MRS JOY NKIRUKA ESEZOOBO v. NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD & ORS
(2012)LCN/5826(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2012
CA/L/475/09
RATIO
“Let us consider what constitutes substantial dispute of facts. In Olujimi Vs. ESHA (2009) 11 NWLR Pt. 1153 Pg. 464 at Pg. 482 it was held in this court per Nweze JCA that a substantial dispute means a real dispute or controversy of considerable importance as opposed to an imaginary dispute or controversy.” Per OGUNWUMIJU, J.C.A.
“Chapter 5 of the NSITF Staff Conditions of Service contained on Page 24 of the Record deals with the Termination of Appointment of a member of staff and is as follows: TERMINATION OF APPOINTMENT 05.01 The Board may at any time terminate the appointment of staff in the following manner: (a) Probationary staff: One month?s notice or one month?s salary in lieu of notice at any time before confirmation (b) Contract Staff: Three months? notice or salary in lieu of notice or by such longer period of notice as may be set forth in the contract (c) Temporary Staff: Two weeks? notice or salary in lieu of notice or such longer notice as may be specified in the contract or letter of appointment. CONFIRMED PENSIONABLE STAFF 05.02 Notice of Termination The Board may determine, other than by dismissal, the appointment of confirmed pensionable staff by giving the staff one month?s salary in lieu of notice. In this case, the period of notice shall include earned leave. Voluntary Retirement 05.03 A member of staff on attaining the age of 45 (forty-five) years may retire voluntarily on giving 3 months notice of such retirement. The Board may however at its discretion waive the period of notice in its interest. 05.04 The Board may call upon an established staff to retire at any time after he attains the age of 60 years or after 35 years in service. In such case, the staff would be entitled to any benefits due to him under the Pension Regulations REDUNDANCY 05.05 The Board may declare redundant such employees as it deems fit. Redundant employee shall be entitled to one redundance payment of one year salary. Any employee who had worked for a sufficient length of time as to qualify for retirement benefits may be retired with full benefits if his services are no longer required by the Board. It is apparent from the above that it is the Management Board of the 1st Defendant that has the power to terminate the appointment of any staff of the 1st Defendant. However, I have gone through the NSITF Act and it is equally apparent that there is a lacuna in the law as regards who should be in charge of the Fund in the absence of a board. The law obviously did not envisage the situation where there would not be a Management Board. However, the absence of a Board cannot mean that its functions would not be carried out. How else would the Fund be run if this is true? It stands to reason that in the absence of the Management Board, the 2nd Defendant, the Managing Director who by virtue of Section 7 (2) is vested with the powers for the day to day running of the Board should perform the functions of the Board pending its reconstitution especially since Section 9 (5) provides that the Board may delegate its function to control the employees of the Fund to him.” Per OGUNWUMIJU, J.C.A.
“There are four major ways by which an action may be commenced at the Federal High Court and they are: 1. By Writ of Summons 2. By Originating Summons 3. By Originating Motions 4. By Petition See Order 2 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000.” Per OGUNWUMIJU, J.C.A.
“The applicable law with regards to forms of commencement of action in this case is the Federal High Court (Civil Procedure) Rules 2000. Order 2 Rule 2 (2) states as follows: (2) Proceedings may be begun by originating summons where – (a) The sole or principal question at issue is, or likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some question of law; or (b) There is unlikely to be any substantial dispute of fact Order 3 of the Rules deals with the effect of non-compliance with the above provision, among others. Order 3 Rule 1 (1) & (2) are as follows: (1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein. (2) The court may on the ground that there has been such a failure as mentioned in sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. My interpretation of the above provisions of the Rules of the trial court is that where a Plaintiff commences an action by Originating Summons and the trial court finds that the matter does not fall within the provisions of Order 2 Rule 2 (2), the trial court may set aside the proceedings in whole or in part and take steps to allow amendments that would cure the defect in the case as it deems fit. This discretionary power given to the trial judge can be exercised at the beginning of the trial or at any stage in the proceedings suo motu without any of the parties bringing it up. This is apparent from the face of the provisions of the Rules.” Per OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MUHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
MRS JOY NKIRUKA ESEZOOBO Appellant(s)
AND
1. NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD
2. ALHAJI MOHAMMED RUFAI
3. THE FEDERAL GOVERNMENT OF NIGERIA
4. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice A.O Ajakaiye sitting at the Federal High Court, Lagos Judicial Division delivered on the 7th day of April, 2009.The facts that led to the appeal are as follows:
The Plaintiff now Appellant had by an Originating Summons asked the trial court certain questions; claimed certain declaratory reliefs together with an Order for perpetual injunction and asked for an Order reinstating the Appellant to her lawful employment. Precisely, the Plaintiff claimed inter alia as per her originating summons the following principal relief:
A DECLARATION that the Plaintiff’s employment with the 1st Defendant at its Lagos Zonal office is service in the public service of the Federation and is by S. 172 and S. 173 of the Constitution of the Federal Republic of Nigeria and S. 4 of the Pension Act Cap 346 LFN 1990 as well as the conditions of service of the 1st Defendant guaranteed up to the retiring age of 60 years.
The Appellant had supported her Originating Summons with a 35 paragraph affidavit. The Respondents in reaction had filed a 20 paragraph counter-affidavit. Parties were ordered to file written addresses and after adoption of their respective written addresses, the learned trial judge adjourned the case for judgment. On the return date however, the trial judge did not deliver judgment, rather, he delivered a Ruling holding that the matter ought not have been commenced by Originating summons but by writ of summons and ordering the filing of fresh pleadings.
