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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/216/2013 Between: Mr. Torkuma Abunku Claimant/Respondent AND Benue State Government and Six Others Defendants/Applicant REPRESENTATION Applicant present , Defendants absent T. Azoom Esq. with G.T. Lorver 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 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-emphasised 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 ie 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 five and injunctive reliefs are included therein. In paragraphs 3, 4, and 8 of the affidavit in support of the originating motion, the applicant deposed as follows: 3 “That when my boss proceeded on leave on 18th July 2012, I had no job schedule again and I was stripped of all assignments by the officials of the BIRS” 4 That on 19th August 2013, I was served with a letter from the administrative committee to study the Auditor –Generals report on the board of internal revenue service BIRS between January 2010 to July 2012 copy of this letter is here to attached and marked exhibit B” 8 “That paragraph 4 of exhibit ‘B’ has invited me to appear before the committee “ on Tuesday 27th August 2013 at 11: 00 am in Samson Oklobia Hall, office of the Head of Service, Makurdi to shed more light on the issue raised in the report please” From the reliefs of the applicant in the originating summons, it can be seen clearly that he is seeking the order of this court to void the auditor general’s report indicting him wherein he is being summon to shed some light on the issues raised in the report. The main claim or relief being sought here in the unconstitutionality of the report and therefore it should be declared null and void on ground of lack of fair hearing. The ancillary relief here is the issue of fair hearing. In the case of WAEC Vs. Akinkunmi 2008 9 NWLR (Pt 1091) 151 the Supreme Court of Nigeria held that where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot, be said to be properly invoked, and the action is liable to be struck out on ground of incompetence. In this WAEC Vs. Akinkunmi (Supra) the applicant sought to void the cancellation of his WAEC result on ground of fair hearing. Similarly in this case at hand the applicant is seeking to void the Auditor General’s report on ground of fair hearing. It follows therefore that the case at hand is on all fours with the WAEC case cited above . See also Effiong Vs. Ebong (2006) 18 NWLR (Pt. 1010) Pg. 109 at 128, Tukur Vs. Govt of Taraba State 1997 6 NWLR 2006 (Pt 510) at 549. Apart from the fact that this suit is not initiated by due process and is liable to be struck out, I am persuaded by the decision of this court in the case of Comrade (Evang) Olowo praye Grace Vs. Petroleum and Natural Gas Senior Staff association of Nigeria (Pengassan ) three others in Suit No. NICN/EN/ 10/2012 decided on 5th July 2011 to the effect that since the National Industrial Court is not contemplated by the provisions of the fundamental (Rights) enforcement procedure Rules 2009, the action of the applicant in this case is incompetent. Furthermore looking at the applicants affidavit quoted earlier, it is quite clear that the relief seeks to stop the defendants from inquiring into allegation of corruption listed under six headings of which a letter have been written to the applicant to come forward and shed some light on them. In my view, this is the right time for the applicant to seize the opportunity of fair hearing being given to him. Since every employer has the power to investigate any allegation of impropriety or misconduct leveled against the employee. See the case of Akinyanju Vs. Unilorin 2005 7 NWLR (Pt 923) 87. The applicant also alleged in his affidavit particularly in paragraph 3 that since his boss went on leave, he had no job again as he was stripped of all assignments by the officials of the board of internal revenue Service. In my view, this amounts to a constructive suspension since the employers has invited him to face and explain himself before a panel or committee. By stripping the applicant of all assignment, the respondent has constructively suspended him for the purposes of commencing disciplinary proceedings against him. This can be seen from the follow –up letter as deposed to in paragraph 4 of the applicants affidavit thus; “ that on 19th August 2013, I was served with a letter from administrative committee to study the Auditor- Generals report on the board of internal revenue service