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N THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN IN ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE AUWAL IBRAHIM DATE: 25TH APRIL, 2012 SUIT NO: NIC/EN/01/2012 BETWEEN UKAWUIKE EMMANUEL NGOZI AND 76 OTHERS………………………………. CLAIMANTS/RESPONDENTS AND 1. GOVERNMENT OF IMO STATE 2. ATTORNEY - GENERAL OF IMO STATE………………………………………DEFENDANTS/APPLICANTS REPRESENTATION: 1. Uche Wisdom Dureke Esq. for the Claimants/Respondents. 2. S.C. Madufor (Mrs.) Principal State Counsel, Ministry of Justice, Imo State appeared with A.O. Anyanameechi Esq., Principal State Counsel, Imo State Ministry of Justice for the Defendants.
RULINGBy a Notice of preliminary objection brought pursuant to Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999, Order II Rule J(I) at the National Industrial Court Rules, 2007 and the inherent Jurisdiction of this Court, the Defendants/Applicants pray that the court has no jurisdiction to entertain this suit as presently constituted. The grounds upon which this objection/application are raised are as follows: i) the suit is incompetent as there is no cause of action disclosed by the originating process. ii) Claimants have no locus standi to institute this action as presently constituted. iii) the suit is an abuse of legal process of this court.
Both parties filed and adopted their respective written addresses on the preliminary objection of the Defendants/Applicants.
The Defendants/Applicants filed written address dated 5th day of March 2010 but filed on 9th March 2012 in support of their preliminary objection.
In the said written address, their learned counsel stated in the introduction that the Claimants/Respondents in this suit claim jointly and severally from the defendants:
a) A DECLARATION that the suspension of the appointment of Imo State indigenes employed under the 10,000 jobs scheme, which included the appointment of the claimants, as staff of Imo Public Service by the 1st Defendant, the Governor of Imo State in his maiden speech on 6th June, 2011 and the subsequent declaration of the said appointments as “defunct” vide a public Notice dated 21st November, 2011 with reference no. GH/STA/10,000/27 and signed by one Dr. Kachi Nwoga, aid to the 1st Defendant, are wrongful, unlawful, illegal null and void, and of no effect. b) AN ORDER reinstating the claimants to their positions in the Imo State Public Service forthwith and without loss of pay and/or seniority. c) AN ORDER directing the defendants to pay the claimants their arrears of salaries and allowances forthwith. d) The monetary sum of N990,000,000.00 as general damages for the deprivations, humiliations, frustrations, trauma and loss suffered by the claimants because of the said suspension of their appointment, and declaring same as “defunct”, without due process of law.
Learned counsel formulated two issues for determination, namely,
i) whether the court has the jurisdiction to entertain the suit as presently constituted. ii) Whether the suit is vexatious, scandalous, frivolous, and an abuse of legal process.
Arguing issue No. 1 learned counsel raised and discussed the following sub-issues:
a) Is there a justiciable cause of action for now? b) Have the Claimants locus standi to institute this action now? c) Is the employment of the Claimants one governed by contract of statutory flavor looking at the terms and conditions in the offer of employment issued to the Claimants by 1st Defendant?
On whether there is a justiciable cause of action for now, learned counsel submitted that there is no justiciable cause of action disclosed in this suit. In other words, there is no reasonable cause of action to invoke the jurisdiction of the Court. That in ADEPOJU VS. AFONJA (1994) NWLR (Pt. 363) 437 at 453 - 454, a cause of action was defined to mean “A bundle or aggregate of facts, which the law will recognize as giving the plaintiff substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right. Concisely, stated, any fact relied upon by the plaintiff resulting from the act of the defendant which gives rise to a justifiable complaint is the cause of action.”
Continuing counsel stated that a reasonable cause of action therefore means the fact or facts, which establish or give rise to the right of action and it is the factual situation which gives a person the right to judicial relief. It also means every fact that it would be necessary for the plaintiff to prove if traversed in order to support his right to judgment of the court. He referred to AKILU VS. FAWEHINMI NO. 2 (1989) 2 NWLR (pt. 102) 122.
That in this suit, all the claimants predicated their claims on the suspension of their employment by the 1st defendant as published in the 1st Defendant’s maiden speech on 6th June, 2011 and the subsequent declaration by the 1st Defendant that their employment was defined vide a public notice dated 21st November, 2011. That whereas all the claimants annexed their letters of probationary employment by 1st Defendant, they never annexed any proof of their suspension from the employment of the 1st Defendants and any proof of the 1st Defendant’s subsequent declaration of their employment to be “defunct”.