The Appellant being dissatisfied with this Ruling has brought this appeal. The Appellant has secured an Order granted on the 1st of April, 2011 to have the appeal heard on the Appellant’s brief alone. The Appellant’s brief is dated and filed on the 31st of July, 2009.
Appellant’s counsel, E. Andrew Otokhina Esq. identified four issues for determination as follows:
1. Whether the learned trial judge was right when he failed to deliver judgment after parties’ final addresses but rather a ruling on a matter not agitated by the parties and if by that the learned trial judge did not exceed the jurisdiction of the court and occasion a miscarriage of justice. This issue relates to ground one of the grounds of appeal
2. Whether the learned trial judge was right when he held that the suit ought not to have been commenced by originating summons by virtue of Order 2 Rule 2 (a) & (b) of the Rules of court. This issue relates to ground 2 of the grounds of appeal
3. Whether the learned trial judge did not err in law when he held that “The case can not be determined in the form by which it was commenced” on the ground that “the affidavit and counter affidavit of the parties reveal substantial disputes of fact” and ordered parties to file pleadings within 14days. This issue relates to grounds 3 & 4 of the grounds of appeal
4. Whether the entire ruling with the order of pleadings is not improper invalid, and against public interest and administration of justice having regard to S. 6 (6) (b), S. 36 (1) of the 1999 Constitution. This issue relates to ground 5 of the grounds of appeal.
I have gone through the issues raised by the learned Counsel to the Appellant and I am of the firm view that the issues arising from this appeal can be fused into just two issues which are as follows:
1. Whether the trial court can raise the issue of inappropriateness of Form of Commencement of action on a date reserved for Judgment and
2. Whether in this case the trial judge was right to have held that the action ought not to have been commenced by Originating Summons
The above issues are hereby adopted for the determination of this appeal
ISSUE ONE
Appellant’s counsel submitted that the learned trial judge erred in law when after the adoption of written addresses by counsel, he delivered a ruling on matters not agitated by the parties instead of delivering judgment. Counsel submitted that when an action is commenced by Originating Summons, the affidavit/counter affidavit constitutes the pleadings. He cited Fawehinmi v. The President (2006) NWLR Pt. 1054. Counsel submitted that it was wrong for the court to raise this issue suo motu when it had not been canvassed by the parties in open court. Counsel cited Adeniran v. Alao (2001) 18 NWLR Pt. 745 Pg. 361.
Counsel argued that the implication for an order for final addresses and adoption of same is that both parties have closed their cases, evidence has been concluded and parties are agreed on facts and evidence. Counsel averred that no dispute exists as between the parties and only issues of law were left for the lower court to resolve. Counsel argued that within the meaning of Section 294 (1) of the 1999 Constitution and on the authority of Fawehinmi v. The President (supra), the case before the trial court witnessed the conclusion of evidence and final addresses and it therefore became mandatory for the lower court to carry out a perusal of issues raised by the parties and to deliver judgment. Counsel cited Eagle Super Pack Nig. Ltd vs. A.C.B. Plc (2006) 19 NWLR Pt. 1013 Pg. 20 at 37; Enekwe v. I.M.B Nig. Ltd (2006) 19 NWLR Pt. 1013 Pg. 146 at 17-175.
Counsel further argued that what the trial court could do in an appropriate case where any issue arises for clarification is to call for oral evidence from deponents of the affidavits to clarify the point in accordance with the Evidence Act. Counsel argued that when issues are appreciated and properly addressed by the parties within the four corners of the parties affidavit evidence and the respective submission made by the parties, it is improper for the court to go outside the case and do its own bidding. Counsel cited Dairo v. UBA Plc (2007) 16 NWLR Pt. 1059 Pg. 99 at 139.
Counsel further argued that the question as to whether or not there is substantial dispute is one that should be taken timeously either by the other party who disputes some facts and desires to cross-examine on certain issues or by the trial judge suo motu who needs to be satisfied on some facts through oral evidence.
This issue is pretty much straightforward. The gravamen of the Appellant’s argument is that the learned trial judge should not have raised the issue of the appropriateness of the form in which the matter was commenced when this was not an issue canvassed by either party, especially since this, in the counsel’s opinion was not done timeously. This argument, in my view, stems from a gross misconception of the law as it relates to the form of commencement of action which greatly impacts on the competence of a trial court to hear a matter. The applicable law with regards to forms of commencement of action in this case is the Federal High Court (Civil Procedure) Rules 2000. Order 2 Rule 2 (2) states as follows:
(2) Proceedings may be begun by originating summons where –
(a) The sole or principal question at issue is, or likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some question of law; or
(b) There is unlikely to be any substantial dispute of fact
Order 3 of the Rules deals with the effect of non-compliance with the above provision, among others. Order 3 Rule 1 (1) & (2) are as follows:
(1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The court may on the ground that there has been such a failure as mentioned in sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
My interpretation of the above provisions of the Rules of the trial court is that where a Plaintiff commences an action by Originating Summons and the trial court finds that the matter does not fall within the provisions of Order 2 Rule 2 (2), the trial court may set aside the proceedings in whole or in part and take steps to allow amendments that would cure the defect in the case as it deems fit. This discretionary power given to the trial judge can be exercised at the beginning of the trial or at any stage in the proceedings suo motu without any of the parties bringing it up. This is apparent from the face of the provisions of the Rules. I do not think that any special or complicated rule of interpretation is needed to understand the procedure in this case.
