Download PDF
This is a transferred matter from the Federal high Court, Abuja to the National Industrial Court of Nigeria on 13th May, 2015. The matter was commenced via a Motion on Notice for the Enforcement of Fundamental Human Rights filed on 14th January, 2016, for the following prayers: An Order enforcing or securing the enforcement of the Applicant’s fundamental right to fair hearing enshrined in Sec. 36 of the Constitution of the Federal Republic of Nigeria, 1999, which has been infringed by the Respondents as contained in a letter with reference No. CIPB/IMM/167/VOL.1/40, dated 16th December, 1992, referred in the supporting affidavit as Exhibit 32, addressed to the Applicant. An Order to remove into this Honorable Court the proceedings before the Customs, Immigration and Prisons Services Board (now known as the Civil Defence, Immigration and Prisons Services Board) as contained and described in a letter with reference No. CIPB/IMM/167/VOL.1/40, dated 16th December, 1992, referred in the supporting affidavit as Exhibit 32 whereby it was decided to dismiss the Applicant from the service of the 1st and 2nd Respondents and quashing same for being, inter alia, a decision made in violation of the rules of natural justice and fair hearing. GROUNDS UPON WHICH THE RELIEFS ARE SOUHGT: That the dismissal of the Applicant from service by the 1st Respondent (Civil Defence, Immigration and Prisons Services Board) is a gross violation of the principles of natural justice to wit-audi alterem partem, enshrined in Sec. 36 of the 1999 Constitution of the Federal Republic of Nigeria, in that, the Applicant was not given a full opportunity to exculpate himself as required by sub-rule (i) of Rule 04107 of the Federal Civil Service Rules nor was he supplied with or given access to the documentary evidence (as alluded to by the 1st Respondent in para. 23 of Exhibit 46) which was used against him in violation of sub-rule (iv) of Rule 04107 of the Federal Civil Service Rules; and that the Applicants’ removal from service without recourse to the regulations governing service conditions of the Civil Defence, Immigration and Prisons Services Board’s Senior Staff, here the instrument relating to the conditions of service of the Civil Service of the Federation, that is, the Federal Civil Service Rules, particularly, Rule 04107 thereto as prescribed to the 1st Respondent/Board by sub-section 8 (1) (c) of the Act under which the 1st Respondent/Board was set up, that is, the Immigration and Prisons Services Board Act, Cap 89, Laws of the Federation of Nigeria, 1990 (as amended) as the disciplinary procedure to be followed, is illegal, invalid, null and void and offends the provisions of Sec. 36 of the Constitution of the Federal Republic of Nigeria as this was tantamount to denying the Applicant of his fundamental right to fair hearing recognized and codified in Rule 04107 of the Federal Civil Service Rules. Applicant’s Case The claimant was employed as a Senior Immigration Control Officer 1 Grade Level 07 by the defendant on 13th September, 1985. He was transferred from the Abuja Headquarters of Immigration Service to the Niger State Command of the Immigration Service. He obtained the approval of Assistant Comptroller of Immigration Service in-Charge of Niger State Command to proceed on 3 days casual leave so as to tidy up things in Abuja where his family was still residing. While he was at the Abuja Headquarters of the Nigeria Immigration Service, the Director of Immigration Service saw him wearing Mufti and directed that he should be issued a query to show cause why disciplinary action should not be taken against him for roaming about Abuja in Mufti instead of settling down at his new station at Minna, Niger State Command. He replied to the query but was subsequently dismissed from the Nigerian Immigration Service. This matter came up for mention on the 9th November before this court following the 2016 transfer of Judges and on the next adjourned date 23rd November 2016 the court requested that parties address the court on the propriety of the commencement of this suit by the process so adopted in this court. The Applicant filed in reaction their “WRITTEN ADDRESS OF THE APPLICANT AS TO THE PROPREITY OF THE NATIONAL INDUSTRIAL COURT TO ASSUME JURISDICTION TO HEAR AND DETERMINE MATTERS RELATING TO ENFORCEMENT OF FUNDAMENTAL RIGHTS dated and filed on 20th January, 2017. Answering the question: “what determines the jurisdiction of a court?” counsel referred the Court to the following authorities: LADOJA v. INEC (2007) 10 M.J.S.C. 1 @ 38-39, PARAS. G-A; WAEC v. AKINKUNMI (2008) 9 NWLR (PT. 109) 151 @ 169, PARA. C. Learned Counsel to the Applicant argued that on broad interpretation of the Constitution, the reliefs being claimed by the Applicant, is quite competent for adjudication under Sections 254 C (d) and 36 of the 1999 Constitution and Order 10 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. He submitted that where the Constitution has declared that courts cannot exercise jurisdiction in a particular matter (s), any provision in any law to the contrary is null and void and of no effect. UTITH v. ONOYIVWE (1991) 1 NWLR (PT. 166) 166 @ 225, per Karibi-Whyte, JSC. It is applicant’s counsel’s submission that the Applicant’s application