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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLD AT CALABAR BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: July 15, 2014 SUIT NO.NICN/CA/144/2013 BETWEEN: Abigail E. Morgan - Applicant AND 1.Commissioner of Police (Akwa Ibom State Command) 2. David Adamu (DPO – Ewet Housing Police Station Uyo-Aks) 3. Inspector Peters (IPO) Respondents 4. Samuel Udoro-General Manager Doing Business under The Name And Style “Venus Hotels And Suites”, Shelter Afrique, Uyo REPRESENTATION Dr E.J. Uko for Applicant Lazarus Ikey Esq for 1st, 2nd& 3rd Respondents Uwem Uko Umoh for 4th Respondent RULING This is a fundamental rights enforcement application commenced by the applicant by way of Motion on Notice filed on 9th October 2013 pursuant to Order 11 Rules(1), (2) & (3) of the Fundamental Rights Enforcement Procedure Rules 2009, Sections 35, 36, 38, 41, 44 & 46 of the 1999 Constitution as amended, Articles 6, 7, 12 & 15 and of the African Charter on Human and People Rights (Ratification and Enforcement) Act CAP A9, LFN 2004 and under the inherent jurisdiction of the court. The applicant seeks the following orders: 1. A declaration that the applicant is entitled to Right to Be Paid for Work Done, as well as Rights to liberty, fair hearing, freedom of movement in accordance with Section 35, 36,38,41,44 &46 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Articles 6.7.8.12 and 15 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws of Federation of Nigeria 2004 and consequently, no-one including the respondents and/or their officers, and/or agents are legally competent to deny the applicant these rights or otherwise infringe upon the fundamental rights of the applicant. 2. A declaration that a worker who works for an organization, as the applicant, is entitled to payment of wages for work done as guaranteed by the Nigerian Constitution and in Article 15 of the African Charter on Human and Peoples’ Rights, as incorporated into Nigerian Law and that owing such worker arrears of salaries and refusing to pay her for several months- tantamount to attempt to deprive her of her right to life. 3. A declaration that a report by the 4th respondent to the Police to arrest the applicant who has worked for Venus Hotels and Suites, Uyo where the 4th respondent is Manager, and was being owed 3 months arrears of salaries, warranting the applicant to deduct part of the revenue received in her possession, (leaving an I.O.U. Note) as part of her salary arrears owed her, in the face of serious financial predicament whereby the said Manager/4th respondent paid deaf ears to her appeals and cries - thereby subjecting the poor applicant to pursuit by the Police for arrest to the extent that the applicant now sleeps in the forest for fear of arrest and detention by the 1st – 3rd respondents – unconscionable, repugnant to natural justice, equity and good conscience, as well as being wrongful and unconstitutional and constitutes a violation of the applicants rights to personal liberty, fair hearing, freedom of movement, freedom from arbitrary arrest and right to receive equal pay for equal work as respectively guaranteed by Section 35,36,38,41,44,& 46 other Sections of the Nigerian Constitution 1999 (As Amended) and Articles 6,7,8,12 and 15 of the Africa Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, laws of Federation of Nigeria 2004. 4. An order restraining the respondents, whether by themselves, officers, agents, servants, privies and/or associates jointly and severally from arresting, detaining, inviting, harassing, intimidating or otherwise tormenting the applicant, or in any manner breaching his fundamental rights in respect of any matter constituting the subject of his complain in this application. 5. N20,000,000.00 (Twenty Million Naira) against all the respondents jointly and/or severally for the breach/violation of the applicant’s Fundamental Rights. 6. N10,000.000.00 (Ten Million Naira) against the 4th respondent for making a false report of theft to the Police whereas he is owing the applicant arrears of salaries, thereby subjecting the applicant to untold hardship and hot pursuit by the Police causing the applicant to now sleep in the forest and thereby gravely violating the applicants’ fundamental rights. 7. Any further or other orders as the Court may deem proper to make in the circumstances. The motion is supported by twelve paragraphs affidavit sworn to by the applicant and a written address. Also filed by the applicant are two further affidavits sworn to by her on 20th November 2013and 12th December 2013 respectively which are supported by two written addresses. The 1st, 2nd and 3rd respondents filed a counter affidavit to which is annexed two exhibits sworn to on 5th November 203 by Inspector Peter Okparaeke the Investigating Police Officer (IPO) and a written address in support. The 4th respondent swore to a counter affidavit on 29th November 2013 which is supported by a written address. The case of the applicant is that she worked under the 4th respondent who is the Manager of Venus Hotels and Suites on an agreed monthly salary of N20,000.00 for five months but she was only paid for two months leaving a balance of N60,000 for the months of July, August and September 2013. She stated that due to pressing financial needs she pleaded with the 4th respondent to pay her arrears of salary but she was not paid as he told her the Director had collected all the money. That from the total amount of sales income she received on the 25th September 2013 which came to N153,000.00, she wrote an IOU and deducted N50,000.00 out of the N60,000.00 she was owed as salary leaving a balance of N10,000.00 owed to her. She stated that thereafter, the Manager and the Director kept calling and threatening her and eventually made a false report of theft to the Police who harass her life every second with threatening phone calls and pursuing her to arrest her. The applicant stated that there was no basis for the allegation of stealing made out against her as she is not a thief but rather has a right to be paid for her work; and that her lawyer wrote the 4threspondent in this regard That the 3rd respondent who is the Investigating Police Officer (IPO) calls her repeatedly using the number given to the Police by the 4th respondent and threatening her that the Police are looking for her and once she is arrested she will be seriously dealt with. She stated that is now in hiding and sleeps in the forest for fear of being arrested and detained by the Police even when she is being owed wages. That the 3rd and 4th respondents have been calling her three guarantors who are her father and two relations and threatening them that if they do not produce her to the Police, they will be arrested in her place. She stated that she is owed arrears of salary and the Nigerian Constitution, African Charter on Human and Peoples’ Rights and International Human Rights Instruments guarantees a worker the right to receive equal pay for equal work done and her. That the actions of the respondents have violated her fundamental human rights as she is an honest and dedicated worker. The applicant’s counsel was not present in court on the day fixed for adoption and his address was deemed adopted as provided by Order 12 of the FREP Rules. He argues that since this matter for enforcement of fundamental rights has a link to issues connected with wages at work, the case has thus been filed in this court. He referred to Sections 35(1), 35 (6), 46 of the 1999 Constitution and submitted that the court has a constitutional duty to protect citizens whose fundamental rights have been infringed or likely to be infringed. He submitted that it is the burden of the Police to justify their actions which infringe on the fundamental rights of law abiding citizens citing Gabriel Jim- Jaja v COP [2011] 2 NWLR (Pt 1231) 375, Ubani v Director SSS [1999] 11 NWLR (Pt 625) 129. He argued that from the facts stated in the affidavit, the applicant’s fundamental rights have been breached and the court cannot shy away from its constitutional duty to protect citizens from the excesses of the Police citing Yahaya Farouk Chedi v A-G Federation [2006] 13 NWLR (Pt 997) 308 at 330. He submitted that the applicant having proved her case is entitled to damages referring to ABN Ltd v Akubueze [1996] 6 NWLR (Pt 509) 374. The case of the 1st, 2nd and 3rd respondents is that a case of stealing was reported at the Police Station on the 26th September 2013 by the 4th respondent that the applicant who is a staff of Venus Hotels and Suites, Uyo stole the sum of N55,000.00 belonging to the Hotel and when she was called she said she used the money to rent accommodation and that she has removed her official file from where personnel files are kept and dropped the Keys in her custody in the front office; and that all efforts made to reach her to return the money proved abortive. The 4th respondent made a statement to that effect. The 3rd respondent as IPO investigated the complaint, called the applicant once on the phone number given to him and asked her to report at the Police station to react to the allegation being investigated. The 1st, 2nd and 3rd respondents stated that the applicant has refused to come to the station to respond to the allegations against her; that she was never threatened with arrest and has not been arrested or detained. The respondents stated that they are simply investigating a report of stealing and not an employment matter and that till date they have not seen the applicant and therefore could not have violated her fundamental rights. Counsel to the 1st, 2nd and 3rd respondents submitted one issue for determination as follows: Whether in the circumstances of this case, the fundamental right of the applicant has been infringed upon by the 1st, 2nd and 3rd respondents and if not, whether the applicant is entitled to the reliefs sought. He submitted that the Police have the statutory power to investigate criminal complaints made to it referring to Section 4 of the Police Act, CAP P19 LFN 2004, Onah v Okenwa [2010] 7 NWLR (Pt 1194) 512. He argued that if the applicant has not entangled herself with criminality, she would honour the Police invitation to either rebut the allegation or establish the truth of the allegation. He submitted that the applicant has failed to show how the Police invitation to her to respond to the allegation against her is unlawful or a breach of her fundamental rights. He submitted that the applicant’s fundamental rights have not been violated by the 1st, 2nd and 3rd respondents. He then urged the court to dismiss the application with costs. The 4th respondents case is that he is the Manager of Venus Hotels and Suites where the applicant was employed as cashier. He stated that she worked for less than five months and was owed two months salary amounting to N40,000.00 as the date she absconded from her duty post. He stated that in the morning of September 25, 2013 as he was coming into the office, he noticed the applicant at the gate hurrying away and when he tried to talk to her she said she was coming. On a routine check he discovered that she had left her office key and that N50,000.00 was missing from the cash book and she did not hand over to anyone. He stated that he called her on her phone but she did not pick his calls or that of the Director. He also discovered that she had used her position to remove her personal file and so they could not reach her guarantors or trace her as she had removed all her records. He stated that the matter was reported to the Police because it was discovered that the applicant had stolen twenty towels and ten bed sheets in her custody. Counsel to the 4th respondent submitted one issue for determination as follows: Whether the applicant is entitled to the reliefs sought. He submitted that indebtedness is not in the realm of fundamental rights referring to Chapter IV of the 1999 Constitution as amended and that where the main claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be said to be properly evoked and the action is liable to be struck out for incompetence. He submitted that every citizen has a civic duty to report cases of suspicion of or commission of crime to the Police citing Fajemirokun v Commercial Bank of Nigeria Ltd [2009] NSCQR (Vol 37) H 2. He argued that there was and still a reasonable suspicion of crime and the 4th respondent did not act in bad faith when he reported to the Police. He submitted that there is no evidence of arrest and detention of the applicant; and that this application is brought to stop the Police from carrying out its constitutional duty citing A-G Anambra State v Chris Ubah [2005] NWLR (Pt 974) 44 at 64. He then urged the court to dismiss the application with substantial costs of N1,000,000.00 for being vexatious and frivolous. I have carefully considered the processes and submissions of counsel. Section 254C (1) (d) of the 1999 Constitution as altered provides that this court shall have and exercise jurisdiction: 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 relations, trade unionism, employers associations or any other matter which the Court has jurisdiction to hear and determine; In ascertaining the justiceability or competence of a suit commenced by way of an application under the Fundamental Rights (Enforcement Procedure) Rules (FREP), the Court must ensure that the enforcement of the fundamental rights under Chapter IV of the Constitution is the main claim and not the ancillary claim. See the case of West African Examination Council v. Akinola Oladipo Akinkunmi [2008] Vol 7 M.J.S.C 103.The main relief being sought for by the applicant is a declaration that she has the right to be paid for work done as can be clearly seen in the manner relief 1 is couched. This is not one of the fundamental rights provided in Chapter IV of the 1999 Constitution as altered. The other rights being sought in relief 1 fall within Chapter IV of the Constitution and are therefore ancillary to the main claim. In any event, from the affidavit evidence before the court, the applicant has not shown which of her fundamental rights has been breached by the respondents. She has refused to present herself to the Police station to help the Police in its investigations in respect of the report of stealing made against her; rather, she has chosen to go into hiding. I hold that this application is not justiceable and it is incompetent. It has been brought by the applicant to prevent the Police from carrying out its constitutional duties of investigating a report of commission of crime. This suit/application is dismissed in its entirety. Costs of N20,000.00 is to be paid by the applicant to the respondents. Ruling is entered accordingly. ------------------------------------------- Hon Justice O.A.Obaseki-Osaghae