Let us directly address the two complaints of the Appellants on this issue. The first is that the learned trial judge should not have raised suo motu the issue of the propriety of using the originating summons procedure. My opinion on this is that even though a trial judge must embrace the proper role of an unbiased umpire and must not raise issues suo motu as that function is reserved exclusively for the parties, there are exceptions to this general rule. Examples of such exception include but not limited to when the issue of jurisdiction arises, when a statute is being ignored by parties, and when a serious issue of fairness arises. See Comptoir Commercial Vs. Ogun State Water Corporation (2002) 9 NWLR Pt. 773 Pg. 629. Without making appropriate findings of fact, a trial judge cannot make a fair determination of a case if the parties try to ignore the fact that there are contentious facts in controversy.
As to the question of the lateness of the trial judge in this case, in raising the issue of the inappropriateness of the originating summons procedure, my opinion on that is that the trial judge raised the point at the earliest opportunity open to him. If after the affidavit and counter affidavit were served, addresses adopted and a court adjourned to consider the issues of facts and law, the judge finds that he could not take a just decision, rather than rush to judgment, a judge may decide to hear both parties more thoroughly. I am of the view that a trial judge can raise at any time before judgment the issue of the competence of the commencement of the action at the trial court suo motu. There is no doubt in my mind that at the point of reading the affidavit and address of counsel in order to arrive at a just decision in this matter, if a trial judge perceives that he cannot do justice without clearing the facts in controversy as to enable him apply the law, he must ask for pleadings an oral evidence. The problem is that ordinarily at that point, the learned trial judge should have asked both counsel to address him on the impropriety of commencing the suit by originating summons. After their address on this point, and a consideration of same, he could have gone on to order pleadings in any event. The only error in procedure committed by the learned trial judge in my view is that he did not seek the opinion of both counsel and allow them to be heard before he ordered pleadings. I do not agree that the learned trial judge had to call oral evidence to clarify facts in dispute in a trial by originating summons. That can only be appropriate in cases of contentious application. In Ezeigwe Vs. Nwawulu (2010) 4 NWLR Pt. 1183 Pg. 159, the Supreme Court held that under the originating summons procedure, the court cannot resolve affidavit evidence or chose to believe one deponent over another. What the law mandates is that where the court is of the view that the case cannot properly be tried by originating summons, parties should be ordered to file pleadings. In Olujimi Vs. ESHA (2009) 11 NWLR Pt. 1153 Pg. 464 at Pg. 487, this court held that the proper step a trial court should take after it finds a suit ought not to have been commenced by originating summons is to treat the originating summons as a writ of summons and order parties to file pleadings. See also Anatogu Vs. Anatogu (1997) 9 NWLR Pt. 519 Pg. 49 at 69; UBA Vs. Ekpo (2003) 12 NWLR Pt. 834 Pg. 332. In the circumstances, the first issue is resolved against the Appellant.
ISSUE TWO
Having held above that the trial court can at any stage of a proceedings raise the issue of forms of commencement of action suo motu, there is a need to examine whether the trial judge was right to have held that the affidavit and counter affidavit of parties before it reveal substantial dispute of facts and as such the matter should not have been commenced by Originating Summons.
Counsel submitted that the case before the trial court involves the unauthorized compulsory retirement of the Appellant by a co-employee and calls for a determination of whether under the Constitution, the Pensions Act and the Staff Regulations, an employee was not entitled to work up to age 60 and whether an employee can be forcefully retired by the 2nd Respondent who is her co-employee. Counsel submitted that since the question before the court relates to construction of statutes including the Constitution, Pension Act and Staff Regulations, the trial court was wrong to have held that the matter ought not be commenced by originating Summons.
Counsel submitted that the learned trial judge wrongly construed Order 2 Rule 2(a) & (b) of the Rules of Court which states that certain actions cannot be commenced by Originating Summons. Counsel argued that the law does not rule out completely some form of dispute and that only substantial dispute is material to shut out a party, not at the close of the case, but at the beginning of the case. He argued that where there is a mere dispute which is not substantial and can be resolved from Exhibits accompanying the affidavit in support of the Originating Summons, the court should make use of the materials before it. Counsel further argued that in an action commenced by Originating Summons under the Rules, it is not open to the Court to make capricious finding of existence of substantial disputes of fact. Counsel averred that such substantial disputes must be manifest on the face of the pleadings and the other party must have raised the issue by way of objection to the form of commencement of the action.
Counsel further submitted that a case is not determined on the form of action but from the facts and evidence before the court and as such unless in cases of a special form of action, in any action commenced otherwise than by writ of summons, under the Rules of Court, what falls to be determined is whether the facts are substantially in dispute. Counsel submitted that only where the facts are substantially in dispute that the court can hold that the case cannot be determined not necessarily in the form by which it was commenced, but because there is a real substantial dispute of fact apparent on the pleadings.
Counsel concluded that the ruling is improper, invalid and against state public interest and the administration of justice in accordance with Section 6 (6) (b), Section 13, Section 17 (2) (e) and Section 36 (1) as well as the 5th Schedule Part 1, paragraph 9 of the 1999 Constitution and that it would delay the course of justice. Counsel cited Nneji v. Chukwu (1988) 3 NWLR Pt. 81 Pg. 184; NDDC v. Precision Associates Ltd (2006) 16 NWLR Pt. 1006 Pg. 527 at 559; A.G. Bendel State v. AGF (1981) 10 SC 1 at 197; Federal Civil Service Commission v. Laoye (1989) 2 NWLR Pt. 106 Pg. 652; Adeleke v. Oyo State House of Assembly (2006) 16 NWLR Pt. 1006 Pg. 608 at 688; Okoye v. CPMB Ltd (2008) 15 NWLR Pt. 1110 Pg. 335; Adigun v. A.G Osun State (1995) 3 NWLR Pt. 385 Pg. 513 at 549.
