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REPRESENTATION: K. C. O. Njemanze SAN, with him, N. Ohakwe Esq., and K. I. Uduma Esq; for the Claimant/Respondent E. C. Aguta (Mrs.), Director Civil Litigation, Ministry of Justice, Imo state; with her, J. C. Ibe (Mrs.), Asst Director Civil Litigation, I. I. Amadi (Mrs.), Asst. Director Civil Litigation, B. N. Amagheronu esq., Chief State Counsel, A. O. Anyalemechi (Mrs.), Asst. Chief State Counsel, F. I. Opurum (Mrs.) Snr State Counsel, B. U. Nwanze, State Counsel and C. J. Anyanti State Counsel; for the defendants/applicants. RULING By a Complaint dated the 22nd day of August 2103 and filed on the same date, the Claimant claims against the defendants jointly and severally as follows: 1. A declaration that the claimant is still a permanent secretary in the service of Imo State Government and is entitled to his salaries, emoluments, benefits and privileges till 20th march 2017. 2. A declaration that the claimant is only due for retirement on 20th March 2017 when he would have attained 60 years of age. 3. A declaration that the purported retirement of the claimant from Imo State civil service by the 1st defendant (vide letter dated 30th May 2013 reference number CSC/P.9/S.6/IV/109 issued by the Chairman of the 3rd Defendant) is null and void, and of no effect. 4. An order setting aside the purported retirement of the Claimant from Imo State Civil Service (vide letter dated 30th May 2013 reference number CSC/P.9/S.6/IV/109 issued by the Chairman of the 3rd Defendant). 5. An order reinstating the Claimant as a Permanent Secretary in the Imo State Civil Service. 6. An order restoring the payment of salaries, emoluments, allowances, benefits and privileges to the Claimant by the Defendant from May 2013. 7. An injunction restraining the defendants, their servants, and or agents from retiring the Claimant from the Imo state Civil Service before the 20th March 2017. By a Notice dated the 28th day of January 2014 and filed on the 31st day of January 2014, the defendants/applicants have raised a Preliminary Objection to the effect that this court lacks jurisdiction to entertain this suit. The grounds upon which the application is brought are: i. The subject matter of the suit is not a matter within the jurisdiction of this honourable court pursuant to S. 208(1) of the Constitution of the Federal Republic of Nigeria 1999. ii. The present suit borders on retirement of the Claimant/Respondent as Permanent Secretary and is not actionable in a court of law. iii. The subject matter of the suit is not a matter within the jurisdiction of this honourable court in that the appointment of the claimant as a permanent secretary is by the Governor. iv. The suit does not disclose any reasonable cause of action. In support of the Preliminary objection is a written address canvassing arguments in support of the application, wherein they formulated the following 3 issues for determination: a. Whether this Honourable Court has the jurisdiction to entertain this suit in view of the provisions of Section 208 of the 1999 constitution as amended. b. Whether this present suit which borders on the act of the Executive who removed the claimant as permanent secretary is actionable in a court of law. c. The subject matter of the suit is not a matter within the jurisdiction of this honourable court in that this suit constitutes an abuse of court process of court. In arguing ISSUE ONE, reference was made to Section 208(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which counsel submitted, robs this court expressly of the jurisdiction to deal with matters relating to removal of Permanent Secretary appointed by the Governor. Section 208(1) provides that “Power to appoint persons to hold or act in the offices to which this section allies and to remove persons so appointed from any such office shall vest in the Governor of the State.” The offices to which Section 208(1) applies are stated in Section 208(2) thus: a. Secretary to the Government of the State b. Head of Civil Service of the State c. The Permanent Secretary or other Chief Executive in any Ministry or department of Government of the State Howsoever designated; and d. Any staff of the personal staff of the Governor. It is Counsel’s submission that this is not one of such matters this court can entertain, and that the jurisdiction of a court is determined by the claim before the court, and not by the parties; that this case borders on removal of the Claimant as a Permanent Secretary, which is an act of the Executive, and that it is not conceived in Section 208(1) of the constitution that this court or any other court shall have jurisdiction to interfere in the removal of a permanent secretary whose appointment and removal is by the Governor. Therefore, Counsel went further to submit that the jurisdiction conferred on this court by Section 254(C) of the constitution is so enormous that the court should not be further inundated with unsolicited burden of hearing cases such as this, which counsel says is not even actionable in any court of law as it borders on removal of a permanent