BIRS between January 2010 to July 2012. Copy of this letter is hereto attached and marked exhibit B” In our current labour law jurisprudence as it stands today, the right to discipline or commence or initiate disciplinary proceedings against a suspected erring employee is always at the discretion of the employer since it is for the interest of the organisation or institution. This was the decision of the court in the case of Imonikhe Vs. Unity Bank Plc (2011) 12 NWLR Pt. 1262 624 SC at 649 C The applicant is also seeking among his reliefs, to restrain the respondent from commencing disciplinary processes against him through the enforcement of his fundamental right. As I have said earlier this court lacks the jurisdiction to entertain suits brought under the fundamental right enforcement procedure rules 2009. Assuming without conceding that I am wrong, can an applicant as in this case, prevent his employer from carrying out his discretionary privileges of discipling its staff? I think the answer is in the negative. In the case of Shell Pet. Dev. Co. (Nig) Ltd Vs. Omu, (1998) 9 NWLR (Pt. 567) 672 it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. Even if the alleged stripping of the applicant’s assignment and job schedule or suspension is unlawful, or vindictive, this cannot amount to breach of the employees fundamental right as it has no bearing with issues of fundamental right under the constitution. See the cases of Ayewa Vs. University of Jos (Supra), Akinyanju Vs. University of Ilorin (Supra) and Longe Vs. FBN Plc (2010) 6 NWLR (Pt. 1189) I SC. Furthermore, a person or an applicant who claims he is unlawfully suspended has a remedy through a writ of summons and not under the fundamental right enforcement rules. See the case of Effiong Vs. Ebong (Supra). The applicant also contended that he was not given fair hearing before being stripped of his assignment and before he was being given a letter to answer to the Auditor General’s report indicting him. It is my humble view that the applicant need not be contacted before his employer can carry out a census or an audit of its business. In fact, the law is that suspension cannot be questioned on the ground that it could not be done unless the 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. 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. I have decided to delve into the above authorities because of the issues canvassed in various written addresses by both senior advocates. The mere assertion of the violation of the respondents constitutional right of fair hearing does not necessarily make the action maintainable by recourse to the fundamental right enforcement procedure Rules more so when this court do not have jurisdiction over matters commenced under the fundamental Right enforcement procedure rules. 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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge THURSDAY 19th DECEMBER, 2013 SUIT NO: NICN/ABJ/126/2013 Between: Chief Michael A. Inegbedion Claimant/Respondent AND The Nigeria Union of Pensioners, (NUP) Defendants/Applicant REPRESENTATION Parties absent; A .A Odie Mrs. For the claimant; P.A Bello Esq. with M. o Adjeh for the defendant . RULING By a motion on notice dated the 19th July 2013 the defendant/applicant prayed for the following reliefs. An order striking out questions I and 2 of the questions for the determination of this Honourable court and reliefs No 1, 2, 3, 4 and 5 of the originating summons, as an abuse of the court process The defendant /applicant predicated his prayers on the following tripod (a) The question and the reliefs contained in the originating summons are based on serious allegations of crime against officials of the defendant which cannot be tried by affidavit evidence. (b) The said questions and reliefs are also predicated on facts which are riotously in dispute. (c) The questions and reliefs cannot be determined and resolved by the Honourable Court on originating summons. The defendant/applicant supported his motion with a 4 paragraph affidavit and a written address. Counsel to the defendant /applicant P.A. Bello Esq. contended that the mode of commencement of an action in court is the determinant of the courts jurisdiction. To him, where an action is not initiated by due process, the court cannot exercise jurisdiction. He further contended that the originating summons as used in this case cannot be appropriate since the case at hand is a hostile proceedings raising substantial dispute of facts. He submitted that