involves a master and servant relationship where violation of the principles of fair hearing under Chapter IV of the Constitution is alleged to have been committed. ADH LTD. V. AT LTD. (2007) 10 MJSC 49 @ 70, PARA. B, per Tobai, JSC. In the light of the above submission, counsel conceded to the fact that they were in error to have relied on the provisions of Sec. 46 of the 1999 Constitution to submit vide their Preliminary Objection that the National Industrial Court has no jurisdiction to hear and determine the Applicant’s suit. Referring the Court to Sec. 254 C (1) (d) of the 1999 Constitution, starting with the words “Notwithstanding…..”, counsel submitted that the word “Notwithstanding” has been judicially defined by the Supreme Court in the case of NDIC v. OKEM LTD. & ANOR. (2004) 10 NWLR (PT. 880) 107 @ 182. Submitting that the jurisdiction of a State High Court as conferred by the Constitution can surely be curtailed or abridged or even eroded by direct and clear provision in the Constitution. He submitted that the phrase “Subject to the provisions of this Constitution” under Sec. 46 (2) of the Constitution has been defined by the Supreme Court in the case of N.U.E.E. v. B.P.E. (2010) 7 NWLR (PT. 1194) 538 @ 571, PARA. G. The Court’s Decision This matter was adjourned to 24th January 2017 (from 23rd November 2016) for adoption of written addresses and further adjourned to the 1st February 2017 to enable parties file their written addresses. On the 1st of February the applicant had filed his written address and so the Learned Counsel to the Applicant adopted his written address and with no reaction from the Respondents the matter was adjourned for Ruling. Having carefully summarized the position of applicant, his arguments and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the applicant. His written submission is 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 or not this court has been empowered by law to assume jurisdiction in this present case. That is, the question of the Fundamental Rights Enforcement procedure and its propriety in this court.; Juridiction. The position of the law is as was stated in the case of UGBA V. SUSWAM (2013) 4 NWLR (PT. 1345) 427, Held: that “The jurisdiction of a court is granted by statute or the Constitution but not by the court. No court has the jurisdiction to go beyond the provisions of the enabling law; otherwise any action by it will be ultra vires The jurisdiction of this court is as of now and in the main governed by Section 254 C (1) , (2), (3), (4) AND (5) of the 1999 CFRN and Section 7 of the National Industrial Court Act 2016 Section 7 (1) of the National Industrial Court Act 2006, Furthermore, section 7 (1) of the National Industrial Court Act, states: “The Court shall have and exercise exclusive jurisdiction in civil causes and matters- (a) relating to – (i) labour, including trade unions and industrial relations; and (ii) environmental and conditions of work, health, safety and welfare of labour, and matters incidental thereto Section 254(C) of the 1999 Constitution as amended; Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- relating to or connected with any labor, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labor, employee, worker and matters incidental thereto or connected therewith; relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labor Act, Employees' Compensation Act or any other Act or Law relating to labor, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto; relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labor, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine; (j) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from; relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from; trade union dispute or employment dispute as may be recorded in a memorandum of settlement; trade union constitution, the constitution of an association of employers or any association relating to employment, labor, industrial relations or work place; (5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law. See FEMI BABALOLA Vs. ACCESS BANK NICN/LA/123/2012 (unreported) delivered on the 23rd January 2013. It is also the position of the law that in determining whether a matter falls within the court’s jurisdiction recourse is had to the originating processes. See the case of OLORUNTOBA-OJU V. ABDUL-RAHEEM 2009) LPELR-2596(SC), (2009) 13 NWLR (PT. 1157) 83 S C. The Supreme Court held that “it has now become legally customary through long practice to determine the issue of jurisdiction of court on the reliefs sought by the claimant, in the writ of summons and statement of claim. Also in the case of TRADE BANK PLC V. BENILUX (NIGERIA) LTD (2003) 9 NWLR PT.825 PAGE 416. The Supreme Court held that "It is only on careful examination of the pleadings filed by the parties in a cause or matter namely the statement of claim not the defence that the court can ascertain whether or not the Federal High Court have exclusive jurisdiction pursuant to section 251(1) (p) (q) (r) of the 1999 Constitution. The supreme court in ONUEKWUSI Vs REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH. Held that the law is well settled, that the nature of the claim placed before the court that determines whether the court has jurisdiction over the subject