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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: FEBRUARY 2, 2015 SUIT NO. NICN/LA/385/2013 BETWEEN Dr (Mrs.) Mojisola Olubunmi Nkiko - Claimant AND Federal University of Agriculture Abeokuta - Defendant REPRESENTATION Emeka Okpoko, and with him is Mrs. C. E. Ikebuasi, for the claimant. Miss Mobolaji K. Oloyede and Peter Ogah, for the defendant. RULING The claimant took up a complaint against the defendant dated and filed on 22nd July 2013 praying for – a) A declaration that the constitution, composition, procedure and the subsequent findings and decisions or recommendation of the disciplinary committee and the entire process were fundamentally flawed and constitute a breach of the terms of the condition of service of the claimant and a gross violation of her right to fair hearing. b) A declaration that the purported demotion of the claimant is wrongful, illegal, oppressive and null and void and of no consequence at all. c) An order setting aside the claimant’s purported demotion to the position of Assistant Lecturer (CONUASS 2 step 8) with effect from Thursday 9th May 2013 on account of plagiarism and compelling the defendant to retract all the malicious publications against the claimant and to apologize in writing to the claimant. d) An order of this Honourable Court restoring the claimant to the position of Lecturer II and with all right and privileges attached thereto. e) Damages to the claimant as stated in the particulars of special damages. f) General damages in the sum of N20,000.00 (sic) (Twenty Million Naira) for the wrongful and illegal demotion and damage to the reputation of the claimant. g) The sum of N2,000,000.00 (Two Million Naira) only being the cost of initiating and prosecuting this suit. h) Interest on the total judgment sum at the rate of 21% per annum from the final day of the judgment until liquidation of the entire judgment sum. Accompanying the complaint are the statement of claim, claimant’s list of witness(es), claimant’s witness’ statement on oath, claimant’s list of documents and copies of the documents. The defendant entered formal appearance and filed its memorandum of appearance, statement of defence, defendant’s list of witnesses, statement on oath of the defendant’s witness, defendant’s list of documents and copies of the documents. In addition, the defendant filed a preliminary objection dated and filed on 6th February 2014 praying the Court to strike out this suit on the ground that the Court lacks jurisdiction to entertain and adjudicate on it as presently constituted. The grounds for the objection are – 1. Disciplinary action was taken against the claimant by the defendant in accordance with the rules under which the claimant was employed. The said disciplinary action was communicated to the claimant by a letter dated 10th May 2013. 2. The claimant appealed against her demotion from the position of Lecturer II to Assistant Lecturer by her letter dated 22nd May 2013. 3. That the claimant failed and/or refused to wait for the defendant’s Governing Council to meet to take a decision over the said appeal before filing this suit. 4. The claimant filed her suit on the 22nd July 2013 which was before the Governing Council of the defendant had a chance to consider the said appeal during their (defendant’s Governing Council) next quarterly statutory meeting. 5. The conditions of service of the claimant are embodied in the document titled University of Agriculture Abeokuta (UNAAB) Senior Staff Rules and Regulations (hereinafter called ‘Rules’). 6. The said Rules which create the rights of the claimant also made provision for appeals for any staff dissatisfied with whatever disciplinary action taken against him or her. 7. The claimant failed to exhaust the administrative channel of dispute resolution available within the defendant/objector University’s rules provided for by Rule 5(12) of the said Rules. In support of the preliminary objection are an affidavit and a written address. The defendant then framed one issue for the determination of the Court, namely – Whether considering the facts and circumstances of this case this suit is not liable to be struck out for lack of requisite jurisdiction to entertain and adjudicate on same by this Court. To the defendant, the claimant did not comply with the provisions of Rule 5.12.1 of the University of Agriculture Abeokuta (UNAAB) Senior Staff Rules and Regulations. That it is trite that where a statute, rule or constitution creates a right as well as a remedy for the breach of that right, Courts are to ensure that the remedy is exhausted by an aggrieved party before recourse to court is had, citing Barraclough v. Brown (1897) AC 621 at 622, Orubu v. INEC [1988] 12 SC (Pt. III) 1 at 46 – 47, Eguamwense v. Amaghizenwen [1993] 11 