There are four major ways by which an action may be commenced at the Federal High Court and they are:
1. By Writ of Summons
2. By Originating Summons
3. By Originating Motions
4. By Petition
See Order 2 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000. It is now trite that originating summons is a method of commencement of proceedings when such proceedings are not contentious and are meant to determine short questions of law. They are not suitable for contentious or hostile proceedings. See Ossai Vs. Isaac F. Wakwah (2006) 4 NWLR Pt. 969 Pg. 208. The procedure is of no use where facts are being disputed. See A.G. Adamawa Vs. A. G. Fed. (2005) 18 NWLR Pt. 958 Pg. 581.
In a suit commenced by originating summons, the position of the affidavit therein is to serve as pleadings to which rules similar to those concerning joinder of issues on pleadings apply. See Hon. Gozie Agbakoba Vs. INEC (2008) 18 NWLR Pt. 1119 Pg. 489.
It is crucial at this stage to examine the claims of the Appellant at the trial court, the Ruling of the trial court as well as the affidavit and counter affidavit of the parties in this case to see whether in fact there were disputes of fact and if there are, if the disputes are substantial.
The Appellant had posed the following questions to the trial court:
1. Whether employment of the plaintiffs (sic) in the 1st Defendant being an organ of the 3rd defendant is not service in the public service of the Federation of Nigeria within S.318 of the Constitution of the Federal Republic of Nigeria 1999 to which Sections 172 and 173 of the Constitution and Section 4 of the Pensions Act Cap 346 LFN 1990 apply to guarantee the Plaintiff’s employment with the 1st Defendant as a permanent one up to the retiring age of 60years.
2. Whether the Pension Reform Act of 2004 by itself and or in conjunction with the conditions of service of the 1st Defendant rendered the Plaintiff’s service in the public service of the Federation through her employment with the 1st Defendant determinable by the 2nd Defendant or any other person without the decision of the Management Board of the 2nd Defendant and without the approval of the president of the Federal Republic of Nigeria.
3. Whether in the absence of a statutory provision, the President of the Federal Republic of Nigeria can be (sic) executive proclamation dissolve the Management Board of the 1st Defendant established under the Nigeria Social Insurance Management, control and operation of the Fund within S. 251 (I), (p), (q) and (s) of the Constitution of the Federal Republic of Nigeria 1999 on the 2nd Defendant as if a corporation sole.
Whether in any event the Pension Reform Act of 2004 affects the Plaintiff’s employment with the 1st Defendant
4. Whether the unilateral or arbitrary decision of the 2nd Defendant that the Plaintiff’s “services are no longer required” and the consequent summary termination of the Plaintiff’s employment with the 1st Defendant and the service of the 3rd Defendant by the 2nd Defendant and the President and Commander-in-Chief of the Armed Forces is not a violation of the Plaintiff’s right to a fair hearing guaranteed by S. 36(1) of the Constitution of the Federal republic of Nigeria 1999.
The Appellant also claimed upon these questions against the Defendants jointly and severally the following:
1. A DECLARATION that the Plaintiff’s employment with the 1st Defendant at its Lagos Zonal office is service in the public service of the Federation and is by S. 172 and S. 173 of the Constitution of the Federal republic of Nigeria 1999 and S.4 of the Pension Act Cap 346 LFN 1990 as well as the conditions of service of the 1st Defendant guaranteed up to the retiring age of 60 years.
2. A DECALARATION that the Plaintiff’s employment with the 1st Defendant at its Lagos State Zonal office being service in the public service of the Federation of Nigeria also governed by the 1999 Constitution as well as Pension Act Cap 346 LFN 1990 and regulated by the conditions of service of the Board of the 1st Defendant, the 2nd Defendant cannot terminate the Plaintiff’s employment with the 1st Defendant without the decision of the Board of the 1st Defendant and approval of the President of the Federal Republic of Nigeria.
3. A DECLARATION that the dissolution (in September 2004) of the Management Board of the 1st Defendant by the President of the Federal Republic of Nigeria who is an officer of the 3rd defendant with the consequence that the 2nd defendant usurped the functions of the Board of the 1st defendant relating to administration, Management, control and/or operation of the 1st Defendant formulated a new policy in purported implementation of the Pension Reform Act of 2004 and terminated the Plaintiff’s employment with the 1st Defendant on 7th April, 2005 vide his letters Ref: No. N. S. I. T. F / AZ/89/CON/S.1/1 and N.S.I.T.F/AZ/89/CON/S.1/1 both of 14th March, 2005 but delivered respectively on 29th March and 7th April, 2005 is unconstitutional, illegal, null and void.
4. A DECLARATION that the 2nd Defendant cannot validly prescribe a new condition of service or policy for the 1st Defendant to govern or regulate the Plaintiff’s employment with the 1st Defendant in purported implementation of the Pension Reform Act of 2004 or to affect the plaintiff’s service with 3rd Defendant, which is service in the Public Service of the Federation of Nigeria and security of tenure of the Plaintiff’s employment with the 1st Defendant.
5. A DECLARATION that the decision of the 2nd Defendant to terminate the Plaintiff’s employment with the 1st Defendant as contained in and conveyed by the letters namely Ref: No. N.S.I.T.F/AZ/89/CON/S.1/1 and N.S.I.T.F/AZ/89/CON/S.1/1 of 14th March, 2005 both issued by the 1st Defendant but delivered to the Plaintiff respectively on 29th March and 7th April, 2005 is ultravires the powers of the 2nd Defendant and is unconstitutional, illegal, null and void.
6. A DECLARATION that the Plaintiff’s employment with the 1st Defendant being service in the Public Service of the Federation of Nigeria still subsists; as such the Plaintiff is entitled to work up to the retiring age of 60 years and be paid all her salary and allowances from month to month until her employment is duly determined by the Management Board of the 1st Defendant in accordance with the governing laws and conditions of service subject to the approval of the President of the Federal republic of Nigeria.
ALTERNATIVELY
7. A DECLARATION that the Plaintiff is entitled to be paid her salary and allowances for the period of twelve (12) years from May 2005 up to and including June, 2017 A.D. being the period within which the Plaintiff is entitled to work more with the Federal Government of Nigeria in the Public Service of the Federation through the plaintiff’s employment with the 1st Defendant.
8. AN ORDER of perpetual injunction restraining the Defendants by themselves, their agents, servants or privies however described from in any way acting on, enforcing, or giving effect to the 2nd Defendant’s letters Ref: No. N.S.I.T.F/AZ/89/CON/S.1/1 and N.S.I.T.F/AZ/89/CON/S.1/1 purportedly terminating the Plaintiff’s employment with the 1st Defendant and service with the 3rd Defendant.
9. AN ORDER reinstating the Plaintiff to her lawful employment with the 1st Defendant with all the entitlements and benefits accruing thereto including salary, allowances and other benefits including NSITF deductions which were made by the 1st and 2nd defendants from the plaintiff’s salary and wages without lawful authority from 1994 to May 2005.
The trial court in its ruling on page 118 of the record held as follows:
“I have gone through the originating summons carefully, particularly the affidavit and counter-affidavit filed by the parties and I am not satisfied that this is a type of suit that ought to have been commenced by originating summons…
I have carefully considered the averments of the parties respectively in their affidavit and counter affidavit. Of particular relevance are paragraphs 15, 16, 17, 18, 21, 22, 25 and 30 of the Plaintiff’s affidavit and paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Defendants’ counter-affidavit. I am of the view that the sole or principal question in issue is not one of construction of statutes as canvassed by the Plaintiff. The affidavit and counter-affidavit of the parties reveal substantial disputes of fact. In that regard, the case cannot be determined in the form by which it was commenced. There must be a resolution of the disputed facts by tested evidence.”
Paragraphs 15-18, 21-22, 25 & 30 of the Plaintiff’s affidavit are as follows:
(15) That more specifically, the 2nd defendant who is my co-employee has no power, right or authority whatsoever to determine my employment with the 1st defendant and or remove me by however.
(16) That sometime in September, 2004 the President of the Federal Republic of Nigeria without lawful authority purportedly dissolved the Board of the 1st Defendant and up to date there has been no new Board of the 1st defendant that can validly decide matters of my employment and remove me from office for any reason whatsoever.
(17) That contrary to the Constitution, the law and the conditions of service of the 1st Defendant, and in violation of my contract of employment with the 1st Defendant, the 2nd Defendant by letter Ref: No. N.S.I.T.F/AZ/89/CON/S.1/1 of 14th March, 2005 which was delivered to me at Ikeja Branch Office in the Lagos Zonal Office at 9, Ijora Causeway, Ijora Lagos on the 29th March, 2005 purportedly terminated my appointment with the 1st Defendant on the ground that my “services are no longer required” and held back my benefits and entitlements including N.S.I.T.F deductions made by 1st and 2nd defendants from my salary and wages from 1994 to 2005.
(18) That following protests by the staff Union of which I am a member, the 2nd Defendant by letter Ref: No. N.S.I.T.F/AZ/89/CON/S.1/1 which was back dated to 14th March, 2005 but delivered to me at the 1st Defendants Apapa 2005, purportedly modified the terms of his termination of my appointment and still held back some of my benefits including my N.S.I.T.F deductions from 1994 to May 2005.
(21) That I know as a fact that since the Board of the 1st Defendant was dissolved sometime in September 2004, there has been no other Board of the 1st Defendant to discuss and decide the fate of my employment or whether my “services are no longer required” in consequence of the Pension Reform Act 2004 or in accordance with the conditions of service.
(22) That I verily believe that my removal by the 2nd Defendant in the circumstance without the decision of the Board of the 1st Defendant and approval of the President, Commander-in-Chief of the Armed Forces is without lawful authority and is a violation of my right to a fair hearing guaranteed by S.36(1) of the Constitution of Nigeria of 1999.
(25) That I also contributed by way of monetary deductions from my salary to the N.S.I.T.F saving scheme from 1994 to March 2005 which sum the 2nd Defendant held back at my purported removal
(30) That I verily believe that had there been a Board of the 1st defendant I would have been interviewed in the determination of whether my services are or are no longer required in consequence of the Pension Reform Act 2004 thereby affording me opportunity of fair hearing and if so found formally declared redundant in accordance with the regulation and paid accordingly.
Paragraphs 3-16 of the Defendants’ counter-affidavit deposed to by one Mr. Martins Omonuku, the Assistant Manager of the 1st Defendant are as follows:
(3) That the plaintiff is one of the Officers affected by the rationalization exercised of the 1st Defendant.
(4) That in the absence of a constituted Board, Management of the 1st Defendant sought and obtained the approval of the Honourable Minister of Labour and productivity before embarking upon the exercise.
(5) The rationalization exercise was carried out strictly in accordance with existing staff conditions of service and other negotiated terms with active participation of the staff union.
(6) That the Plaintiff’s appointment with the 1st Defendant was not summary (sic) terminated but was determined in accordance with Nigeria Social Insurance Trust Fund staff condition of service.
(7) That Nigeria Social Insurance Trust Fund staff conditions of service allows either party to a contract of employment to terminate the contract by giving one month notice or one month salary in lieu of notice.
(8) That the plaintiff, like other affected staffs (sic) by the rationalization exercise, was given three months salary in lieu of notice.
(9) That contrary to the avengement (sic) of the plaintiff in paragraph 17th and 18 of her affidavit in support, the plaintiff received all benefits and entitlements due to her.
(10) That the plaintiff acknowledged receipt of FBN Cheque No.11394415 for the sum of N478, 051.75 (Four Hundred and Seventy Eight Thousand, and Fifty One Naira, Seventy Five Kobo) representing three months salary in lieu of notice as well as FBN Cheque No. 01143808 dated 23rd March, 2005 in respect of her gratuity, in her letter dated 18th April, 2005.
(11) That the dissolution and constitution of the Board of 1st Defendant is the sole prerogative of 3rd Defendant.
(12) That the Board in its perpetuity created by section 2 (1) of the NSITF Act did not leave any vacuum the (sic) resulted in the breach of the applicant right. Hence the NSITF Act had sufficient provisions that enabled the Managing Director to Manage the affairs of the 1st Defendant on a day to day basis even in the absence of a constituted Board.
(13) That the Managing Director is statutorily empowered to exercise control over the employees of the 1st Defendant with regard to their promotion and discipline.
(14) That in October, 2004 the 2nd Defendant legally promoted the plaintiff to the rank of principal manager in the absence of a constituted Board. However, she did not complain of any illegality in the performance of the above duty of the 2nd Defendant then.
(15) That the plaintiff cannot be reinstated since her appointment was statutorily terminated and all attending benefits duly collected by her.
(16) That the Managing Director is empowered to terminate the appointment of an employee of the 1st Defendant in accordance with existing staff conditions of service and does not need any further assurance to act accordingly.
The Appellant’s grievance here is that there aren’t any disputes of facts on the surface of the parties’ affidavit and counter affidavits and that if there are in fact any, they are trivial and could have been resolved by having recourse to the Exhibits attached to the affidavit in support.
Let us consider what constitutes substantial dispute of facts. In Olujimi Vs. ESHA (2009) 11 NWLR Pt. 1153 Pg. 464 at Pg. 482 it was held in this court per Nweze JCA that a substantial dispute means a real dispute or controversy of considerable importance as opposed to an imaginary dispute or controversy.
From a look at the relevant paragraphs which the learned trial judge referred to as constituting the disputed facts, it appears to me that only paragraph 25 of the Appellant’s affidavit contradicts paragraph 10 of the Respondent’s counter affidavit. This only relates to the issue of her entitlement. That is whether same was paid or not.
It is my view that this does not constitute substantial dispute to warrant the learned trial judge directing parties to file pleadings. The exhibits in support of the summons and the counter affidavit are quite clear as regards the true situation from which the trial court can make findings of fact.
I am of the view that no dispute or substantial dispute can be said to be manifest from the paragraphs of the parties’ respective affidavit and counter affidavit. The Respondents’ depositions in the counter affidavit did not pretend to deny or contradict the Appellant’s depositions to occasion a dispute between the parties. All the trial court should have done was to look at the relevant statutes in relation to the facts and Exhibits before the court showing who did what with respect to the termination of the employment in order to reach a conclusion.
I am of the view that the trial court was in error in this case to hold that there were substantial disputes.
I have ruminated over this matter. Of course it is not every error that will lead to the order or judgment being set aside. See Adebayo Vs. A. G. Ogun (2008) 7 NWLR Pt. 1085 Pg. 201. The point is that has there been miscarriage of justice in this case to warrant a setting aside of the discretionary order of the trial judge.
There is no doubt that there was no basis at all for the order to file pleadings and discretionary powers are to be wielded judicially and judiciously. It is not left to the whims and caprice of judicial officers. Moreso when such capriciousness will lead to an unnecessary elongation of the dispensation of justice. Any order that unnecessary inhibits the speedy dispensation of justice must be said to occasion miscarriage of justice. It defeats the purpose for which some rules of court were enacted. I am of the view that even though the learned trial judge had a right and indeed the duty to raise the issue of the propriety of adopting the originating summons process, at any time before judgment, that duty must be exercised not on a whim but for sound legal reason.
In the circumstances, the 2nd issue is resolved in favour of the Appellant. The appeal is allowed in part. In the notice of appeal filed on 15/4/09, the Appellant had asked this court to assess and evaluate the affidavit evidence on record and give judgment accordingly. There is no doubt that this court has powers under Section 15 of the Court of Appeal Act to determine the issues in controversy before the trial court just as the court of first instance may do. See Inakoju v. Adeleke (2007) 4 NWLR Pt. 1025 Pg. 423. In the circumstances, the affidavit evidence on record will be evaluated to come to a just determination of this case.
At the trial court, the Appellant, the Plaintiff at the trial court identified, in its written address on page 75-87 of the Record, two issues for determination as follows:
1. Whether the Court has power to answer the questions and make the declarations sought.
2. Whether in the circumstances of the case the court will not rely on the affidavit evidence of the Plaintiff and hold that the Plaintiff has made out a case to entitled her to judgment.
The Respondents, Defendants at the trial court on the other hand identified two issues as well as follows:
1. Whether the termination of the Plaintiff’s employment was unlawful.
2. Whether the Plaintiff is entitled to be re-instated or to the payment of 12 years salary and allowances
I fail to see how the issues identified by learned Appellant’s counsel in this regards is relevant to the Appellant’s claim at the trial court. The issues are not only completely irrelevant, they are asinine. I will adopt the issues identified by learned Respondent’s counsel, as these, in my view capture the essence of the Appellant’s claim.
ISSUE ONE
Counsel to the Appellant argued that the Plaintiff’s employment with the 1st Respondent is service in the public service of the Federation within the meaning of Section 318 of the 1999 Constitution and as such Sections 172 and 173 of the Constitution as well as Section 4 of the Pensions Act Cap 346 LFN 1990 apply to guarantee the plaintiff’s employment as a permanent one up to the retiring age of 60 years. Counsel argued that this is so because by Decree 73 creating the NSITF, the 1st Defendant is a government body or Corporation. Counsel then submitted the Appellant’s retirement when she was just 48yrs old was unlawful especially since there was no disciplinary action against her.
Counsel further argued that there is nothing in the Pension Reform Act 2004 or the Conditions of Service which gives the 2nd Defendant the power to exercise the power of employment and retrenchment given to the Board of the 1st Defendant and as such the Appellant’s retirement by the 2nd Defendant was done ultra vires. Counsel submitted that under Exhibit JNE4 as well as Decree 73 and Section 251 of the Constitution, only the Board of the 1st Defendant can determine the Appellant’s employment and that for the Board to do this, it must necessarily hold a meeting and deliberate and hear the Appellant beforehand. Counsel argued that since the Board is no longer in place because it was illegally dissolved by the President, any action by any other person with or without a hearing is illegal.
Counsel also argued that the arbitrary and unilateral decision of the 2nd Defendant violated her right to fair hearing guaranteed under Section 36 of the 1999 Constitution.
Counsel to the Respondent, in his written address on page 88-95 submitted that the Appellant’s employment with the 1st Defendant was not summarily terminated but was done in accordance with the terms of the contract of employment and as such was lawfully done.
Counsel pointed out that Chapter 5 (2) of Nigeria Social Insurance Trust Fund Staff Condition of Service provides that the appointment of confirmed personable staff may be determined by giving the staff one month salary in lieu of notice. Counsel submitted that in this case, the Appellant was given three (3) months salary in lieu of Notice. Counsel cited Ibama vs. SPDC Nig. Ltd (2005) 12 MJSC
Counsel also submitted that Section 2(1) of the NSITF Act No. 73 of 1993 created a Management Board for the Fund in perpetuity with powers to manage the Fund. He submitted that Section 7(2) of the Act however vested in the 2nd Defendant, the powers of day-to-day administration of the affairs of the Board subject only to the general control of the Board. Section 9 (5) also allows the Board to delegate to the 2nd Defendant the control of the employees of the Fund. Counsel then submitted that the implication of the above provisions is that in the absence of the Management Board, the 2nd Defendant must necessarily perform some functions of the Board.
Counsel further submitted that in the absence of a Board, the 2nd Defendant sought and obtained the approval of the Honourable Minister of Labour and Productivity before embarking on the rationalization exercise that led to the termination of the Appellant’s employment and that the exercise was carried out in strict compliance with the existing staff conditions of service and other negotiated terms with the Staff Union.
Before I delve into the determination of this issue, I dare say that learned Appellant’s counsel was being economical with the truth when he pointed out that the Defendants did not file a counter-affidavit and as such the facts contained in the supporting affidavit is largely uncontroverted. The Defendants’ counter-affidavit is contained on page 68-71 of the Records. Also, the court proceedings of the 27th Day of November, 2006 on page 74 of the Record clearly reveal that the Appellant’s counsel acknowledged receipt of the counter-affidavit.
Having said this, the relevant facts that are clear from the Plaintiff/Appellant’s affidavit and Defendants/Respondents’ counter affidavit are:
1. The Appellant was an employee of the 1st Defendant
2. The 1st Defendant is a Government Body or Corporation
3. The Appellant’s employment was terminated on the authority of the 2nd Defendant
4. There was no Board of the 1st Defendant duly constituted at the time of the Appellant’s retirement
5. The Appellant’s retirement was done during a rationalization exercise and she was not the only member of staff affected
Now, the major questions the court is being asked to answer are:
1. Whether the 2nd Defendant in the absence of a Board of the 1st Defendant duly constituted had the authority to retire any staff of the 1st Defendant whose employment is covered by the Pension Reform Act
2. If the 2nd Defendant has this authority, was it right for him to determine the Appellant’s employment without hearing her out?
As pointed out above, it is not in dispute that since the Appellant was an employee of the 1st Defendant, a Government Body, she was in the public service of the Federation. However, in answering these questions, there is a need to determine what the applicable laws are. The Appellant made mention of the Pension Reform Act and Conditions of Service while the Respondents referred to the NSITF Act and the NSITF Staff Conditions of Service. The Pension Reform Act 2004 applies to Public Officers. As such, I will treat the NSITF Act, the enabling Act of the 1st Defendant, the NSITF Conditions of Service and the Pension Reform Act as the applicable laws.
Chapter 5 of the NSITF Staff Conditions of Service contained on Page 24 of the Record deals with the Termination of Appointment of a member of staff and is as follows:
TERMINATION OF APPOINTMENT
05.01 The Board may at any time terminate the appointment of staff in the following manner:
(a) Probationary staff: One month’s notice or one month’s salary in lieu of notice at any time before confirmation
(b) Contract Staff: Three months’ notice or salary in lieu of notice or by such longer period of notice as may be set forth in the contract
(c) Temporary Staff: Two weeks’ notice or salary in lieu of notice or such longer notice as may be specified in the contract or letter of appointment.
CONFIRMED PENSIONABLE STAFF
05.02 Notice of Termination
The Board may determine, other than by dismissal, the appointment of confirmed pensionable staff by giving the staff one month’s salary in lieu of notice. In this case, the period of notice shall include earned leave.
Voluntary Retirement
05.03 A member of staff on attaining the age of 45 (forty-five) years may retire voluntarily on giving 3 months notice of such retirement. The Board may however at its discretion waive the period of notice in its interest.
05.04 The Board may call upon an established staff to retire at any time after he attains the age of 60 years or after 35 years in service. In such case, the staff would be entitled to any benefits due to him under the Pension Regulations
REDUNDANCY
05.05 The Board may declare redundant such employees as it deems fit. Redundant employee shall be entitled to one redundance payment of one year salary. Any employee who had worked for a sufficient length of time as to qualify for retirement benefits may be retired with full benefits if his services are no longer required by the Board.
It is apparent from the above that it is the Management Board of the 1st Defendant that has the power to terminate the appointment of any staff of the 1st Defendant. However, I have gone through the NSITF Act and it is equally apparent that there is a lacuna in the law as regards who should be in charge of the Fund in the absence of a board. The law obviously did not envisage the situation where there would not be a Management Board. However, the absence of a Board cannot mean that its functions would not be carried out. How else would the Fund be run if this is true? It stands to reason that in the absence of the Management Board, the 2nd Defendant, the Managing Director who by virtue of Section 7 (2) is vested with the powers for the day to day running of the Board should perform the functions of the Board pending its reconstitution especially since Section 9 (5) provides that the Board may delegate its function to control the employees of the Fund to him. More so, the Respondents claimed in their counter-affidavit and written address that the 2nd Respondent had sought and obtained the approval of the Minister of Labour and Productivity to reduce staff and this fact was not challenged by the Appellant.
The Appellant’s counsel also argued that the Appellant’s constitutional right of fair hearing was violated because she was not heard before the summary termination of her employment. This argument, in my opinion stems from a misconception of fair hearing in administrative law. It is not in dispute that the termination of the Appellant’s employment was done as part of a rationalization exercise carried out generally and not as a result of any disciplinary issue arising against the Appellant personally. It is only when an employee is dismissed as a result of allegations of misconduct that it becomes obligatory for her to be given the opportunity to defend herself. I do not see how the issue of fair hearing comes into play where the Appellant’s employment is terminated together with some other employees because the Fund was downsizing.
It should be noted that Chapter 5 (1) of the NSITF Staff Conditions of Service already set out above gives the Board the power to terminate at any time the employment of any staff. As I have already held that the 2nd Defendant can perform the functions of the Board in its absence, it must necessarily follow that he can terminate the appointment of the Appellant by giving her the requisite notice. The affidavits of both parties reveal that this was done. It is therefore my firm view that the termination of the Appellant’s appointment cannot in the light of the foregoing be deemed illegal.
The Appellant’s counsel referred to the dissolution of the Board of the 1st Defendant by the President in 2004 and urged the trial court to hold that it was illegal, I do not believe the Appellant has the requisite locus standi to challenge the dissolution of the board. Having said this, I agree with learned Respondent’s counsel that the dissolution of the Board of the 1st Defendant is the sole prerogative of the Government and I do not see how this affects the claims of the Appellant.
This issue is resolved against the Appellant.
ISSUE TWO
Having held that the termination of the Appellant’s employment is valid in the circumstances, the issue of whether she is entitled to be re-instated or entitled to 12 years salary in lieu becomes superfluous.
From the affidavit of both parties, it is not in dispute that the Appellant was given 3-months salary in lieu of notice. The Appellant apart from claiming in her affidavit that she was entitled to certain entitlements because she contributed by way of monetary deductions from her salary to the NSITF saving scheme from 1994 to 2005, did not make an issue of this at the trial court. So, I have no choice but to hold that the Appellant’s appointment, having been validly terminated, she was also given all her entitlements. The Appellant’s claims at the trial court are hereby dismissed.
In the circumstances, the appeal succeeds in part to the extent that the learned trial judge had no reason to call for pleadings. However, this court having exercised its powers under Section 15 of the Court of Appeal Act, has found the Plaintiff’s/Appellant’s claims not proved and are hereby dismissed.
SIDI DAUDA BAGE, J.C.A.: I have been given the opportunity before now of reading through the draft of the judgment just delivered by my learned brother OGUNWUMIJU JCA. I agree with that the appeal be dismissed.
MOHAMMED A. DANJUMA, J.C.A.: The Appellant complains against the exercise of the discretion of the trial court. In the face of the facts and circumstances clearly captured in the lead judgment, I agree with the resolution in all those peripheral issues. On the substance of the appeal, which relates to the question whether the termination of the Appellant’s appointment was illegal, I have perused the record of appeal and the submissions of counsel in their Briefs, and agree with the leading judgment that there was no basis for the challenge as the dissolution of the Board of the First Appellant which was the exclusive prerogative of the president which led to the exercise of the powers of the Board by the 2nd Respondent in accordance with the law which ultimately culminated into the termination of the Employment of the Appellant by an exercise of rationalization. Such an exercise be said to have infringed against the right of fair hearing so long as Notice thereof has been given to the Appellant.
It is for this and the detailed and illuminating reasons in the leading judgment by my Lord, Ogunwumiju, JCA, which I subscribe to and agree on the issues agitated that I also dismissed this Appeal.
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Appearances
E. A. OTOKHINAFor Appellant
AND
NO APPEARANCEFor Respondent
