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National Industrial Court

KININYI EDUBIO & 25 Ors -VS- NIGERIAN MARITIME

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IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE ELIZABETH A. OJI PhD

DATE:  FRIDAY 28TH FEBRUARY 2020                                      SUIT NO: NICN/LA/420/2018

 

BETWEEN

  1. KININYI EDUBIO                                                    
  2. ABEL FEMOWEI
  3. ABUH UGBEDE WILLIAMS
  4. OWEI ERENA
  5. MOHAMMED J. NAZIF
  6. JAMES EYO
  7. LAYIWOLA AFOLABI
  8. OYADIRAN JOSHUA OYENIYI
  9. OLAYIWOLA OLADAPO IBIKUNLE
  10. UMO-OTONG EKONG
  11. AMULA ARNOLD EBIPADE
  12. AKOR DANLADI SULEIMAN
  13. ODERINDE HAKEEM
  14. ETANGETUK ASUKWOCLAIMANTS
  15. PATRICK IKE
  16. UBONG ABASI
  17. AYENI OLUDARE
  18. OMOTOSHO ADEBAYOR
  19. ISUIWA EMMANUEL
  20. AKPAN BASSEY
  21. SUSSAN EBERETOMBONFA
  22. WARREDI ENISUOH
  23. ELEI GREEN
  24. VINCENT UDOYE
  25. FREDRICK UGO
  26. DAVID EGWU OBOMA

AND

  1. NIGERIAN MARITIME ADMINISTRATION & SAFETY AGENCY
  2. JONATHAN INDIA GARBA
  3. FEDERAL MINISTRY OF TRANSPORTDEFENDANTS
  4. ATTORNEY GENERAL OF THE FEDERATION

 

Representation:

W T Iorshe appears for the Claimants

Roland Otaru (SAN) appears for the 1st, 2nd and 3rd Defendants with Akinola Oyebanjo

Chinwe Achara appears for the 4th Defendant.

 

                                                 JUDGMENT

 

Introduction and Claims:

 

  1. On 6th of August 2018, the Claimants commenced this suit via Originating Summons accompanied by an affidavit, list of documents, copies of the documents and a written Address. The Claimants seek the following:

 

  1. A DECLARATION that the Claimants are Public Servants within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore not subject to the Civil Service Rules or Scheme of Service.

 

  1. A DECLARATION that it is within the exclusive statutory powers, duties and functions of the 1st Defendant, under Section 14 (1) (2) and (3) of the Nigerian Maritime Administration and Safety Agency Act, to employ suitable persons and determine the job description, title, terms, qualification and salaries of any such persons, under terms as may be stipulated by the 1st Defendant.

 

  1. A DECLARATION that the Claimant’s job title and placement cannot be downgraded or reviewed downwards except as provided under their terms of employment and in consonance with applicable rules governing employment in the Public Service of the Federal Republic of Nigeria.

 

  1. A DECLARATION that the setting up of a Committee by the 3rd Defendant, to begin the process of downgrading the placement, title and Job description of the Plaintiff, under the guise of “proper placement” contravenes the clear provisions of Section 14 of the Nigerian Maritime Administration and Safety Agency Act

 

  1. A DECLARATION that the report of the Committee set up by the 3rdDefendant dated 18/12/2013, recommending the downgrading of the Claimants without recourse to the Public Service Rules and the intent and spirit of the terms of their employment is not only unconstitutional but unlawful and ultra vires the Defendants’ powers.

 

  1. AN ORDER of Court nullifying the said Report of the 3rd Defendant committee dated 18/12/2013and any other report, recommendation or however called, having the effect of downgrading the Claimants.

 

  1. AN ORDER of perpetual injunction restraining the Defendants either by themselves, servants, agents, and privies by whatever name called, including the Governing Board of NIMASA from considering, approving or in whatever guise implementing the report of the committee set up by the 1st, 2nd or 3rd defendant and indeed any other report, request or demand to downgrade the job placement, title and description of the Claimants or any other action capable of undermining the terms of their employment.

 

  1. AN ORDER of perpetual injunction restraining the Defendants either by themselves, servants, agents, and privies by whatever name called, including the Governing Board of NIMASA from victimizing or denying the Claimants their due, including but not limited to promotions, salaries, emoluments, allowances or any other benefit.

 

  1. As against the 1st and 3rdDefendants, the sum of N50, 000,000.00(Fifty Million Naira) on the footing of exemplary damages and general damages.

 

  1. In bringing the originating summons; the Claimants seek the determination of the following questions:
  2. WHETHER Claimants are Civil Servants within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999, so as to be bound by the Civil Service Rules and scheme.

 

  1. Whether upon a true and proper construction of Section 14 (1) (2) and (3) of the Nigerian Maritime Administration and Safety Agency Act, the 1st Defendant, to the exclusion of every other person(s) or authority, has the power to employ suitable persons and determine the job description, title, terms, qualification and salaries of any such persons, under terms as may be stipulated by the 1st Defendant.

 

  1. Whether the setting up of a Committee by the 3rd Defendant, or indeed any other person or authority to consider downgrading the placement, title and Job description of the Claimants under the guise of “proper placement” does not contravene the clear provisions of Section 14 of the Nigerian Maritime Administration and Safety Agency Act, and Chapter 3 of the Public Service Rules 2008 and undermines the spirit and terms of employment of the Claimants herein.

 

  1. The Originating summons is supported by a fifty three paragraph affidavit deposed to by Engr. Kininyi Edubio (the first Claimant) with ten attachments namely:

(1)                Exhibit 1- Executive summary of the report submitted by Mr. Richard Rees to NIMASA at the conclusion of pre-audit exercise.

(2)              Exhibit 2- Letter of approval to employ professionals

(3)              Exhibit 3-Waiver to employ professional

(4)              Exhibit 4- Offer of Provisional Appointment of 1st Claimant (being prototype of the others)

(5)              Exhibit 5- Confirmation of Appointment of 1st Claimant (as prototype of the others)

(6)              Exhibit 6-  Letter of complaint to the Senate on a plan to set up committee for the downgrading of Professional

(7)              Exhibit 7-  The Senate committee report

(8)              Exhibit 8- Volume 1 Committee Main Report.

(9)              Exhibit 9 – 2nd letter to the Senate complaining of Planned downgrading of Professional

(10)           Exhibit 10 – Committee Resolution on the Downgrading.

(11)             Exhibit 11 – 1st Defendant’s Conditions of Service.

 

Case of the Claimants

  1. The Claimants’ case is that, having passed all the various stages of examination, they were offered appointment by the 1st Defendant at various times between 2013 and 2014.  That their appointments were confirmed after satisfactory performance during the probationary periods. The Claimants state that the 2nd defendant directed the Director General of NIMASA (the 3rd Defendant) to set up a committee to look into proper placement of staff and that throughout the sitting of the committee, none of the Claimants was given opportunity to make representation or state their position in the investigation.  The Claimants state that it will constitute an illegality if the report of the committee is implemented.  In order to avert the illegality, the Claimants employed the services of a lawyer to write a petition against the 1st and 2nd Defendants to the National Assembly for possible redress. The Claimants state that after the 1st and the 3rd defendants denied their allegation to downgrade the Claimants at the Senate Committee on Ethics, Privileges and Public Petition hearing, the committee of the 3rd defendant completed their task and forwarded their report to the Permanent Secretary of the 3rd Defendant who in turn forwarded same to the 1st defendant and requested for implementation.  The Claimants state that the fear of 1st Defendant implementing the report made them to cause another petition to be written to the Senate.  The Senate committee invited all parties involved and after a public hearing, the Senate committee passed a resolution nullifying the report of the 3rd Defendant.  After the nullification of the report by the Senate committee, the 2nd Defendant set up another committee to review the nullified report of the 3rd Defendant.  The Claimants state that they were not accorded any opportunity to make representations; and that the subsequent report by the committee is discriminatory and tainted with favouritism.  The Claimants still fear that if the report is implemented, it will put them in a retrogressive position and be against the terms of their employment.  The Claimants allege that most of them are now being denied promotion.  They believe that the Defendants do not have the power to downgrade them as they are employed under a statutory body; hence the Defendants must have recourse to the provisions of the laws guiding their employment in the interest of Justice.

Submissions of Claimant’s Counsel:

  1. The Claimants, in their Written Address raised the following issues:
  2. Whether the Claimants employment is one that enjoys statutory flavour.
  3. Whether under the facts and circumstance of this case, the Defendants can downgrade or recommend for downgrade the job title and description of the claimants without recourse to the clear and unambiguous (sic) of the public service rules, the Act establishing the 1st Defendant, as well as the spirit and terms of their employment.

 

  1. On the 1st issue, Claimant’s counsel submit that by the definition of civil service and public service under section 318 (1) of the 1999 constitution of the federation (as amended),  a person employed  by a statutory  corporation is a public servant.  They relied on Aiyetan v. Nigerian Institute for Oil Palm Research (1987) 3 NWLR (PT59) 48 at 82 and submit further that by that, the Claimants are public servants and their employment one that has statutory flavour.
  2. On issue two, Counsel submitted that the Claimants being public servants are bound by and protected by the Public Service Rules which guarantee and prevent public servants from being unfairly targeted, intimidated or dismissed at the caprice of the employers. Counsel also submitted that the report of the Committee recommending the downgrading of the Claimants job title and description is in clear violation of the public service rules  030201 to 030307 chapter 3 of the Public Service Rules dealing with discipline.  They argue that in all cases where disciplinary measures are to be dispensed to a public servant, whether interdiction, lowering of rank, termination, dismissal or any other disciplinary measure, the public servant must first be given notice of the alleged complaint against him and an opportunity to respond.  They further submit that no disciplinary measures or downgrading of position can be meted out on a public servant without recourse to principle of fair hearing as contemplated under the Public Service Rules and the 1999 Constitution of the Federation.  Counsel further argued that Section 14 of the NIMASA Act which empowers the 1st Defendant to employ suitable persons and determine their job description, title, terms, qualification and salaries, does not make any provisions for downgrading of position after the positions have been offered and accepted.

Case of the Defendants

  1. The Defendants upon being served the Originating summons filed counter-affidavits and written addresses.  The 4th Defendant was the first to file its statement of defence on 20th September 2018.  Its counter-affidavti is deposed to by Lawrence Illop, a clerk in the Federal Ministry of Justice.  The 1st and 3rd Defendants filed a joint counter-affidavit dated 22nd October 2018 and deposed to by Olufemi Jimi-Bada Esq.  The 2nd Defendant also filed a counter-affidavit deposed to by the same Olufemi Jimi-Bada Esq.

Submissions of 4th Defendant’s Counsel

  1. The crux of the case of the 4th Defendant is that it is not the 4th Defendant’s responsibility to employ for any government agencies and that none of the allegations leveled by the Claimants is related to the 4th Defendant, or was done by the 4th Defendant.

 

The 4th Defendant in its written address in support of its counter affidavit raised the following issues:

  1. Whether the claimant suit discloses any cause of action against the 4th Defendant (applicant)?
  2. Whether the claimant suit can be properly and effectually determined without joining the 4th Defendant?
  3. Whether in the circumstance of this case and reliefs claimed by the claimant praying this honorable court to grant in their originating summons, the 4th defendant is liable?

 

Case of the 1st – 3rd Defendants

 

  1.  The case of the 1st to 3rd Defendants is that the Board of Director of the 1stDefendant has the power(s) to set up any committee to look into the activities or affairs of the 1stDefendant as provided under the NIMASA Act, 2007.  That, no report has been approved by the 1stDefendant Board concerning any person at all.   The 1st to 3rd Defendants argue that the Claimants have failed to show that they are entitled to the reliefs sought before this Court.  They state that exhibit ‘8’, was submitted to the Permanent Secretary, Ministry of Transportation sometime in October, 2015, when it was discovered that those referred to therein were not properly employed or lacked requisite qualifications or cognate experience to be so appointed.  That in the said Report (Exhibit ‘8’), various recommendations were made by the Committee concerning the persons referred to there, and that the Claimants even though they were fully aware of the Report of the Committee started forum shopping to the Senate of the National Assembly for purported redress. That, the Claimants did not take action after the submission of the report since October, 2015 until 2018.  They argue that under the NIMASA Act, 2007, the Claimants ought to have given Pre-Action Notice to the 1st  to 3rd Defendants before instituting this action.
  2. The 1st , 2nd, and 3rd Defendants further state that they are all, including the 4th Defendants, Public Officers protected by the Public Officers Protection Act, Cap. P41 Laws of the Federation, 2004.  They further state that 1st – 3rd Defendants do not discriminate whatsoever whether under the guise of ethnicity, religion or tribe; and that the action of the Claimants herein is based on sentiment and speculation which has no place in judicial proceedings.  The 1st – 3rd Defendants challenged the purported Executive Summary of the Report submitted by one Mr. Richard Rees of NIMASA and Appendix ‘D’ referred to as Communiqué issued at the Pre-Audit Workshop in Readiness for the Voluntary International Maritime Organization held on15th September, 2009 both attached to the Claimants’ Originating Summons as worthless documents as both have no date and signature of the alleged authors or makers.  The Defendants also challenged the public documents attached to the Claimants’ Originating Summons without being certified in accordance with the relevant provisions of the Evidence Act 2011.

Submissions by 1st – 3rd Defendant’s Counsel

  1. The 1st – 3rd Defendants in their written Address raised two issues for determination:

(i)  Whether having regards to the circumstances of this case, the Claimants’ reliefs are grantable.

(ii)  Whether the 1stDefendant can exercise its powers over its employees as donated to the 1stDefendant under Section 14(2) & (3) of theNIMASA Act, Laws of the Federation, 2007.

  1. Senior Counsel for the 1st – 3rd Defendants argued the two issues together.  Counsel submitted that the reliefs being sought by the Claimants herein are not grantable or cannot be granted as they have not proved their entitlements to the reliefs.  The defendants argue that the Claimants have not shown to this Court the conditions and terms of their employment; and that by virtue of the provisions of Section 14(2) & (3) of the NIMASA Act, 2007 (as amended), the 1stDefendant is empowered to determine the job description, title, terms, qualifications and salaries of the employees.  They further submit that by virtue of the relevant provisions  of the NIMASA Act, the 1stDefendant is clothed with the powers to review the terms and conditions of the employment of the Agency’s staff as the staff of the Agency are bound by the terms and conditions of their employment with the 1stDefendant and that under the Second Schedule to the NIMASA Act, 2007 the Board of the 1stDefendant has the powers to and jurisdiction to determine the job description, terms and qualifications of any staff of the 1stDefendant.

 

  1. Counsel urged the Court to discountenance all the exhibits attached to the Claimants’ Originating Summons as same are not duly certified in accordance with Section 111(1) of Evidence Act, 2011 as amended).

 

  1. The Claimants filed a further affidavit and a joint Reply on Point of Law, The Claimants state that as at the time of filling this suit, the Conditions of Service was not readily accessible to them; and that they have now obtained a copy of the Condition of Service.  They attached it as exhibit COS 11. The Claimants state that their case is not that they were recommended for dismissal or termination of employment; rather their complaint is on the planned downgrading by the Defendants.  In their Reply on Points of Law, the Claimants responded and noted the following points of response:
  2. Whether by virtue of the provisions of sections 14(2) and (3) and section 5(3) of the NIMASA ACT the 1st-3rd Defendants have the powers to downgrade the Defendants on their job placements.

 

  1. Whether the employment of the claimants is one with statutory flavour.

 

  1. Whether the AGF sued herein as the 4th Defendant was rightly joined as a party.

 

  1. On point one, Counsel argued that the drafters of the statute did not intend and contemplate that section 14 (2) of the NIMASA Act will be read and interpreted to mean “review” ” rather than “Determine” which is the operative word used.  They submitted the 1st Defendant is not empowered by any provision of any known law to downgrade or review downwards the job placement of the Claimants herein except as a punitive measure in which case, an offence must have been alleged, investigated, and established after giving the parties fair hearing.

 

  1. On point three, to do with 4th Defendant’s argument that it should never have been joined as a party to this suit, Claimant’s Counsel argued that the 1st Defendant is a creation of statute as well as an Agency of the Federal Republic of Nigeria, and that the actions complained of being administrative actions, it was imperative and trite that the Attorney General of the Federation be joined as a nominal party.

 

Notices of Preliminary Objection:

  1. The 1st and 3rd Defendants and the 2nd Defendant brought 2 separate Notices of Preliminary Objection.  That of the 1st and 3rd Defendants is dated 22nd October 2018, supported by seventeen paragraph affidavit deposed to by Olufemi Jimi-Bada Esq, and a written Address.  That of the 2nd Defendant is dated 24th October 2018 and filed on 25th October 2018.  It is also supported by a seventeen paragraph affidavit deposed to by the same Olufemi Jimi-Bada Esq.  The terms of both applications are the same in every way, and are thus considered as one in this judgment.  The Defendants, in the Preliminary Objections, seek for the following Orders:
  2. An Order of this Honourable Court dismissing and/or striking out the Claimants’ suit for lack of jurisdiction of this Honourable Court to adjudicate and/or determine the Claimants’ suit.

The grounds upon which the Preliminary Objection is brought are that:

  1. The suit was filed by the Claimants in contravention of the provisions of section 53(1)&(2) of the Nigerian  Maritime Administration and Safety Agency Act 2007 No. 17;
  2. By the provisions of section 53 (1) of the Nigerian Maritime Administration and Safety Agency (NIMASA), the Claimants are required by the extant law not to commence this suit against the 1st Defendant until a pre-action notice has been issued and served on NIMASA.
  3. The Claimants did not serve any pre-action notice which would have encapsulated the cause of action, the particulars of claim and the reliefs sought by the Claimants;
  4. That the suit does not disclose any reasonable cause of action;
  5. The suit is grossly incompetent as the Claimants’ action is not in a representative capacity and same is not properly constituted before the institution of this action before this Honourable Court;
  6. The Claimants have no locus standi to institute this action against the Defendants;
  7. The suit is caught up by the Public Officers Protection Act.

 

19    The Defendants in their Written Address in support of the P O raised the following issues:

1     Whether having regards to mandatory provisions of section 53(1) & (2) of the Nigeria Maritime Administration and Safety Act, 2007, the condition precedent to exercise jurisdiction to entertain this suit against the 1st Defendant has been fulfilled

2  Whether the suit of the Claimant against the 1st Defendant is statute  barred as same was not instituted within three months when the cause of action arose.

3   Whether the Claimant have the locus standi to institute this action

  1. On issue one, Senior Counsel for the Defendants argued that before a court will assume jurisdiction over a matter before it, the Court must follow the condition laid down in the case of Madukolu & Ors v. Nkemdilim (1962) LPELR 24023 (SC).  The Counsel submitted that the condition set out in section 53 (1) & (2) of the NIMASA was disregarded before instituting this suit.
  2. On issue two, the Counsel argued that this suit is statute barred and the court lacks jurisdiction to hear it, as it was brought contrary to the provision of section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2010. They argued that section 318(1e) of the Constitution of the Federal Republic of Nigeria’s definition of Public Service includes the 1st & 3rd Defendants who are creations of statute; who perform public service; and therefore the provision of section 2(a) of the Public Officers’ Protection Act Cap P41 applies to them, making this suit statute barred against them.
  3. On issue three, Counsel submitted that the claimants do not have locus standi to institute this action against the Defendant and in addition the Claimants did not institute the matter in a representative capacity.
  4. The Claimants in their response to the Preliminary Objection filed a counter-affidavit deposed to by Geraldine Osuji Esq, and a written Address. The deponent averred that the wrongful act of the defendants still persist, thus it is not statute barred; that this action is not based on representative action but on joinder of several Claimants in one cause of action. The deponent also state that the Claimants have raised substantial question that gives the court jurisdiction and urge the Court to discountenance the objection and proceed to hear the suit on merit. On the issue of pre-action notice, the Claimants contend that the Defendants will not be acting bonafide to state that they were not aware of nor given the opportunity and time enough to decide whether or not to give in or contest the claim of the Claimant/Respondents herein; and that their situation was one that required urgent judicial attention as their employments were under genuine fear of impending danger and threat.

 

  1. The Claimants/Respondents in their Written Address in response to the Preliminary Objection raised the following issues:

1                    Whether having regards to mandatory provision of section 53 (1) &    (2) of the Nigeria Maritime Administration and Safety Act, 2007,the condition precedent to exercise jurisdiction to entertain this suit against the 1st Defendant has been fulfilled.

2                    Whether the suit of the Claimants/Respondents against the 1st & 3rd Defendant is statute barred.

3                    Whether the Claimants have the locus standi to institute this action.

 

  1. On issue one; Counsel argued that the circumstance surrounding this suit allows the Claimants to approach the Court without giving one month pre-action notice.  They relied on the case of International Tobacco PLC v. NAFDAC (2007) 7 NWLR (PT 1043) 613 at 619.  The Counsel submitted that several documents abound to establish the fact that Defendants were aware of the grievance of the Claimants.
  2. On issue two, the Counsel argued that the cause of action, which is the fear over the implementation of the report to downgrade them on the job placement, is still subsisting up to the time of filling this suit.
  3. On issue three, Counsel argued that the fact stated by the Claimants that they are Marine Professionals who are confirmed pensionable staff of NIMAS, is sufficient to establish locus standi. 
  4. The 1st – 3rd Defendants/Applicants responded to the Claimant’s counter arguments in opposition to the preliminary objection by filing a further affidavit and a Reply on Points of Law.  The 1st – 3rd Defendants contend that no wrong subsists as none has been disclosed in the claims of the Claimants to exist, and that there are no threats against the Claimants.  The Applicants in their Reply on Points of Law argued that the Claimants’ case does not fall within the exception to warrant the dispensation of pre-action notice.

 

DECISION:

  1.  This suit was commenced by means of Originating Summons.  In the course of the proceedings, the Claimants filed a motion for interlocutory injunction dated 6th August 2018.  That application was never argued.  I hereby strike it out with all the processes that were filed along with it.  Also, in the course of proceedings, one Ijeoma Charles-Okoli of the Federal Ministry of Transportation filed a memorandum of appearance and a notice of preliminary objection on 6th March 2019 on behalf of the 3rd defendant.  No further step  was taken by the Counsel who filed the processes.  In any case, the firm of Rowland Otaru SAN had already on 22nd October 2018 entered appearance for the 3rd Defendant, and had conducted proceedings in defence of the suit, on its behalf.   All the processes filed by the said Ijeoma Charles-Okoli are deemed abandoned and hereby struck out.
  2. From the evidence before the Court, certain facts stand out as undisputed.  It is clear and undisputed that the Claimants were employed as staffs of the 1st Defendant; and continue to be so employed till date.  They have neither been dismissed nor terminated.  It is also undisputed that the 3rd Defendant set up a committee on personnel matters in the 1st Defendant, and the said report has been submitted to the permanent secretary of the 3rd Defendant. The terms of reference of the said committee included: (i)  proper placement of staff; (ii)  confirmation of acting appointments, promotions, secondment/transfer of service of some officers; (iii) ensure that equity, fairness and justice prevails and NIMASA complies with due process, rules and regulations in the conduct of its operations.  The committee came up with a report dated October, 2015.  It is the fear of the implementation of this report, which among others recommended the downgrade of certain staffs, that has brought the Claimants to Court.
  3. I have carefully considered the processes filed in the Originating Summons.  I have also considered the processes filed in respect of the Preliminary Objection raised by the 2nd Defendant.  The issues raised in both processes are consolidated in this judgment.  I set the following issues down for consideration:
  4. Whether having regards to mandatory provisions of section 53(1) & (2) of the Nigeria Maritime Administration and Safety Act, 2007, the condition precedent to exercise jurisdiction to entertain this suit against the 1st and 2nd Defendant has been fulfilled
  5. Whether the suit of the Claimant against the 1st and 2nd Defendant is statute-barred.
  6. Whether the Claimants’ suit discloses any cause of action against the Defendants.
  7. Whether the Claimants have the locus standi to institute this action.
  8. Whether the Claimants’ employment is one that enjoys statutory flavour.
  9. Whether under the facts and circumstances of this case, the Defendants can downgrade or recommend for downgrade the job title and description of the claimants without recourse to the clear and unambiguous (sic) of the public service rules, the Act establishing the 1st Defendant, as well as the spirit and terms of their employment.
  10. Whether 1stDefendant can exercise its powers over its employees as donated to the 1stDefendant under Section 14(2) & (3) of the NIMASA Act, Laws of the Federation, 2007
  11. Whether the Claimants are entitled to the reliefs sought in this suit.

 

  1. Before delving into the issues itemised above, I need to determine the objection entered by the Defendants on the admissibility of the documents relied on by the Claimants in this originating summons.  In objecting to these documents, the 1st – 3rd Defendants stated that they were public documents that required to be certified in accordance with the provisions of the Evidence Act.  He referred principally to sections 89(2) (e), 90(1)(c), 102 and 104(1) of the Evidence Act.  Senior Counsel also objected to the documents marked as exhibits 1 as not being signed or dated.
  2. I have considered the documents objected to; which are all the documents relied on by the Claimant and find as follows:

(a)  Exhibit 1 – the Executive summary of the report submitted by Mr. Richard Rees to NIMASA at the conclusion of pre-audit exercise is neither signed or dated.  It is trite that an unsigned and undated document comes to no value.  See section 83(4) of the Evidence Act 2011, Fasehun v. A.-G. Federation (2006) 6 NWLR (Pt.975) p.141 and A.-G., Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) p. 362.  I therefore discountenance this document.

(b)  I find that exhibits 2, 3, 7, 8 and 10 are public documents in accordance with section 102 of the Evidence Act.  They are documents forming the official acts or record of the official acts of a public officer.  The Claimant’s response to this is that he wrote a letter to the 3rd Defendant to produce certified true copies of the documents; and sought to tender the letter.  The Defence objected on the ground that it was written after the originating summons had been issued, and they cannot reply to it since the matter is by originating summons.  The Court upheld the objection, especially since it had not been filed and does not form part of the documents before the Court.  These documents are discountenance in this judgment.  The objection is declined with respect to exhibits 4, 5, 6, 9 and 11.  These documents, in my opinion, are not public documents.  Exhibits 4 and 5 are letters written to the 1st Claimant by the 1st Defendant.  Exhibits 6 and 9 are acknowledgement copies of letters written by Claimants’ Counsel to the Senate and exhibit 11 is the Defendant’s Conditions of service (a copy was frontloaded, and the original substituted at the hearing of the suit).

I now proceed to determine the issues as set out for the determination of the preliminary objection.  Issues one and two shall be taken together.

Issues one and two:

  1. Issue one is whether having regards to mandatory provisions of section 53(1) & (2) of the Nigeria Maritime Administration and Safety Act, 2007, the condition precedent to exercise jurisdiction to entertain this suit against the 1st Defendant has been fulfilled.  Issue two is whether the suit of the Claimants against the 1st and 2nd Defendants is statute-barred as same was not instituted within three months when the cause of action arose.  Section 53(1) and (2) of the Nigerian Maritime Administration and Safety Act, 2007 provides as follows:

53.-( I) Notwithstanding anything contained in any other law or enactment, a suit shall lie not against the Agency, a member of its Board, its Director-General or any other employee of the Agency for any act done in pursuance or execution of any public duty under this Act or any law or enactment, or in respect of any alleged neglect or default in the execution of any duty under this Act or such law or enactment unless it is commenced within one year after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within one year after the ceasing thereof.

(2) A suit shall not be commenced against the Agency, a member of its Board, its Director-General or any employee of the Agency, before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Agency by the intending plaintiff, or his agent and the notice shall clearly and explicitly state: (a) the cause of action; (b) the particulars of the claim; (c) the name and place of abode of the plaintiff; and (d) the relief sought.

  1. The above provides for period of limitation of action and the requirement for pre-action notice.  It requires that an action against the 1st and 2nd Defendants be commenced within one year after the act, neglect or default complained of, or in the case of continuance of damage or injury, within one year after the ceasing thereof.  In this matter, the reliefs sought by the Claimants’ are premised upon a fear of the implementation of a report of a committee of the 3rd Defendant, by the 1st Defendant.  From the fact of this case, this fear, whether well-founded or un-founded persists.  Based on that, I find that the basis for the cause of action is continuing.  Whether it is founded or un-founded can only be determined after a consideration of the substantive questions.  I therefore find and hold that the suit is not statute barred under the Nigerian Maritime Administration and Safety Act, 2007.  As under section 2 of the Public Officers Protection Act, by the Supreme Court decision in National Revenue Mobilization Allocation and Fiscal Commission v. Ajibola Jonhson (2019) 2 NWLR (Part 1656) 247 @270 – 271, the limitation period of 3 months provided therein, is no longer applicable to contracts of service.  Thus, this suit is also not statute barred under the Public Officers Protection Act.  Even if it were still to be applicable, the finding of continuance of injury would also apply to make not statute barred.
  2. The second arm of the provision of section 53(1) and (2) of the Nigerian Maritime Administration and Safety Act, 2007 requires that before an action is commenced against the Defendants, a pre-action notice has to be issued on the Defendants.  The Claimant concedes to this submission but argues that the peculiar circumstances of this case is such that the Law allows one to approach the court for a quick relief without the luxury of a one month Pre-action Notice.  According to the Claimants:

Although the general rule makes it mandatory to serve a pre-action notice in a situation such as this, the case of the Plaintiff/Respondent is one such that can conveniently and most appropriately be accommodated under the exception provided in International Tobacco Plc V. NAFDAC (supra).

The Defendant/Applicants were at the verge of implementing a very damaging, provoking and illegal recommendation which would have adversely affected the employment status of the Claimants/Respondents herein, out of the fear of this illegality, the Claimants/Respondents approached the honourable court with the urgency filing all its processes including an affidavit of urgency, motion ex-parte, motion on notice and the originating processes (all of which now form the records of this honourable court). This was done in a bid to prevent an irreparable mischief by the Applicants.

  1. I have considered the whole circumstance of this case, and the argument put forward by the Claimants.  The report was made in October 2015 while this suit was instituted in August 2018.  I am convinced that a period of three years which the Claimants had was more than enough to issue a pre-action notice as required by law.  I therefore do not agree that the circumstance was such that the requirement of pre-action notice by section 53 of the NIMASA Act should be dispensed with. The Claimant further submitted that assuming the Court was to find that the peculiar circumstances of the Claimants/Respondents did not warrant a deviation from the general rule requiring the issuance of pre-action notice, that this Court should consider it as a technical point.  In support, the Claimants relied on the case of  Niger Care Devt. Co. Ltd v. Adamawa State Water Board & Ors (2008) 5 M JSC 118 @ 120.
  2. I agree that at a point in the jurisprudence of the Nigerian Courts, it appeared that there was no agreement on the effect of non-issuance of pre-action notice.  This fact was noted by the Court of Appeal in the case of Adeyemo & Ors v. Abefe & Ors (2018) LPELR-44855(CA) when it stated that:

I must point out in respect of Issue One that the Courts are agreed that a pre – action notice is a procedural requirement of jurisdiction and not a substantive matter of jurisdiction. Despite this general agreement, precedents on pre – action notices are not unanimous on the effect or consequences of upholding an objection to a suit based on non – filing of pre – action notice by a Claimant.

Three possible consequences are discernable from the views expressed by the Courts.

The first is that failure on the part of a Plaintiff to serve a pre – action notice on the Defendant gives the Defendant a private right, solely for his benefit, to insist on such notice before the Plaintiff may approach the Court.  See e.g. Mobil Producing Nig. Unltd v. LASEPA (2003) FWLR (PT. 137) 1029 at 1054 (per Ayoola, JSC), Eze v. Okechukwu (2003) FWLR (PT. 140) 1710 at 1727 – 1728 (per Uwaifo, JSC)

The second view which sounds like a mid – way approach, between two seemingly extreme views is that:

“There is no total absence of jurisdiction such that the suit could not be continued against other parties. The suit could be continued against other parties provided there is a reasonable cause of action disclosed against the remaining parties in the absence of the party struck out for non service of Pre – action notice.”See e.g. Xinet Singapore Ltd. v. M.S.L. (Nig) Ltd (2014) ALL FWLR (Pt. 715) 305 at 330 (per Iyizoba, JCA).

The third view which seems to have gained more acceptance in recent times is that failure to serve pre – action notice puts the jurisdiction of the Court in abeyance and “any suit commenced in contravention of the provisions of such law is wrongly commenced and should not be entertained by any Court”.

See e.g. Nigercare Development Co. Ltd v. Adamawa State Water Board & Others (2008) ALL FWLR (PT. 422) 1052 at 1072. A full statement of the law as it is now reads as follows;

“Non – compliance with the requirement of a pre – action notice does not take away the constitutional right of access to the Courts from the litigants, neither does it defeat his cause of action. If the Subject matter is within the jurisdiction of the Court, failure on the part of the Plaintiff to serve a pre-action notice on the Defendant gives the Defendant a private right to insist on such notice before the Plaintiff may approach the Court. In effect, non service of a pre action notice merely puts the jurisdiction of a Court on hold pending compliance with the pre-condition” See:- ETI-OSA-LOCAL GOVERNMENT VS. JEGEDE (2007) 10 NWLR (PT. 1043) 537;

Aro v. Lagos Island L.G (2002) 4 NWLR (PT.757) 385; and Nnonye v. Anyichie (2005) 2 NWLR (PT. 910) 623. In the instant case, the learned trial Judge was right to have struck out the Appellants’ Suit in its entirety for failure to give pre-action notice to the 3rd and 4th Respondents by virtue of the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous Provisions) Law of Kwara State 2006.” Per OWOADE, J.C.A. (Pp. 15-18, Paras. D-B)

  1. From the above, it is obvious that the prevalent and more recent view is that the upholding of an objection founded on non-issuance of pre-action notice makes the suit incompetent.  The case of PPMC LTD v. AL-MUSMOON SEC.LTD (2016) 13 NWLR (Pt 1528) P. 69 at Pp 78 Paras C, P.78-80 Paras H-A confirms this position.  There, the Supreme Court held that:

Where a pre-action notice is statutorily provided for, any action or suit commenced without giving the required pre-actin notice is incompetent and it is liable to be struck out. 

In the instance case, by the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action was not complied with. 

The respondent’s action is therefore, premature and it is liable to be struck out. 

  1. By the above, I find and hold that this suit is incompetent, as presently constituted, for failure to issue the 1st and 2nd Defendants with pre-action notices as required by section 53(2) of the NIMASA Act.   See also Ntiero v. N.P.A. (2008) 10 NWLR (Pt.1094) 129 S.C., Chijoke v. Chukwu & ANOR (2017) LPELR-42752(CA).  This suit is struck out, as against 1st and 2nd Defendants.

Issue 3:

  1. Issue three is whether the Claimants’ suit discloses any cause of action against the Defendants (applicant).  Having held that the suit is incompetent as against the 1st and 2nd Defendants; and the matter struck out against them; issue three is considered only with respect to the 3rd and 4th Defendants.  A consideration of the reliefs sought by the Claimants in this suit show that they are principally sought against and in relation to the 1st Defendant.  In the circumstance, it would merely amount to an academic exercise to continue against the 3rd Defendant.  The Claimants, in reaction to the submission of the 4th Defendant’s argument that it should never have been joined as a party to this suit, submitted that the 4th Defendant was joined as a nominal party.  The major parties having been struck out, it would amount to an action in futility to continue the suit against the 4th Defendant.  In the circumstance, I find that no cause of action lies against the 3rd and 4th Defendants, in this suit, as now constituted.  The preliminary objection succeeds.  This suit is therefore liable to be struck out, and is hereby struck out.

 

  1. This judgment should ordinarily come to an end with the finding made under issues 1 – 3; however, in the event I am wrong in upholding the preliminary objection, I shall proceed to consider the remaining issues founded on the substantive suit.

 

  1. The issue of locus standi or standing to sue is indeed primeval and fundamental in any action in court. The law is trite that in our civil jurisprudence, a defendant can impeach the locus standi of a plaintiff under Section 6 (6) (b) of the 1999 Constitution. Once the locus standi of a party is challenged by the defendant, the issue must first be resolved before any other consideration of the matter. The issue can be raised at any time in the course of trial or on appeal because it is an indirect challenge to the jurisdiction of the court.  See Agboola v. Agbodemu & Ors (2008) LPELR-8461(CA).  In the case of NEC v. Ogbadibo Local Government & Ors (2015) LPELR-24839(SC), the Supreme Court held that:

Locus standi is a Latin term or expression. It denotes the plaintiff’s capacity to sue in a court of law to enforce a legal right. Once the plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in Writ of Summons and Statement of Claim and in an action commenced by Originating Summons (as in the instant case) in the averments in the affidavit in support of the summons, the plaintiff would be adjoined to have shown sufficient interest which entitles him to sue on the subject matter. Chances of success of an action are not relevant consideration: see Taiwo v. Adegboro (2011) 11 NWLR (Pt.1159) 562.” Per GALADIMA, J.S.C. (P. 22, paras. C-F)

 

  1. I have considered the originating summons, and the affidavit in support.  I find it copiously stated in the affidavit of the 1st Claimant, that he, and the other Claimants in the suit, are Marine Professionals, comprising of Ex-ship Captains and Engineers; and that they are confirmed and pensionable staffs of the Nigerian Maritime Administration and Safety Agency (NIMASA), herein sued as the 1st Defendant.  They have complained of the fear that the 1st Defendant may take certain actions which they allege may be detrimental to their employment.  With this assertion, I find that the Claimants stand well to bring this action against their employer.  I so hold.

 

  1. The Claimants raised the issue whether their employment is one that enjoys statutory flavour.  They premised their contention that the Defendants cannot contemplate the implementation of the committee Report on the ground that they are public servants within the contemplation of section 318 (1) of the Constitution of the Federal Republic of Nigeria, (CFRN) 1999.  Section 318 CFRN defines public service of the Federation and State as:

Service in any capacity in all courts, legislatures, commission or authority established for the Federation or State by the Constitution or statue, area councils, statutory corporations established by statue, educational institution established or financed principally by federal or state governments, any company or enterprise in which the government of the Federation or State or their agencies own controlling shares or interest, and members or officers of the armed forces of the federation, the Police force or other government security agencies.

 

  1. The Claimants argue that in view of the above, they are employed by a Statutory Corporation and thus are public servants.  They relied on the case of Aiyetan v. Nigerian Institute for Oil Palm Research ( 1987) 3 NWLR (PT59) 48 at 82 where the Supreme Court, Per Karibi-Whyte, JSC noted that the Respondent in that case was a statutory corporation by virtue of Section 277 of the 1979 Constitution ( now section 318 of the 1999 Constitution), hence the appellant was a member of the public service of the Federation.  On the other hand, the Defendants contend that the Claimants have placed nothing before this Court to show that their employment with the 1st Defendant is with statutory flavour.

 

  1. The Claimants in proof of their contract relationship with the 1st Defendant placed before this Court, the 1st Claimant’s letter of Offer of Provisional Appointment (exhibit 4),and the 1st Claimant’s Letter of Confirmation of Appointment (exhibit 5).  The 1st Claimant in his affidavit in support of the originating summons stated that exhibits 1 and 2 are a prototype of the letters issued to the other Claimants.  Since the issue has nothing to do with the varying rights in employment, but the status deriving from the letter, I accept it as establishing the nature of the relationship all the Claimants have with the 1st Defendant.  The implication is that by the Claimants own action, they have all subscribed their status to that existing for the 1st Claimant, and unless the contrary is asserted, which is not the case here, then it will apply.

 

  1. The case of Ogunke v. National Steel Development Authority (1974) NMLR 128 is regarded as a locus classicus on when employment is said to have statutory flavour and when it is governed by the terms under which parties agree to be employed.  The case states that:

An employment is said to have statutory flavour when the appointment is protected by statute or laid down by regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside the category is governed by the terms under which the parties agreed to be master and servant.

 

  1.  An employment is thus said to have statutory flavour if it is backed by statute.  On this issue, the Supreme Court in the case of Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081(SC) held that:

An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame Vs W.A.E.C. (1992) NWLR (Pt.265) 303; Olaniyan vs University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory flavour.” Per KEKERE-EKUN, JSC. (P. 31, Paras. B-E)

 

  1. In determining whether the Claimants’ employment is statutorily flavoured or not, the Courts have held that recourse should be had to the contents of the letter of appointment.  See  FMC, Ido Ekiti & Ors. v. Kolawole(2011) LPELR-4149(CA).  I refer further to the case of NIMASA V. 08 & C (2014) 2 WRN 83 @ 93 r 11 CA cited by the Claimants, where the court stated the ingredients of a contract with statutory flavour as;

 

Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavor include the following:

  1. The employer must be a body set up by statute; and
  2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.

 

The position in the case cited above by the Claimants continues to be the position as recently restated by the Supreme Court in the case of Kwara State Judicial Service Commission & Ors v. Tolani  (2019) LPELR-47539(SC).  There, the Court restated per PETER-ODILI JSC as follows:

 

On the question whether or not the employment in issue enjoys statutory flavour, I need to state very humbly too that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:-

(1)    The employer must be a body set up by the constitution or statute and;

(ii) The statute or regulations made pursuant to the constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline.

 

The Court went further that:

I cannot resist the position of this Court in the case of Imoloame v West African Examinations Council (1999) 9 NWLR (Pt.265) 303 per Karibi-Whyte JSC thus:- “There is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”.

 

  1. In this case, I find that condition (a) has been met, as there is no contention on the status of the 1st Defendant being set up by a statute.  Section 3 of the NIMASA Act clearly attests to that fact.

 

  1. I have considered the establishing statute, the NIMASA Act 2007 to find where express provisions regulating the employment of the Claimants were made.  The Claimants did not refer me to any such provision, neither did I find any.  Claimants main reference to the Act was to section 14 which grants the 1st Defendant powers with respect to employment.  It provides:

14.-( I) The Agency shall have powers to employ such persons as it may deem necessary for the discharge of the duties and powers of Agency under this Act and regulations made pursuant to it.

(2) The Agency shall have the powers to determine the job description, title, terms, qualifications and salaries of any such person and all such persons shall be subject to the conflicts of interest provisions in the Third Schedule to this Act.

(3) The employment of the Agency’s staff, including its secretary, shall be subject to such terms and conditions as may from time to time be stipulated by the Agency’s Board and contained in the respective staff’s employment contract.

 

  1. The above provision, in no way creates or stipulates the terms and conditions of Claimants’ employment.  In paragraph 3, it states that the employment of the 1st Defendants staff shall be subject to such terms and conditions as may from time to time be stipulated in the respective staffs’ employment contract.

 

  1. I have further considered exhibit 4 – the letter of appointment of the 1st Claimant (accepted as prototype for the others).  It does not in any way refer to the employment of the Claimants to any statute.  Further, the 1st Defendant’s Conditions of Service (exhibit 11) which is part of Claimants’ conditions of service, did not state that it is part of the NIMASA Act; or that it is made pursuant to a provision in the NIMASA Act.  The decision of the Supreme Court in Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805)589 is very instructive on when a contract of employment and conditions of service can impute statutory flavour to an employment.  It states that:

 

Conditions of service which will give a statutory flavour to a contract of service cannot be a matter of inference.  They must be conditions which are expressly set out by statute such as S.17(1) of the University of Lagos Act, 1967 or statutory regulations made under subsidiary legislation, such as the Civil Service Rules.  Thus, a regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation.  In the instant case, the conditions of service under which the Appellant was employed were drawn up by the Board of Directors of the Nigerian National Petroleum Corporation. They therefore have no statutory flavour like S. 17 of the University of Lagos Act and Public Service Commission Regulations which governed the employment of Olaniyan and Shitta-Bey respectively.

The Supreme Court continued that:

The assertion in submission (1) that the terms and conditions contained in exhibit B have the status of statutory provisions is most astonishing. It may well be true that those terms and conditions were made because of section 4 subsection (1) of the Act which set up the Respondent but there is nothing to justify their being regarded as statutory provisions, nor can it be argued that they could not have been made even in the absence of that sub-section at least in regard to termination of appointment.

 

  1. The provision of Section 4 subsection (1) of the NNPC Act is analogous to the provision of section 14 of the NIMASA Act in this case.  The section provides that:

 

Subject to this Act, the corporation may appoint such persons as members of staff of the corporation as it considers necessary and may approve conditions of service, including provision for the payment of pensions.”

Tobi JSC in considering the import of the above provision and whether it is enough to grant statutory status to the employment under consideration held that:

An employment is said to have a statutory flavour if the employment is directly governed or regulated by a statute or a section or sections of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section or sections of the statute must clearly and unequivocally govern or regulate the employment of the plaintiff and must be unmistakably clear in the provision as to delegated legislation. The regulations and or the conditions of service must be implicitly borne out from the section or sections delegating or donating the authority. In other words, there must be clear nexus between the delegating section or sections and the regulations or conditions of service conveying a legal instrument or document which is of similar content. In such situation, the regulations or conditions of service must commence with the provision of the enabling statute; something to the following effect or purport and as it relates to this appeal.

“In exercise of the powers conferred by, section 4(1) of the National Petroleum Corporation Act, 1977 as amended and of all other powers enabling me in that behalf, I hereby make the following Regulations and or Conditions of Service.”

In my view, if exhibit B was so couched, I would have agreed with the submission of learned Senior Advocate that the conditions of service had a statutory flavour, provided that the person issuing it must be a person in law or by the Constitution who can issue a statutory instrument in the form of a subsidiary legislation.

  1. In the instant case, Claimants’ appointment letter (exhibit 4 paragraph 5) states that ‘all employees of the Agency are governed by the Conditions of Service of the Agency’, and makes no mention of the Act.  From the position stated in the cases considered above, I have not found any nexus between Claimants’ letter of employment, the conditions of service and the Act.  I therefore hold that the Claimants’ employment do not have statutory flavour.

 

  1. Claimants also asserted that they are Public Servants within the contemplation of section 318 of the CFRN such that their employment cannot be interfered with except in consonance with applicable rules governing employment in the Public Service of the Federal Republic of Nigeria.  I have already held that the facts of Claimants’ employment do not disclose an employment with statutory flavour.   Further, it is the law that the fact that the Defendant is a federal government agency does not automatically translate its employees to public servants, subject to the Public/Civil Service Rules, without more.  See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660.  I do not find that the Claimants are Public Servants or that their employment is governed by the Federal Public Service Rules.  I so hold.
  2. Issue 6 is whether under the facts and circumstance of this case, the Defendants can downgrade or recommend for downgrade the job title and description of the claimants without recourse to the clear and unambiguous (sic) of the public service rules, the Act establishing the 1st Defendant, as well as the spirit and terms of their employment.  I have already found that the public service rules do not apply to the Claimants.  However, on whether the 1st Defendant can act without recourse to the Act establishing it,  it is the law that a body cannot act outside the powers granted it by statute; to do so will be ultra vires such a body.  See Unilorin & Ors v. Obayan (2018) LPELR-43910(SC).  Both parties rely on section 14 of the NIMASA Act which grants the 1st Defendant powers with respect to employment matters.  The Claimants argue that by this provision, the 1st Defendants cannot downgrade them; whereas the 1st Defendant argues that by the same provision, it has the power to review the terms and conditions of the job description of its staff.  It is clear from the provisions of section 14 of the NIMSA Act that the 1st Defendant, apart from having power to employ such persons as it may deem necessary for the discharge of its duties and powers, it has the powers to determine the job description, title, terms, qualifications and salaries of any such person.  By paragraph 3 of section 14, 1st defendant’s staff shall be subject to such terms and conditions as may from time to time be stipulated by 1st Defendant’s Board and contained in the respective staff’s employment contract.  My understanding of paragraph 3 of section 14 is that the terms and conditions applicable to the staff of the 1st Defendant is as contained in the respective staff’s employment contract.  In this case, the employment contract is as contained in exhibits 4 and 11.  Any breach of any provision of these documents will lead to liability on the part of the party at fault.  Thus, deriving from the findings already made; since the Public Service Rules do not apply to the Claimants, and the Act establishing the 1st Defendant made no provisions on the employment conditions of the Claimants, then, from the facts and circumstances of this case, the Defendants can only tamper with the job title and description of the Claimants with recourse to the terms of their employment.

 

  1. Issue 7 is whether the 1stDefendant can exercise its powers over its employees as donated to the 1stDefendant under Section 14(2) & (3) of the NIMASA Act, Laws of the Federation, 2007.  I have not found any reason or suggestion why the 1st Defendant cannot exercise its powers over its employees as donated by its Act.

 

  1. Issue 8 is whether the Claimants are entitled to the reliefs sought.  The Claimants sought, first and foremost, the resolution of some listed questions.  The first question is “WHETHER Claimants are Civil Servants within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999, so as to be bound by the Civil Service Rules and scheme.  In the argument of this issue, Claimants proffered the argument that they were public servants.  This has already been resolved.
  2. The second question is “Whether upon a true and proper construction of Section 14 (1) (2) and (3) of the Nigerian Maritime Administration and Safety Agency Act, the 1st Defendant, to the exclusion of every other person(s) or authority, has the power to employ suitable persons and determine the job description, title, terms, qualification and salaries of any such persons, under terms as may be stipulated by the 1st Defendant. The use of the phrase “to the exclusion of every other person(s) or authority”, has so broadened the question, that it cannot be answered in the context of the facts before this Court.  The person(s) contemplated in this question needed to be defined to enable the Court make a reasoned finding on the issue.  The next paragraph (62) justifies this finding.
  3. The third question is “whether the setting up of a Committee by the 3rd Defendant, or indeed any other person or authority to consider downgrading the placement, title and Job description of the Claimants under the guise of “proper placement” does not contravene the clear provisions of Section 14 of the Nigerian Maritime Administration and Safety Agency Act, and Chapter 3 of the Public Service Rules 2008 and undermines the spirit and terms of employment of the Claimants herein.  The Claimants, in their affidavit in support of the originating summons, deposed to by the 1st Claimant, on their behalf, stated in paragraph 7 that he knows that “the 3rd Defendant is the ministry supervising the affairs of the 1st and 2nd Defendants”.  The scope of the supervisory powers of the 3rd Defendant has not been placed before the Court to enable the Court know if the 3rd Defendant exceeded its supervisory authority.
  4. As a result of all the reasoning and the findings made already, I find and hold that the Claimants have not established their entitlement to the 1st, 2nd, 4th, 5th, 6th, 7th, and 9th reliefs.  They are therefore refused.  Relief 3 cannot be granted the way it is; I can only restate that the Claimant’s job title and placement cannot be downgraded or reviewed downwards except as provided under their terms of employment.
  5. It is in the interest of justice that access to seek judicial redress is not hindered by fear of victimization.  I therefore grant relief 8.  The Defendants are restrained, either by themselves, servants, agents, and privies by whatever name called, including the Governing Board of NIMASA from victimizing or denying the Claimants their due, including but not limited to promotions, salaries, emoluments, allowances or any other benefit.

In line with the finding and decision on the preliminary objection, this suit is struck out for being incompetent.

Judgment is entered accordingly.  I make no orders as to cost.

 

 

…………………………………

Hon. Justice Elizabeth A. OJI PhD

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