SCNJ 27 at 42, Adejola v. Bolarinwa [2011] 12 NWLR (Pt. 1261) 380 at 392 – 394 and Marwa v. Nyako [2012] All FWLR (Pt. 622) 1622 at 1714. Rule 5.12.1 dealing with right of appeal provides as follows – Without prejudice to the procedure for disciplinary action, any aggrieved member of staff who is disciplined or punished under the appropriate regulations shall have the right of appeal through the normal channel to Council. The ruling of Council on such appeal shall be final. The defendant then submitted that the instant case is premature in its entirety (the claimant having not exhausted her right of appeal under Rule 5.12.1 of the University of Agriculture Abeokuta (UNAAB) Senior Staff Rules and Regulations) and as such same should be struck out, referring to Abidoye v. Babalola [1999] 12 SCNJ 61 and Owoseni v. Faloye [2005] 7 SCNJ 357. The defendant continued that the claimant cannot come to this Court until the following preconditions have been met, namely – (a) The prescribed authority, the Governing Council of the University, must have made a determination or adjudication on the compliant in issue. (b) The aggrieved party must make a representation by way of an appeal to the Governing Council of the University for adjudication and a decision be reached before such aggrieved person can go to Court. (c) And the Governing Council of the University must have adjudicated upon and determined the appeal after due inquiry before any action can be instituted in any Court. That the claimant did not adhere to these steps and so the instant action is premature, incompetent, invalid and liable to be struck out in its entirety. The defendant concluded by urging the Court to hold that the claimant’s failure to comply with the mandatory provision of Rule 5.12.1 of the University of Agriculture Abeokuta (UNAAB) Senior Staff Rules and Regulations constituting condition precedent to accessibility of the Court prior to this suit robs the Court of jurisdiction to entertain and adjudicate on this suit and therefore dismiss or strike out the suit on ground of its incompetence. In reacting to the defendant’s preliminary objection, the claimant filed a counter-affidavit and a written address. In her written address, the claimant framed three issues for the determination of the Court, namely – 1) Whether this Court has the jurisdiction to entertain this suit in the light of the circumstance of this case. 2) Is there any condition precedent known to law which was not satisfied by the claimant before the claimant can initiate this case? 3) Would it have been appropriate for the claimant to wait and be caught by the statute of limitation? Regarding issue 1), the claimant submitted that in considering a preliminary objection to jurisdiction, the Court will consider only the writ of summons and statement of claim, referring to Governor of Kwara State v. Lafiagi [2005] 5 NWLR (Pt. 917) 139 at 151D, FGN v. Oshiomhole [2005] 3 NWLR (Pt. 860) 305, Tyonzughul v. AG, Benue State [2005] 5 NWLR (Pt. 918) 226 and Inikine v. Edjerole [2001] 18 NWLR (Pt. 745) 446 at 449. That in virtue of section 6(6)(b) of the 1999 Constitution, as amended, the claimant has an unfettered right to approach the Court for the adjudication of any matter between her and any other party including the defendant herein. That the argument of the defendant that the claimant has to await the outcome of the decision of the Governing Council before approaching the Court to ventilate her rights is most untenable. That the defendant did not show that there is a condition precedent inherent in Senior Staff Regulations and Rules which must be satisfied before proceeding to Court. That Rule 5.12.1 only establishes an appeal channel, not any provision that must be followed before going to Court. In any event, that Rule 5.12.1 delimits judicial powers of the Court as enshrined in the Constitution in that the rule provides that: “…The ruling of the Council in such an appeal shall be final”. That this provision impliedly usurped the judicial powers of the Court even up to the Supreme Court; to that extent, the rule is null and void, citing Njinkonye v. MTN Nig. Communications Ltd [2008] 9 NWLR (Pt. 1092) 339 at 349. The claimant urged the Court to disregard Rule 5.12.1 in the light of the above. On issue 2) i.e. whether there is any condition precedent known to law which was not satisfied by the claimant before the claimant can initiate this case, the claimant answered in the negative and then adopted her argument in respect of issue 1). The claimant conceded that where there is a statutory condition precedent which must be satisfied before an initiation or commencement of an action, non-compliance with that condition affects the jurisdiction of the Court; but that in the instant case, there is no statute stating any condition