the procedure established for the particular activity’’.

Finally, Counsel submitted that the claimant need not wait until he has been done in by the defendants whose course of disciplinary procedure was ultra vires and evidently biased, lacking in fair hearing and impartiality and, in breach of claimant’s Fundamental Right to fair hearing, before approaching the court, The Constitution of the Federal Republic of Nigeria 1999 as amended (whose overwhelming supremacy and binding force is enshrined in section 1(1) and whose provisions prevail over any other enactment as stated in section 1(3) thereof) has provided without strictures in section 46(1) that when the Fundamental Right of a citizen ‘is being or likely to be contravened “he can approach the court for redress.

It is the submission of Counsel that the need for the Investigating Panel to be properly constituted and be impartial and for the members of the SSDC to be impartial and act in accordance with the rules of fair hearing and natural justice in the discharge of their quasi – judicial functions is imperative and cannot be gainsaid. This is more so when their proceedings are intended to be part of and stages in the disciplinary process and their findings, conclusions and recommendation the basis and bed rock of the proceedings and decision of the 2^nd defendant.

In addition, it must be stated that the relationship of the claimant and the 1^st Defendant in not one of master and servant where the master may dismiss his employee for good reason, or for bad reason or for no reason at all. Here the relationship is one of statutory employment in which one of the rights of a wrongfully dismissed staff is reinstatement to his office or position and consequently the issue of due process in the disciplinary procedure is of paramount importance.

According to Counsel the application to strike claimant’s suit for disclosing no reasonable cause of action, not on account of the “competence of the said action as formulated by the claimant and stated in the General Form of Complaint and the Statement of facts, but based on the contents of the defendants/applicants’ affidavit which replicates their defence, amounts to a demurrer. Counsel urged this Court to so hold. It must be stated also that this action has not been commenced by Originating summons. Consequently the merit of the case cannot be determined on the basis of the defendants/applicants’ defence or any form of evidence encapsulated in the form of an affidavit. This is perhaps the basis of Order 30 Rule 18(1) which provides that the Court may at any stage of the proceeding make an order striking out, amending any pleadings etc on the grounds that it discloses no reasonable cause of action etc. It goes on in Order 30 Rule 18(2) to state that no evidence shall be admissible on an application under Order 30 Rule 18 (1) National Industrial Court of Nigeria (Civil Procedure) Rules 2017. It is submitted that the evidence prohibited is both oral, documentary and affidavit evidence such as the applicants’ affidavit in support of their application. The reasonableness of claimant’s cause of action must be based on the contents of the General Form of Complaint and the Statement of facts filed by the claimant.

Furthermore, the claimant’s suit is essentially a declaratory action. It is trite law that a declaratory action needs not disclose a cause of action. Finally, we wish to state that we are not unaware of the ruling of this Court in Suit No NICN/ABJ/258/2016 Mr. Igbinosun Friday Ese V The Rector, Auchi Polytechnic & 4 Ors where this Honourable Court held that “the claimant’s suit did not disclose a cause of action. Nonetheless we wish to submit that that ruling is only persuasive on this Court but not binding. In addition the issues in that case are not the same as in this case. Here there is no challenge to the power of the Polytechnic to discipline its staff but a challenge to the procedure or process which denies the claimant a right to know his accusers and confront them more so when it is clear from the pleadings of the claimant that the charges against him are trumped up an instigated by the 3^r^d defendant whose desire is to eliminate the claimant from the race for rector of the 1^st defendant Polytechnic using suborned witnesses and a Senior Staff Disciplinary Committee (SSDC) of his loyalists and supporters and an investigating panel of ad hoc staff of the 1^st defendant Polytechnic and non-members of staff contrary to the rules of fair hearing and the Federal Polytechnic Staff Manual 1990 and the Federal Polytechnics Act Cap F17

On this premise Counsel urged the Court not to consider itself bound by the decision in Suit No NICN/ABJ/258/2016 Mr. Igbinosun Friday Ese V the Rector, Auchi Polytechnic & 4 Ors which was given by a Court of concurrent jurisdiction and in which the issues of law raised here were not canvassed.

