Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge THURSDAY 28th NOVEMBER, 2013 SUIT NO: NICN/ABJ/215/2013 Between Mr. Andrew Ayabam Claimant/Respondent AND Benue State Government and Six Others Defendants/Applicant REPRESENTATION Applicant present, Defendants absent T. Azoom Esq. with G.T. Iorver Esq. for the applicants; No legal representation for the respondents RULING By a motion on notice dated the 9th of September 2013 and filed on the same date, the respondent raised a preliminary objection under order Viii of the Fundamental Right Enforcement Procedure (FREPR) 2009, challenging the jurisdiction of this court on four main grounds; (1) By virtue of section 46 of the constitution of the Federal Republic of Nigeria 1999 as Amended, (hereinafter referred to as 1999 constitution)and order 11 Rule 1 of the fundamental Right( Enforcement procedure Rules 2009, this Honourable Court lacks forum jurisdiction over the instant application; (2) The subject matter of the suit does not fall within the preview of section 254 ( c ) (1) of the 1999 constitution and section 7 of the National Industrial Court Act 2006. (3) The action is speculative, an academic exercise and discloses no reasonable cause of action. (4) An originating motion is not a method of commencement of actions recognized by order 3 of the National Industrial Court Rules 2007 and the National Industrial Court of Nigeria (NICN) Practice Direction 2012. The application /objection is supported by a written address dated and filed on the 9th of September 2013. In the said written address in support of the objection learned counsel to the respondent Prof. A. A. Ijohor (SAN) formulated four issues for determination (1) Whether or not the National Industrial Court has jurisdiction to entertain an application for enforcement of fundamental rights under the Fundamental Rights (enforcement procedure) Rules in view of section 46 of the constitution of the Federal Republic of Nigeria (FRN) 1999 (as amended) and order 11 rule I of the fundamental rights (Enforcement procedure ) Rules 2009. (2) Whether or not the subject matter of this suit, the report of the Auditor- General indicting the applicant, falls within the purview of section 254 ( c ) (I ) of the constitution of Nigeria 1999 (as amended) and section 7 of the National Industrial Court Act 2006 so as to confer this Honourable Court with jurisdiction in this suit. (3) Whether or not the application discloses a reasonable cause of action or is speculative and an academic exercise. (4) Whether or not the application commenced by originating motion is a process for commencement of actions recognized by National Industrial Court (NIC) Rules of 2007 and the NICN Practice Direction 2012. In His submission on issue 1 formulated, learned SAN referred to section 46 of the 1999 constitution (as amended ) of the FRN, Order II rule I of the Fundamental Right Enforcement Procedure Rules 2009 and the African Charter on Human and peoples Right otherwise known as the BANJUL Charter 1981 (Ratification and enforcement) Act to the effect that only the Federal High Court, the state High Court and the FCT High Court has jurisdiction on Enforcement of fundamental Human Right and that the National Industrial Court was never contemplated. He call in aid the case of Adetona Vs. I. G. Ent . Ltd 2011 7 NWLR Pt. 1247 535 at 564 A-C . Counsel contended further that section 254 (c ) (I) (d) of the 1999 constitution of the FRN as amended do not in any way confer jurisdiction when it comes to the enforcement of Fundamental Human Right. In the context of this case at hand the learned Silk further asserted that the Auditor-General’s report of which the applicant is challenging cannot be construed as an employee/employer dispute. Counsel drew the attention of the court to section 125 (2) (3) and (4) of the 1999 constitution of the FRN which gives unfettered powers to the state Auditor General to carry out periodic checks of government and statutory agencies accounts. Counsel referred to the case of AG. Ondo Vs. AG. Federation (2002) 9 NWLR (Pt. 772) 222 at 335 D – E and urge the court to hold that the third alteration Act 2010 did not amend the provisions of Section 46 of the 1999 Constitution to vest jurisdiction or include or accommodate the National Industrial Court (NIC) as “High Court” for the purpose of having jurisdiction over Fundamental Right Enforcement issues. On issue two, learned counsel to the Respondent submitted that the gravamen of the applicant’s case borders principally on the validity or competence of the Auditor General’s report. In that vein, counsel contended that section 