precedent which must first be complied with before the claimant can initiate this type of case. That the facts of the claimant’s case, particularly the punishment meted out to the claimant is totally strange and unknown to the University Act or Rules and Regulations. That there is no provision within the entire gamut of the University Act including the Rules and Regulations making any provision for demotion of the claimant or anybody at all. The claimant went on that assuming without conceding that the Rules and Regulations apply to the claimant, the claimant having appealed has done all that is required of her within the said Rules and Regulations. That the duty of the Court is to interpret the Rules and Regulations giving it its natural and ordinary meaning. The claimant then submitted that the Rules and Regulations, even though they have no applicability in the circumstance of this case, were also satisfied with. Regarding issue 3) i.e. whether it would have been appropriate for the claimant to wait and be caught by the statute of limitation, the claimant submitted that she filed an appeal on 22nd May 2013 and waited for close to three months before filing this suit. That there was no letter inviting her from the Council till date. That the refusal to hear the appeal was a calculated ploy to delay the matter until the matter will be caught by the statute of limitation. To the claimant, it is trite that delays defeats equity, and equity does not aid the indolent. That the claimant has done all that is required of her by exercising her right of appeal. That it is not the duty of the claimant to compel the Council to sit. What is expected within the Rules is for the claimant to exercise her right of appeal which she has exhausted. The claimant concluded by urging the Court to dismiss this application with cost. The defendant filed a reply on points of law. To the defendant, contrary to the counter-affidavit of the claimant, time does not start to run until the claimant’s steps to explore the internal dispute resolution mechanisms are fully exhausted. That the law is trite that the period of limitation in respect of any cause of action runs from the date the cause of action accrued, citing Muomah v. Spring Bank Plc [2009] 6 WRN 118 at 136. That in the instant case, the claimant had stated in paragraph 61 of her statement of claim that “she wrote to the defendant appealing for the reconsideration of the defendant’s decision….” That it is, therefore, correct to say that the cause of action will not arise until the response to the said appeal is given; and in this case the claimant did not wait for the said response before instituting this action. The defendant continued that the 1999 Constitution as it concerns the instant case is misconceived by the claimant as there is no part of the University of Agriculture Abeokuta Senior Staff Rules and Regulations as there is no part of the University of Agriculture Abeokuta Senior Staff Rules and Regulations that is a bar to her right of access to the Court. That contrary to paragraph 7 of the claimant’s counter-affidavit, the University of Agriculture Abeokuta Senior Staff Rules and Regulations is not in conflict with the claimant’s constitutional right of uninhibited access to Court. That the said Rules only require the claimant to exhaust all internal remedies before proceeding to Court. In conclusion, the defendant urged the Court to uphold the objection of the defendant and strike out the claimant’s entire suit for being incompetent, invalid, premature and an abuse of court process. The Court had drawn the attention of both counsel to Gbenga Bodunde & anor v. Staff Cooperative Investment & Credit Society Ltd, OAUTH Complex & ors [2013] 12 NWLR (Pt. 1367) 197. The claimant in consequence prayed the Court to be allowed to file a further written submission in response. The claimant was permitted. In her further written submission filed on 6th August 2014, the claimant raised one issue: whether the decision in Gbenga Bodunde is relevant and/or applicable to this case; and she answered in the negative. The claimant first narrated the facts of the case and then distinguished the case from the instant case as follows – a) In Gbenga Bodunde the respondent did not refer their matter to the registrar for decision at all as required by law; in the instant case, the claimant appealed in compliance with the Staff handbook as that was all that was required of her and nothing more. b) The Staff handbook never stipulated that whosoever appeals must await (in this case ad infinitum) the outcome of the decision before proceeding to Court. c) The makers of the Staff handbook knew that whosoever appeals to the Council has no control over when the Council will sit or not sit hence what is only expected of an aggrieved party is to appeal