In concluding his submission Counsel urged the Court to dismiss the defendants’ application as lacking in merit

REPLY ON POINTS OF LAW

The counsel for the Defendants/Applicants begun his reply on points of law by contenting that having failed to file a counter-affidavit to the Defendants/Applicants application, the Claimant/Respondent is deemed to have conceded all the material averments contained in the supporting affidavit to the Defendants/Applicants’ motion on notice. Counsel further submitted that a party who intend to challenge the facts contained in an affidavit is bound to file a counter-affidavit. On this submission Counsel placed reliance on the case of MOMOH V ADEDOYIN (2015) 9 NWLR (PT.1465) 433. It is contended that by this decision and others the Claimant/Respondent is deemed to have admitted conceded the entire paragraphs of the affidavit. The other decisions relied on for this submission are: DANLADI V DAKINGARI (2015) 2 NWLR (PT.1442) 124, APC V INEC (2015) 8 NWLR (PT.1462) 531, ATAKPA V EBETOR (2015) 3 NWLR (PT.1447) 549. Counsel urged the Court to discountenance the submissions of Counsel for the Claimant bordering on facts in the written address of the Claimant/Respondent.

It is the contention of Counsel for the Defendants/Applicants that the Claimant’s submission urging the Court not to look at or consider the supporting affidavit in determining this application is totally spurious and misconceived, Counsel referred to Order 17 Rule 5 and 6 of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017, enjoins the Defendants to file along with the application an affidavit and a written address. That is to say, attaching an affidavit to the application, is in compliance with the provisions of the Rules of this Court, which the law enjoins parties always comply with at all times. To show the importance of obeyng rules of Court Counsel referred to the case of Idris v Abubakar (2011) All FWLR (Pt 733) @ 736, where it was held that ”rules and order of court are met to be obeyed, and not made in vacuum. They are not made for the fun of it. It is also submitted that the entire paragraphs of the said supporting affidavit are summary of the Claimant’s case before the court which forms the basis of the Defendants’ contention that the Claimant’s case does not disclose any reasonable cause of action. According to Counsel as much as it is agreeable with the submission of the Claimant’s counsel that all the Court needs to consider to determine if there is a reasonable cause of action is the Claimant’s Statements of Fact, however, the Applicant’s Affidavit in Support of the Motion for striking out on grounds of lack of reasonable cause of action” stands and serves as a compass, directing the mind of the Court to those salient points the Court should be looking out for in the Claimant’s Statement of Facts to determine the matter one way or the other.

It is the contention of Counsel that Lack of Reasonable Cause of Action, is a jurisdictional matter, hence, this Honourable court can suo motu raise the issue of jurisdiction and the court is entitled to consider any fact that will enable the court to effectively decide the issue of jurisdiction raised before it by the Defendants. Consequently, the cases of CBN v. Umeoduagu (2004) 11 MlSC 127 at 136 and Chevron (Nig) Ltd (2007)10 MlSC 103 at 105 & 108 both cited and relied upon by the Claimant to contend that this court cannot look at or consider the Defendants/Applicants’ supporting affidavit, are completely inapplicable to the facts of this case. The above authorities relate to the propriety of considering the Defendants’ statement of defence, WHEREAS the Claimant’s contention relates to the supporting affidavit to the Defendants’ application which the Rules of this court requires the Defendants/applicants to files as a matter of necessity along with is motion on notice, hence the application will be incompetent. Order 17 Rule 5 which provides for the filing of an affidavit in support of an application is couched in mandatory terms with the word “SHALL.” The Claimant cannot urge this court to disregard the above provision of the rules of the court which was made to aid the court in the just determination of matters before it. Counsel urged the court to discountenance the above misconceived contention of the Claimant/Respondent. It is settled principle of law that the ratio of a case is only an authority for what it decides. The ratio of a decided case cannot be pulled by the hair and made willy-nilly to apply other cases were the facts are different. For this submission, Counsel referred to the following judicial authorities:- Yabatech v. M. C. & D Ltd (2014) 3 NWLR (Pt.1395) 616 at 659, “Okafor v. Nnaife (1987)9-10 SCNJ 63, (1987) 4 NWLR (Pt.64) 129. This was exactly what counsel for the appellants did in his brief. Notwithstanding that the facts of the two cases of Attorney General of Lagos State v. Attorney General of the Federation (supra) and UAC of Nig Pic and Ors v. A.G. Lagos State and Ors are different from the facts of this case, he clung to them. This is not right. The import of Okafor v. Nnaife (supra) is that a case can only be an authority for what it actually decided having regard to the facts and issues agitated before the court. “

It is the contention of Counsel that the Claimant/Respondent’s contention in his unpaged and unparagraphed written address to the effect that the entire paragraphs of the Defendants/Applicants’ supporting affidavit to the instant application is a re-harsh of the Defendants defence is incorrect and grossly misleading. Counsel adopt his contention at paragraph 1.0). above and submit that the entire paragraphs of the Defendants/Applicants’ supporting affidavit is summary of the Claimant/Respondent’s case which forms the basis of Defendants/Applicants’ objection to the Competence of the suit.