254 (1) (d) of the 1999 constitution (as amended) of the Federal Republic of Nigeria (FRN) only talks about interpretation and application of the provisions of chapter IV of the constitution where the main claim rest squarely on employment, industrial dispute or labour matters. The present case, in its reliefs is devoid of any such claims or reliefs; furthermore, counsel posited that section 125 (3) of the 1999 constitution is not a fundamental Right issue. Counsel cited the case of Peter side Vs. IMB Nigeria Ltd. 1993 2 NWLR Pt. 278 712 at 731 – 732 and quoted in extenso the dictum of Tobi JCA (as he then was) to buttress his argument. Counsel submitted further that since the principal claim is the Auditor Report validity, the issue of fair hearing raised by the applicant is ancillary in nature and as such this suit cannot be entertained under the fundamental right enforcement Rules as this court has no jurisdiction to do so. He call in aid the cases of BRTC Vs. Egbuonu 1991 2 NWLR (Pt. 171) 81 at 90. WAEC Vs. Akinkumi 2008 4 SCNJ 306 at 317. University of Ilorin Vs. Oluwadare (2006) ALL FWLR (Pt. 338) 747 at 755 A –D. Tukur Vs. Govt. of Taraba State (1997) 6 NWLR (Pt. 510) 549 at 576-577. On issue three, learned SAN Counsel to the respondent maintained that the case of the applicant is speculative in nature as the Auditor’s Report complaint about is not placed before the court: He cited the case of Awoniyi Vs. Reg. Trustees of AMORC 2000 10 NWLR Pt. 676 522 at 546; Ogbuechi Vs. Governor Imo State 1995 9 NWLR Pt. 417 53 at 94. Oyo State INEC Vs. AG. Oyo State 2006 ALL FWLR (Pt. 334) 2012 at 2016 – 2017. Counsel urged the court not to declare null and void what is not before the Court. It is the contention of counsel also that the issues of competence of the Auditor-General of Benue State to produce Audit Report and the issue of the Auditor- General of the state exceeding his mandate are strictly constitutional issues bordering on constitutional Interpretation and not matters of fair hearing. He further urge the court to hold that such issues are hypothetical or academic and as such the court has no jurisdiction. He cited the case of Akinyanju Vs. Unilorin (2005) 7 NWLR (Pt. 923) at 115 B – C. It is the contention of counsel that since the applicant claim in his affidavit that he has no access to the Audit Report and he is yet to honour the invitation extended to him duly by the administrative committee, there is therefore no evidence before the court to infer that there is a breach of fair hearing. On issue four, learned respondent counsel submitted that all the modes of commencement of actions recognized by order 3 rule I of the National Industrial Court (NIC) Rules 2007 and order 3 rule 5 (a) inserted through the practice direction of 2012 have not been used by the applicant and as such the suit should be struck out; he cited the case of Inyang Vs. Ebong 200 2 FWLR Pt. 125 70 3 at 744 E-G. He contended also that since the applicant has not complied with the rules of this court in terms of mode of the commencement of action, it is a fundamental defect and not a mere irregularity which can be waived and as such the suit is incompetent and should therefore be struck out as the objection should be sustained and up helded. In His written reply to the respondent’s objection, learned SAN, counsel to the applicant S.T. Hon. filed a written address dated the 10th of September 2013. On the reply to issue one, the learned Silk contended that since the respondent did not file a conditional appearance, he cannot competently challenge the jurisdiction of this court. He cited the case of Inakoju Vs. Adeleke 2007 ALL FWLR (Pt. 353) 3 at 1384 SC. Counsel contented also that this suit was filed pursuant to section 254 (c) (1) (d) of the 1999 constitution as amended and not under section 46 of the constitution. Counsel contended further that section 254 (1) of the 1999 constitution as amended in superior to any other provision of the said constitution. He cited the case of Ladoja Vs. INEC 2007 All FWLR (Pt. 377) 934 SC. Counsel urge the court not to introduce any technicality in interpreting section 254 ( c) (I) (d) of the 1999 constitution (as amended) as submitted by the respondent counsel as the issue at hand borders on employment, connected, relating, arising, and incidental to workplace issues as the case of Adetona Vs. I.G. Ent. Ltd cited by the applicant is not applicable to this case. Counsel relied on the cases of Ehuwa Vs. Ondo State I. E. C (2007) All FWLR (Pt. 351) at 1448 SC and A.G. Lagos State Vs. A.G. Federal (2005) ALL FWLR (Pt. 244) 805 at 846 -849 SC and enjoins the court to avoid technical interpretation of the constitution , and lean towards a wider interpretation as against narrow interpretation in the interest of justice so as to give “ meaning and life” to the law. Counsel relied on the cases of Adeleke Vs. Oyo State House of Assembly 2007 FWLR (Pt. 345) 211 and Okolie Eboh Vs. Manager 2005 ALL FWLR (Pt. 241) 277 at 317 SC. Learned Silk also contented further that the respondent counsel clearly recognized the fact that the suit is brought under the fundamental Right enforcement procedure rules; moreover the respondent has relied on this very Rules to secure the courts discretion in his favour when he applied for extension of time. Counsel submitted that rules of court and practice do not confer jurisdiction on court as can be seen in the case of Afribank Nigeria Plc. Vs. Akware 2006 ALL FWLR (Pt. 304) 401 at 429 C-D SC. The fundamental Right Enforcement procedure Rules 2009 counsel submitted is an existing law by virtue of section 315 of the 1999 constitution as amended and as such it must be interpreted to bring it in conformity with the provision of the constitution and therefore urged the court to “modify” the provision of 2009 rules of the fundamental Right enforcement to conform with section 254 ( c) (I) (d) of the 1999 constitution as amended. In addition to this submission, counsel invited the court to consider the internal rule of interpretation and the intention of the law makers and urge the court to rule that this court has jurisdiction over fundamental right cases under the 2009 rules since modification means and includes addition, alteration omission or repeal. He call in aid the cases of Int. Merchant Bank Plc Vs. Samba Petroleum Ltd (2000) FWLR (Pt. 19) 472 at 487. Da kabirikin Vs. Emefor 2009 ALL FWLR (Pt. 494) 1425 at 1442; Okewu Vs. FRN 2012 ALL FWLR Pt. 625 205 SC; Olaleye –Ote Vs. Babalola 2012 ALL FWLR (Pt. 642) 328 at 344 H -345; Adesanoye Vs. Adewole 2000 FWLR (Pt. 14) 2387 at 3435 SC; Adisa Vs. Olayiwola (2000) FWLR Pt. 8 1349 at 1377-1378; Obi Vs. INEC 2007 All FWLR (Pt. 378) 1116 at 1213 SC; Okechialaim Vs. Nwamara (2003) FWLR Pt 176 635 at 644 -645. Counsel contended also that the four courts under the Nigerian constitution vested with the jurisdiction to enforce fundamental rights are the Federal High Court, State High Courts, FCT High Courts and the National Industrial Courts by virtue of the third alteration Act 2010. He also submitted that if the fundamental Right rules have been made after 2010, the National Industrial Court (NIC) would have been mentioned in the Rules of 2009. Counsel urge the court not to adopt an interpretation approach that will defeat the aim of the law. He cited the cases of Onochie Vs. Odogwu 2006 ALL FWLR (Pt. 317) 544 at 569; Ansaldo Nigeria Ltd Vs. NPF MB 1991 2 NWLR Pt. 74 392 at 405; ADH Ltd Vs. Amalgamated Trustees Ltd (No 2 ) 2007 ALL FWLR Pt. 392 1781 at 1825and 1833.; Governor of Kwara State Vs. Dada 2011 ALL FWLR Pt 592 1638 at 1657. Counsel re-emphasized the need for the court to be purposeful and creative in its interpretation of statute particularly where a right is created without providing a remedy for it enforcement; PDP Vs. INEC 2001 FWLR (Pt 31) 2735 at 277 A-D. SC. Furthermore it is the submission of counsel that where no rule exist on a right conferred by a statute, the proper procedure is the use of originating motion. Counsel cited the cases of K.A.S.O.A.P. Vs. Kofa Trading Co. Ltd 1996 2 SCNJ 325; (1996) I NWLR (Pt. 436) 244; B J. Export and Chemical Co. Ltd Vs. KRPC Ltd (2003) FWLR (Pt. 165) at 445 at 471 D-E ; Alliance for Democracy Vs. Fayose (2004) ALL FWLR (Pt. 222) 1719. Applicant counsel contended that the Audit Report and all the argument on its constitutionality as conversed by the respondent learned counsel are not part of the objection and should therefore be discountenanced by the court as parties and the court are bound by their prayers. He cited the case of Commissioner of Works Benue State Vs. Devcon Dev. Consultant Ltd (1988) 3 NWLR Pt. 83 407 SC. On the reply on issue 2 raised by the respondent counsel, the learned SAN contended that the main relief is the validity of the Auditor - General report which has breached the principle of fair hearing and has therefore located this principal claim or relief under fundamental right which this court has jurisdiction to enforce. This the counsel submitted further is in addition to the breach of the fundamental right of freedom of movement which the applicant has embodied in his case. It is also the contention of the learned Silk, counsel to the applicant that the issue of applicants failure to appear before the review committee do not stem from the preliminary objection as it does not reflect the issue for determination as couched. This argument therefore should be discountenance, he submitted, as it is a matter for the main suit. On issue three, learned counsel posited that since the Auditor- General’s report is exhibited as exhibit “G” in further affidavit in response to the respondent counter affidavit, filed on 4th September 2013, all arguments in that respect goes to no issue and should be discountenance by the court. Counsel lists the stages of the infringement of the applicant’s fundamental rights as follows: (1) The indictment as contained in the Auditor General report (2) The radio broadcast barring him from his office and premises of Benue Inland Revenue Service (BIRS) (3) Invitation by the review committee to the applicant. On issue four, counsel submitted that the originating motion is competent since a statute creating the right for the interpretation and application of fundamental Right has not stipulated how that right is to be enforced. In that circumstance, he submitted that, originating motion is appropriate and urge the court to so hold. In His Adumbration, counsel cited the case of Emeka Vs. Okadigbo 2012 18 NWLR (Pt. 1331) 55 at 92 B – D in support of the principle established by Inakoju Vs. Adeleke (Supra). He submitted further that the respondent has no reply to his contention that having failed to enter a conditional appearance; he cannot raise any objection to this suit as the condition precedent to the raising of such objection has not been fulfilled. Counsel submitted further that the objection substantially is on the procedural aspect of law which can be waived as against substantive aspect of the law which cannot be waived. He call in aid the cases of Nagogo Vs. CPC 2013 2 NWLR Pt. 1339 449 at 472 D-G and 491 G-H. Atago Vs. Nwuche 2013 ALL FWLR Pt. 680 1233 at 1244 D-E Counsel contended that a form of commencement of action does not make an action incompetent if that form is not followed as order 2 (1) of the rules of this court talks of waiver. Counsel also posited that this court has the power of a High Court as guaranteed under the third alteration 2010. Counsel submitted that where African charter i.e the Banjul charter is not even mentioned in the constitution, this court can still apply it. Section 25 4 (I) ( c ) of the constitution of FRN 1999 as amended have been interpreted in the case of NUT Niger State Vs. COSST Niger State 2012 10 NWLR Pt. 1307 89 at 112 -113 and John Vs. Igbo Etiti LGA 2013 7 NWLR Pt. 1352 I at 17, he submitted; counsel urge the court not to follow the per In curium decision cited by the respondent counsel in Olowo’s case as per incuriam decision cannot be relied upon. He relied on the case of Adiola and Sons bottling Co. Ltd Vs. FCMB Ltd 2013 ALL FWLR Pt. 691 1570 at 1587. Counsel urge the court to dismiss the objection. In his reply on point of law, learned professor SAN contended that since the fundamental right enforcement procedure rules 2009 was made by the Chief Justice of Nigeria (CJN) pursuant to section 46 (3) of the 1999 constitution of the FRN, section 46 is very critical and central to the suit before the court. Counsel further contend that since the words of the statute ie the 2009 fundamental right enforcement procedure are clear, there is no need for this court to be creative, purposeful or modify the word of the statute or usurp the functions of the Chief Justice of Nigeria (CJN) to modify the rules to accommodate this court. He call in aid the case of Uwaokop Vs. UBA Plc 2013 All FWLR (Pt. 690) 13 16 at 1357; A-C . Counsel contend that since the applicant has conceded that originating motion is not listed as one of the ways of commencing action under the National Industrial Court (NIC) Rules of 2007 and the practice direction of 2012, the court should so hold and discountenance the respondents argument and authorities in that regard. Counsel also urged this court to be persuaded by the judgment of this court in the case of Comrade (Evang) Olowo Preye Grace Vs. Petroleum and Natural Gas Senior Staff Association of Nigeria Pengassan and 3 others Unreported suit No NICN/EN/10/2011 decided on 5th July 2011 wherein the suit was dismissed on the ground that the court has no jurisdiction to entertain claims brought under the fundamental right procedure rules 2009. Counsel Submitted further that the protest letter by the applicant should not be considered by the court as it was made on the 23rd August 2013 during the pendency of this suit. Counsel refer the court to the case of Arab Contractors O.A.O Nigeria Ltd Vs. Umanah 2013 All FWLR Pt. 683 1977 at 1995 and section 91 (3) of the evidence Act 2011. Counsel contend also that once the special procedure outline in the rules are not followed, the application cannot be said to be in conformity with the rules . He cited the case of Schroder Vs. Major 1989 2 NWLR (Pt. 101) I at 19 D-G. 21 F-H. Counsel finally urge the court to strike out the application of the applicant for being incompetent. I have carefully read and considered the various processes and submissions made by counsel and the authorities cited in support of their respective positions. The crucial question that calls for answer and attention throughout the length and breath of the various submissions in this case is: under what circumstances in this court can an applicant employ the instrumentality of the fundamental right enforcement procedure Rules 2009 and the 3rd alteration Act 2010 to initiates and set the law in motion to ventilate his grievances Bordering on chapter 4 of the 1999 constitution of the Federal Republic of Nigeria (FRN) To answer this lone issue for determination, a journey to the mode of commencement of actions in this court will be of help; section 3 (1) of the NIC Rules 2007 has this to say; “Any action for determination by the court shall be commenced by way of complaint which shall be filed and sealed. The complaint shall be in form I with such modifications or variations as circumstances may require” Under the National Industrial Court (NICN) practice Direction 2012. Order 3 Rule 5 has an additional rule “A” as follows; 5 A (1) “Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the persons interested” From these rules quoted above the mode of commencement of actions in this court have been limited to complaints and originating summons. Originating summons is not originating motion. Moreover where originating summons is to be used, it must be limited to questions of construction of instruments where substantial dispute of facts are not likely. See: (1) Doherty Vs. Doherty 1964 NMLR 144 (2) Jumoh Vs. Olawoye 2003 10 NWLR Pt. 828 307 (3) Mudashiru Vs. Abdulahi 2009 17 NWLR Pt 1171 547 at 568. By the provision of the fundamental Right enforcement procedure rules under which the applicant brought this suit it is crystally stated in order I rule I that “Court” means the Federal High Court or the High Court of state or the High Court of the FCT, Abuja” Order II rule I of the fundamental right enforcement procedure rules 2009 has this to say. “Any person who alleges that any of the fundamental right provided for in the constitution or African charter on Human and peoples Right (Ratification and Enforcement) Act and to which he is entitled has been is being or is likely to be infringed, may apply to the court in the state where the infringement occurs or is likely to occur, for redress” Section 46 (1) of the 1999 constitution of the Federal Republic of Nigeria (FRN) has this provision. “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” Just like originating motion is not contemplated as one of the modes of commencing action in this court, the National Industrial Court (NIC) was not contemplated as a High Court under the fundamental right enforcement procedure Rules. Moreover when the Chief Justice of Nigeria (CJN) made the 2009 rules in accordance with section 46 (3) of the 1999 constitution the National Industrial Court (NIC) Act 2006 was in existence and no mention was made of it to accommodate the jurisdiction of National Industrial Court (NIC) over fundamental right procedure. The applicant counsel also referred to section 254 (c) (I) (d) of the third alteration Act 2010 which says: “relating to or connected with any dispute over interpretation and application of the provision of chapter iv of this constitution as it relates to any employment, labour, industrial relations, Trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine” Counsel wanted the court to hold that this section gives jurisdiction to this court to hear and determine fundamental right enforcement issues. I beg to disagree with the learned Silk on this submission. The court is only given powers under this section to ascertain the meaning of fundamental right principles and apply them on matters relating to employment and work place issues which are commenced in accordance with recognized rules of the National Industrial Court. Where the action is commenced in an unrecognized manner, I hold that this court will not have jurisdiction. Applicant’s counsel also made mention of section 254 (d) of the third alteration Act 2010 where it is stated that “……. the National Industrial Court shall have all the powers of a high Court” It is my humble view that having such powers do not necessary mean that the NIC has jurisdiction over action commenced by originating motion or actions brought under the fundamental right enforcement procedure rules 2009 when the NIC is not contemplated by the law. The NIC has all the inherent powers of the High Court but not as specifically outline and mentioned under the Fundamental Right enforcement procedure Rules of 2009. I so hold. The applicant also referred me to the fact that the respondent did not enter conditional appearance to this suit and as such he has no legal pedestal to stand in bringing this preliminary objection. Order 8 (1) of the rules of this Honourable Court says: “Every person served with an originating process shall within the days stipulated therein or if no date is stipulated within 14 days of the service of the originating process, file a memorandum of appearance in the registry of the court”. Order 8 (2) “The memorandum of appearance shall be signed by the party served or the legal practitioner representing the party…..” Order 8 (3) “Where any defendant or respondent fails or omit to file a memorandum of appearance ……..” From the provisions of this rule and the sub rules, no mention is made by the rules on entering conditional appearance. The respondent entered appearance on the 3rd of September 2013. In any case objections on the issue of jurisdiction can be raised at any stage of the case. It may even be raised as a point of law orally. This is trite law. The applicant counsel urged this court in his written address and submission to be purposeful and creative in the interpretation of section 254 and section 46 of the 1999 constitution (as amended) and the fundamental Right enforcement procedure Rules 2009 in order to bring them in conformity with the intention of the law makers so as to accommodate the fundamental right enforcement under the jurisdiction of the National Industrial Court. In other words, I am being persuaded to be proactive in my interpretation of this statutes and rule. To my mind, if the jurisdiction is there, it is there; if it is not there, it is not there; to engage in such a voyage of creativity or pro-activeness will amount to judicial rascality as our jurisprudence under the doctrine of stare decisis or precedent do not encourage such arbitrariness. In other words, I am bound by the decision of appellate courts on this subject matter. It is trite law that in trying to locate the jurisdiction of the court on the subject matter, the claim before the court has to be examine alongside the statute creating or establishing the court. Section 7 of NICA 2006 and section 254 C-F of the 1999 constitution of the Federal Republic of Nigeria (FRN) (as amended) empowers the National Industrial Court (NIC) to deal exclusively with employment and labour connected or related matters. The relief of the applicant before the court arose out of employment. Let me consider the reliefs (1) “An order of declaration that the audit report made by the 3rd defendant was made in breach of applicants right to fair hearing and is therefore unconstitutional, null and void.” (2) “In addition or alternatively, an order that by virtue of section 125 (3) of the constitution of the Federal Republic of Nigeria 1999 as amended, the 3rd defendant lacks the constitutional power to audit the accounts or records of the Benue State Board of Internal Revenue Services, BIRS, and that the Audit report of the 3rd respondent which indicted the applicant without affording him a right of fair hearing is unconstitutional, null and void” (3) “An order of declaration that the letter dated 16th August 2013 and reference S/ADM/OFF/119 /S.I/8, written by the administrative committee to study the Auditor General’s report on the Board of Internal Revenue Services (BIRS) between January 2010 to July 2012 to the applicant in so far as it is based on the 3rd Respondent report which has breached applicant’s right to fair hearing, and which is the outcome of the 3rd respondent’s unconstitutional actions is null and void because Ex nihilo nihil fit. The entire relief of the applicant are eight and injunctive reliefs are included therein. In paragraphs 6 of the affidavit in support of the originating motion, the applicant deposed as follows: 6- That on 18th January 2013, Dr. David Salifu, the secretary to the Benue State Governor made a public service announcement on both radio Benue Makurdi and Harvest F.M radio station, Makurdi that I was “advised in my own interest to stay away from the offices and activities of the Benue Inland Revenue Service indefinitely or till further notice” I monitored the announcement, which was aired severally, myself . 15 “that paragraph 4 of Exhibit “D” has invited me to appear before the committee on Tuesday 27th August 2013 at 11 am in Samson Oklobia Hall, office of the head of Service, Makurdi to shed more light on the issues raised in the report.” From the facts stated above and as can be deduce from the relief being sought from this court, the applicant have been suspended indefinitely from his employment through a radio announcements. Even though there is no official letter to that effect, it can be said that he has a constructive notice of the “suspension” as he monitored the radio announcement himself. He has also been summon to appear before a committee to shed more light on the issues raised in the Audit report. The said Audit report which is Exhibit “D” attached to the originating motion has 27 issues bordering substantially on corruption. In the case of Akinyanju Vs. Uniilorin 2005 7 NWLR (Pt. 923) 87 at 120 -121 paragraph G-C the court has this to say: “ Every employer has the power to investigate any allegation of impropriety or misconduct leveled against his employee and this may lead to suspension pending investigation. Where, then, a servant is suspended by his master so as to investigate allegation of impropriety leveled against him, he cannot have recourse to the fundamental rights provisions to prevent that suspension from operating…….” What can I say more; In the case of Ayewa Vs. University of Jos 2000 6 NWLR (Pt. 659) 142 at 144 para C-D, G-H. The Supreme Court held that a master can suspend his servant when necessary and this cannot amount to a breach of the servants fundamental right under the constitution; at page 144 paragraph C-D of the Judgment, Belgore JSC has this to say; “Clearly, this is a matter of master and servant where master places servant on suspension pending investigation of corruption. Corruption is a serious crime …. This has no bearing with issues of fundamental Right under the constitution of 1979 or the one of 1999” Uwaifo JSC at page 144 paragraphs G-H also has this to say in the same report; “the main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental Rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental right” Assuming without conceding that this court has jurisdiction, it is crystal clear that this court cannot entertain this suit as presented. In the case of shell Pet. Dev. Co. Vs. Lawson Jackson 1998 4 NWLR Pt. 545 P. 249; the court held that natural justice cannot apply before an employee is suspended pending investigation. The interest of the business of the employer becomes paramount and the employee is made to keep off the premises thereof until later. I think this is exactly what has happened to the applicant in this case. It is also trite law under our labour law and industrial relations jurisprudence that it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant as the applicant seeks to do in this case. See the case of Shell Pet. Dev. Co. Nig Ltd Vs. Omu 9 NWLR (Pt. 567) 672. Even if the alleged constructive Suspension through the media of the applicant by the Respondent is unlawful, this cannot amount to a breach of the employee’s fundamental right as it has no bearing with the issue of fundamental right under the constitution. See the cases of Ayewa Vs. Unijos (Supra) Akinyanju Vs. Unilorin (Supra) Longe Vs. FBN PLC(2010) 6 NWLR Pt. 1189 I SC. Moreover, a person or an applicant who claims that his suspension is unlawful has a remedy through an action initiated through a writ of summons and not under the fundamental human rights enforcement Rules. See the case of Effiong Vs. Ebong (Supra). The applicant also contended that he was not granted fair hearing before he was suspended through a radio announcement as the Auditor –General’s report did not also take into account his right to fair hearing. In fact the law is that suspension cannot be questioned on the ground that it could not be done unless his employee is given notice of the charge and the opportunity to defend himself i.e. the rule of natural justice do not even apply in cases of suspension. See the case of Yusuf Vs. VON Ltd 1996 7 NWLR (Pt. 463) 746 CA. I have decided to delve into the above authorities because of the issues canvassed in various written addresses by both senior advocates. From the totality of the reasoning above, I hold that the applicant suit is incompetent on ground of lack of jurisdiction and it is accordingly struck out. ----------------------------- Hon. Justice P.O Lifu JP. Judge