matter. ADEYEMEI & ORS Vs OPEYON [1976]10 DC 31 at p51. The court only needs to consider the complaint and the statement of facts A. G. ANAMBRA Vs. A.G. FEDERATION [1993] 6 NWLR (Pt. 302) 692, A.G. FEDERATION Vs. OSHIOMOLE [2004] 3NWLR (Pt.860) 305 Now looking at the Applicants reliefs;- An Order enforcing or securing the enforcement of the Applicant’s fundamental right to fair hearing enshrined in Sec. 36 of the Constitution of the Federal Republic of Nigeria, 1999, which has been infringed by the Respondents as contained in a letter with reference No. CIPB/IMM/167/VOL.1/40, dated 16th December, 1992, referred in the supporting affidavit as Exhibit 32, addressed to the Applicant. An Order to remove into this Honorable Court the proceedings before the Customs, Immigration and Prisons Services Board (now known as the Civil Defence, Immigration and Prisons Services Board) as contained and described in a letter with reference No. CIPB/IMM/167/VOL.1/40, dated 16th December, 1992, referred in the supporting affidavit as Exhibit 32 whereby it was decided to dismiss the Applicant from the service of the 1st and 2nd Respondents and quashing same for being, inter alia, a decision made in violation of the rules of natural justice and fair hearing. The Applicant has argued that his reliefs are founded; the allegation of breach of his fundamental rights to fair hearing by the defendant, this violation is involved within the Master servant relationship, that is this application involves a master servant relationship in which the master has breached the servants rights as guaranteed under Section 36 of the 1999 CFRN, and it is for the enforcement of the applicants Fundamental Human Rights that this action has been brought. The question before the court then becomes: whether the Applicant’s suit can be competently determined by this court in view of the originating process adopted by the Applicant in commencing this action or in other words whether the Fundamental Human Rights Enforcement Procedure Rules 2009, or in fact the Applicant’s Notice of an Application for an Order Enforcing a Fundamental Right can activate this courts originating jurisdiction. It is also necessary to note that the applicants case is required to be considered both as regards the substance the reliefs and the form / procedure adopted The dictum of the Muhammed Bello CJN Supreme court in OGUDU Vs STATE [1994] 9 NWLR (Pt.366) 1 is most apposite at this juncture, I find. ‘It appears to me that upon careful examination of the fundamental rights in chapter IV of the Constitution, they may be classified into two categories for the purpose of their observance and their enforcement. Firstly they are the rights that must be observed whenever the occasion of their observation has arisen. Endorsing the submission of Mr. Agbakoba, they are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of fair trial in courts and tribunals of a democratic society, thus the right to fair trial and the right of an accused to defend himself under section 33 of the constitution are intrinsic to the trial and failure to observe such rights is a valid ground of appeal. The second category of fundamental rights comprises those rights that are enforceable by the High Court under Section 42 of the Constitution. Because the Constitution expressly confers original jurisdiction for their enforcement on the High Courts, this court (referring to the Supreme Court) has no jurisdiction as a court of first instance over them.’ Section 254C(1)(d) CFRN as amended provides that the National Industrial Court shall have jurisdiction……. d) relating to or connected with any dispute over the interpretation and application of the provisions of chapter IV of this constitution as it relates to any employment, labour, industrial relation, trade unionism, employer association or any other matter which the court has jurisdiction to hear and determine; As far as the claimants claim relates to a labour dispute and the alleged breach of fundamental right occurred is related or connected to an employment matter or is procedural and an intrinsic part of a substantive claim this court can hear it as an ingredient of a labour issue and as long as the suit is clothes the court with jurisdiction See Unreported ruling NIC/ ABJ/ 296/ 2012 GEOFERY Vs SETRACO NIGERIA LTS. & ORS delivered on 4th March 2013. Unreported ruling NIC/ABJ/32/2012 ANICHA Vs. NIGERIAN ARMY 7 ORS delivered on 2nd July 2012. It should be noted that section 46(1) of the 1999 Constitution, as amended, talks of “any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress”. By this provision, the application is to be to a High Court for purposes of section 46 of the Constitution and the Rules made there under. The NIC is not a High Court. An application may nevertheless be made to the NIC given the provision of section 254 C (1) (d) of the 1999 Constitution, as amended, but it cannot be an application under the Rules made pursuant to section 46 of the Constitution. Now section S254 C1 (l) gives the National Industrial Court jurisdiction in (ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour , trade unions or industrial relations’ Such appeals would be required to be commenced in line with the provisions of Order 3 This court has held in several case