secretary. In essence, any decision made in such a matter would be automatically rendered null and void and of no legal effect. In arguing ISSUE TWO, counsel sought to define the word “shall” as construed in Section 208 of the constitution, to connote mandatory or imperative. It was further submitted that the act of removal which forms the gamut of the Claimant’s claim, has been completed, therefore the defendants cannot be restrained. In arguing ISSUE THREE, Counsel submitted that the main issue sought to be determined is not actionable in that the Claimant knew that the Governor has the power to appoint and remove him. This suit, counsel stated, is therefore not actionable and will serve no useful purpose as it constitutes an abuse of court process, and the court has no jurisdiction to entertain this matter, and urged the court to dismiss the suit. In opposition, the Claimant/Applicant filed a written address on the 3rd day of February 2014, wherein a sole issue was formulated for the determination of this court. That is: “Whether the National Industrial Court of Nigeria has the jurisdiction to entertain this suit.” In arguing the issue, it was the submission of learned counsel to Claimant that in determining whether the complaint comes within the jurisdiction conferred on this court, it is the complaint and statement of fact that are the most crucial processes to be examined. See TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 @ 549 where Obaseki JSC held that: “It is a fundamental principle that jurisdiction is determined by the plaintiff’s claim. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court.” To the Claimant, the reliefs sought are mainly declaratory and injunctive reliefs relating to or connected with his contract of employment with the defendants, as well as restoration of payment of salaries and emoluments. Also, that the National Industrial Court as presently constituted, is established by Section 254A (1) of the 1999 constitution as amended; and that Section 254C(1) of the said constitution in clear and unambiguous terms, provide that: notwithstanding the provisions of Sections 251, 257, 272 and anything contained in the constitution, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters listed thereunder as a-m. Counsel submitted that this court has exclusive jurisdiction to deal with matters listed in Section 254C (a) & (k) being those: (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.” (k) relating to or connected with dispute arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political office holder, judicial officer or any civil or public servant in any part of the federation and matters incidental thereto. It follows therefore that this court has jurisdiction to entertain this suit, to the exclusion of any other court. S.C.C. (NIG) LTD vs. SEDI (2013) 1 NWLR (Pt. 1335) 230 @247-248, N.U.T. NIGER STATE vs. COSST, NIGER STATE (2012) 10 NWLR (Pt. 1307) 89. It was further submitted that the use of the word “notwithstanding” in Section 254C (1) is meant to exclude an impending effect of any other provision of the constitution; therefore, no provision of the constitution is capable of undermining the said section. See NDABA (NIG) LTD vs. UBN PLC (2009) 13 NWLR (Pt. 1158) 256@304. See also NECO vs. TOKODE (2011) 5NWLR (Pt. 1239) 45 @ 68. It is submitted that the Claimant has shown facts in his claim and statement of facts that he rose through the ranks in the Imo State Civil Service, to become a Permanent Secretary. He therefore has a right of action and right to judicial relief, a reasonable cause of action and triable issues having been disclosed in this suit. NIGERIA AIRWAYS vs. GBAJUMO (1992) 5 NWLR (Pt. 244) 735@750-751. In AG FEDERATION vs. AG ABIA STATE (2011) 11 NWLR (Pt. 725) 689, the Supreme Court held that once the statement of claim discloses some cause of action or some questions fit to be decided by the judge, a cause of action is reasonable, even if the case is weak. Further adumbrating on his submissions, Learned silk for the Claimant, citing the case of ADETONA vs. I. G. ENTERPRISES LTD (2011) 7 NWLR (Pt. 1247) Pg. 535, urged the court to look at only the claim and nothing else. He stated that Section 208 of the constitution does not give the governor unfettered powers to retire a permanent secretary. He urged the court to look at Section 208(5) of the constitution, as well as the rulings of this honourable court in IHEDIOHA ONYEKACHI vs. FEDERAL INLAND REVENUE SERVICE (Unreported NICN/ABJ/267 delivered on 5th February 2014 at the Abuja Division of this Court) and MR. SAMPSON NNOSIRI & 4 OTHERS vs. EASTERN BULKCEM CO. LTD (Unreported NICN/PHC/69/2013 delivered on 3rd February 2014 at the Owerri Division). He urged the court to hold that the NIC had jurisdiction to entertain the matter. The defendants/applicants filed a written reply on law on the 7th day of February 2014 wherein arguments were further proffered to the effect that the governor having been conferred with express power to appoint and remove any person as Permanent secretary, an order of re-instatement in this case would amount to an order