It is further submitted that paragraphs a – II contained in the unpaged Claimant’ written address are totally inconsequential in resolving the issue of lack of reasonable cause of action raised by the Defendants. The Claimant cannot at this stage raise new issue, it is the facts as contained in the statement of facts that the Court is enjoin to X-rayed to resolve the issue.

It is the contention of Counsel that the Claimant’s argument that there exist a cause of action in this suit is totally misconceived. In employment matters a cause of action can only arose in favour of the employee where the employer has terminated the contract of employment and formally communicate same to the employee vide a letter. It is only at that point the employee can either challenge the procedure adopted by the employer or ground of the decision of the termination of the contract by the employer. This is the only time a cause of action can arise in a contract of employment. For this trite and settled principle of law, Counsel place reliance on the Court of Appeal decision in Oduko v. Gov., of Ebonyi State of Nig. & Ors (2016) 65 NLLR (Pt 231) 325 at page 345-346 where the Court held as follows:-

‘‘A cause of action accrues for the Plaintiff’s benefit from the time the breach of the contract is committed and not when damages is suffered. In other words, an event can only give rise to an actionable cause of action only when such is brought to the notice of a person. In contract of employment for an example, notice of formal information by one party to the other that the contract is to be brought to an end at a specified date. The cause of action accrues only when the letter is written by the employer and received by the employee. ” (emphasis mine)

It is the submission of Counsel that this Honourable Court followed the above Court of Appeal decision in Suit No. NICN/ABJ/314/2016: Mr. Braimah Bashiru Adamu v. The Rector, Auchi Polytechnic, Auchi & Ors in its judgment delivered on 10th July, 2017, where this Court Coram Hon Justice E. N. Agbakoba held at page 14 of the judgment as follows:-

“The judicial authorities show that a cause of action must set out the rights of the Claimant, the infringement thereof by the Defendants as well as the injury or damage suffered.

In the case of Dr. Stephen E. Uwamasi Vs. The Governing Council, University of Benin NIC/EN/24/2011 (unreprted) delivered on 31st May, 2012 where the claimant came to court because he was issued three queries and learnt of the recommendation for his sack by the Disciplinary Committee of the University chaired by the 6th Defendant, the court held that the claimant had not established a cause of action. ” (emphasis mine)

Consequent upon the foregoing, it is submitted that the Claimant’s submission that a reasonable cause of action has been disclosed is totally spurious and untenable.

Counsel submitted that it is important to note that all the above cases involve situations where the contracts employment are statutory flavored as in the instant case. Consequently, the Claimant’s contentions in his unpaged written address in opposition to the Defendants/Applicants motion for striking out to the effect that the decision of this court in Suit No. NICN/ABJ/258/2016: Mr. Igbinosun Friday Ese v. The Rector, Auchi Polytechnic, Auchi & Ors which is consistent with the foregoing decisions of this court and the Court of Appeal as reproduced above, does not apply to his case, to say the least is bereft of substance and misconceived and accordingly be discountenanced.

In Igbinosun’s case, the Centre of the argument was that the matter was premature, as the matter was still under investigation, the disciplinary processes have not been concluded, hence a decision has not been reached by the Governing Council, who in this case is the 2^nd Defendant/Applicant. The Court upheld the submission. in this instant case, also, no decision has been reached by the Defendants/Applicants which affect the Claimant’s contract with the 1st Defendant/Applicant to warrant the filing of the present suit by the Claimant. The Claimant has not appeared for trial before the 2^nd Applicant, who has the power to hire, fire, try and discipline Senior Staff of the 1^st Applicant institution, hence Claimant’s suit therefore is totally speculative and bereft of a reasonable cause of action.

It is further argued by the Claimant/Respondent that his Fundamental Right has been breached, hence a cause of action, however, His Lordship, Hon Justice E. N. Agbakoba was more emphatic in the above judgment in Suit No. NICN/ ABJ/314/2016: Mr. Braimah Bashiru Adamu v. The Rector, Auchi Polytechnic, Auchi & Ors (supra) while resolving the issue of likelihood or anticipation of breach of Claimant’s right to fair hearing wherein the court held at page 16 as follows:-