Furthermore, it also noticeable from the Claimants statement of facts, pleadings and depositions of witnesses that the claimants are challenging their suspension from employment to be defined by the 1st Defendant. That it is neat and clear that the letters of offer of employment given to the claimants embodying their terms of employment states that they are given provisional or probationary employment hence they are not confirmed staff in the public/civil service of the 1st Defendant.
Again their letters of offer of appointment which states that “your appointment will be on probation also mandated them to fill the necessary papers for appointment and deployment” on assumption of duty were not annexed in this suit to show and prove what their terms and conditions of appointment are. These facts must be furnished by the claimants in order for the court to have jurisdiction based on reasonable cause of action.
That probation is defined by Collins English Dictionary at page 692 to be “undergoing a test or trial period, such as at the start of a new job”.
The Black’s Law Dictionary Sixth Edition continual edition at page 1202 defined the terms to be “the act of proving, proof, trial, test”. Simple put, probationary period or employment on probation means that the staff is undergoing a test or a trial before his employment could be made permanent after satisfactory performance, proof, test or trial. That in the case of OCEANIC BANK INTERNATIONAL LIMITED VS. UDUMEBRAYE (2008) ALLFWLR (pt. 430) the Court of Appeal held that in the termination of an appointment of an officer on probation, no procedure is provided for and none need be followed once the board or the principal is satisfied that there is good cause for the termination. No hearing is necessary, in the instant case; the respondent was still on probation when his appointment was terminated without explanation for the decision. The appellant had no obligation to give one; therefore, the trial court was wrong to have held that the termination of the Respondent’s appointment was wrongful, see BABA VS. N.C.A.T.C (1991) 5 NWLR (pt. 191) 388 paras D - E.
That finally, Rule 02301 of the Imo State Civil/Public Service Rules had not been breached, so also rules 02801 of the said Rules. Rule 02801 states”that if within his probationary period, it is established to the satisfaction of the authority, empowered to appoint an officer that he is not qualified for efficient service, his appointment may be terminated by that authority at anytime without any further compensation than free transport to the place from which he was engaged and such free transport will be granted only if his conduct has been good…”. Rule 02803 made it clearer when it provided that “the appointment of an officer on probation who fails to secure confirmation in the punishable establishment at the expiration of his probationary period including such extension thereof as prescribed under rule 02301 may be terminated in the manner specified in Rule 02801”.
Learned Counsel continued that the clear implication of the above Rule 02803 is that probationary officers are not permanent officers until they are confirmed. They are also not on pensionable employment until after confirmation. They can be removed from service by the appropriate authority without any reasons or explanations from them. In this claim, the Civil Service Commission, Imo State that issued the claimants letters of appointment on probation was not sued and made a party, but the 1st Defendant. Learned counsel therefore submitted that there are no reasonable causes of action disclosed. The suit ought to be dismissed for all the above reasons.
On whether the Claimants have locus standi to sue, counsel submitted that the claimants have no locus standi to invoke the jurisdiction of this court to entertain this suit.
That the defendants reiterated their earlier submissions in paragraphs 2.00 to 3.05 of this address. According to counsel the meaning of locus standi has received several definitions from the various courts in Nigeria and he referred to OWUDUNNI VS. REGISTERED TRUSTEES, CELESTIAL CHURCH (2000) FWLR (pt. 9) 1455 at 1470 paras E - F where the Court held that “the term locus standi (or standing) denotes the legal capacity to institute proceedings in a court of law. It is not dependent on the success or merits of a case, rather it is a condition precedent to a determination on the merits it follows therefore, that if plaintiff has no locus standi to sue, it is not necessary to consider whether there is a genuine case on the merits, this case must be struck out as being incompetent”.
On whether the appointments of the Claimants are governed statue, counsel submitted that the appointments of the claimants are not governed by statue for now in that they are not confirmed staff of Imo State Civil/Public Service. They are engaged on probation. Their employment and disengagement are predicated on rules 02301, 02303, 02801, and 02803 of the Imo State of Nigeria Public Service rules 2001. We also submit that the provisions of the above Rules 02301, 02303, 02801 and 02803 are not breached. The claimant’s civil rights and obligation had not been infringed upon. See Section 6(6) (b) of the 1999 Constitution.
It is therefore not necessary, according to counsel to sue the defendants without even joining the Civil Service Commission of Imo State which is a juristic person and the appropriate authority that dealt with the interview, examination, employment and issuance of the letter of probationary appointment to the claimants. The suit is thus unmeritorious and should be dismissed from all the reasons raised in this application. The Honourable Court is so pleaded and urged.
On his own part, learned counsel for the Claimants/Respondents, in his written address against the preliminary objection gave an introduction and background facts to the case and thereafter formulated three issued for determination, namely,
1. Is it right to hold that Claimants’ action discloses no cause of action? 2. Can be it be said that the Claimants in this action do not have the locus standi in bringing this action? 3. Is it right to hold that the appointment of the Claimants will have statutory flavour only upon confirmation? In arguing the issues learned counsel started by: 4.1 Before we proceed to make Legal arguments in respect of the issues for determination above, it is cardinal to re-state our position on the Defendants’ instant Application. On 12th March 2012 when we were served the Application in the open Court, we stated that the Defendants’ instant Application is premature as it deals with the substantive issues in the case. We maintain that if this Honourable Court rules on this Application, it will become functus officio on the suit as it must have decided the suit without hearing, which, to the Claimants, will amount to unfair trail. The Defendants are deliberately urging that their Application be heard in order to frustrate the Claimants’ suit. If overruled, they will appeal and apply, for stay of proceedings of the Claimants’ suit. 4.2 Importantly, the Defendants’ objection is one of demurrer and their Written Argument shows this clearly. Therefore, we urge that this Honourable Court directs the Defendants to file their Defence in the case and that the suit be heard on the merit. The Defendants will still have the opportunity to raise the issues. An accelerated hearing in the circumstance will serve the interest of justice and we, so, urge this Honourable Court.
Arguing issue 1 learned counsel submitted that the kernel of the Defendants’ contention that the Claimants have not disclosed any cause of action is in Para 2.03 of their Written Address to wit that the Claimants “never annexed any proof of their suspension from the employment” and also “the subsequent declaration of their employment to be ‘defunct’”. With respect, this is clearly an issue for trial. It is only at the end of trial that this issue can rightly arise as the Claimants have every opportunity under the law to amend their pleadings and to bring in any available evidence. The Claimants listed the Head of Service as a witness. When he or she comes, evidence will be laid on the suspension issue. The Defendants are trying to be smart by half. They deliberately want to put wool in the eyes of this Court.
The case of the Claimants is that their suspension vide the Maiden Address of the 1st Defendant, which is without Notice is null and void. Asking for the Letters of suspension is an admission that the Claimants are right. The Claimants’ case in Para 4 of their Statement of facts clearly stated as follows: “The 1st Defendant in his maiden speech, as Governor of Imo State, on June 2011, without following the laid down procedure under the Imo State Public Service Rules, suspended the appointment of persons employed under the 10,000 jobs scheme of the State Public Service between 2010 and 2011 which included the Claimants.” See also Para 41 of the Statement of Facts. There is no doubt that these averments give the Claimants cause of action. Also, these averments are issues for trial. Hearing is needed in this case if the interest of fair hearing and justice will be seen to be done in this case. This accounts, further, for objection to a hearing and determination of the Defendants’ preliminary objection.
The other reason the Defendants have put forth in trying to show that the Claimants have disclosed no cause of action is in Para 3.00 of the Written Address, which is that the Claimants “are given provisional or probationary employment hence they are not confirmed staff in the public service” and are relying on the Court of Appeal decision in OCEANIC BANK INT. LTD V. UDUMEBRAYE. To counsel, the case of the Claimants revolves on a simple issue: Is the Governor empowered under the law, on his own and without more, to unilaterally suspend and determine the employment of the Claimants? The answer is obvious and clear! The Governor has no such power. Pursuant to the Imo State Civil Service Rules, it is the State Civil Service Commission that has the power as the Claimants are civil servants and not political appointees of the Governor who hold office at the will of the 1st Defendant. With respect, the decision in OCEANIC BANK INT. LTD V. UDUMEBRAYE does not apply as the employment in question was not one governed by a statute. By the Constitution of the Federal Republic of Nigeria, the Claimants are civil servants by the fact of their employment in the Imo State Civil Service. The Constitution does not exclude those on probation as civil servants. One becomes a civil servant upon his or her employment. That the Claimants are on probationary period will not make it right or lawful for their appointments to be determined contrary to the laid down procedure and by a person or authority not conferred with the authority by statute. The Claimants are not modern day slaves. The Governor of Imo State is bound to act and govern according to the due process of Law. Without due process of Law, he would not have emerged and must, therefore, respect the due process of Law.
On the contention that the Claimants did not annex their letters of deployment as raised in Para 3.01 of Defendants’ Written Address, see. Para 27 of the Statement of Facts. The Defendants are given NOTICE to produce the documents, which the Claimants listed as amongst the documents they will be relying on at the trial. This is, indeed, an issue for trial. This is also evidence that the Preliminary Objection is bad in law and ought to be struck out.
Counsel continued that Defendants have in Para 3.04 of their Written Address referred to RULE 02801 of the Imo State Civil/Public Service Rules, which provides that “if within his probationary period, it is established to the satisfaction of the authority empowered to appoint an officer that he is not qualified for efficient service, his appointment may be terminated by that authority at any time. The Defendants have in Para 3.05 argued that the Claimants “can be removed from service by the appropriate authority without reason or explanation.”
From Rule 02801 referred to by the Defendants, the ‘appropriate authority’ is the “authority empowered to appoint” and it is the authority that can determine the employment of the Claimants. The question that naturally arises is, according to counsel, is the Governor of Imo State the authority that is ‘empowered to appoint’? the answer is clearly no. The Imo State Civil Service Commission is the authority empowered to appoint. This Honourable Court is invited to note that unlike in OCEANIC BANK INT. LTD V. UDUMMEBRAYE, the appointment of a person on probation in Imo State Civil Service will not be confirmed only if “it is established to the satisfaction of the authority empowered to appoint an officer that he is not qualified for efficient service”. There is a procedure or regulation, which must be satisfied. There is no averment or evidence before this Honourable Court by the Defendants that Imo State Civil Service Commission that employed the Claimants established that the Claimants are not qualified for efficient service and terminated their appointment.
Further that the Claimants in Paras 31 - 34 of the Statement of Facts, which are not denied put the issue to rest. We state that the 1st Defendants being an elected Governor must respect the law and is not above the Law. It is an infraction of the right of the Claimants, for their appointments to be determined contrary to law. We submit that as the Governor of Imo State is not the appropriate authority, he acted outside the law and ultra vires.
The Imo State Civil Service Commission was not sued because it did nothing injurious or against the Claimants. It will be an abuse of the process of this Honourable Court and a vexatious action for the Claimants to sue the Imo State Civil Service Commission, which has not done anything to threaten or determine their appointments. It will amount to harassment of the Commission with Court process. We ask: what will the Claimants be claiming or asking against the Commission? From the facts of this case, the Commission is not necessary in this suit. The suit can be decided without joining it. The Commission did not suspend the Claimants, it did not declare their jobs ‘defunct’ and there is no allegation against it on the matter, so, why should the commission be sued? Parties are not sued in a matter or joined in a suit for the fun of it. Interestingly, the Claimants are bringing the Head of Service as witness, by way of subpoena, to testify.
Without conceding that the Imo State Civil Service Commission is a necessary party in the suit, Counsel submitted that it is trite law that non - joinder of a party cannot by itself defeat an action such as this one. It is settled law that no action or matter shall be defeated by reason of misjoinder or non-joinder of parties and that a Court is to deal with the matter or issue in controversy as regards the rights and interests of the parties actually before it. In this case, this Honourable Court is to deal with the issue whether the Governor of Imo State can validly suspend and determine the appointments of the Claimants contrary to the provisions of the Civil Service Rules of Imo State. This is the issue in controversy as regards the rights and interest of the parties before the Court.
In all, counsel submitted that the Claimants have disclosed a cause of action in their suit by their averments and the reliefs being sought. A cause of action exists where there is a complaint of wrongful act against the party sued, which has injured or given the party suing a reason to complain in the Court and seek remedy, which is the true situation in this case. It is immaterial whether at the end the party suing will win or Lose.
On issue No.2 learned counsel stated that the Defendants have contended that the Claimants do not have the locus standi to bring instant action. Their position is anchored, as stated in Para 3.08 of the Written Address, that “The claims and reliefs sought by the Claimants are based on suspension from work with employment on probation.” The term ‘Locus standi’ simply means the right to complain before a Court of law. Counsel then asked: Can it be said that these citizens whose source of Livelihood has been threatened and contrary to law do not have the Locus standi to bring this action? If they do not have the Locus standi, who then has in respect of the matter? As the Supreme Court stated in OWUDUNNI V. REGISTERED TRUSTEES, CELESTIAL CHURCH relied upon by the Defendants, Locus standi is not dependent on the success or merits of a case, it denotes Legal capacity to institute proceedings in a Court of Law. Whether the Claimants will succeed or not in their case is not a determinant of their locus standi in this matter. By their pleadings, they have shown that they have a grievance, which ought to be heard. It is when they are before the Court that the Court can decide whether their case will succeed or not, or has merit or not. If they are shut out, this Honourable Court will not be in a position to decide their grievance in the matter. The Claimants have a complaint worthy of being heard by this Honourable Court. They cannot be shut by mere technically. The Courts in the country today are to do substantial justice, not technical justice.
That presently in Nigeria, the meaning of locus standi moved from the restricted arena to the expansive arena. It is submitted that a litigant who shows that he has sufficient or special interest in a matter, as in this case, will have locus standi. In AG, KADUNA STATE V. HASSAN (1989) 2 NWLR (PART 8) 483, the Supreme Court held that courts should not give an unduly restrictive interpretation to the expression “Locus standi’. In FAWEHINMI V. AKILU (1987) 4 NWLR (PART 67), the Supreme Court recognized the right of a private citizen to lay criminal charge against anyone committing an offence or who he reasonably suspects to have committed an offence. The Courts today are using the public good tense when the issue of Locus standi arises. In GANI FAWEHINMI V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS (2008) 23 WRN 65 @ 79 and 116, the Court of Appeal held that Gani Fawehinmi had Locus to bring his action challenging the infraction of the ‘Certain Political, Public and Judicial Holders (Salaries and Allowances, etc) Act No. 6 of 2002’. That he, Chief Gani Fawehinmi, had the Locus because he was “a political elite in Nigeria and represents the conscience of the people”. In BADEJO VS MINISTRY OF EDUCATION & ORS (1990) 4 NWLR (PART 143) @ 254, the Supreme Court held that a person affected by an act which also affected the general public can complain of a violation of his rights even though other persons affected do not want to complain. In this instant case where the Claimants’ individual direct interests are affected, can it rightly and justly be said that they do not have the requisite Locus standi? Where a Governor exercises a power that is not given to him by law, such exercise of power is unlawful and whosoever is affected can approach the Court as he or she has an interest to protect in the circumstance.
Learned counsel therefore, submitted that the Claimants have the requisite Locus standi to bring the present action.
On issue no. 3 counsel stated that the Defendants have submitted that “the appointment of the Claimants are not governed by statue for now in that they are not confirmed staff of Imo State Civil/Public Service.” The Defendants did not, however, refer to any statue or case Law in support of this submission. We have searched the Imo State Civil Service Rules and cannot find any rule in support of the Defendants’ submission.
Counsel then submitted that once a person is employed in the civil service of the State, he or she starts to enjoy the statutory flavour of his or her appointment. Even though the appointment is on probation, it is not subject to the will of the Governor because it is only when “it is established to the satisfaction of the authority empowered to appoint… that he is not qualified for efficiency service” that he or she will not be confirmed. Neither confirmation nor determination is left at the whims and caprice of the “authority empowered to employ” or any authority or person.
As there is a laid down procedure to govern employment in the civil service, counsel continued, there is also laid clown procedure for termination and confirmation of appointment on probation and discipline. In view of this, once a person is employed in the Civil Service, his or her appointment starts to enjoy statutory flavour because his or her confirmation or termination of the appointment is governed or regulated by statute and not subject to the whins and caprice of any person. In Imo State by the rule referred to by the Defendants in their Written Address, a condition precedent to termination of an appointment under probation is a satisfactory Establishment that the person is not qualified for efficient service. In the Claimants’ case, the Defendants neither averred nor showed that they are not qualified for “efficient service”. It will amount to injustice to take way their source of livelihood and throw them into misery and poverty without following the laid down in law.
That it is trite that an employment is said to have statutory flavor when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of any employee. This is the situation in the Claimants’ case. The Imo State Civil Service Rules has laid down procedure or regulations that govern the appointment of the Claimants starting from their employment to discipline and termination of appointment - during probation and upon confirmation. Counsel submitted that these regulations are made to be observed and not disrespected. Any violation of or non-observation of a laid down procedure or regulation in a statute is a cause of complaint or action because any action taken outside the powers conferred by that statute is ulta vires, null and void. This is the issue at hand in the Claimants’ case. In IBRAHIM JIBRIL V. MILAD, KWARA STATE @ ORS (2007) 47 WRN 63 @ 88, the Court of Appeal held that: “Where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedures for employment and disciple including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statue. Any other manner of termination which is inconsistent with the statue is null and void and of no effect”.