leaving the rest to the Council to decide when to sit even though they are bound by the statute of limitation. d) If the respondent in Gbenga Bodunde referred their matter to the registrar for decision, the Court of Appeal would not have arrived at the same decision. The claimant then proceeded beyond Gbenga Bodunde and referred to other cases such as this Court’s decision in Dr Janet Titilayo Bamgbose v. Federal University of Agriculture Abeokuta unreported Suit No. NICN/LA/371/2013 delivered on 25th March 2014 where Hon Justice J. D. Peters held – It is my opinion that the claimants should not and could not be expected to wait indefinitely for the Defendant to review their case. Beside, were they to wait for more than 3 months before commencing this case, their claims would be caught by the statute of limitation. I find and hold that this Notice of Preliminary Objection lacks merit. The claimant urged this Court to apply Dr Janet Titilayo Bamgbose “so as to avoid setting double standard by the same court in respect of same facts and circumstances which will never be in the interest of justice and the judiciary”. The claimant also referred to Garba & ors v. University of Maiduguri [1986] 1 NWLR (Pt. 17) 559, where the Supreme Court held that an aggrieved student can bypass the council and come to court if he feels that his fundamental right have been infringed upon. The claimant then urged the Court to be bound by this decision. The claimant concluded by submitting that Courts are enjoined to guard their jurisdiction jealously, citing Njinkonye v. MTN Nig communications Ltd [2008] 9 NWLR (Pt. 1092) 349; and that the provision of paragraph 5.12 of the Staff handbook is in flagrant violation of the constitutional powers of the Court and so is unconstitutional. The claimant accordingly urged the Court to dismiss the preliminary objection with substantial cost same being unmeritorious in law. The defendant did not react to the claimant’s further written submission. I heard learned counsel and considered all the processes filed in this matter. The issue before the Court is whether there is an obligation on the part of the claimant to exhaust domestic remedy before coming to this Court. The defendant cited Rule 5.12.1 of the University of Agriculture Abeokuta Senior Staff Rules and Regulations as the provision laying down the domestic remedy that the claimant is expected to exhaust before coming to this Court. The said rule provides as follows – Without prejudice to the procedure for disciplinary action, any aggrieved member of staff who is disciplined or punished under the appropriate regulations shall have the right of appeal through the normal channel to Council. The ruling of Council on such appeal shall be final. Rule 5.12.1 gives the claimant a right of appeal against any discipline or punishment meted out to him/her. To the claimant, this rule is not a precondition before filing an action in this Court; and even if it were a precondition, she met the condition by appealing to Council. In other words, there is no duty on her to await the outcome of the appeal before coming to Court; for otherwise, she will be caught up by the limitation laws. In any case, that the Staff Handbook never even stipulated that whosoever appeals must await the outcome of the decision before proceeding to Court. To take the claimant’s argument that the rule is not a precondition to filing an action, a reading of rule 5.12.1 will show that an aggrieved staff who is disciplined shall have the right of appeal to Council. The rule is couched in a mandatory sense – the staff shall have the right of appeal. If the intention was that the right is optional, then the more appropriate word, ‘may’, would have been used instead of ‘shall’. And in stating that “the ruling of Council on such appeal shall be final”, what is meant is not that the Courts cannot be approached (the construction of the claimant) but that after that Council’s ruling on the appeal, no further issues in that regard can be raised before Council. It is at that stage that the right to approach the Court crystallizes. Here, my finding and holding, therefore is that Rule 5.12.1 of the University of Agriculture Abeokuta Senior Staff Rules and Regulations makes provision for domestic remedy, which the claimant must exhaust before she can come to this Court. Given the weight of the authorities cited by the defendant and the additional concurring judgment of His Lordship Nweze, JCA (as he then was) in Gbenga Bodunde & anor v. Staff Cooperative Investment & Credit Society Ltd, OAUTH Complex & ors (supra), which held that failure to exhaust domestic remedies robs the Court of jurisdiction, I am compelled to hold in favour of the defendant that the claimant is prematurely before this Court. The claimant made an issue of Gbenga