”In the unreported case of SUIT NO: NICN//IB/42/2013: D.K.
SHANGODOYIN Vs. UNIVERSITY OF IBADAN delivered on the 23rd June
2014 where the claimants in arguing against the defendants application to
strike out his suit on similar grounds argued that the application contended that the action was filed to challenge the wrongful unlawful and unconstitutional steps being taken by the defendants is clearly justiciable as a person whose right is breached or in imminent danger of being breached or violated has the locus standi to approach the court to protect his constitutional rights from being trampled over. And this court held that with regard to the anticipation of infringement or better known as the equitable remedy of quia timet, or quai timet action this Latin maxim meaning ”because of fear” this entitles one to approach the court in fear of his right or res being destroyed. This remedy is more suitable for land or Property issues with a permanent res. The res in labour and employment matters is transient and more fleeting with the effect that a quia timet action would be hard placed to find a place in this court. ” (emphasis mine)

It is also the contention of Counsel that on the Claimant/Respondent’s argument that his fundamental right has been breached, in a purely labour or employment matter. It is trite that fundamental right enforcement cannot be accommodated in a labour matter. On this submission Counsel relied on the decision of this Court in Igbinosun v The Rector Auchi Polytechnic and 4 Ors, Suit No: NICN/ABJ/258/2016 delivered on the 29^th September 2017.

COURT’S DECISION

I have extensively have a hard look at the originating processes commencing this suit, the Defendants’ motion on notice, its supporting affidavit as well as the addresses of Counsel for both parties, arguing for and against the motion on notice. From the prayers in the motion on notice, the issue calling for resolution is:

‘‘Whether the Claimant’s action as it is presently constituted has disclosed a reasonable cause action’’.

Before proceeding to determine the application before the Court, it behooves on me to deal with certain preliminary issues arising from the addresses of Counsel.

The first issue to be resolved revolves round the issue of propriety of filing affidavit in support of motion on notice on issue of reasonable cause of action, when the law allows only the use of the Claimant’s pleading in determining the issue. There is also the issue non-filing of counter-affidavit by the Claimant to the Defendants/Applicants’ affidavit in support of motion on notice. It is contended by Counsel for the Claimant in the reply on points of law that the failure by the Claimant to file counter-affidavit means that the Claimant has conceded to the facts deposed in the affidavit in support of the motion on notice and thereby rendering the written address of the Claimant going to no issue before the Court. Counsel urged the Court to discountenance the written address of the Claimant on this ground. The Counsel for the Claimant has argued that it is the affidavit in support of the motion on notice that should be discountenance, since law does not allowed use of evidence of the defence in determining issue of reasonable cause of action.

It is well established beyond reproach that failure to file counter affidavit will be taken to mean deposition in support of the application were neither challenged nor disputed by the respondents. See ALAGBE Vs. ABNIMBOLA (1978) 11 N. S. C. C. 84 @ 85. It is also well established principle of law that failure to file a counter affidavit in an application based purely on law is not fatal to the respondents’ position. See OWO V ADETILOYE (1998) 10 NWLR (PT 570) 488. It is clear from case law that it is not a must to file a counter affidavit where an affidavit does not meet the issue it is required to serve. More particularly in situations where there is nothing in the affidavit that needs to be refuted by respondent or if the affidavit be self-contradictory or the facts contained in the affidavit or in an affidavit be presumed to be true and yet when taken together are not sufficient to sustain the prayer of the applicant see FOLORUNSO V SHALOUB (1994) 3 NWLR (PT 333) 413 @ 421. Applying these principles of law to the case at hand it will be right to hold that the non-filing of counter-affidavit by the Claimant in this case is not fatal to the position of the Claimant, this is because the objection of the Defendants is based on law which require no facts to be deposed to either in support of in opposition. The position taken by the Claimant in not filing a counter-affidavit is therefore in order. The submission of the Counsel for the Defendants that the affidavit in supportstands as compass to directing the mind of the Court is untenable and totally in disregard of well settled principle of law regarding determination of a reasonable cause of action.

Counsel for both parties have made copious submissions on issues not bordering on the issues of a reasonable cause of action. A careful perusals of the submissions of Counsel revealed that most of the issues canvassed are not borne out of the application before the Court. It should be remembered that at the stage at which this suit is, Counsel are only allowed to raise in issues of law alone that will not require evidence. The Court has a duty to ensure that issues that are to be decided at the substantive stage are not considered or decided at the preliminary stage. At this stage the issue that can be determined is the issue of reasonable cause of action which goes to the competency of action based on law alone. Any consideration that will need evidence must wait until when the substantive issues are being determined. See ENWEZOR V WITHECH INDUSTRIES LTD 2008 LPELR-4193 (CA). All the court can do at this stage is to restrict itself to the pleading before it. Indeed, that is what the law require the court to do when dealing with preliminary objection. See OYEDELE & ORS. V AJAY & ORS. (2014) LPELR-23101 (CA). It is settled that when a preliminary objection is raised to determine a suit in limine, like in this case the main material for consideration is the originating process. The parties in this suit have in their respective submissions seems to have agreed to this position of law. It is without doubt from the above exposition of the law that none of the parties will be allowed to canvas issue that will require making consideration outside the originating process before the Court. In view of this, I find all the submissions of counsel for both sides on issues bordering on issues outside the pleading of the Claimant irrelevant at this stage and are hereby discountenanced as they goes to no issue in so far as the determination of the preliminary objection is concerned.

Having disposed of the preliminary issues, I shall now turn to the main issues for determination of the objection of the Defendants’ to this suit on the ground of non-disclosure of a reasonable cause of action.

Counsel for the Defendants/Applicants’ has made copious submission in both his written address in support of the motion on notice and in the reply on points of law to the effect that the Claimant has not disclosed a reasonable cause of action by his complaint and statement of facts before the Court. The Claimant on the other hand has vide the written address filed in opposition to this application made submissions to the effect that he has by his complaint and statement of facts established a reasonable cause of action against the Defendants.

It is trite law that a cause of action denotes aggregate factual situation the Claimant relied on to approach a court of law for ventilation of grievance. In BELLO V. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt. 45) 828, the apex Court held that ‘’cause of action is constituted by the bundle of aggregate facts which the law will recognize as giving a plaintiff a substantive right to make the claim against the relief or remedy being sought’’. Thus, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. See AKILU V FAWEHINMI (No. 2) (1989) (pt. 102) 122, SAVAGE V UWECHIA (1972) 1 ALL NLR (Pt. 1) 251. As rightly submitted by both Counsel, for the Court to determine cause of action the pleading of the plaintiff (in this case Claimant) must be considered and not the defence.

The question to be resolved here is has the Claimant’s complaint and statement of facts before the Court disclosed factual situation that constitute the essential ingredients of an enforceable right?.

A careful perusal of the claimant’s complaint and the statement of facts in this case will show that the grouse of the Claimant borders on validity of the investigation carried out by the Security Unit of the 1^st Defendant and proceedings of the Senior Staff Disciplinary Committee set up to investigate allegation of meetings purportedly held by the Claimant with some student of the 1^st Defendant, where the Claimant was alleged to have incited the student to embark on protest against the implementation of the 1^st Defendant’s policy on no payment of school fees no exam. The Claimant avers in his statement of facts that he is being threatened, tortured and denied of his right to fair trial and fair hearing.

In the statement of facts the Claimants averred among other things that the 3^rd Defendant has been using his office and staff of the 1^st Defendant to harass, intimidate and subject the claimant to emotional and psychological torture for reason only that the claimant is nephew to Engr. Dr. Sule Olohi Ohikhena. The claimant further averred that the 3^rd Defendant has deployed the full force of the instruments of the 1^st Defendant against the Claimant and suborned, engaged and recruited students, some members of staff as well as non-staff members of the polytechnic to fabricate allegations, to malign harass, intimidate, threatened the claimant deny him fair hearing in order to ensure that the claimant loses his job for the blood relationship with Engr. Dr. Sule Olohi Ohikhena. It was also averred that the claimant was invited by a letter by the acting security officer and he appeared before a panel of four headed by the Ag; Chief Security officer where the Claimant was informed that the 3^rd Defendant directed the Security Unit to invite him to interrogate him for holding meeting with students and inciting them at Dagep Hotel, Ibie as well as holding meeting with secret cults and that these allegations were contained in a petition. The petition was frontloaded and attached to the originating process. It was averred by the Claimant that the members of Security Unit of the 1^st Defendant are not members of staff of the polytechnic for they were engaged by 1^st Defendant to provide security services. It was stated that the Claimant promptly answered the queries. According to the claimant being a senior staff only a competent Committee or Panel set up by the polytechnic in line with the relevant provisions of the Federal Polytechnic staff manual 1990 and the Federal Polytechnic Act, which can investigate the Claimant. The Claimant also averred that he was invited by the police on the same allegation where he made statement and allowed to go on bail. But, since then the police took no further action. The Claimant also averred that on 13^th July 2017 he was issued with two queries. For gross misconduct, which he responded promptly. The queries were frontloaded and attached to the originating process. The claimant also averred that he wrote two letters of protest to 3^rd Defendant and 1^st Defendant respectively, but there is no response. According to the claimant on 9^th August 2017, he got a phone call from 6^th Defendant inviting him to appear before the Senior Staff Disciplinary Committee at 11am same day. On honouring the invitation the claimant was asked to switch off his phone and he was informed by the members of the Committee, that they have his queries and his answers, whether he want adopt them. He informed the Committee that allegations were already subject matter of police investigation and he was currently on police bail. According to the Claimant he requested to be recorded but the members refused. According to Claimant when he insisted he had a defence but needed time to prepare his defence and call his witnesses whom he could not reach because of short notice, he having appeared same day he was invited was rejected outright; and when he proceeded to offer his defence the panel refused to record him. The claimant averred that the senior staff committee proceeded to take evidence behind his back from persons whose identities were not disclosed to him but merely referred to as members of the executive of the student union government and whom the Senior Staff Disciplinary Committee failed and refused to avail the claimant the opportunity to meet and confront, as well as other persons whom the claimant was never told of and was not given the opportunity to meet and confront and further more proceeded to use that evidence to damnify the claimant. They have his queries and his replies to him and his replies and the statement to the security unit and wanted to know if he wanted the documents to be taken as his defence to which he answered in the negative and informed them that he had already protested to the governing council as he is entitled to and the committee ought to await council’s response. The claimant further averred that the senior staff disciplinary committee relied on write up by persons he never met in his life nor was he given opportunity to react and the unsubstantiated police intelligence report. The senior Staff Disciplinary Committee also relied on two memoranda to the 3^rd Defendant from the security Unit, an ad hoc body of a contractor of the 1^st Defendant that has no right to investigate any matter touching on the alleged misconduct of staff. The claimant also avers that the allegation on which the Senior Staff Disciplinary Committee invited him on is criminal in nature and were subject of police investigation. Claimant stated rather than consider his protest the 2^nd Defendant proceeded to receive the report of the Senior Staff Disciplinary Committee recommending his dismissal and consider same and began to make plans to hold a meeting of the 2^nd Defendant to dismiss the Claimant the claimant stated that having gotten the information on plan to dismiss him he instructed his counsel to file a substantive suit and apply for an order of interim injunction. It was averred that based on the report from Senior Staff Disciplinary Committee the 2^nd Defendant proceeded to invite the claimant to appear before it to give reasons why disciplinary action should not be taken against him, but the 2^nd Defendant was frustrated from taking further action in execution of its design by order of interim injunction of this court which was served on it.

It patently clear from the endorsement on the complaint and the averments in the statement facts as stated above that the Claimant entertain fear and apprehension that his employment is in danger of being lost. If the 2^nd Defendant is not restrained from taking disciplinary action against the Claimant due to the invitation extended to the Claimant to appear before the 2^nd Defendant to show cause why disciplinary action should not be taken against the Claimant. It is to be noted that the Claimant’s pleadings clearly show that the acts being complained of are in respect of the security Committee and Senior Staff disciplinary Committee which do not have statutory power to disciplined the Claimant. It is also clear that the Claimant by the interim order of injunction obtained to restrain the Defendants from performing their function of taking disciplinary action against the Claimant, he had succeeded in making sure that he did not appear before the appropriate body that has statutory power to discipline the Claimant. It is also clear that the Claimant succeeded in truncating the process of exercising disciplinary control by the 2^nd Defendant over him when he secured an order of interim injunction restraining the 2^nd Defendant from taking any action against the Claimant. It can be gleaned from the Claimant’s averments in his pleadings that he is contesting the validity of the report of the ad hoc Committees set up to conduct investigation on the allegation of misconducts levelled against the Claimant, which the Claimant/Respondent considered to be ultra vires null and void and of no effect whatsoever for having not been in line with the 1^st Defendant staff Manual of 1990 and the Federal Polytechnics Act.

I have carefully and painstakingly perused the provisions of the Federal Polytechnic Act and the Staff Manual of 1990, there is nothing in it prohibiting the action so far taken by the Defendants in the exercise of disciplinary action against the Claimant. Section 71 (1) of the Federal Polytechnic Act 2004 Laws of the Federation 2004, states as follows:-

‘‘17. Removal and discipline of academic, administrative and technical staff

(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall-

(a) give notice of those reasons to the person in question;

(b) afford him an opportunity of making representations in person on the matter to the Council; and

(c) if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-

(i) if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or

(ii) for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and

(iii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter,

and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

The provisions of section 17(1) of the Federal Polytechnics Act which governed disciplinary action against a member of staff cis very clear and unambiguous it require no magical prowess to interpret it. It is clear the power to disciplined erring member of staff of the 1^st Defendant resides with the 2^nd Defendant and this can be done, If it appears to the 2^nd Defendant that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the 2^nd Defendant shall give notice of those reasons to the person in question; afford him an opportunity of making representations in person on the matter to the Council (2^nd Defendant); and if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements, if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council (2^nd Defendant).

It is to be noted that the Supreme Court in interpreting similar provision in the case of BAMIGBOYE V UNIVERSITY OF ILORIN (supra) has this to say:

If the above postulation of the law as enunciated by the Supreme Court is juxtapose with the facts as disclosed by the statement of facts, could it be said that the Claimant has provided factual situation entitling him to an enforceable right. The alleged violation of the Claimant’s right to fair trial and fair hearing is by an ad hoc Committees set up to investigate petition alleging involvement of the Claimant in holding meeting with some students of the 1^st Defendant, this cannot in the context of labour law entitled the Claimant to an enforceable right that can be a subject of litigation before a Court of law. The reason being that it is well settle law that an ad hoc committee that has no statutory power to discipline a worker cannot affect the right and obligations of the worker. The Claimant’s perception of noncompliance with doctrine of natural justice and concept of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, (as amended), in respect of investigation by an ad hoc committees set up to investigate the claimant, seems to have lose sight of the type of function to be exercised by the ad hoc committee. It is not enough for the Claimant to show that the non-statutory ad hoc Committees have violated the Claimant’s right to fair hearing. In labour law issue of fair hearing will come to play when recommendations made by an ad hoc Committee has been submitted to the statutory body that has the disciplinary power over the Claimant. The exposition of the law on this issue was settled by the Supreme Court in the case of UIVERSITY OF NIGERIA TEACHING HOSPITAL & ANOR. VS. NNOLI (1994) 8 NWLR (Pt.363) 376 at 404, per Onu, JSC (as hethen was) has this to say:-

‘‘ … that in the observance of the principles of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigation Panel which has no statutory powers, and the action on the recommendation by a statutory body with requisite statutory powers. Whereas the recommendation of the investigation panel will not affect the civil rights and obligations of the Appellant, the acting upon such recommendation does. Hence, the implementation of the recommendation must comply, with the rules of natural justice. See Aiyetan V N.I.S.E.R. (suora)…’’.

It is clear from the above dictum of the Supreme Court that in an employment matter investigation by an ad hoc committee like the two committees in the case at hand does not affect the legal rights and obligations of the party being investigated. The legal rights and obligations comes to play when the body clothe with statutory power has come to consider the recommendation of an ad hoc committee, it is at that stage that the rules of natural justice and fair hearing must strictly be adhered to otherwise the whole process will come to naught. As it stands the facts as disclosed did not disclose an enforceable right capable of ventilation before a Labour Court.

I agree with the submission of Counsel for the Claimant that raising issue reasonable cause of action presupposes that the Defendants have admitted the averments contained in the statement of facts. However, I must quickly add that for the facts deemed admitted must be such that they have disclosed an enforceable right cognizable by law. In the case at hand the factual situation revealed the contrary. The whole confusion in this suit emanated from the misconception of the Claimant in regarding investigation conducted by the Security Unit of the 1^st Defendant and that of the Senior Staff Disciplinary Committee as investigation of a quasi-Judicial body which is not the case at all. The Security Committee and the Senior Staff Disciplinary Committee are not quasi-judicial body or organs set up with statutory power. The activities of the two Committees are not meant to affect the Civil Rights and obligations of the Claimant. They are mere facts finding Committees. Applying the case of INAKOJU V ADELEKE (supra) to the facts of this case is clearly based on misconception of law. The said case deals with impeachment of a Governor which power were exercised pursuant to the Constitutional provisions. While the Committees that so far investigated the Claimant in this case are administrative in nature with no statutory backing and therefore, not capable of affecting the legal rights and obligations of the Claimant. They are also not bound by the principles of natural justice and doctrine of fair hearing in the strictest sense.

It is trite law that all administrative bodies, even though they are not courts, are bound to observe the rules of natural justice and fairness in their decision, which affect the rights and obligations of citizens. However, in order to seek to enforce his fundamental rights to fair hearing provided under chapter iv of the constitution, the alleged violation must be in respect of proceedings before a court or tribunal established by law and not before domestic or standing ad hoc tribunals. Since the Claimants alleged violation of fair hearing is not charged against a Court of law or tribunal with statutory powers the case of the Claimant cannot be said have disclose an enforceable right cognisable in law. See the Supreme Court decision in the case of REV. PROF. PAUL EMEKA V REV. DR. CHIDI OKOROAFOR & ORS. (2017) 11 NWLR (PT.1577) 410.

It is without any doubt from the above decision of the Supreme Court that breach of Fundamental Right under section 36 of constitution arises only where the denial of fair hearing has been charged against a court or tribunal established by law and not before domestic or standing ad hoc tribunals raised departmentally by parties.

The case of the claimant in this suit is violation of his fundamental rights by ad hoc committee which decision are decision of non-judicial body, there is no violation of the right of claimant that can be subject of enforcement before a Court of Law. See also BAKARE V LSCC (1992) 8 NWLR (PT.262) 641, where the Supreme Court at page 699 paragraph H, has this to say:

‘‘section 33 (1) of the 1999 Constitution (now section 36(1) of 199 Constitution) from its very words deals with determination of the civil rights and obligations of a person by a Court or a tribunal established by law. It deals with judicial bodies and does not necessarily extend to all bodies not judicial but all the same deciding on rights and obligations’’.

In EKUNOLA V CBN (2013) 15 NWLR (PT.1377) 224, the apex Court of Land at page 265 paragraph C, has warned Counsel to desist from the habit of using fair hearing in the hopeless case. The Court per Chukwuma-Eneh, JSC, (as he then was) stated thus:

‘‘fair hearing has become the whipping principle for counsel trying to Catch at straw to sustain a modicum of standing in a hopeless case where the case is already dead as dodo. This approach of counsel in general is deprecated. Fair hearing should for what it is and represents in our adjudicative process before the courts be invoked with every sense of seriousness and in appropriate settings. It is not the case in the instant appeal’’.

Where the charge of denial of fair hearing as in this case is not against a court or tribunal established by law but is against a domestic, standing ad hoc committee of a non-judicial body, the infringement of the right cannot be sustained.

The provisions of fair hearing under section 36 of the constitution of the federal republic of Nigeria, means a trial conducted in according to all the legal rules of formulated to ensure that justice is done to all the parties. BAMIGBOYE V UNIVERSITY OF ILORIN (2001) FWLR (Pt.32) 12, NTUKIDEM V OKO (1986) 5 NWLR (Pt.45) 909, it is clear from these cases that the requirement of fair hearing founded on the rules of natural justice is better applied in a trial before a court of law or tribunal established by law. It is also not the law that once there is a criminal investigation in the act or conduct of an employee, the employer will have no power to exercise disciplinary measure on him unless his guilt or otherwise is determined in a criminal investigation by the police. Therefore, the Court will not allow its processes to be used to usurp or whittle down the power of employee to take disciplinary action against a worker. The Claimant specifically averred in his claim that the 2^nd Defendant rather than consider his protest letter, proceeded to receive the Senior Staff Disciplinary Committee’s report recommending the Claimant’s dismissal and consider same and begun to make plan to hold meeting of the 2^nd Defendant to dismiss him. It is after getting wind of this plan that the Claimant instructed his Counsel to file a substantive suit and apply for an order of interim injunction it was also averred in the statement of facts that upon receipt of the report of the Senior Staff Disciplinary Committee, the 2^nd Defendant, proceeded to invite the Claimant to appear before it and give reasons why disciplinary action should not be taken against him. However, the 2^nd Defendant was constrained from taking further action on the disciplinary action against the Claimant. These assertions in the statement of facts goes to show the mind-set of the Claimant i.e to disrupt the processes put in place by the Defendant to discipline the Claimant. It also goes to show as at the time the Claimant approached this Court for redress there has been no violation of the Claimants right as being alleged in his claim. The action of the Claimant is therefore premature.

In view of the above decisions of the Supreme Court, I have no hesitation in coming to the conclusion that the Claimant’s cause of action in this case is yet to crystalize to clothe this Court with requisite power to entertain the Claim of the Claimant as it is. This holding is in line with my learned brothers holding in the cases cited by the Defendants/Applicants in support of their application. I am also of the view that in Labour law the fear or apprehension of having to lose employment cannot ground cause of action to entitled a party to institute an action before a Court for redress. The cause of action will not be complete until the appropriate statutory disciplinary Committee has considered report or outcome of an investigation which may lead to taking of disciplinary action by the statutory body.

The claimant’s action as it is presently constituted is premature and speculative since the 2^nd Defendant that has the statutory responsibility of taking disciplinary action against the Claimant is yet to do so. The 2^nd Defendant has been toSStally deprived of the exercise of the interim order of injunction.

In the circumstance this application succeed and the Claimant suit is hereby dismissed for non-disclosure of a reasonable cause of action to prosecute the claim in the statement of facts.

Sanusi Kado,

Judge.