Counsel submitted that the Claimants’ appointment have statutory flavour as they were employed pursuant to the procedures and regulations in the Imo State Civil Service Rules and the said statute provides for the procedures and regulations governing the termination and the confirmation of the Claimants employment in the probationary stage. It will be unjust to hold that if the procedure or regulation is violated, the Claimants have no right to seek redress in the Court. This will be unfair and unjust. It is important to state that the country is under a democratic governance where respect for rule of law and due process are the hallmark and not military or autocratic rule where the law is under the boot of the leader. The rule that under the statute that an employment in probation will be terminated if it is established that the employee is not qualified for efficient service clearly points that the appointment is meant to be secured, except the employee is not qualified and therefore cannot be confirmed.
Concluding learned counsel submitted that the Defendants’ preliminary objection is premature and lacking in merit. It is calculated to delay the Claimants’ case. He urged the Court to direct the parties to file and serve their Statement of Defence for the matter to be heard on the merit as deciding the preliminary objection will lead this Honorable Court deciding the substantive issues at the end of the trial. If the Defendants are simply relying on their preliminary objection only then the Court can proceed to decide the matter based on the processes before it. The Claimants have the locus standi in bringing this action and have a cause of action. The Claimants’ employment started to enjoy statutory flavour from the date of engagement as their Letters of employment and the State Civil Service Rules did not state otherwise.
The Defendants/Applicants counsel filed a reply on points of law dated 26th March, 2012 but filed on 27th March, 2012. In the said reply on points of law, counsel stated that: (A)The Claimants raised the question is it right to hold that the claimants action discloses on cause of action? In para 4.2.3, he answered that “the Governor has no such power pursuant to the Imo State Civil Service Rules, it is the state Civil Service Commission that has the power as the claimants are civil servants and not political appointees of the governor who hold office at the will of the 1st defendant.” A Rule such as the Civil Service Rule is subordinate to law and the constitution. Counsel referred to the case Saleh V Monguno (2006) 27 NSCOR 826.
That inconsistency between the constitution and the civil service Rule of Imo State result in the provision of the said Rules being rendered void, null and of no effect to the extent of the inconsistency. He referred to Saleh V Monguno, Supra.
T
hat the constitution of the Federal Republic of Nigeria is the very foundation of and the structure upon which the existence of all organs of Governance are hinged and he referred to the case Governor, Kwara State V Ojibara (2006) 28 NSCQR 97.
Further the constitution of the Federal Republic of Nigeria is the organic and fundamental law, it is the grundnorm. It is “fons-et-erigo, and counsel cited the case of Fasakin Foods Nig. Ltd V Shosanya (2006) 26 NSCQR 641.
Counsel continued that the constitution defined :”Civil service of the State in section 318 (1) as service of a Government of a State as staff of the office of the Governor, Deputy governor or a Ministry or department of the government of the sate assigned with the responsibility for any business of the government of the state”. A person on probation is not include in the above definition.
That under section 5 (2) (a) and (b) of the constitution subject to the provisions to this constitution, the executive powers of a state.
(a) Shall be vested in the Governor of that state and may, subject as aforesaid and to provisions of any law made by a House of Assembly or through the Deputy Governor and Commissioner of the Government of that State or officers in the public service of the State, and
(b) Shall extend to the execution and maintenance of this constitution, all matters with respect to which the House of Assembly has for the time being power to make laws. That the relationship between the Governor and the Imo State Civil Service Commission is one of principal and agent respectively, and counsel referred to the case of Edem V Canon Balls (2005) 22 NSCQR 809.
To counsel the principal can do all that his agent can do and he referred to Edem V Canon Balls, Supra, so the Governor can appoint and terminate the appointment of a civil servant without recourse to civil service commission.
That Governors in the states of the Federation have exercised such powers as command appointment, command promotions of civil servant for distinguished service, they can also exercise their powers under Command termination of appointment for indolent service of a civil servant. The claimants are not even civil servants being on probation, counsel added.
(B) Furthermore, counsel tried albeit unsuccessfully to distinguish the case of Oceanic Bank Int’I V Odumebraye, supra, the principle in the case defined who is an employee with statutory flavor and makes it clear that it does not include a person on probation. The case is therefore relevant to the counsel’s discussion.
(C) Counsel tried successfully to say that the Constitution does not exclude those on probation as civil servants, section 318 (1) of the 1999 Constitution as Amended defines civil servants to exclude on probation. That under the Oceanic Bank Int’ Ltd CV Edumberaye, Supra, the Governor has to act as regards to due process does not include a person under probation.
(D) On joinder there is no way this case can be determined without the joinder of civil service commission since that commission gave the alleged appointment on behalf of the Governor of Imo State. Counsel referred to Fajeminrokun V Commercial Bank Nig. Ltd (2009) 37 NSCQR p.1 and also Green V Green (1987) 3 NWLR (Prt 61) p. 4480, and Babayeju V Ashamu (1988) 9 NWLR (Pt 567) p. 546.
(E) The law is that failure to join a necessary party renders the action incompetent and liable to be struck out.
(F) An issue that borders on jurisdiction does not require demurrer as held in Arjay Ltd V A.M.S. Ltd (2003) 7 NWLR (Pt 820) 577 the Supreme Court drew a distinction between demurrer and objection to jurisdiction and each can be employed. Reference was made to B NDIC V CBN & Anor (2002) 7 NWLR (Pt 766) 272. Otuwanyi Vs. Adewumi (2008) 13 NWLR (Pt 1104) P. 387 especially 395 ratio W, p.409 para F-H.
(G) Jurisdiction can be raised at any stage even for the first time at the Court of Appeal or the Supreme Court, it can be raised by any party to the suit viva voce or by the court suo motu. Reference was made to Oloba V. Akereja (1988) 2 NWLR (Pt 84) 508 @ 520 per Obaseki, JSC. Ifeanyi Okonkwo
Vs. INEC (2003) 33 WRN 93 at 111. CBN V Kato (1994) 4 NWLR (Pt. 339) p.446.
(H) The issue discussed here that prompted the preliminary objection borders on locus standi goes to the jurisdiction of the Court not technicality. He referred to Ojukwu V Ojukwu (2008) 36 NSCQR 1279, and Orji V Dorji Textile Mills (2009) 40 NSCQR 597.
Learned counsel then urged the Court to strike out the suit as disclosing no reasonable cause of action. That the claimants are on probation and as such not civil servants. Secondly the claimants have no locus standi to institute the action. Thirdly the issue borders on jurisdiction and as such does not require demurrer.
I have carefully considered the processes, arguments and submissions of learned counsel to parties on both sides in this application and the main question for the determination of the Court is whether this Court has the jurisdiction to hear and determine this suit as it is presently constituted? I shall proceed to determine this question by examining the issues formulated and argued by learned counsel to Defendants/Applicants as follows: 1. Whether this suit discloses any reasonable cause of action against the Defendants. 2. Whether the defendants have locus standi to bring this action.
It should be noted that the Defendants/Applicants had in their written address formulated the issue of whether the suit is vexatious, scandalous, frivolous and an abuse of Court process, but have not canvassed any argument in support thereof and therefore it is deemed abandoned. Accordingly, it is hereby deemed abandoned and struck out.
Before going into the issues proper, it is necessary to state that it is the settled law that in determining jurisdiction the Court is to look at the originating processes of the Claimant only in arriving at the conclusion on whether or not it has jurisdiction to entertain the suit before it. See the case A.K.Y. Balogun & 2 Ors V Alhaja Shifawu Ode & 4 Ors (2007) NSCQLR Volume 29 p. 199, per Ogbuagu JSC, where the supreme Court clearly sated at p. 210 the principle that:
It is also settled, the issue of jurisdiction of a trial Court in any particular case, is determined or decided by the claim in the writ of summons and the statement of claim – i.e jurisdiction is determined by the plaintiff’s claim and not by the defendant’s denial.
In the instant case therefore the Court shall accordingly limit itself to the complaint of the Claimants and the Statement of Facts which are the originating processes.
On the 1st issue for determination, namely, whether there is any reasonable cause of action disclosed against the Defendants in this case, from the Complaint of the Claimants, looking at relief’s a, b, and c thereof, they are asking for declaration that their suspension from their various jobs is null and void, order for reinstatement and for payment of the arrears of their respective salaries. Furthermore, the Claimants, in their statement of facts have stated that they were employed in the State Public Service by the Imo State Government between 2010 and 2011 and that the 1st Defendant, Governor of Imo State on 6th June 2011 suspended the said appointments. See paragraphs 1 and 4 of the Statement of Facts of the Claimants. Thus put in a nutshell, the Claimants are pleading that they have been wrongly suspended from jobs they were given by the Defendants and have therefore approached this Court for relief.
On what is a cause of action, the Supreme Court gave the guiding principle in a number of cases. See for example, the decision in Chevron Nigeria Limited V Lonestar Drilling Nigeria Limited (2007) NSCQLR Volume 31 p.92 where the Supreme Court, per Oguntade JSC, at p.99, held that:
I can do no more on the meaning of a ‘cause of action’ than to call to mind the observation made by this Court per Karibi-Whyte, JSC in Bello V. Attorney-General on Oyo State (1986) 5 NWLR (part 45) 828 at 876 thus:
I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or reinforced against the defendant. In other words the factual situation relied upon must constitute essential ingredients of an enforceable right or claim see Tower & Sons Ltd V Ripstein (1944) AC 254 at p. 263: Read V Brown 22 QBD. 128 Coke V Gill (1873) l.R. 8 C.A. 107 Sugden v Sugden (1957) All ER 300; Jackson V Spittal (1870) L.R. 5 C (Pt. 547). Concisely stated, an act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action.
On the meaning of reasonable cause of action, Oguntade, JSC in Chevron’s case supra, continued that:
In Ibrahim V Osim (1988) 1 N.S.C.C. 1184 at 1194, this Court per Uwais JSC (as he then was) discussed the proper meaning of the expression ‘reasonable cause of the action’ thus: The question therefore is what is a ‘reasonable cause of action’? The words ‘cause of action’ without the adjective ‘reasonable’ had been defined by this Court in Savage & ors V Uwechia (1972) 1 All NLR (part 1) 251 at p.256: (1972) 3 S.C. 24 at 221, where Fatai-Willians JSC (as he then was) said:
A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements: the wrongly act of the defendant which gives the plaintiff his cause of complaint and the consequent damage.
Having examined the meaning of cause of action and the submissions of learned counsel to the parties, as well as the processes before the Court, it is clear that the claimants were given employment which has been suspended by the Defendants. The learned counsel to the Defendants/Applicants had argued that even though the claimants have exhibited their letters of employment, they have not exhibited any document to show that their appointments were indeed suspended by the defendants and therefore no cause of action exists in favour of the claimants. I do not agree with learned counsel on this as paragraph 31 of the Statement of Facts clearly states that:
31. The claimants were faithfully discharging their duties in their various places of posting before the sudden suspension of their appointments and subsequent declaration of the appointments as ‘defunct’ vide a Public Notice issued by the Governor’s Office dated 21st November 2011 with ref No GH/STA/10,000/27 and signed by Dr. Kachi Nwoga. The public Notice is hereby pleaded and shall he relied upon at the trial. Notice is hereby given to produce a certified true copy of the Public Notice at the trial for the use of the claimants.
In the circumstance therefore, I hereby find and hold that the claimants have a reasonable cause of action in this suit and the issue is resolved in favour of the Claimants.
On the second issue of locus standi, as canvassed by learned counsel to the parties, the claimants have each exhibited their letters of employment and have stated in their Statement of Facts the processes they each went through to secure the said appointments. The learned Defendants counsel simply submitted that the nature of the employment of the claimants, i.e. its being probationary, essentially robs the claimants of the locus standi to bring this action. Here, with all due respect to the learned counsel, locus standi depends fundamentally on the interest which a person has in pursuing the claim before the Court. See the case of Owodunini Vs Registered Trustees, Celestial Church, supra, A-G Kaduna State V Hassan supra, and Fawehinmi V Akilu, supra, which have all been relied upon by counsel on both sides. Going by the facts as stated above, namely, that the claimants were engaged as workers in Imo State Public Service and have now had such appointments suspended, it is not difficult to agree that they have sufficient interest to come to court to seek for relief. Therefore, I hereby hold that the Claimants do have the locus standi to file and maintain this suit. Thus I resolve the second issue in favour of the Claimants also;
The Defendants/Applicants’ counsel has made submissions on other issue, especially in his reply on points of law, but I feel those issue are better dealt with at trial as they touch on the merits of the case and would therefore depend on the evidence adduced before the Court.
In the circumstance therefore, and for all the reason given hereinbefore I hold that the preliminary objection of the defendants\applicants fail and is hereby dismissed. Accordingly, this court has the jurisdiction to entertain hear and determine this suit as presently constituted the case shall now proceed to hearing
I make no order as to costs
Ruling is entered accordingly
XXXSIGNEDXXX
Hon. Justice Auwal Ibrahim Presiding Judge
OFFICIAL
XXXSIGNEDXXX
2/5/12 Omene Peter Esq
REGISTRAR
