MRS. MERCY THANKGOD ADEJOH -V- THE NATIONAL TEACHERS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON TUESDAY 9TH DAY OF APRIL, 2019

BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA ADENIYI

SUIT NO: NICN/KD/32/2018

BETWEEN:

MRS. MERCY THANKGOD ADEJOH…CLAIMANT/APPLICANT

AND

THE NATIONAL TEACHERS’

INSTITUTE COUNCIL…………………….DEFENDANT/RESPONDENT

J U D G E M E N T

The Applicant commenced this present action by an Originating Summons filed on 17/08/2018 brought pursuant to Order 3 Rule 1 (1)(b) and Order 48 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the Court. She is praying the Court for the following principal reliefs, namely:

An Order that the National Teachers’ Institute Council show cause why her decision not to pay the Applicant all her unpaid salaries for the period she was away from office owing to her suspension and subsequent wrongful dismissal from the service should not be set aside.
An Order that the decision of the National Teachers’ Institute Council vide her letter with reference number NTI/S/PER.633/V1/112 dated 12^th June, 2018 be removed for purpose of quashing same.
Pursuant to Relief (2) above, an Order directing the Respondent, pursuant to the Order of reinstatement made by the National Industrial Court sitting in Abuja, to pay to the Applicant the sum of N4,815,792.24 being all her unpaid salaries for the period of suspension and subsequent wrongful dismissal from the service.
An Order that the National Teachers’ Institute Council, shall within 14 days after the receipt of the Originating Summons dispatch to the Registrar, such record and/or decisions sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and notify the Applicant that this has been done.
The Originating Summons is supported by an Affidavit of 8 paragraphs, deposed to by the Applicant with Exhibits labelled as Exhibits A, B and C respectively. Also filed alongside with the Originating Summons is a written address.

To oppose the Originating Summons, the Respondent filed a Counter – Affidavit of 9 paragraphs on 15/01/2019 and also filed alongside is a written address.

From the totality of the application; the facts deposed in support and the legal arguments canvassed by both learned counsel to support and oppose the same as the case may be, it is common ground between parties that on the 25/05/2017, the Applicant obtained the judgement of this Honourable Court in Suit No: NICN/LKJ/07/2014 wherein the dismissal of the Applicant was declared wrongful and the Court ordered her reinstatement. The contention of the Applicant is that the Respondent refused to approve her request for payment of all her unpaid salaries covering the period she was suspended and dismissed from her service.
My understanding of the Applicant’s case, as garnered from facts deposed in support of the Originating Summons in brief, is that the Applicant obtained judgement in Suit No: NICN/LKJ/07/2014 delivered by Hon. Justice M.N. Esowe by which the Court declared her dismissal by the Respondent as wrongful and the Court ordered reinstatement. After she was reinstated, she wrote a letter to the Respondent requesting for the payment of all her unpaid salaries for forty – two (42) months in the total sum of N4,815,792.24 (Four Million, Eight Hundred and Fifteen Thousand, Seven Hundred and Ninety Two Naira and Twenty Four Kobo) covering for the period of her suspension and dismissal from service, from April 2014 to September 2017, at a monthly salary of N114,661.72 (One Hundred and Fourteen Thousand, Six Hundred and Sixty One Naira and Seventy Two Kobo). Attached to the Affidavit in support of the application are the certified true copy of the said judgement and a copy of the letter of request for payment of her outstanding salaries as Exhibit A and Exhibit B respectively.
The Applicant further contends that by its reply dated 12/06/2018, the Respondent failed and/or refused to approve her request. A copy of the Respondent’s letter is attached as Exhibit C to the Affidavit in support of the application.

Following this action, the Applicant commenced this suit praying the Court to quash the decision of the Respondent contained in its letter dated 12/06/2018, Exhibit C.

The sole issue formulated for determination by Emeje Aruwa Esq. the learned counsel for the Claimant is:

”Whether the Applicant is entitled to the reliefs sought”.

On the part of the Respondent, its learned counsel, Oladipo Tolani Esq., also raised a sole issue for determination that is:

“Whether the Claimant having not sought any relief for the payment of her outstanding salaries and entitlement in Suit No: NICN/LKJ/07/2014 can by application for judicial review seek for an order for the payment of the sum of N4,815,792.24 or any sum at all as unpaid salaries for the period of her suspension and dismissal from office”.

In proceeding to determine this suit, l should say that l have had a good privilege of the written and oral submissions of the respective learned counsel for the contending sides which was argued on 15/01/2019. I shall endeavor to make reference to their submissions as l deem necessary in the course of this ruling.

In consideration of the arguments canvassed by learned counsel on both sides, I am of the view that the focal issue for determination in this suit, to which the issues submitted by the both learned counsel for the contending parties would appear to have been subsumed, is:

“Whether the Applicant has made out a case for an Order of Certiorari, to quash the decision of the Respondent as contained in the letter dated 12^th June, 2018”?

In arguing the application, learned counsel for the Applicant, submitted that when dismissal of an employee from service is held to be wrongful and the Court orders reinstatement, such an employee is entitled to all that was ordinarily due as salaries and entitlements for the period of the unlawful dismissal. Learned Applicant’s counsel further submitted that by the order of reinstatement made by the Court, the Applicant is entitled to all her salaries and allowances as natural consequence of the reinstatement as though she was never dismissed and that the order need not be specifically made by the Court.

Learned counsel for the Applicant argued that the refusal of the Respondent to pay the Applicant’s salaries and allowances as stated in Exhibit C was wrongful. In support of his propositions, learned counsel cited the cases of FMC, Ido Ekiti Vs Kolawole [2012] All FWLR (Pt 653) 1999; N.S.E. Vs Ozah [2014] All FWLR (Pt 761) 1571.

The learned counsel for the Respondent in opposing the application relied on all the depositions in the Counter Affidavit. He further argued that the Applicant’s claim as reflected in Exhibit A did not include claim for salaries and allowances due to her from the period of her disengagement from the Respondent to the period of reinstatement. Citing inter – alia the cases of Dzungwe Vs Gbishe [1985] 2 NWLR (Pt 8) 528; Makanjuola & Anor Vs Balogun [1989] 3 NWLR (Pt 108) 192; Oduwole Vs West [2010] 10 NWLR (Pt 1203) 598, learned Respondent’s counsel submitted that a Court has no power to grant a relief in a subsequent matter which the party had the opportunity to seek in an earlier suit.

Learned counsel further submitted that the Applicant’s procedure in commencing this suit is strange and that the Originating Summons is devoid of any merit and urged the Court to dismiss the application for lacking in merit.

The instant application is brought pursuant to Order 48 Rule 1 of the NICN (Civil Procedure) Rules 2017 which provides as follows:

“A party desiring to review a decision or proceedings of an Arbitral Tribunal, or of the Registrar of Trade Unions, or of any Commission or Board of Inquiry or Administrative Body or Panel or any Authority or Committee or Board or any other institution vested with the power to deal with any matter arising from a subject matter within the jurisdiction of the Court in this order referred to as the “Arbitral Body” shall commence the review process by Originating process, which originating process must be served by a motion on notice on that body.” (Underlined portions for emphasis)

The Applicant is seeking for an Order of Certiorari quashing or removing into this Honourable Court for the purposes of being quashed the decision of the Respondent vide the letter by which the Respondent refused to approve the purported request of the Applicant for payment of her outstanding salaries and entitlements.

It is imperative at this stage to reproduce the relevant portion of Exhibit C (the Respondent’s reply) which is in view. It is states as follows:

Re: Request for payment of outstanding salaries

“Your letter dated 8^th day of May, 2018 on the above refers.

The Institute noted that you only requested for general damages of N25,000,000 which the Industrial Court did not grant. The Institute is therefore, constrained not to approve your request as it has no power to vary the order of the Court.”

Now, certiorari is one of the prerogative orders whose function is to ensure that inferior courts or anybody entrusted with the performance of judicial or quasi-judicial functions keep within the limits of the jurisdiction conferred upon them by the statute which created them. An order of certiorari will lie to remove into the High Court for the purpose of being quashed, any judgment, orders, conviction or other proceedings of such inferior courts or other body made without jurisdiction or in excess of jurisdiction. Therefore, the Court will only interfere by way of order of certiorari where the decision of the inferior court or body is unreasonable; there is lack of or exceeded its jurisdiction; acted contrary to natural justice; or there is error on the face of the record of such inferior Court or body. See: Awe Vs G.M. Osun State Water Corporation [2002] FWLR (Pt 91) 1651 at 1661; Ekpo Vs Calabar Local Government [1993] 3 NWLR (Pt 281) 324 at 347; University of Uyo Vs Essel [2006] All FWLR (Pt 315) 80 at 101.
The question now is: did the Respondent act in an administrative capacity or a judicial capacity by its decision as reflected in Exhibit C? Or to put it differently, is Exhibit C an administrative decision or a quasi – judicial or judicial decision, for which the Court may review in granting the order of certiorari? My answer to these posers is in the negative.

The correct position of the law on prerogative writs is stated by the Court of Appeal in the case of Nigeria Association of General Practice Pharmacist Employers Vs Pharmacists Council of Nigeria [2013] LPELR 21834 were it held that:

“The law is that the prerogative writs of certiorari and prohibition apply only against the acts and decisions of bodies or persons exercising administrative or judicial, and quasi judicial authority affecting the rights of people, which makes it mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that capacity. They do not lie against executive or legislative acts, or mere administrative acts, because such acts are not performed or expected to be performed in accordance with the rules of fair hearing – Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR (Pt 959) 211, Manuwa Vs National Judicial Council (2013) 2 NWLR (Pt 1337) 1, State Vs Lawal (2013) 7 NWLR (Pt 1354) 565, Judicial Service Commission of Cross River State Vs Young (2013) 11 NWLR (Pt 1364) 1.”

It held further that:

“A judicial or quasi judicial action is a term applied to the action of discretion of public administrative officers or bodies who are required to investigate facts, ascertain the evidence of facts, hold hearings, weigh evidence, draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature.”

In my view, Exhibit C is a mere administrative act of the Respondent because such acts of responding to letters are not performed or expected to be performed in accordance with the rules of fair hearing. This Court cannot grant the order against actions which are not judicial or quasi- judicial. In other words, the remedies being sought by the Applicant in the instant case would be granted only where a legal authority having the duty to act judicially, act in excess of their legal authority. I so hold.
It is also settled law that the rules of procedure governing judicial review must be strictly obeyed and adhered to.

By the provision of Order 48 Rule 1 of the Rules of this Court, there must be a decision or proceedings of an Arbitral Tribunal for review. The word “decision” is defined in Order 1 Rule 10 of NICN Rules as:

“Any determination of the Court and includes, a judgement, ruling, decree, order, conviction, sentence or recommendation of the Court.

Reviewing the Applicant’s case, there is no decision made by the Respondent to warrant the grant of the order. I hold the firm view that the definition of the word “decision” does not include a letter as in Exhibit C in the instant case.

This indeed is the point the Respondent’s learned counsel sought to make in his submission which I endorse as sound argument, with respect to the strange procedure adopted by the Claimant in commencing this suit.

Again, the mode of commencement of action for judicial review is specifically stated in Order 48 Rule 1; it is by “motion on notice” and not originating summons as adopted by the Claimant. Furthermore, in choosing to come by way of an originating summons, no legal questions were posed for the determination by the Court; the Applicant merely sought the reliefs without more. It is trite that the proper procedure to adopt is an originating summons where an action or suit is sought to enforce a right conferred by a statute. See: K. S. O. & Allied products Ltd Vs Kofa Trading Co. Ltd (1996) 1 NWLR (Pt 436) 244 at 254; B. J. Export and Chemical Ltd Vs Kaduna Refining and Petro – Chemical Co Ltd [2002] LPELR 12175 .

The procedure adopted by the Applicant in initiating this suit by Originating Summons is in my view improper and incompetent; the right being sought to be enforced was not conferred by a statute.

In the circumstances of the present case, it is not difficult for the Court to find and hold that the present application is incompetent and lacking in merit.

In drawing the curtains on this ruling, I should note that counsel owes his client duty to defend the case to the best of his professional ability and he equally owes him the duty not to expose him to unnecessary litigation that could result in waste of time and money. I only wish to observe that when Counsel is instructed to conduct a case, he must act professionally and must conduct the case in the best interest of his client. It seems the learned Applicant counsel has not discharged his professional duty to his client in this regard.
In the final analysis, it is the judgement of this Court that the present case is not such that this Court can exercise any discretion in favour of the Applicant. It shall be and it is hereby accordingly dismissed.

I make no order as to costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

09/04/2019

Legal representation:

E.Aruwa Esq. for Applicant