incapable of enforcement, and the court would have acted in vain. UNIVERSITY OF JOS vs. IKEGWUOHA (2013) 9 NWLR (Pt. 1360) 478. Reference was also made to the use of the word “notwithstanding” in Section 254C (1) of the constitution. Counsel submitted in this regard, relying on NECO vs. TOKODE (2011) 5 NWLR (Pt. 1139) 45 @ 68 that having expressly mentioned Sections 251, 257 and 272, that section automatically excludes any other section, and that Section 208 is not intended to be included. In urging the court to give effect to the provisions of Section 208 being clear and unambiguous, Counsel referred the court to the case of A. G. ONDO STATE vs. A. G. EKITI STATE (2001) 91 LRCN 3065 @ 3087 and urged the court to hold that it lacks the requisite jurisdiction to hear and entertain this matter; and that an executive act of removal of Perm Sec is not actionable in a court of law. I have carefully considered the submissions and arguments as well as authorities in respect of this application. Before going into the issue of whether or not the NIC has jurisdiction, it is pertinent to determine the issue as to whether or not matters arising from section 208 of the Constitution are actionable in any court of law. The defendants/applicants’ counsel has submitted that the Claimant/Respondent’s action is not actionable in any court of law in view of the fact that it borders on removal as Permanent Secretary. Counsel based this argument on the provisions of Section 208 (1): “Power to appoint persons to hold or act in the offices to which this section allies and to remove persons so appointed from any such office shall vest in the Governor of the State.” Section 208(2): The offices to which this section applies are, namely: a. Secretary to the Government of the State b. Head of Civil Service of the State c. The Permanent Secretary or other Chief Executive in any Ministry or department of Government of the State howsoever designated; and d. Any staff of the personal staff of the Governor. I do not think that the provisions of Section 208(1) and (2) should be construed isolatedly from the other parts of that Section, the rest of which is reproduced thus: Section 208 (3): “An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent secretaries or equivalent rank in the civil service of any State or of the Federation.” Section 208(4): In exercising his powers of appointment under this section, the governor shall have regard to the diversity of the people within the state and the need to promote national unity.” Section 208(5): Any appointment pursuant to Paragraph (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office.” Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office. It has been held in the case of Nawa v. Attorney-General Cross River State. (2007) LPELR-8294(CA) thus: "When considering the provisions of the constitution a court is obliged to consider the provisions as a whole. It is not enough to consider only the provisions of Section 208(1) and (2) of the 1999 Constitution as the learned counsel for the respondents did in their respondents' brief of argument. In the case of Attorney-General, Federation vs. A. N. P. P. (2003) 15 NWLR (Pt. 844) 600, it was held that the court is obliged to read the constitutional provision as a whole.” My understanding of the entire provisions of Section 208 of the Constitution is that it is only appointments pursuant to Subsection (2) Paragraph a – (Secretary to the Government of the State) and Paragraph d – (Any staff of the personal staff of the Governor) that shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office. Clearly, the position of Permanent Secretary and the Head of Service do not fall within the category of positions that shall be held at the pleasure of the Governor. Even then, OMOKRI, J.C.A. went further to state in the case of Nawa v. Attorney-General Cross River State (Supra) thus: “Clearly it is not the intention of the legislator that under section 208(1) of the 1999 Constitution, a Governor can just retire a Permanent Secretary without any just cause. It is important to say that the days when public or civil servants are retired with immediate effect without stating any reason and in flagrant violation of the law, as it was under the Military regime, is now dead, buried and gone forever. In a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. See sections 197, 202 and Part II paragraph 2(2) of the 3rd Schedule to the 1999 Constitution. Presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power. See F. C. S. C. vs. Laoye (supra) and Aiyetan vs. N. I. F. O. R. (supra)." Per OMOKRI, J.C.A. (P.49, Paras.A-F) In the more recent case of MAJOR GENERAL OVO ADHEKEGBA v. THE HON. MINISTER OF DEFENCE & ORS. (2013) LPELR-20154(CA), AKOMOLAFE-WILSON, J.C.A, in determining when a court will assume jurisdiction in cases where its jurisdiction has not been clearly ousted in the statute, held thus: "It is trite law that jurisdiction of the court cannot easily be wished away hence courts guard their jurisdiction jealously as the right of access to court is constitutional. In considering whether or not a court