writ of summons is the proper mode of commencement of such proceedings where pleadings can be filed and exchanged and oral evidence called to resolve conflicts where necessary. Counsel referred the court to the practice direction of 2012 made by the Honourable president of the National Industrial Court of Nigeria pursuant to section 254 (F) of the constitution of the FRN as amended. Counsel urged the court to be bound by the decision in Oyegun Vs. Nzeribe (2010) I SCNJ 127 at 137 138 which enjoins courts to ensure that rules of courts are obeyed. Counsel referred the court to paragraphs 13, 19, 20, 21 -27, 38, 43 and 47 of the affidavit in support of the originating summons of the claimant to show that they contain serious criminal allegations which cannot be proved by affidavit evidence. He further contended that the allegations are so weighty to the extent that they constitute offences punishable under the trade Union laws with particular reference to section 37 (4), (5) (6), and section 15 (2) thereof. Counsel submitted further that the conflict in the affidavits of the parties couple with the allegations of crime which has to be pleaded, particularized and proved beyond reasonable doubt makes this action not commenced or initiated by due process and thereof liable to be struck out. He cited the cases of Agwasin Vs. Ejirumerwerhoye (2001) FWLR (Pt. 78) 1125 at 11 39; Are Vs Salin (2006) All FWLR (Pt. 327) 574 at 600 to anchor or buttress this argument. On the issue of the content of the counter affidavit filed by the defendant/ applicant to the claimant /respondents originating summons, counsel referred the court to paragraphs 4, 5, 6, 7, 8, 9, 10, 14, 15, 12, a-j 16, 21 -27 and urged that the issues here are joined therefore making the facts very material in the dispute. Counsel referred to Ibadan South East Vs. Adeleke (2007) I SCNJ I at 41 Counsel finally urged the court to strike out question I and 2 and reliefs I, 2, 3, 4, and 5 of the originating summons on the authority of Madukolu Vs. Nkemdilim 1962 SC NLR 341 as the suit is incompetent having not been initiated by due process. In opposing the defendant applicants preliminary objection, the claimant /respondent chief M.A Inegbedion Esq. who is appearing in person filed a 6 paragraphs counter affidavit deposed to by himself. He also filed a written address dated the 8th of August 2013. In his oral submission, counsel sought the leave of the court to strike out the arguments on the failure of the defendant/applicant to serve him complete written address. This was granted as that issue has been overtaken by event as a proper version has been duly served on him. Counsel submitted that it is a grave misconception calculated to deceive the court to say that the originating summons contains disputes of facts and allegations of crime. Counsel referred the court to the black law dictionary definition of “FRAUD” at P. 670, seventh edition and the authority of Okoti Vs MORECAB Finance Nig. Ltd 2007 148 LRCN 1158 at 1165 ratio 11 and contended that it is not unusual to allege fraud in civil cases without imputing any crime as the word ‘Fraud’ is so elastic in meaning so as to cover the commission of crime as well as incidents of mere impropriety. Counsel further contended that the word fraud should not be construed out of context but should be viewed principally and particularly from the angle of a frustrated, weak, angry and furious Nigerian pensioners struggling for survival and as such any use of language brothering on lack of accountability and transparency should be interpreted as a mere vulgar abuse and not as an imputation of crime or fraud as any attempt to technically exploit the use of this word as the defendant/ applicant is trying to do will wrought injustice . On the issue of conflict in affidavit and disputes as to facts allegedly contained in the affidavit, counsel urge the court to consider paragraphs 1, 5, 6, 7, 8, 9, 11, 12 (all sub paragraphs inclusive) of the defendant/applicants counter affidavit and to hold that there are mere denials without evidence as the denial contained therein are not supported with any evidence in form of exhibits. Counsel submitted that the defendants/applicant failure to exhibit just one letter, a correspondence, date’s, notices, minutes and records to display their denials makes their objection very barren and lacking in substance. Counsel then urge the court to regard the objection of the defendant/applicant as a delay tricks calculated to weary and frustrate the claimant and add more pains to their injuries. Counsel urged the court further to disregard the case of Ibadan S.E. Vs. Adeleke (Supra) relied upon by the counsel to the defendant/ applicant in his submission as the said authority is of no moment. Counsel drew the courts attention to the numerous Exhibits filed in support of the originating summons and contended further that the over 16 exhibits which are all documentary as against the defendant/applicants no exhibits at all makes this suit properly located to be determined by this court under originating summons. Counsel finally urge the court to dismiss the preliminary objection with severe cost. I have carefully given adequate and sufficient thought and considerations to this suit after a painstaking perusal of the processes filed especially the originating summons, the affidavit in supports with all the exhibits, the counter affidavits, written addresses and oral submissions of counsel. In the determination of this motion filed by the defendant/ applicant, the sole issue for consideration is as follows; Considering the circumstance of this case, whether the use of originating summons is appropriate in commencing and initiating this proceedings or suit. There is a plethora of cases on when an originating summons may be used to commence an action. This is usually where the court is invited to interprete the constitution, statute, any law, will, contract. In other words, it is used where there is no substantial dispute of facts. See the case of Afago Vs. Nwuche (2013) 3 NWLR PT. 1341 337 at 360 Paragraph B –D . Where the apex court stated as follows; “the originating summons procedure is invoked only where the issue for determination is or is likely to be one of construction of a written law, a deed or will, contract or such other document. In other words, it presupposes that facts upon which the construction would be made are either ascertained or unlikely to be substantially in dispute”. See also Balonwu Vs. Obi 2007 5 NWLR Pt. 1028 504 at 547 paragraph E –H. NEPA Vs. Ugbaja 1998 5 NWLR (Pt. 540) P. 106. For the avoidance of doubt, in Ajago Vs. Nwuche (Supra) it was stated by the supreme court of Nigeria that the use of originating summons is predicated on the presumption or presupposition that the facts upon which the construction would be made are ascertained or unlikely to be substantially in dispute. Are all the facts in this case ascertained or unlikely to be disputed? It is easy to discern from a perusal of the affidavit and counter affidavits that while the affidavit in support of the originating summons is full of assertion of facts as deposed to on behalf of the claimant, the counter affidavit are replete with denials of those state of affairs asserted by the claimant. The imputations and varied allegation of crimes became very apt in this context. Let us look at the questions, reliefs and some paragraphs of the claimant / respondent affidavit in support of the originating summons. (1) Questions; 1, 2 and 3 1. Whether in the light of the clear and unequivocal provisions of Rules 11 (xiv) and 15 (vii) of the constitution and Code of conduct of the Nigeria Union of Pensioners, 2008, the Defendant can retain and recycle its central working committee and executive committee members in the same Elective committee for more than two consecutive terms or indefinitely. 2. Whether in the light of the clear and unambiguous provisions of rules 7 (vi) (b), 11 (x) 11(xi), 13 (vii) (a), 13(vii) (b), 16(iv) (g), 16 (xi) (e) and 16 (xii) of the union’s constitution and paragraphs 6 (k), 7 and 8 of the code of practice of the constitution and code of conduct of the Nigeria Union of pensioners, 2008, the defendant can run its affairs indefinitely without publishing any audited accounts for the funds it receives and holds in trust for its members at Local Branch, State Chapter and National Levels. 3. Whether Rule 25 of the Constitution and Code of Conduct of the Nigeria Union of pensioners, 2008 is not in violation of the fundamental principle of Natural Justice and in conflict with the fair hearing provisions of S.36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. (2) Reliefs 1, 2, 3, 4, 5, and 6 1. A Declaration that the election or re- election of Com. I. I, Omoragbon, Com. F.E. Igbinosun, alias Igbinosa, Com. G. A. Aigbegbea, Com. V. O. Aigbodion, Com. R. I. Odia and Prince Fred Ailemoh into the Edo State Executive Committee on 27th May, 2011 was unconstitutional, illegal, null and void and should beset aside. 2. A Declaration that the continued retention of Alh. Ali Abatcha, Chief (Dr) B.N. Anwasis, Dr. A. O. Afolayan, Mogaji O. Oshuntade, Chief Bayo Aina, Alh. Sani Muhammed, Mrs Danlami Z Diko, elder Chief U. Ibekwe and Elder T.S.D. Sukuye as Executive officers of the central working committee is unconstitutional, illegal and unsustainable, each of them having served more than two terms consecutively in the same Elective Committee. 3. A Declaration that any election of any Executive Officers into any Elective Committee of the Defendant at local Branch, State Chapter or National level in violation of the two term limit provisions of rules 11 (xiv) and 15 (vi) of the Union’s Constitution is unconstitutional, illegal, null and void and should be set aside. 4. An Order directing the Central Working Committee and the Edo State Executive Committee of the Defendant to submit to Court forthwith, the audited accounts for all monies received by them from all sources whatsoever in the name of , for and on behalf of the Nigeria Union of Pensioners for each year of their tenure of office since 2003, having failed to render same as required by the Union’s Consecution and Code of Conduct. 5. A perpetual Injunction restraining the Defendant, its servants, agents, privies and successors – in – title from recycling and retaining any members of any Elective Committee of the Union for more than two terms consecutively. 6. An Order directing the defendant to amend rule 25 of its constitution and code of Conduct and eliminate its conflict with the fair hearing provisions of the Constitution of the Federal Republic of Nigeria 1999 and the principles of Natural Justice by adding a proviso such as : “PROVIDED that the person or persons against whom the compliant is brought shall not be judges in their own cause or matter”. (3) Paragraphs 9, 14, 19, 29, 30, 37, 44, 47, 48 and 49 of the affidavit in support of the originating summons raises some contentious issues bordering on fraud and corruption, partisanship and lack of accountability and transparency. For the avoidance of doubt, I repeat the said paragraph of the affidavit. 9. That after Chief Pat Oboh had reported me to the State Executive Committee, the then State Chairman, Mr. Samson A. Aihiokhai Invited me to Benin and , in trying to convince me on the appropriate action to take , gave himself as an example and said “I am not asking my predecessor- in – office, Kanabe to come and give account for anything. When my time comes, I will take my own and go.” 14. That even though I was the Local Branch Chairman of Ekpoma Local Branch, Chief Pat Oboh was still side tracking me to unlawfully collect money from Ekpoma Branch Pensioners purportedly for one kind of service or the other as a result of which I wrote him a letter titled “ DEMAND FOR ACCOUNT”, dated 23rd August, 2005, a copy of which is attached herewith and marked “ EXHIBIT D”. 19. That from the Ekpoma Local Branch experience as stated at paragraphs 4 and 5 above, I know as a fact that the masses of Nigerian Pensioners who are members of the 774 Local Branches across the country, are not ever consulted on the contents of the constitution and code of conduct of the Union, Which is invariably and exclusively written and adopted “BEHIND CLOSED DOORS” by the State and National Executive Committee members of the Union. 29. That the Edo State Executive Committee, up to 27/05/2011 under the chairmanship of Mr. Samson A. Aihiokhai and since then and up till now under the chairmanship of Mr. I. I. Omoragbon, has never, in the past 12 years of recorded administration given any Statement of Account or any audited account to the Pensioners of Edo State. 30. That the Central Working Committee has never in the past 12 years given any audited account to Nigerian Pensioners as required by the Union’s Constitution and code of Conduct, 2008 as amended. 37. That in 2003, Governor Luky Igbinedion lobbied the Edo State Executive Committee of the Union to support his reelection as Governor of the State, which he was entitled to do, except that he did so by paying all outstanding pension arrears and entitlements to all members of Edo State Executive Committee of the Union to the detriment of all other Edo State Pensioners, who were left and told to fend for themselves if they found themselves neglected by the State Government, a copy of the Governor’s letter is attached herewith and marked “EXHIBIT K”. 44. That Nigerian pensioners, rather than being cared for and protected in their old age by the government, have over the years been oppressed, robbed and deprived of their administer pensions in this country. 47. That the robbery of the funds meant to pay pensions to Nigerian Pensioners and the National Executive Committees contributions to the electioneering campaigns of the party in power are variously documented in Nigerian Newspapers, some of which are attached herewith and marked as follows: 47 .1 NIGERIA COMPASS, Sunday, March 6, 2011, cover and page 4: “N12b FRAUD IN Pension Office” EXHIBIT N1” 47.2 THE NATION, Fr. 18 -03 -2011, “Fraud without End”, EXHIBIT N2”. 47.3 THE GUARDIAN, Tuesday April 12, 2011, page 7: “Court Orders Arrest of pension Officials over N12b scam”. EXHIBIT N3”. 47.4 VANGUARD, Thursday, April 28, 2011, page 36 “34, 158 retirees join FG Pension payroll-NUP lauds Jonathan’s Commitment to Pensioners’ Welfare” “EXHIBIT N4” ,which Nigerian Pensioners see as evidence of connivance and conspiracy to rob them of their pension entitlements as this publication was not made on “empty stomach”, neither are the Pensioners remembered or mentioned, whose names are fraudulently removed from the Federal Government Payroll in order to steal the pension funds as documented herein. 47. 5 NIGERIAN TRIBUNE, Monday 12th September, 2011: “Over N50b Pensioners’ Money trapped in 6 Banks”. “EXHIBIT N5” 47.6 THE GUARDIAN, Tuesday, July 17, 2012, page 5: “Court freezes Assts of Six Persons over N32. 8b Fraud”. EXHIBIT N6. 47. 7 SATURDAY TRIBUNE, 16th February, 2013: “Court okays Maina’s Arrest as Jonathan asks HOS to sanction him”. EXHBIT N7. 49. That all that is prayed for in this summons is that all Pensioners Union Executive who have spent two consecutive terms in any elective committee of the Union should leave and give account for our money, and from all that is stated above, only an order of this Honourable Court can compel them to do so. In the case of fraud for instance, it is a serious crime and in civil matters, the particulars must be pleaded and proved strictly. See the case of Fabunmi and Agbe 1985 I NWLR Pt. 2 P. 299 at 319., Ottih Vs. Nwanekwe 1990 3 NWLR Pt. 140 P. 550, Nwobodo Vs. Onoh 1984 I SC P. I It is also worthy to note that in paragraphs 11, 12, 13, 14, and 15 of the affidavit, the defendant /applicant has joined issues on them and in my candid view, opportunity should be given to both parties through exchange of pleadings to properly ventilate their grievances after all issues of allegations and counter allegations must have crystalised in the pleadings. The paragraphs stated as follows: 11. That contrary to paragraphs 21- 27 of the supporting affidavit, elections were held from time to time to elect New Executive members of the Union and no individual mentioned therein ever stayed for more than 2 terms in a particular office 12. That contrary to paragraph 28 of the supporting affidavit; I know as of fact that: (A) Alhaji Ali Abatcha did not stay more than two terms as member of the central working committee, rather, he was the National President, who served for two terms in office, and a new election has been conducted where a new National President has been elected for the Defendant. He is no longer a member of the central working committee. (B) Comrade Mogaji O. Osuntade is deceased and could not have been serving more than 2 terms up till now. (C) Bayo Aina was elected as a national Trustee and was recently elected as National Auditor, he did not serve more than 2 terms. (D) B.N Anwasia is no longer a member of the central working committee. (E) N.D. Apollo did not serve more than 2 terms as alleged or at all. (F) T.D. S. Sukuye, has just been elected as the National Vice President South- South Zone. He was formally a member of Board of Trustee. He did not serve more than 2 terms in office. (G) U. Ibekwe, is no longer a member of the central working committee and he did not serve more than 2 terms in office. (H) Danlami Z. Diko, was a member of the Board of Trustee. He did not serve more than 2 terms and he is no longer a member of the central working committee. (I) Suleman Imama, was a member of the board of trustee, he is no longer a member of the central working committee and did not serve more than 2 terms. (J) F.I. Inyan Wachi, and Sani Mohammed also did not serve more than 2 years in an office as members of the central working committee. 13 That I know as a fact that the defendant has been auditing its accounts annually and sending same to the Registrar of Trade Unions, and copies of the audited accounts are available at the National Secretariat of the Defendant for interested members. Nobody from Edo state or the claimant ever complain to the Defendant, of any failure to render account. 14. That auditing of the account of the Union is mandatory under the law and the Defendant would have been sanctioned or proscribed if it had failed to do so anytime in the past. 15. That at no point in time did the central working committee support Samson A. Aihiokhai not to render account of his stewardship or not to give statement of account. I am also of the strong view that the contentious issues contained in the various affidavits are not immaterial, intangible or inconsequential. They are very relevant to a just determination of the live issues in this case. I have stretch my imaginative ability to almost a point of being inelastic, yet, I have not seen how these areas of factual disputations or disagreements can be adequately resolved so as to unearth the truth in the absence of a procedure that allow for pleadings to be filed and exchanged and for witnesses to adduce oral evidence and be cross examined. It must be recognized that this court has a sacred duty to ascertain the historical truth and antecedent of what has really happened or led to the scenario painted by the claimant in this suit. In my humble opinion, originating summons is not particularly in tune with our adversarial system of adjudication more so when it comes to the jurisprudence of discovering or determining who was right or wrong as it is only apt in interpretation of documents. Order 3 Rule 5 (A) of the practice Direction of this court 2012 says, 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 declaration of the rights of the person interested …. Provided that a suit which raises substantial dispute of facts or where substantial dispute of facts is likely to be involved shall not be commenced by an originating summons, but by complaint as provided in rule 4 of this order” To accept the proposition of the claimant that there is no conflict of facts sufficient to rob the court of its powers to hear and determine the originating summons is to do violence to the well established principle of law in this area of our jurisprudence. See the case of Doherty Vs. Doherty 1964 NWLR 144. In totality the claimant is asking for declaratory reliefs, injunctive reliefs and an order of court compelling the defendant to amend section 25 of their constitution and code of conduct. I think originating summon procedure cannot justifiably meet the justice of this case as substantial issues of disputed facts are embedded therein. It follows therefore that once it is clear or envisage that there would be a substantial or contentious issues of facts as in the case at hand it would be improper to commence the action by means of originating summons. See the case of A.G. Adamawa State and 21 Others Vs. A.G. Federation and Others 2005 24 NSCQLR 430. On the basis of the reasons given so far coupled with the illuminating and binding effect of the authorities that I have referred to in this ruling; I am of the firm view that this action was improperly commenced by originating summons. AND I SO HOLD. Consequent upon the above holden, what is the proper order to make in the circumstance? The Supreme Court of Nigeria has given me a very useful guide. In the case of Osunbare Vs. Oyewumi (2007) 18 All FWLR Pt. 368 1004 at 1015 paragraph D – E ration 3; (2007) NWLR Pt. 105 3 F at P. 8 Paragraph E. “The proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case” I have cautiously restrain myself from delving into the merit or otherwise of this suit. In view of the Supreme Court decision stated above and by virtue of order 5 Rules I. of the National Industrial Court Rules 2007, I hereby order the parties herein to file and serve their pleadings. The claimant shall file and serve his statement of facts and other relevant processes within two weeks from today in accordance with the relevant provisions of order 3 of the rules of this court. The defendant shall file and serve their statement of defence within two weeks of receiving their statement of facts from the claimant. Any reply shall be filed and served within 7 days thereafter. In view of the parties involved in this matter, being senior citizens who are all pensioners, I am inclined to grant an accelerated hearing of this suit. Consequently this matter is hereby granted accelerated hearing. The Ruling in this case is entered accordingly and there is no order as to cost. ----------------------------- Hon. Justice P.O Lifu JP. Judge