that the Fundamental enforcement Procedure Rules do not contemplate the National Industrial Court, Unreported NICN/EN/10/2011COMRADE (EVANG) OLOWO PREYE GRACE VS PENGASSAN & 3ORS, and that section 254C(1)(d) cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules in this court See Unreported NICN/LA/333/2012 ALHAJI LATEEF AKINSOLA Vs. NURTW & ORS. delivered 20th March 2013. See also THOMAS INEBUI V. FIRST BANK OF NIGERIA [2014] 47 N.L.L.R PT.152 155-315 @P.221, PARAS A-C. In the circumstances the fundamental right issue can only be entertained when evaluating the procedure complained of, i.e. a substantive labour issue, which would be entertained but such a case must be initiated by writ of summons or more appropriately by a complaint where parties will exchange pleadings and adduce evidence on the propriety or otherwise of the claimant’s claims. I find that the Applicant’s case as presently couched and in the procedure adopted squarely pronounces like a case for the enforcement of his fundamental human rights. Now the claimant / applicants have asked this court not to allow technicalities to clogg the wheels of justice but this court has held in the Unreported SUIT NO: NICN/CA/03/2015 EDET AKPAN UMOREN & 13 ORS Vs. UNIVERSITY OF CALABAR & 3 ORS delivered on the 25th June 2015;-that the Fundamental Human Rights Provisions, unlike when a case is instituted by an Originating summons and the court find that process unsuitable the court can with reliance on Supreme Court direction such as OSANBADE V OYEWUMI [2007] 18 ALL FWLR (PT. 368) 1004 AT 1015 PARA. –E. and ADEYELU II V. AJAGUNGBADE III [2007] 14 NWLR (PT. 1053) PAGES 3-4, and order parties to file pleadings. There exists no such apex court precedent to enable the conversion of a Fundamental Rights Enforcement process to a process capable of activating this court’s jurisdiction. Learned Author of blessed memory B. Aturu in his book “The Law and Practice of National Industrial Court” First Edition 2013 Hebron Publishing Co. Ltd at p30. states that applicants seeking to activate the fundamental rights relating to jurisdiction of this court “must comply with Order 3 of the Rules and not by the Fundamental Rights (Enforcement Procedure) Rules 2009, otherwise the matter would be struck out” See NICN/EN/12/2012 FADIRO Vs. ADEYEMI (unreported). Also see S.S.A.U.T.H.R.I.A.I. v. OLOTU (NO. 2) (2016) 14 NWLR (PT. 1531) 1, per Adumein, JCA @ Pp. 17 -19, PARAS. C-A; where the Court of Appeal held that” the Enforcement of Fundamental Rights does not fall within the jurisdiction of the National Industrial Court and as such, this Court is incompetent to determine” the case. Having determined that this court lacks the jurisdiction to entertain application for the enforcement of fundamental rights the question now arises as to what is the proper order the court must make in the circumstances being a transferred matter. By Bamidele Aturru Supra the court is to strike out this suit, when the court posed the question in open Court as to the proper order to be made in the event that the court finds itself lacking jurisdiction. The Applicant preferred not to make any submission but chose to leave the matter to the Court’s discretion. Now considering the provisions of Section 24 (5) of the NICN Act 2006 the question arises as to the proper order to be made and the questions to be formulated. Section 24(5) provides that “Where the court to which any cause of matter has been transferred pursuant to sub section (2) or (3) of this section, above is of the opinion that the cause or matter ought in law to be dealt with by the Court which transferred the cause or matter, the first mentioned Court shall, after hearing Counsel on behalf of the parties, state a case on a point of law for the opinion of the Court of Appeal” Also se Order 62(4) I, in consequence, find and hold that the matter at hand qualifies under section 24(5) of the NIC Act 2006 for the Court to “state a case on a point of law for the opinion of the Court of Appeal”. This being a matter that was a transferred from the Federal High Court of Abuja sitting at Maitama and so I cannot sit on appeal over it by striking it out. The prayer of counsel that I strike out the matter cannot, therefore, be granted as that would be tantamount to holding that the Federal High Court was wrong in transferring this matter to this court, this I hold does not lie in the mouth of this court so to do; that would mean sitting on appeal over the decision of a judge of coordinate jurisdiction. Section 24(5) of the NIC Act 2006 accordingly enjoins that in the circumstance, the Court makes a case stated to the Court of Appeal for its opinion. In consequence, I most humbly and hereby “state a case on a point of law for the opinion of the Court of Appeal” to wit – Whether, given the facts of this case, the reliefs sought and the statutory jurisdiction of this court is it not the Federal High Court Abuja that should hear and determine this case. The Court of Appeal is accordingly and humbly called upon to give its opinion as to whether it is the Federal High Court Abuja or this Court that has jurisdiction to hear and determine this case. This matter shall be adjourned sine die. Ruling is entered accordingly. ….…………………………………… Hon. Justice E. N. Agbakoba Judge