has jurisdiction to entertain any claim, the Supreme Court has long held that while a person's right of access to court may be taken away or restricted by a statute, the language of any such statute will be watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. A provision in a statute ousting the jurisdiction of the court must therefore be construed strictly - BACLAYS BANK OF NIGERIA LTD v. CENTRAT BANK OF NIGERIA (1976) 6 SC 115; INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1025] 423. In the cited case of NAAC v. ECONET WIREIESS LTD (2006) 37 WRN 120 AT 15S - 159, Justice Odili JCA, as he then was stated thus - "In the interpretation of statute which restricts a citizen's right if there should be any doubt, gap, duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or deprivation of his right. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction. If there is any doubt as to whether the person to be penalized or to suffer has of a right comes fairly and squarely within the plain words of the enactment, he should have the benefit of that doubt." Per AKOMOLAFE-WILSON, J.C.A. The cumulative effect of the authorities cited above is that since Section 208 has not clearly stated that appointments covered by it are not actionable, it will be wrong to oust the jurisdiction of the court by imputing a meaning that has not been clearly stated into the provisions of that section. I therefore hold that this case is actionable in a court of law. Having thus ruled on the actionability or otherwise of this suit, the next pertinent question that would arise is: “which court has jurisdiction to entertain the matter.” Section 254C(1) (a) & (k) of the Constitution of the Federal republic of Nigeria 1999 amended) provides thus: 254C (1) Notwithstanding the provisions of section 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 – (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service including health, safety, welfare and matters incidental thereto or connected therewith; (k) relating to or connected with disputes arising from payment or non- payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any civil or public servant in any part of the Federation and matters incidental thereto. I find it necessary at this point to point out that Sections 251, 257 and 272 of the Constitution which are referred to in Section 254C are Sections that refer to the jurisdiction of the Federal High Court, the FCT High Court and the State High Courts respectively. The intention of the drafters of the constitution was to provide a clear-cut distinction as regards matters entertainable at the various courts of co-ordinate jurisdiction. This solved the problem of forum shopping that was associated with labour matters before the third alteration act was promulgated to amend the constitution. The word “notwithstanding” in S254C(1) is therefore meant to oust other courts or other bodies for that matter, from entertaining the matters listed therein. In the case of NDIC V. OKEM ENTERPRISE LTD. & ANOR. (2004) 10 NWLR (Pt.880)107, it was held that: ''When the term 'notwithstanding' is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.'' Per UWAIFO, J.S.C. Having said that, there is no dispute as regards which court can hear the category of cases outlined in Section 254C (1) (a) to (m). I am in agreement with the submission of Counsel to the Claimant that this court has jurisdiction to entertain this suit, to the exclusion of any other court, and I so hold. See S.C.C. (NIG) LTD vs. SEDI (2013) 1 NWLR (Pt. 1335) 230 @ 247-248 and N.U.T. NIGER STATE vs. COSST, NIGER STATE (2012) 10 NWLR (Pt. 1307) 89. As regards whether the claimant has disclosed a cause of action before this court, it is pertinent to answer the question as regards when a cause of action can be said to have been disclosed. The courts have held that in determining whether or not a suit should be struck out due to non-disclosure of cause of action or reasonable cause of action, the court must restrict itself to the facts as pleaded in the Statement of Claim without resort to any extraneous facts. Claimant’s counsel had argued relying on the case of PANACHE COMM. LTD vs. AIKHOMU (1994) 2 NWLR (Pt. 327) Pg. 420 and NICON INS. CORP. vs. OLOWOFOYEKU (2006) 5 NWLR Pt. 973 Pg. 244, that once a Statement of Claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not a ground for striking it out. I hold in line with the Court of Appeal decision in MOHAMMED vs. BABALOLA SAN (2011) LPELR-CA (Per Tsammani JCA), that “in determining whether or not a cause of action exists or a reasonable cause of action exists, a trial court is enjoined to restrict itself to an examination of the totality of the writ of summons or statement of claim.” Having examined the Complaint and Statement of Facts on this case, I hold that the Claimants have disclosed a sufficient cause of action. From the foregoing, I hold that this court has jurisdiction to entertain this suit. The Defendant/Applicant’s preliminary objection fails and is accordingly dismissed. The case will proceed to hearing. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge