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The Claimant commenced this action on the 6th of November 2014 by way of a motion on notice pursuant to Section 34(1) a, b and c, Section 36(c) of the 1999 Constitution of the Federal Republic of Nigeria as amended and order 2 Rule 1, 2, 3, 4 & 5 of the Fundamental Rights Enforcement (procedure) Rules 2009 and under the inherent jurisdiction of the Honourable Court. The motion prays for: A DECLARATION the assault on the Applicant on the 16th April 2014 by the 4th and 5th Respondent on the instructions and supervision of the 1st, 2nd, 3rd and 6th Respondents is unlawful, illegal and unwarranted and a gross breach of the right of the Applicant, to dignity of human person as enshrined in chapter iv of the 1999 Constitution as amended. A DECLARATION that the suspension and termination of the Applicant’s employment while on sick leave is unlawful, unwarranted and a gross breach of the right of the Applicant, to fair hearing as enshrined in chapter IV of the 1999 Constitution. Compensatory Damages of N25,000,000 (Twenty Five Million Naira) only against the respondent jointly for assault torture and, embarrassment, inhuman and unfair treatment on the Application by the Respondent. The Application is supported by a statement in support of Applicant for the enforcement of fundamental Rights enforcement Rules 2009 which contains the grounds upon which the reliefs are sought. As at 9th October 2015 at a point in the proceeding the Court had ruled that parties file pleadings. And so, on the 25th November 2015 the Claimant filed a Statement of Facts establishing a cause of action wherein he seeks the exact reliefs as afore listed above. He also filed a Witness Statement on Oath. To this fresh process the Defendant filed on the 15th of February 2016 a notice of Preliminary Objection wherein he contends that this suit is incompetent and an abuse of Court process and fundamentally flawed hence the Honourable Court lacks jurisdiction to entertain same by the reason of the following: The principal matter in this suit is employment related and not fundamental rights enforcement. The National Industrial Court lacks the substantive jurisdiction to try Fundamental Rights Matters by reason of order 1 rule 2 of the Fundamental Rights procedure rules. Fundamental Rights enforcement procedure is sui generis and order 2 rule 1 defines Court as a Federal High Court and High Court of a State or the High Court of the Federal Capital territory respectively. Fundamental rights enforcement procedure does not admit of pleadings but is only decided by affidavit evidence. The Application is supported by a six paragraph affidavit the affidavit states that the Applicant/Respondent brought the suit under fundamental Rights Enforcement procedure Rules and the principal claim in the suit herein borders on employment whereas the issues of alleged assault is ancillary. That parties had joined issues by filing affidavit and counter affidavit coupled with written addresses. That consequently the Court reserved ruling but the Court ruled that pleading should be filed by the parties in order to help the Honourable Court reconcile the said conflict. In the Written Address in support of the Preliminary Objection counsel formulated 2 issues for determination: Whether the Honourable Court has the jurisdiction to entertain this matter at all Whether the Honourable Court has the procedural jurisdiction to entertain this suit. In response to this Preliminary Objection the Claimant Respondent filed a counter affidavit in opposition to the Preliminary Objection. In the counter affidavit the deponent states that the Court has jurisdiction exclusively on any matter or cause which is labour related and incidental thereto. In the written address in support counsel maintains for the Applicant/Respondent (Mr. Ahaiwe Victor) that in the Courts earlier ruling the Court ordered that pleadings be filed. That the Claimant has since complied with the Court’s order by filing his pleadings and served same on the Defendants. That the Defendants instead of filing their Defence opted to file the Preliminary Objection. Two issues were equally formulated for determination: Whether the Honourable Court has jurisdiction to entertain this matter Whether the application is not an abuse of Court process. At the 1st issue counsel to the Respondent relied on the provision of Section 12(2) (a) of the National Industrial Court Act 2006 to submit that the Court has unfettered powers to regulate its procedure and proceedings as it thinks fit, and shall be bound by the evidence Act but may depart from it in the interest of justice. Counsel relied on the case of EGBUNIKE VS. A. C. B (1995) 2 S.C.N.J 58 at 78 where the apex Court held thus: “Whatever may be the footing upon which the parties to a case may decide to conduct their case, the relevant provisions of the Evidence Act, and the civil procedure Rules applicable in the Court in question will apply except where it is otherwise provided by law”. As to the objectors argument in its issue one on whether the Court has jurisdiction to entertain this matter as a fundamental right proceedings? Counsel maintained that jurisdiction is the bed rock of any adjudication and relied on P.T. F. V. FSB INT’L BANK PLC (2008) ALL FWLR PT 399 480 at 482 and the case of MADUKOLU V. NKEMDILIM (1962) ALL WLR (pt.4) 587 . Counsel submits at paragraph 4.1 that the National Industrial Court has no jurisdiction to entertain Fundamental Rights matters because order 1 rule 2 of the Fundamental Rights Enforcement procedure Rules 2009 does not define Court to include it. That the National Industrial Court is yet to be vested with the powers to try Fundamental Rights Matters. Counsel maintained for the Objectors that the Claimant’s claim determines the jurisdiction of the Court, that a careful perusal of the Claimant’s claim shows that there are features in the instant case that preclude the Honourable Court from exercising its jurisdiction. Counsel insists that the matter was not initiated by due process of law, which should have been by writ of summons. That the main claim here is the termination of the appointment of the Applicant and the alleged infringement of his fundamental human rights is the ancillary matter, that it is the principal claim that should drive the process but not the ancillary claim. That the Claimant had to have commenced this action by a writ summons; A writ of complaint by virtue of the nomenclature in use in this Court. He relied on OKARIKA V. SAMUEL (2013) ALL FWLR (PT.7060 484 AT 497 – 489 H-F; and also the case of W.A.E.C. VS AKINKUMI (2008) ALL FWLR 9PT. 427) 28 at 30 -33 where the Supreme Court commented on the consequences of failure to initiate claim by due process of law said;: “Where a claim is not initiated by due process of law, the claim is incompetent and where all the same the incompetent claim was heard by the Court, the proceedings before the Court are a nullity in the instant case the applicant’s claim was not initiated by due process of law, therefore it was incompetent and the trial Court erred by entertaining it (pg. 46-47 paras H-A)”. Counsel for the objectors relied still on the case of WAEC V. AKINKUMI where the Supreme Court commented further. On the incompetence of a suit commenced by fundamental Rights (Enforcement) Procedure Rules, 1979 where the claim for fundamental right is ancillary. The Apex Court said: “….. Where the main or principal claim is not enforcement of a Fundamental Rights the jurisdiction of the Court cannot be said to be properly invoked and the action will be liable to be struck out for incompetence. In the instant case, the applicant’s main claim is for restoration of his cancelled result; therefore the action was improperly commenced under the Fundamental Rights (Enforcement procedure) Rules, and the trial Court erred by entertaining an action that was incompetent.” Counsel relied further on the cases of JOHNSON V. MOBIL PRODUCING (NIG) UNLIMITED (2010) ALL FWLR (PT.530) 1338 AT 1341 and DANGOTE V. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR PT (717) 132, AND A.S.T.C V. QUORUM CONSORTIUM LIMITED (2004) 1 NWLR PT. 855,601. He maintained that the entire suit is incurably defective and urged the Court to dismiss same out for incompetence, issues having been joined and argument taken completely. On the second issue whether the Court has procedural jurisdiction to entertain the suit counsel relied on the case of EGBUONU V. BORNU RADIO (1997) 12 S.C.N.J 99 at 108 where the Supreme Court held thus: “In this appeal the claims were partly for wrongful dismissal or termination of appointment and partly for breach of Fundamental Right. But here, as in Tukur, the principal claim being wrongful termination of appointment which ought to have been terminated by a writ of summons which was not, then all the claims, principal and subsidiary which flow from it are incompetent and ought to be struck out.” Still on whether a claim for wrongful dismissal can be brought under fundamental rights enforcement procedure the Supreme Court in the case of SEATRUCKS NIGERIA LIMITED V. PANYA ANIGBORO (2001) 1 MJSC 11SC; (2001) 2 NWLR (PT. 696) 159 held that “There is no dispute in the instant case that the complaint of the Plaintiff/Respondent is a claim for wrongful dismissal, and the principal relief is for reinstatement. The claim for wrongful dismissal is clearly not one of the rights prescribed under Chapter IV and cannot be a claim brought under the rules. Even if it is conceded that the alleged breach of the fundamental right flowed from the main complaint, they are not synonymous and cannot support an application under the Fundamental Rights (Enforcement Procedure) Rules.” In the circumstances the substantive action to which the violation of chapter IV right is ancillary is for wrongful dismissal. The proper procedure therefore is for the aggrieved to seek redress by the writ of summons in the High Court and not by application under the Fundamental Rights (Enforcement Procedure) Rules 1979 was properly before the Court. The proceedings in the High Court of Warri, Judicial Division are incompetent and therefore accordingly null and void. Similarly, the proceedings in the Court below founded on the proceedings in the High Court are equally a nullity” per Karib-Whyte, JSC. On the 9th of October 2015 when this Court gave its first ruling, Mr. Nwapi for the objectors in the objection he had raised then had hinted at some issues raised herein by him. In the ruling the Court was mindful of those issues of concern but had taken cognizance of the claim for unlawful termination to give the order that parties file pleadings ostensibly on the understanding that a hint would be taken that the proper mode of commencing this action would be by writ of summons, a writ of complaint as in this Court which would then elicit the pleadings. I hold that in this case, counsel ought to have withdrawn the earlier application/process by way of Fundamental Human Rights Enforcement, he did not. The Court cannot proceed on the case, as it is, issues are taken to have been joined much earlier and the arguments entertained then and now. I hold that the case is not maintainable by the Fundamental Rights Enforcement procedure. I also hold that Section 12 (2) (a) of the National Industrial Court Act does not apply to these proceedings neither does it clothe The Court with jurisdiction to proceed any further. The suit as filed on the 6th of November 2014 and its related processes are hereby dismissed. Ruling is entered accordingly ___________________________________ HON. JUSTICE E. D. E. ISELE JUDGE