Bodunde and indeed sought to distinguish it from the instant case. In doing that, the claimant appears to misunderstand the rule as to exhausting domestic remedies before one can access the Courts. The question is not whether the right to access the Court is extinguished, but whether failure to exhaust domestic remedies and accessing the Court thereby is not premature. In fact, when the claimant narrated the facts of Gbenga Bodunde, the claimant seemed to overlook the fact that the case still held that where domestic remedies are enjoined, they must be exhausted before access to court can be had. Here, access to Court is not as such denied; only that it is contingent on fulfilling certain requirements – in this sense, section 6 cannot be said to have been offended simply because access to the Court is made contingent to fulfilling certain conditions. I find it odd that Garba & ors v. University of Maiduguri was cited by the claimant in the manner done. The claims of the claimant in the instant case, which this Court is called upon to decide, are not ones regarding the infringement of the fundamental right of the claimant. So I do not know how helpful Garba & ors v. University of Maiduguri is to the claimant in terms of her present case. Even when the claimant referred to Dr Janet Titilayo Bamgbose v. Federal University of Agriculture Abeokuta, I do not think it was fully appreciated the interplay of the ingredients for a successful plea of the limitation laws. The ensuing discourse shows just this. The claimant had also argued that if she is to await the outcome of the appeal to Council, she will be caught up by the limitation law. Here, the claimant does not seem to appreciate the ingredients requiring a successful plea of the limitations laws. The limitation laws apply only when the cause of action arises; and a cause of action is said to be the aggregate of facts needed to found an action in Court. In other words, once the cause of action does not arise, then the question of the time of limitation law running does not also arise. In this wise, and in the instant case, once the claimant files an appeal before Council, everything needed for the claimant to found her action in Court remains inchoate so long as Council has not given its decision regarding the appeal of the claimant. I do not think this point was made in Dr Janet Titilayo Bamgbose v. Federal University of Agriculture Abeokuta. The claimant did not at least indicate as such to this Court. I note the case of Yare v. National Salaries, Wages and Income Commission (NSWIC) [2013] 5 – 7 MJSC (Pt. I) 1, which appears to hold that a claimant must not wait for the outcome of an appeal before coming to Court, a position also held by my learned brother in Dr Janet Titilayo Bamgbose v. Federal University of Agriculture Abeokuta. But a closer reading of Yare will show that the exhaustion of domestic remedies enjoined by statute as is the case in the instant case was not an issue as such and was not so raised. Secondly, even where domestic remedies are enjoined by statute, it would seem that its requirement as such and the facts that give rise to it must be pleaded if a plea of the limitation law is to be defeated by it. In the instant case, therefore, the question of the claimant being caught up by the limitation law will not arise so long as the claimant pleads the fact in consonance with the law, she had to satisfy the requirement of exhausting domestic remedies i.e. the requisite appeal. I accordingly do not agree with the submission of the claimant that she would have been caught up by the limitation law if she were to await the decision of Council on her appeal before she can come to Court. So long as she pleads the facts that yield to the appeal, she will not fall foul of Yare v. NSWIC. See also Dr Adegoke E. Adegbite v. Federal University of Agriculture Abeokuta & ors unreported Suit No. NICN/AB/04/2013 the ruling of which was delivered on November 18, 2014. The claimant had also argued that there is no provision within the entire gamut of the University Act including the Rules and Regulations making any provision for demotion of the claimant or anybody at all; and so the defendant cannot rely on Rule 5.12.1. This argument goes to the defence of the merit of the case and so cannot be raised at this stage. The very fact that demotion is not provided for in the University Act including the Rules and Regulations is the very fact that the claimant is expected to appeal against under Rule 5.12.1; and if the appeal fails then recourse can be had to the Court. On the whole, I find and hold that the claimant is prematurely before this Court. Her failure to exhaust domestic remedy robs this Court of jurisdiction over her case. The case is accordingly struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip