IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUIA IUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. N. AGBAKOBA
DATED 6TH APRIL, 2017 SUIT NO: NICN/ABJ/272/2016
BETWEEN
SALIHI ALI BALA CLAIMANT
AND
- MINISTRY OF THE INTERIORDEFENDANTS
- ML HONOURABLE MINISTER OF INTERIOR
REPRESENTATION
- G. HARUNA Esq, for the Claimant
- O. AKINDE (MISS), for the Defendants
R U L I N G
The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 26th July, 2016, against the defendants for the following reliefs:
- a)A DECLARATION that the compulsory retirement of the claimant from the Nigerian Prisons Service by the Defendants dated 11th day of July, 2016, is illegal, ultra-vires, mala-fide and null and void and of no effect whatsoever.
- b) A DECLARATION that the refusal to allow the claimant to access or resume duties at his official post is illegal, unconstitutional, null and void and contrary to the public service rules.
- c) AN ORDER of perpetual injunction to restrain the defendants, agents, servants, privies, or any persons acting for them or their behalf from compelling the claimant to proceed on compulsory retirement.
- d) AN ORDER compelling the Defendants to pay claimant the sum of N20, 000000.00 (Twenty Million Naira) only as general damages.
- f) Such Further or other relief as the Honourable Court may deem fit to make in the circumstance of this suit.
- e) The cost of this action.
Claimant’s Case
The Claimant claimed he was born in Potiskum (Fika) on the 29th December, 1958 and got his statutory declaration of age from Potiskum of the then Borno State, now Yobe State in Fika District with No. IR 847795. The Claimant having worked as Evaluation Officer in the Borno State Agricultural Development Programme dated 25th October, 1984 transferred his Service to the Customs Immigration and Prisons Services which came to effect on 18th June, 1991 and his appointment to the latter was gazetted in the Federal Republic of Nigeria Official Gazette No. 43 of 7th June, 2001 Volume 88 at pages 305-317 with his name clearly captured as number 7 at page 317.
The Claimant alleged that the Present Controller General of Prisons, GCP Jafaru Ahmed accosted him with a letter of retirement from the service on the 11th July, 2016 which he did not accept. The Controller General of Prisons, Jafaru Ahmed, ordered the P50 to inform staff not to take any further mails from him while the Arms Commander was ordered to prevent his official vehicle from entering the office due to the refusal of the Claimant to accept the letter of retirement.
The Claimant further averred that he ranked equally with the present Controller General of Prisons with three other of which he was the only one that was said to embark on compulsory retirement after the current Controller General was appointed with no just cause knowing fully well that he has two to three years to serve before his retirement or period of age. The Claimant alleged that the Defendants refused to follow due processes in respect of his purported retirement and therefore filed the suit before this Honourable Court.
The Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 18th August, 2016, praying the Court to dismiss the suit of the Claimant.
GROUNDS FOR OBJECTION
- The 1st Defendant is not a legal entity known to law
- There is no disclosure of reasonable cause of action against the 2nd Defendant.
WRITTEN ADDRESS IN SUPPORT OF THE DEFENDANTS’ NOTICE OF PRELIMINARY OBJEC11ON.
ISSUES
- Whether the application to strike out the name of the 1st Defendant from this suit has merit?
- Whether there is a reasonable cause of action disclosed against the Defendants?
ON ISSUE 1
Whether the application to strike out the name of the 1st Defendant from this suit has merit?
Learned Counsel for the defendant B. Odugbesan submitted that a litigant cannot proceed against an entity or person that is unknown to law. THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) VS SAMUEL DAVID EKE SPIFF (2009) 7 NWLR (PART 1139) P.97 SC P323, per Mohammed, JSC (as he then was) at p52 paragraphs B-E. Submitting that the defect of suing a non-existing personality cannot be corrected by an amendment with a juristic person and the only viable remedy in law is to strike out the name of the non-existing party. May humbly refer my Lord to the case of MR. SUNDAY EKANEM USUAH VS. G.O.C NIGERIA LTD. & ORS. (2012) LPELR 7913 (CA) PER GARBA JSC (P.16, PARAS A-D); S.D AGBOOLA & ORS VS. SAIBU & ANOR (1991) 2 NWLR PT 175, 566 AT 576; FEDERAL GOVERNMENT OF NIGERIA v. SHOBU NIG. LTD. (2014) 4 NWLR (PT. 1396), 45 @ 59 – 60.
ON ISSUE 2
Whether there is a reasonable cause of action disclosed against the Defendants?
It is defendants counsel’s submission that it is not enough that a wrong has been done against the Claimants, rather, that the wrong so complained of must as well be maintainable in law. In other words, that the law must provide a remedy for it and the factual situation on which the Claimant relies to support his claim must be recognized by the law as giving rise to the substantive right capable of being claimed against the Defendant. LETANG V. COOPER (1965) 1 06222, 242; EGBE V. ADEFARASIN 119851 1 NWLR (PT. 3) 549; No.2 119871 1 NWLR (PT. 47); ALESE V. ALADETUJI (1995) 7 SCNJ 40, 50; SAVAGE V. UWAECHIA (1972) 1 ALL NIR (PT. I) 251, 257; EGBE V. ARAKA 119881 2 NWLR 598; JACKSON V. SPITTAI. (1870) LR 5 CP 542, 552; KUSADA V. SOKOTO N.A. (1968) 1 ALL NLR 377, 381; BELLO V. AG, OYO STATE 1198615 NWLR 828, 876.
The Defendant filed a 13 paragraph COUNTER AFFIDAVIT deposed to by Busola Akinde. With a WRITTEN ADDRESS IN OPPOSITION TO THE MOTION ON NOTICE dated 1st August, 2016.
Learned Counsel submitted that the Applicant is not entitled to the reliefs claimed on his motion paper. AKAPO vs. HAKEEM-HABEEB & ORS (1992) 6 NWLR, Pt. 247, 266. Contending that the Applicant has no legal rights, threatened by the Respondents, eliciting the protection of the Court for the following reasons:
(i) The Applicant is not a staff of the Respondents;
(ii) The Applicant was employed by the Nigerian Prisons Service, a creation of statute by the Prisons Act, Cap P29, Laws of the Federation of Nigeria, 2004.
(iii) The Respondents do not exercise administrative control over the employment of the Applicant.
Furthermore, that there is no serious issue to be tried between the Parties as the 1st Respondent, Ministry of Interior is not a legal personality capable of being sued or to sue. S. D. AGBOOLA & ORS Vs. SAIBU & Anor. (1991) 2 NWLR PT 175, 566 at 576; F.G.N. Vs. SHOBU NIG LTD (2014) 4 NWLR PT 1396, 45 at 59-60. Defendant’s Counsel submitted that it is trite that in an application for a grant of injunction pending the determination of the substantive suit, the Judge has a duty to ensure that he does not in the determination of the application determine the same issues that would arise for determination in the substantive action. HAKAPO Vs. HAKEEM-HABEEB, supra. Arguing further that the Courts have placed the burden of pleading and attaching letters of termination/retirement and conditions of service on the employee to enable the Court dispassionately deal with the case. DUDUSOLA Vs. NGCL (2013) 7 SCM 24 at 33; EKUNOLA Vs. CBN (2013) 7 SCM 40 at 70-71.
On the 6th March, 2017 the defendant adopted her written address and adumbrated her position accordingly and this matter was adjourned for ruling.
Court’s Decision
Having carefully summarized the position of both sides, the arguments of defendant counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to it where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants application.
The defendants contend that the 1st Defendant is not a legal entity known to law and hence an action against the 2st defendant is not maintainable and that There is no disclosure of reasonable cause of action against the 2nd Defendant
With regard to the question of the 1st defendants being a non legal entity I am aware of the legal position stated in the cases of the ilk of REPTICO S.A. GENEVA V. AFRIBANK (NIG.) PLC (2013) 14 NWLR (PT. 1373) 172 @ 176 S.C. where it was held that “the law recognizes two categories of persons who can sue and be sued in court. They are natural persons, with life, mind, brain and physical body, and other artificial persons or institutions having juristic personality.” A-G., FEDERATION V. A.N.P.P. (2003) 18 NWLR (PT. 851) 182 referred to.] (p. 207, paras. B-C). Also the case of MAERSK LINE v. ADDIDE INVEST. LTD. (2002) LPELR-1811 (SC); (2002) 11 NWLR (PT. 778) 317 @ 322 HELD 1 ; – “A person who is made a party to an action either as a plaintiff or as a defendant must be a legal person or, if not, a body vested by law with the power to sue or be sued. Thus, if it is successfully shown that a party to an action is not a legal person, that party, should be struck out of the suit, and if such a party was expressed to be the plaintiff, the action should be struck out.” AGBONMAGBE BANK LTD. v. GEN. MANAGER G.B. OLLIVANT LTD (1961) 1 ALL NLR 116. See also BODUNDE V. S.C.I. & C.S. LTD. (2013) 12 NWLR (PT. 1367) 197 @ 202-204 CA.
However the above matters as well as those cited by the defendant were not resolved in an Industrial court where the issues are not merely the contractual legalese and rights and wrongs of employers and employees but also and mainly the preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining
See the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, to the effect that –
“The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.”
Now this need to ensure labour harmony and informal environment has given rise to some concept not necessarily found in a regular High Court to wit this court has granted accorded legal audience to local branch units of unions, known not to be registered or juristic persons, See SENIOR STAFF ASSOCIATIONS OF NIGERIAN UNIVERSITIES Vs. FEDERAL GOVERNMENT OF NIGERIA [2008] 12 NLLR (Pt. 33) 407 and unregistered associations See NICN /LA/04/2012 ODUSOTE Vs. LAGOS STATE GOVERNMENT delivered on May 24th 2012 were not been denied access to this courts to maintain their suits.
In fact in Odutose case the issue arose as to whether the claimants could institute the suit on behalf of an unregistered association, this court after reviewing the local and foreign authorities held that the unregistered association could sue for in convenience of determining the case on its merits.
The pronouncement of that court in that case is most apposite at this time.
“According the claimants recognition for purposes of this suit accords with the law and exigency of the moment. In any event, the legal recognitions is not so much as saying that thereby Medical Guild is a legal personality as understood by law, but it is meant to serve the sole purpose of affording the Court the opportunity of holding the parties answerable to their actions, legal or otherwise, in this sense, I will recognize the claimants as capable of suing for the convenience of determining, in the words of the Supreme Court of Punjab Tribunal “the ‘rights’ and ‘wrongs’ of the claims made” and as trust before this court in this matter” per Kanyip J.
In order to hold the necessary parties accountable this Court has always accorded Ministries of Government Legal recognition and access to this court see the case of MHWUN & 4ORS Vs. FEDERAL MINISTRY OF HEALTH unreported SUIT NO. NICN/ABJ/238/2012 delivered on the 27th July 2013
