IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATED 29TH NOVEMBER, 2023 SUIT NO: NICN/ABJ/224/2021

 

    BETWEEN

1.     SENIOR STAFF ASSOCIATION OF NIGERIA

POLYTECHNIC (SSANIP)

2.     COMRADE PHILIP ADEBANJO OGUNSIPE

(National President, Senior Staff Association of

Nigerian Polytechnics)                                              …..……CLAIMANTS

3.     COMRADE HUSSAINI YUSUF GWANDU

(National Secretary, Senior Staff Association of

Nigerian Polytechnics)

4.     COMRADE MOHAMMED UMAR

(National Treasurer, Senior Staff Association of

Nigerian Polytechnics)

(Suing for themselves and on behalf of the National

Executives of the Senior Staff Association of

Nigerian Polytechnics)

 

AND

 

1.     THE PRESIDENT OF THE FEDERAL REPUBLIC

OF NIGERIA

2.     ATTORNEY GENERAL OF THE FEDERAL

REPUBLIC OF NIGERIA                                     

3.     AKIN ADESOLA

(Registrar, Federal Polytechnic Ayede, Oyo State)      ……..DEFENDANTS

4.     RASHEEDAT OLADEPO

(Bursar, Federal Polytechnic Ayede, Oyo State)

5.     BAR. MRS GRACE EZE

(Registrar, Federal Polytechnic Ohodo, Enugu State)

6.     MRS REGINA EZE

(Bursar, Federal Polytechnic Ohodo, Enugu State)

7.     MR. ARIKPO OTU ENO

(Registrar, Federal Polytechnic Ugep, Cross-River State)

8.     EMMANUEL MONDAY UDUEHE

(Bursar, Federal Polytechnic Ugep, Cross-River State)

9.     DR. CELINA SHITNAN GANA

(Registrar, Federal Polytechnic Shendam, Plateau State)

10.DR. NAZIRU SULEMAN

(Bursar, Federal Polytechnic Shendam, Plateau State)

11.ADAMU ALHAJI USMAN

(Registrar, Federal Polytechnic Monguno, Borno State)

12. ALI BUKAR WASARAM

(Bursar, Federal Polytechnic Monguno, Borno State)

13. DR. MUHAMMED NODAL NDAEJI

(Registrar, Federal Polytechnic Wannune, Benue State)

14.NANSOK SHEHU

(Bursar, Federal Polytechnic Wannune, Benue State)

 

REPRESENTATIONS

AderemiA. AbimbolaEsq with TaiwoOnifadeEsq and IkechukwuOnuohaEsq for the Claimants.

Olatunji A. Coker Esq for the 1stand 2ndDefendants.

Henry O. Akwaji Esq. for the 3rd -14thDefendants.

 

                                                            JUDGMENT

INTRODUCTION AND CLAIMS

1.      By an Originating Summons filed on the 30th August 2021, Claimants formulated the following Questions for determination by this Court;

 

1.      Whether in view of the provisions of Section 10(1) of the Federal Polytechnics (Amendment) Act, 2019, the appointment of Registrar and Bursar into any Federal Polytechnic, including but not limited to the 3rd-4th Defendants, ought to be made by the Governing Council of the Federal Polytechnic

2.      Whether in view of the provisions of Section 10(1) of the Federal Polytechnics (Amendment) Act 2019, the appointment of the 3rd-14thDefendants  by the 1st Defendant as Registrars and Bursars of the Federal Polytechnics, renders the various appointments null and void.

 

2.      Whereof the Claimants seek the following reliefs against the Defendants;

1.      A DECLARATION that the appointment of a Registrar and Bursar of any Federal Polytechnic, including but not limited to the 3rd-14th Defendants is ought to be made in accordance with the provisions of Section 10(1) of the Federal Polytechnics (Amendment) Act, 2019 which stipulate that appointment of a Registrar and Bursar of any Federal Polytechnic shall be made by the Governing Council of the Federal Polytechnic.

2.      A DECLARATION that the appointment of a Registrar and Bursar of any Federal Polytechnic, including but not limited to the 3rd-14th Defendants by the 1st and 2nd Defendants rather than the Governing Council of the respective Federal Polytechnic is indeed illegal, null and void.

3.      AN ORDER setting aside the 1st Defendant purported appointment of any person including but not limited to the 3rd- 14th Defendants, as Registrars and Bursars of any Federal Polytechnic for failing to adhere to Section 10 (1) of the Federal Polytechnics (Amendment) Act 2019, which stipulate that appointment of a Registrar and Bursar of any Federal Polytechnic shall be made by the Governing Council of the Federal Polytechnic.

4.      AN ORDER OF INJUNCTION RESTRAINING the 1st Defendant either acting by themselves or through their agents or representatives  from swearing the 3rd-14th Defendants as the Registrars and Bursars of Federal Polytechnics in Nigeria or doing anything whatsoever geared towards  maintaining and/or recognizing them as such.

5.      AN ORDER OF INJUNCTION RESTRAINING any person including the 3rd -14th Defendants from parading themselves or further parading themselves, assuming office and acting in the capacity of Registrars and Bursars of Federal Polytechnics.

 

3.      In support of the Originating Summons is a 10 paragraphs Affidavit deposed to by the 4th Claimant wherein he deposed that he has the consent and the authority of the Union and that of other Claimants to depose to the affidavit. He stated that the Federal Polytechnics (Amendment Act, 2019 outlines the procedure for the appointment of Rectors, Registrars, Bursars and Librarians into any Federal Polytechnics. That six new Federal Polytechnics were established in April 2021 namely;  Federal Polytechnics; Ayede, Oyo State; Wannune, Benue State; Ohodo Enugu State; Ugep Cross Rivers State; Shedam Plateau State and Monguno, Borno State. The Federal Government upon the establishment of these institutions announced the appointments of the 3rd-14 defendants as Registrars and Bursars together with the members of the Councils of the said institutions which appointment by the President is not in compliance with the provisions of Federal Polytechnics (Amendment) Act, 2019 with respect to the appointing authority for Registrars and Bursars of Federal Polytechnics. That the appointments of the 3rd- 14th Defendants were not made by the Governing Council of the Polytechnics and that it will be in the overriding interest of justice for this Court to grant the reliefs sought by the Claimants. Exhibits SS1 and SS2 were annexed to the said affidavit.

 SUBMISSIONS OF THE CLAIMANTS

4.      Also filed in support of the Originating Summons is a written address wherein learned counsel on behalf of the Claimants argued in support of the above two issues formulated for determination in the Originating Summons thus;

1.      Whether in view of the provisions of Section 10(1) of the Federal Polytechnics (Amendment) Act, 2019, the appointment of Registrar and Bursar into any Federal Polytechnic, including but not limited to the 3rd-4th Defendants, ought to be made by the Governing Council of the Federal Polytechnic

2.      Whether in view of the provisions of Section 10(1) of the Federal Polytechnics (Amendment) Act 2019, the appointment of the 3rd-14thDefendants by the 1st Defendant as Registrars and Bursars of the Federal Polytechnics, renders the various appointments null and void.

 

5.      On issue one, learned counsel submitted that Section 10 of the Federal Polytechnic (Amendment) Act, 2019 provides that there shall be in addition to the Deputy Rectors other principal officers such as Registrar, Bursar who shall be appointed by the Council on the recommendation of the Selection Board constituted under section 12 of the Act. He submitted that it was clear from the provisions of the law that it was the Council that had powers to appoint Registrars and Bursars for any Federal Polytechnic in Nigeria. It is his contention that where a Statute prescribes for the mode of doing a thing, that method must be strictly complied with. He relied on the case of Mobil Producing (Nig) Unltd v. Johnson [2018]14 NWLR (Pt 1639)359, Paras E-F. He submitted that Section 10 of the Federal Polytechnic (Amendment) Act made use of the word “shall’ which shows that the procedure of appointment therein must be followed and thus is mandatory. He commended the case of INEC v. Asquo [2018]9 NWLR (Pt. 1624)330, Paras D-E to the Court. He vehemently maintained that only that procedure of appointment in the Act must be followed and he relied on the case of Mobil Producing (Nig) Unltd v. Johnson,supra. He urged the Court to resolve the issue in favour of the Claimant and hold that the Governing Council is the one that is responsible for the appointment of Registrars and Bursars in Federal Polytechnics.

 

6.      On issue two, it is counsel’s submission that by the provisions of Section 10 of the Federal Polytechnic (Amendment) Act, 2019 only the Governing Council can appoint Registrars and Bursars of Federal Polytechnics and it is also not in dispute that the 3rd-14th Defendants were appointed by the 1st Defendant for the newly established Polytechnics. He contends that the appointment of the 3rd -14th Defendants by the 1st Defendant in contravention of the Act is invalid and renders the said appointments null and void and as such they ought to be restrained from acting in such capacities. He posited that the appointments having been done in contravention of the law and which law is meant to be obeyed is therefore null and void. He relied on Mobil Producing (Nig) Unltd v. Johnson, supra. He submitted that the Court of law will not lend itself to the perpetration of any illegality. He called in the aid of the case of Sheriff v. PDP [2017]14 NWLR (Pt. 1585)212@310, Paras D-F. He urged the Court to so hold. In conclusion he submitted that in view of the fact that the appointments of the 3rd to 14th Defendants were done by the 1st Defendant instead of the Governing Council the Court ought to hold that the appointments are illegal and make an order to set aside same.

DEFENCE OF THE 1ST AND 2ND DEFENDANTS

7.      On the 11th day of November 2021, the 1st and 2nd Defendants responded to the Claimants’ action by filing a 5 paragraph counter affidavit deposed to by one AganTabita wherein they opposed the position of the Claimants and stated concisely that while the 3rd -14th Defendants are agents of the 1st Defendant, they are not agent of the 2nd Defendant. That a careful examination of the extant Federal Polytechnic (Amendment) Act, 2019 as received from the National Assembly, it is obvious that the Act was silent on who should appoint the Registrars of the Federal Polytechnics thus, it did not say that the Governing Council shall appoint the Registrars. That the appointment of the 3rd to 14th Defendants is part of the duties of the 1st Defendant and which appointments are for the good of all in order to avoid vacuum capable of impeding the takeoff of the newly established Federal Polytechnics. It was admitted that the appointment of Bursars ought to be done by the Governing Council of the affected institutions, it is not the same for Registrars. It was deposed further that the removal of the 3rd -14th Defendants will cause hardship for the affected Federal Polytechnic and it will be in the interest of justice to refuse Claimants’ claims and reliefs sought.

SUBMISSIONS OF THE 1ST AND 2ND DEFENDANTS

8.      Also filed by the 1st and 2nd defendants is a written address wherein Counsel formulated a sole issue for determination thus;

Whether the Federal Polytechnics Act expressly provides for the appointing authority for the appointment of Registrars pf Federal Polytechnics in Nigeria? If No if whether the 1stDefendant’s appointment of the 3rd, 5th, 7th , 9th, 11th and 13th Defendants is in breach of the Federal Polytechnics (Amendment) Act, 2019

9.      On the sole issue formulated, learned counsel submitted that the Federal Polytechnics (Amendment) Act, 2019 did not specifically provide for who is to appoint the Registrars of Federal Polytechnics. He maintained that nothing in the provisions of Section 10 provides that the Governing Council must be the appointing authority of the Registrars. He posited that the Act had already dealt with the office of Registrar in Section 5 but did not state who the appointing authority will be. It was thus submitted that the appointment of 3rd, 5th, 7th, 9th, 11th and 13th Defendants are not in breach of the law.

 

10. Learned counsel submitted that the Executive powers of the Country is vested in the 1st Defendant by Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) and by that the 1st Defendant’s appointment of the 3rd, 5th, 7th , 9th, 11th and 13th Defendants  who are his Agents is lawful. He urged the Court to interpret the provisions of Section 10 of the Act using the literal rule and it would be discovered that the word “in addition to Registrars” used therein only goes to show that there are other Principal officers who shall be appointed by the Council but which does not include the Registrar itself. He maintains that Section 10 of the Federal Polytechnic (Amendment) Act, 2019 is clear and admits no ambiguity. He cited in support the case of I.B.W.A v. Imano (Nig) Ltd [1988]1 NSCC 245 and the English case of Baril v. Fordee [1932]A.C 676@682. He submitted that cogent and compelling reasons have been given to compel the Court that the appointments of the 3rd, 5th, 7th, 9th, 11th and 13th defendants are not in breach of the law.

DEFENCE OF THE 3RD TO 14TH DEFENDANTS

11. In response to the Originating Summons, the 3rd -14th Defendants filed a 13 paragraphs Counter-affidavit deposed to by the 7th Defendant wherein he stated that the object of the Union is to oversee the affairs and ensure the good welfare of members and no more. That no instrument stipulates the appointing authority or method of appointing the Registrar of any Federal Polytechnic while the Act does not contemplate wholesome application of its letters to the appointment of Bursars and Librarians for newly established Polytechnics. He deposed further that there was no Governing Council in existence before the appointment of the 3rd to 14th Defendants and as such the newly established Polytechnics could not operate in vacuum. It was further deposed that the Council who is saddled with the powers to appoint the Officers complained about has not challenged the actions of the 1st defendant in any Court and that it is within the powers of the 1st defendant to act for the good of all and which appointment of the 3rd -14th defendants is one of such duties based on the doctrine of necessity. That the removal of the 3rd-14th Defendants occasion untold hardship on the affected newly established Polytechnics and that it will serve the interest of justice if the reliefs are refused.

SUBMISSIONS OF THE 3RD TO 14TH DEFENDANTS

12. In support of the Counter affidavit is a written address wherein learned counsel formulated three issues for determination to wit;

1.     Whether this Honourable court has the vires to hear and determine this suit as presently constituted-considering the Locus standi deficiency of the Claimants

2.     Whether considering the circumstances of this case, the provisions of the Federal Polytechnic (Amendment) Act operates as a bar to the appointment of Registrars and Bursars of Federal Polytechnics in Nigeria?

3.     Whether the Doctrine of necessity does apply to the 3rd and 14thdefendants Appointment?

 

13. On the first issue for determination, Counsel submitted that Claimants do not have the locus standi to institute this action. He maintained that the maxim ubi jus ibiremedium only aids a victim who has suffered a wrong. He posited that the Claimants have not shown that they suffered any injury and that even where it is shown that an otherwise oppressive act is committed, only a victim of such oppression could approach the Court. It is his submission that locus standi refers to the capacity of Claimant of Claimant to institute an action in a Court of law without any impediment or inhibition to such right. He commended the case of CITEC Intl Estates Ltd v. Francis [2021]5 NWLR (Pt.1768)148@196, Paras A-F. He posited that the Claimants’ Union is only concerned with welfare of its members and the appointment of Registrars and Bursars of Polytechnic does not affect them in any way. He posited that no matter the nature of injury allegedly done, a Claimant who does not have locus standi cannot approach the Court as he would be described as a meddlesome interloper. He cited in support the following cases; Human Rights & Empowerment Project Ltd/Gte v. President of FRN &Ors [2022]LPELR-58230(CA); Adesanya v. President, Federal Republic of Nigeria [2001]FWLR (Pt.46)859.

 

14. Counsel submitted that assuming but without conceding that the Council is solely responsible for the appointment of the 3rd to 14th defendants, he submitted that the Claimants have not averred that they are members of the Governing Council of the affected Schools and their powers to appoint have been usurped. He urged the Court to dismiss this suit in limine. He cited in support the following cases; Amadi v. Essien [1994]7 NWLR (Pt. 354)91@115, paras B-C; Centre for Pollution Watch v. NNPC [2019]5 NWLR (Pt.1666)518; Diamond Pet Inl Ltd v. Gov. CBN [2015]14 NWLR (Pt. 1478)179 and Owodunni v. Reg. Trustee of CCC [2000]10 NWLR (Pt. 675)315@345, Paras A-B.

 

15. Learned counsel argued both issues two and three together. He submitted that the Executive powers of the Country is vested in the President and which part of the powers he further delegated to Governing Council. He submitted in support Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as amended). He submitted that there is no specific appointing authority for Registrars of Federal Polytechnics in the Act while relying on Section 5 of the Federal Polytechnics (Amendment) Act, 2019 to submit that in the absence of such specification, the appointment of the 3rd -14th Defendants is valid. It is also his position that Section 10 of the Federal Polytechnic (Amendment) Act, 2019 makes provision for a Registrar before other Principal officers and it follows therefore that there is an appointment even before the appointment of other principal officers and which appointment would be done by no other person than the owner of the job for the good of all.

 

16. Learned counsel also submitted that the affected institutions are newly established and too fresh to rely squarely on the cumbersome dictates of the law. He maintained that it was expedient for the 1st Defendant to appoint the Bursars alongside the Board. He posited while relying on the case of Macfoy v. UAC Ltd[1962] 3 All ER 1169 @1172  that one cannot put something on nothing and expect it to stand and maintained that the new Institutions could not stand without minds and hands to hold them. He posited that the doctrine of necessity is to satisfy the exigencies which have been created by certain situation outside the contemplation of the Constitution or rule of law. He submitted that the deliberate circumvention of the law in the case at hand was necessary in order to get out of the quagmire created in this instant case. He posited that the 1st Defendant rightly circumvented the law in the case of Bursars in short term in order to preserve the constitution and rule of law. He concluded that citizen of various Nigeria states complain of unemployment and the appointment of the 3rd to 14th defendants who were the qualified ones when the opportunity presented itself should not be invalidated as that is not the spirit of the law. He urged the Court to dismiss this action with a cost of N5,000,000 against the Claimants.

COURT’S DECISION

17. Having given the case at hand an in-sdepth consideration after a perusal of the Originating process along with its accompanying processes, the Counter affidavits and written addresses in support filed by the 1st and 2nd defendants as well as the 3rd -14th defendants respectively, I am of the view that the issues that best determines this action are as follows;

1.     Whether the Claimants are clothed with locus standi to institute this action to give the Court the necessary vires to entertain this action? And if this is answered in the affirmative;

2.     Whether the Claimants are entitled to the reliefs sought in this case?

 

18. It is germane for me at the outset to address the way and manner the 1st and 2nd defendants herein entered appearance in this case. Learned Counsel for the 1st and 2nd defendants on the 11th day of November, 2021 filed a memorandum of conditional appearance along with other processes which was filed belatedly but was regularized vide an order of the Court made on 23rd October, 2023. It is well settled in law and reiterated by Ogbuagu JSC in Inakoju & Ors v. Adeleke & Ors [2007] LPELR-1510 SC; that entry of an appearance, is a technical expression and a formal step taken by a defendant to an action in civil proceeding after he has been served. When a defendant enters, a conditional appearance in law, it means he intends to object to the jurisdiction of the Court. See the case of PDP v. INEC &Ors [2018] LPELR-44373 (SC) 1@6, Para C. Contrary to the above position of the law, it is observed that the 1st and 2nd defendants herein after entering conditional appearance did not object to the jurisdiction of this Court as expected by their conditional appearance and the proceedings proceeded till trial was completed. In the case of U.B.N. Plc v. Awmar Properties Ltd. [2018] 10 NWLR (Pt.1626) 64@75 - 76, the apex Court while considering a similar case per Rhodes-Vivour, J.S.C, (Rtd) held thus; “The defendant entered conditional appearance. This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case. After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court's jurisdiction. Proceedings proceeded. The appearance of the defendant to the proceedings in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.”[Emphasis mine]. In the same vein, the apex Court in the case of Adegoke Motors Ltd. v. Adesanya &Anor. [1989] 3 NWLR (Pt.109) 250, held inter alia that if a defendant fails to object as expected and allowed the case to proceed with his participation as in the instant case, he would be deemed to have submitted to the jurisdiction of the Court. Flowing from the above authorities, the 1st and 2nd defendants having not raised any objection to the jurisdiction of this Court after entering conditional appearance are deemed to have made an unconditional appearance as the entry of conditional appearance was worthless. Thus, the 1st and 2nd Defendants are deemed to have submitted fully to the jurisdiction of this Court. I so find and hold.

 

19. Now, to issue one framed, it is the contention of the 3rd-14th Defendants vide the written address in support of their counter affidavit that the Claimant lacks the locus standi to institute this action and as such the Court lacks the necessary vires to entertain this action. I am mindful of the fact that even though Claimants were served with the counter affidavit and written address in support of the 3rd -14th defendants which raises the question of locus standi of Claimants, Claimants failed to file a reply on points of law to the said written address in order to respond to the question of jurisdiction raised therefore, starving the Court of the Claimant’s position on the question of jurisdiction raised by learned counsel for the 3rd-14th defendants. In the realm of litigation, a lawyer plays a dual but equally important role namely; firstly, as an officer of the Court who is supposed to assist the Court in the adaptation of law to justice to see to the end that justice is done, and secondly, to represent his client to the best of his professional ability with integrity to ensure that his client's case is prosecuted or defended with due diligence. Besides, the law is clear that a party has a duty to respond to any argument raised in the brief or address of his adversary or opponent. In the case of, Oyede & Ors v. Alakija & Anor[2020] LPELR-49614(CA)1@ 11-12 paras. C, the Court per Ojo JCA while considering a similar situation held thus; “It is significant to note that the Respondents did not respond to this issue which was copiously raised in the Appellants' Brief of Argument. What is the effect of this failure? The Supreme Court in the case of NWANKWO & ORS VS. YAR'ADUA & ORS (2010) 12 NWLR (PT. 1209)518, per Onnoghen, JSC held as follows:

"It is settled law that where an opponent fails or neglects to counter any argument or issues validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting deponent. I therefore, in the circumstances, hold that the 1st and 2nd Respondents by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the Appellants."

The instant Respondents having failed to respond to the issue of the jurisdiction of the lower Court to entertain this suit for reason of the incompetence of the Originating Processes are deemed to have conceded same.” [Emphasis mine] See also the cases of Fulani M v. State [2018]LPELR-45195(SC)1@10-11, Para F. Thus, the failure of the Claimants to respond to the issue of jurisdiction raised in the written address of the 3rd -14th defendants is deemed a concession.

20. Notwithstanding the above, the question of locus standi being a question of law, I will consider it. This is because failure to contest an argument or issue raised in the brief or written address of the opponent does not in itself amount to merit of the argument or issue so raised, as the Court is still duty bound to consider whether there is merit in such argument especially in this instant as it relates to the question of locus standi which is a question of law. See the cases of Aguele v. Aigbogun [2021] LPELR-53504(CA)1@23-25 paras. E; Agi v. Access Bank Plc [2014] 9 NWLR (Pt. 1411) 121 and; Obiuweubi v. CBN [2011] 17 NWLR (Pt. 1247) 80. It is in the light of the above that this Court will proceed to consider the merits of the arguments of the 3rd-14th defendants on the right standing of the Claimants to institute this action. It is necessary to say that locus standi and jurisdiction are intertwined. It needs be stated straight away that the concept of locus standi concerns the capacity of a person to institute legal proceedings in a Court of law or other competent tribunal. Thus, locus standi as the capacity of a Claimant to institute an action in Court against a defendant goes to affect the jurisdiction of the Court before which such action is instituted. Where there is no locus standi, the Court cannot assume jurisdiction to entertain the action. As such, locus standi is the condition precedent to the Court’s exercise of jurisdiction. See the cases of Amos &Ors v. Okoya & Ors [2019] LPELR-48886(CA)1@39-41 paras. D; Ajayi v. Adebiyi [2012] 11 NWLR (Pt. 1310) 137 SC; Attorney- General, Akwa Ibom state v. Essien [2004]7 NWLR (Pt.872)288 and; Basinco Motors Ltd v. Woermann-Line &Anor [2009] LPELR-756(SC)1@28-30 paras. F. The question of locus standi being a question of jurisdiction is a fundamental question that must first be addressed before the Court considers any other issue in an action. This is because if a Court lacks jurisdiction, it also lacks the necessary competence to try the case ab initio. A defect in competence is fatal for all the proceeding is null and void no matter how well conducted. See Manomi v. Dakat [2022]15 NWLR (Pt 1853)231 @261-262, Paras E-A; IGP v. Fayose [2007]9 NWLR (Pt 1039) 263@280-281, Paras H-D. When the jurisdiction of a Court to entertain a case is challenged as in this instant, the Court has the duty to determine the issue at the earliest time, by first assuming jurisdiction to decide whether in clear and unequivocal terms, it has or lacks jurisdiction before proceeding further in the action to hear the case on the merits. See the cases of President FRN & Anor v. National Assembly & Ors[2022] LPELR- 58516(SC); Angadi v. PDP & Ors [2018] LPELR- 44375(SC); Oyerogba v. Akinyemi & Ors [2016] LPELR-41940(CA)1@9-10 paras. F; Afro Continental (Nig) Ltd & Anor v. Co-Operative Association of Professionals Inc [2003] LPELR-2171@14 paras. B and Nokoprise Int. Co. Ltd. v. Dobest Trading Corporation [1997] 9 NWLR (Pt.520)330. In this instance where the objection to jurisdiction was raised in the written address in support of the Counter affidavit of the 3rd-14th defendants in opposition to the Originating summons, it is expedient that I consider the objection to jurisdiction first and foremost.

 

21. What then is locus standi? The Apex Court case of B. B. Apugo & Sons Ltd v. Orthopaedic Hospital Management Board [2016] 13 NWLR ( Pt 1529) 206, Kerere-Ekun, JSC stated: “Locus standi is the legal right of a party to an action, to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. It is also the law that to have locus standi to sue, the Plaintiff must have sufficient interest in the suit. For instance, one of the factors for determining sufficient interest is whether the party seeking redress will suffer some injury or hardship from the litigation.” [Emphasis mine]. It is settled beyond per adventure that the locus standi of a Claimant must be stated in his pleadings and can easily and readily be found in his Writ of Summons/ Originating Summons and Statement of Claim/ affidavit in support of originating summons. It is to these most vital processes that a Court would have recourse to and scrutinize to see if indeed it discloses his locus standi. See Shuaibu & Anor v. Koleosho [2021]LPELR-53435(CA)1@46-47, Paras. B-B and Akinsanya & Ors v. Shoneye & Ors [2016] LPELR-41939(CA)1@ 23 paras. C. The twin factors to be considered in determining locus standi, are; (i) Claimant(s) must be able to show that his/their civil rights and obligations have been or are in danger of being violated or infringed, and (ii) Claimant must have a justiciable dispute with the defendant(s). These two factors must co-exist to establish the locus standi of the Claimant. See the case of AG Federation v. AG Of Abia State &Ors [2001] LPELR-631(SC)1@123 paras. A. For a person to be able to sue, it must relate to the civil rights and obligations of that person. Thus, before it can be said that an action is litigable or justiciable, the civil rights and obligations of a person must have been shown to have been breached or likely to be infringed. That is the person should show that he has suffered injury. In this case there is no doubt that there is a dispute as to whether the appointments of the 3rd -14th Defendants are in compliance with the provisions of the extant law. However, the question that need answer is whether the Claimants have suffered injury for the Court to hold that they have locus to institute this action. I have perused the affidavit in support of the Originating Summons and I find that Claimants have not stated how they suffered personal injury by the acts of the Defendants. Does this translate to the Claimants not having locus to bring this action?

 

22. I will proceed to answer by first considering the decision of the Apex Court in the case of Centre For Oil Pollution Watch v. NNPC, supra where Nweze JSC(of blessed memory) while delivering lead judgment held thus on liberalizing and expanding the scope of locus standi; “…In this instance, the answer to the question as who has the standing to complain against the above violations of the respondents can be found in the understanding of the true purpose of the judicial function.

Dr. Thio, in his book, locus standi and judicial review, cited in Gupta v. President of India and Ors (supra) at page 22, per Bhagwati J., Provides an incise answer to this poser: Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (jurisdiction de droitobjectif) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droitsubjectif)?

The first contention rest on the theory that Courts are the final arbiters of what is legal and illegal... Requirements of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed.

This provided the judicial background to lord Diplocks prescription that:

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited tax-payer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped... It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to parliament for the way in which they carry out their functions. They are accountable to parliament for what they do so far as regards efficiency and policy, and of that parliament is the only judge; they are responsible to a Court of justice for the lawfulness of what they do, and of that the Court is the only judge. Rex v. Inland Revenue Commissioner (1981) 2 WLR 722, 740. In effect, there is considerable force in the view that it is by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law, see per Bhagwati, J. In Gupta v. President of India and Ors (supra) at page 24 , citing B. Schwartz and H. W. Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford: Oxford University Press, 1972) 354.” [Emphasis mine].

23. Dattijo Muhammad JSC(Now Rtd) in his contributory judgment at pages 79-83 paras. F, urged on the need to liberalize the concept of locus standi as it pertains to showing injury especially where there is a breach of Constitutional provisions or the law thus; “.. In evolving the principle, this Court in its very many decisions, whether in the realm of private law as featured in Oloriode v. Oyebi (1984) 5 SC 1, (1984) 1 SCNLR 390 at 400 or in the sphere of public law as occurred in Olawoyin v. Attorney- General, Northern Nigeria (supra), has insisted that for a plaintiff to have the locus standi to maintain an action it must, by its claim, demonstrate the injury it suffers from the conduct of the defendant against whom the action is instituted. In the case at hand, it would appear that the appellant does not squarely satisfy the criteria. The issue at hand, therefore, is whether in the peculiar circumstance of the appellant, this Court should liberalize the criteria it holds a plaintiff must satisfy to acquire the necessary locus standi to maintain an action against the respondent herein that appears to have degraded the environment in a seeming breach of specified constitutional and other statutory provision. In my firm and considered view, the Court should. Further to those made by learned respondent's counsel, I find the submissions of learned senior counsel, Adegboyega Awomola, L.E. Nwosu and A.B. Mahmoud SAN particularly helpful in this regard. Courts in this country, the lot have correctly argued, are by virtue of Sections 16(2), 17(2) (d) (3), and 20 of the Constitution of the Federal Republic of Nigeria, 1999, Section 17 (4) of the Oil Pipelines Act, Cap. O7, LFN and the Oil and Gas Pipeline Regulations are under the duty to protect the environment and would fail in that duty if in the instant case they do not facilitate the protection these laws have put in place. Their reliance on R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd (1995) 1 All E. L. R. 611, 620; Reg v. Inland Revenue Commissioners, Ex-Parte National Federation of Self-Employed and Small Business Ltd (1982) AC 617, 639 as instances of liberalization of the scope of locus standi by Courts in similar jurisdiction and in the absence of any statutory empowerment is apposite. Appellant's claim clearly suggests the degradation of environment occasioned by the respondent's seeming breach of relevant constitutional and statutory provisions. In insisting that the appellant herein satisfies the injury test in order to maintain an action, is to sustain injustice that would otherwise be obviated by the instant suit. In holding that this is a proper case to liberalize the frontiers of locus standi, I gratefully adopt the opinion of Bello JSC (as he then was and of blessed memory) in Adesanya's case (supra) thus:- "In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case, Bengal Immunity Co. v. State of Bihar (1955) 2 S. C. R. 602; Forthingham v. Mello (1925) 262 U.S. 447; for India and America respectively. Even in the Canadian case of Torson v. Attorney-General of Canada (1974) 1 N.R. 2254, and the Australia case of Mckinlay v. Commonwealth (1975) 135 C.L.R... in which liberal view on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached." As was allowed by Courts elsewhere, in the interest of justice, I find the appellant herein, a Non-Governmental Organization incorporated for the specific purpose of protecting the environment from being degraded, to have sufficient interest to maintain the instant action.” [Emphasis mine].

 

24. The question that needs to be asked at this stage is whether the case of the Claimants fall within one of such situations where this Court can liberalize the concept of locus standi as it pertains to showing that an injury has been suffered or likely to be suffered? The Claimants herein premised their case on the fact that the 1st defendant in the appointment of the 3rd- 14th defendants as Registrars and Bursars failed to comply with the provisions of the Federal Polytechnics (Amendment) Act, 2019. The powers of the 1st defendant is constitutionally governed by the provisions of Section 5 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as “the Constitution”) which provides that; 5 (1) Subject to the provisions of this Constitution, the executive powers of the Federation -

(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

It is clear from the above that the President on whom the Executive powers of the Country is vested must exercise such powers subject to the provisions of the Constitution and any law made by the National Assembly one of which is the Federal Polytechnic (Amendment) Act, 2019 alleged to have been breached by the President in the affidavit in support of the Originating Summons. It is also clear from the above provision that such powers of the President shall extend to execution and maintenance of the Constitution and all such laws made by the National Assembly which as reasoned supra includes the Federal Polytechnic (Amendment) Act, 2019. In my view even though the Claimants have not stated that they suffered any personal injury by the alleged breach of the said law, they as a Trade Union of Polytechnic workers and members of the said Union have a right/responsibility to ensure that the activities of Federal Polytechnics are conducted in accordance with the law because they are stakeholders in the Polytechnic education system in Nigeria. To maintain that the Claimants need to satisfy the requirement of personal injury to be able to have locus is to engender lawlessness in the Executive arm of Government especially as it pertains to the affairs of the affected Federal Polytechnics. It would, in my view, be a grave injustice and lacuna in our rule of law if a Trade Union for workers in Polytechnics, or even a single public-spirited member of the workforce in the Federal Polytechnics, were prevented by outdated technical rules of locus standi from bringing the issue of the usurpation of the powers of the Governing Council by the President to the attention of the Court to vindicate the rule of law and get the unlawful act stopped. Thus, I find this case as a proper case in which the Court can liberalize the concept of locus standi. In view of the above, I find that Claimants are clothed with the requisite locus or right to bring this action. I therefore answer question one in favour of the Claimants that they possess the requisite locus to institute this action.

25. The Claimants vide their Questions one and two formulated for determination in the Originating Summons had referred this Court to Section 10 of the Federal Polytechnics (Amendment) Act, 2019 (hereinafter referred to as the “Amendment Act”) which amended Federal Polytechnic Act, Cap F17, Laws of the Federation of Nigeria, 2004(hereinafter referred to as “the Principal Act”) as regards the appointing authority for Registrars and Bursars of Federal Polytechnics. Let me first say that Section 10 of the Amendment Act deals with something different which is the years of retirement of staff of Federal Polytechnics and their entitlement to pension by substituting  new subsection 3 and 4 to Section 14 of the Principal Act. It stipulates thus;

10 Section 14 of the Principal Act is amended by inserting after subsection (2), new subsections “(3)” and “(4)”

“(3) A law or rule requiring a person to retire from the public service, after serving for 35 years or having attained the age of 60 years in service, shall not apply to staff of Polytechnics.

(4) Notwithstanding anything to the contrary contained in the Pension Reform Act, the compulsory retirement age of staff of Polytechnics shall be 65 years”

It is thus clear that the Claimants have relied on the wrong Section of the Amendment Act as regards the appointing authority for Registrars and Bursars of Federal Polytechnics. Notwithstanding that, the position of the law is clear that the fact that a party argues or brings his case under a wrong Section of the law will not defeat the merits of his case, if his claim can be covered by an existing provision of the law. Put differently, a Court will not turn its back against a party in litigation merely because he has proceeded to seek for determination of an issue or matter under a wrong Law or Section of the law. See Global Eagles West Africa Ltd v. Stonecraft Marble & Granite Cftz [2022] LPELR-56561(CA)1@6-9 paras. E; Oluwole v. Margaret [2012] 13 NWLR (Pt. 1318) @ 629and; Gambo v. Tukurji [1997] 10 NWLR (Pt. 526) 591.This is borne out of the principle that the Court is duty bound to take judicial notice of Acts and existing laws. Nnaemeka Agu, JSC (of blessed memory) aptly captured the above duty of the Judge in the case of Lt. Col. Mrs. R.A. F. Finnih v. J. O. Imade [1992] NWLR (Pt 219) 521@532-533, Paras A -B thus: “Every Judge in Nigeria has sworn to do justice according to Law. The Laws to be applied by a Court in all cases are not limited to only those authorities, statutory or judicial, which have been cited for the Court's consideration by counsel on both sides. Rather they include those Laws which the Court can judicially notice as well as those relevant to the issues before the Court which the Court can from its own research find out. If Judges do otherwise they will be deciding contrary to Laws which they have sworn to uphold.” [Emphasis mine]. As such, if the case of a Claimant can be covered by an existing law, his case would still be considered notwithstanding that it was brought under a wrong Section or law.

26. The Section that deals with the appointing authority of Registrars and Bursars of Federal Polytechnics is Section 8 thereof which amended Section 10 of the Principal Act thus;

                        8. Substitute for section10 of the Principal Act, a new section “10”-

“Other principal officers-10 (1) There shall be for each Polytechnic the following other principal officers in addition to the Deputy Rectors the –

(a)Registrar;

(b)Bursar; and;

(c) Polytechnic Librarian,

Who shall all be appointed by the Council on the recommendation of the Selection Board constituted under section 12(1) of this Act.

(2) The Bursar shall be the Chief Financial Officer of the Polytechnic and be responsible to the Rector for the administration and control of the financial affairs of the Polytechnic

(3) The Polytechnic Librarian shall be responsible to the Rector for the administration of the polytechnic library and the co-ordination of the library service in the teaching units of the Polytechnic.

                        (4) The Bursar or Librarian-

(a) shall hold office for a single term of five years beginning from the date of his appointment on such terms and conditions as may be specified in his letter of appointment; or

(b) where he has held office for five years or lesson the commencement of this Act, she shall be deemed to have served his final term of office”

I believe the Claimant wrongly referred to Section 10(1) of the Amendment Act because of the above provisions of Section 8 obviously contained a new Section 10 but which Section refers to a new Section 10 substituted for the old one in the Principal Act. Same thing was noticed in paragraph 4.1.3 of the written address in support of the Originating process wherein counsel was referring to Section 12 of the Amendment Act as the one containing the constitution of the selection Board but the Section in the Amendment Act is Section 9 which merely introduced a new Section 12 in place of the old one in the Principal Act.

27. Be that as it may, it is clear from the above captured provisions of Section 8 of the Amendment Act which amended Section 10 of the Principal Act by introducing a new Section 10, which states that other Principal officers of the Polytechnic like Registrar, Bursar and Librarian shall all be appointed by the Governing Council on the recommendation of the Selection Board. In essence the Federal Polytechnic Act, Cap F17, LFN 2004 as amended by the Amendment Act provides in its newly substituted Section 10(1) in place of the old one that the Registrar, Bursar and Polytechnic Librarian shall all be appointed by the Governing Council of the Polytechnic acting on the recommendation of the Selection Board under Section 12 of the Act.  Section 12 of the Principal Act provides thus;

12. Selection Board or other principal officers

(1) There shall be, for each college, a selection Board which shall consist of

a.      the Chairman of the Council,

b.      the Rector,

c.      four members of the Council not being members of the Academic Board

d.      two members of the Academic Board.

(2) The functions and procedure and other matters relating to the Selection Board constituted under subsection (1) of this section shall be as the Council may, from time to time determine.

28. Incidentally, the Section 9 of the Amendment Act also amended section 12 which was referred to above in the newly substituted Section 10. It stipulates thus;

9. Section 12 of the Principal Act is amended by substituting for subsection (1) a new subsection “(1)”-

(1) There shall be for each Polytechnic, a Selection Board which shall consist of-

            (a) the Chairman of the Council,

            (b) the Rector,

(c) four members of the Council not being members of the Academic Board

(d) two members of the Academic Board, not being members of Council and not below the rank of Chief Lecturer, elected from among its members, and

(e) three members of the Congregation, not below the rank of Principal Lecturer or its equivalent, elected from among its members in which one shall be a non-teaching staff.

It is clear from the above provision of the Amendment Act that a new Subsection (1) of Section 12 shall be substituted in place of the old one in the Principal Act. Thus, the new Section 12 of the Principal Act (as amended) stipulates thus;

12 (1) There shall be for each Polytechnic, a Selection Board which shall consist of-

                                    (a) the Chairman of the Council,

                                    (b) the Rector,

(c) four members of the Council not being members of the Academic Board

(d) two members of the Academic Board, not being members of Council and not below the rank of Chief Lecturer, elected from among its members, and

(e) three members of the Congregation, not below the rank of Principal Lecturer or its equivalent, elected from among its members in which one shall be a non-teaching staff.

(2)The functions and procedure and other matters relating to the Selection Board constituted under subsection (1) of this section shall be as the Council may, from time to time determine

29. I am mindful of the position of learned counsel for the 3rd -14th Defendants in paragraph 5.3 of his written address in support of counter affidavit in opposition to the Originating Summons that there is no specific provision for the appointing authority for the Registrar. He referred this Court to the provisions of Section 5 of the Amendment Act. I must say that I have perused the provision of the said Section 5 of the Amendment Act which states thus;

5       Substitute for section 6 of the Principal Act, a new section “6”

                                    6 (1) Registrar shall hold office-

(a)For a single tenure of five years beginning from the date of his appointment; and

(b) On such terms and conditions as may be specified in the letter of his appointment.

(2) Where a Registrar has held office for five years or less from the commencement of this Act, he shall be deemed to have served his final term of office.

30. It is clear from the above provision of Section 5 of the Amendment Act which amended Section 6 of the Principal Act that what that Section provides for is the terms of office of a Registrar. It contains nothing on the appointment of a Registrar. The provision on the appointment of a Registrar together with the appointing authority is contained in a different Section of the Amendment Act and which is Section 8 thereof. The law is settled beyond per adventure that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to achieve harmony amongst its part. See FCMB v. Consumer Protection Council [2021] LPELR-55804(CA)1@34-35 paras. C; Nobis- Elendu v. INEC &Ors [2015] LPELR-25127(SC)1@39 paras. B; Akpamgbo-Okadigbo v.Chidi no1 [2015] 10 NWLR (Pt 1466)171@199.With due respect to learned counsel, Section 5 of the Amendment Act cannot be read in isolation of Section 8 thereof which introduced a new Section 10 of the Principal Act which as captured earlier provides that Registrar; Bursar and Librarian shall all be appointed by the Council. Thus, it cannot be validly contended as done by learned counsel that by the provisions of Section 5 of the Amendment Act there is no provision for an appointing authority for the post of Registrar. The Council is the appointing authority for the position of Registrar. By the combined effect of Sections 6, 10 and 12 of the Principal Act as amended by the Amendment Act (in its Sections 5, 8 and 9 thereof) the appointment of a Registrar; Bursar and Polytechnic Librarian must be all done by the Council on the recommendation of the Selection Board. The 1st and 2nd Defendants vide paragraph 4(xiv) of their counter affidavit admitted that the appointment of the Bursars of the affected Polytechnic should have been made by respective Councils of the Federal Polytechnic. It is clear from the above provisions of the Principal Act as Amended by the Amendment Act that it is not just the Bursars that should be appointed by the Governing Council of the respective Polytechnics but also the Registrars and Polytechnic Librarians.

 

31. I am also mindful of the submission of learned counsel for the 1st and 2nd Defendants in paragraphs 4.1-4.2 of the written address in support of their counter affidavit wherein he made an attempt to mislead the Court as to the provisions of the Amendment Act thus;

My lord, the 1st and 2nd Defendants humbly submit that the Federal Polytechnics (Amendment) Act, 2019 did not specifically provide for the appointing authority for Registrars of Federal Polytechnics in Nigeria. SEE SECTION 10 OF THE FEDERAL POLYTECHNICS AMENDMENT ACT, 2019.                  

My lord, may we respectfully reproduce Section 10 of the Federal Polytechnics (Amendment) 2019 for the sake of clarity:

SECTION 10 OF THE FEDERAL POLYTECHNIC (AMENDMENT)ACT, 2021

                        10 Other Principal Officers of each polytechnic

(1)There shall be for each polytechnic the following other principal officers in addition to the Registrar, that is-

(a)The Bursar; and

(b)The polytechnic Librarian

(c) Who shall be appointed by the Council on the recommendation

The above part credited to learned defence counsel is a clear misrepresentation of           the current position of the law. I must say that first there is no Federal Polytechnic (Amendment) Act, 2021 which learned defence counsel purport to quote from. Also, the above provision which counsel had earlier in his submission referred to is the provision of  the old Section 10 of the Principal Act which has been ammended by Section 8 of the Amendment Act. The said old Section 10 which in my view was what learned counsel quoted in his address provided thus;

                        10 Other principal officers of each Polytechnic

(1)There shall be for each polytechnic the following other principal officers in addition to the Registrar, that is-

(a)The Bursar; and

(b)The polytechnic Librarian,

Who shall be appointed by the Council on the recommendation of the Selection Board constituted under section 9(b) of this Act.

32. The said provision is now obsolete as it has been amended by Section 8 of the Amendment Act which substituted a new Section 10 in its place. The old Section 10(1) of the Principal Act which has been amended by the Amendment Act is what learned defence counsel is quoting in the above paragraphs of his written address which he sought to pass of to this Court as the correct provision of the Amendment Act. A counsel is duty bound not to mislead the Court. See the case of Omotayo & Anor v. Bankole & Ors [2021] LPELR-52454(CA)1@37-38 paras. D. It is unfortunate that counsel either knowingly or unknowingly misinformed or misrepresented the facts and the law to the Court as was done by learned defence counsel in his final address. Counsel, as an officer of the Court, owed the Court the professional duty of presenting accurate facts to the Court. It is my view that the duty of counsel does not include misrepresenting facts and the position of the law. A counsel does not have to win at all costs. No! the role of the lawyer or counsel is to ensure that justice is done. This cannot be done by misrepresentation. The duty is owed to Justice and not merely to clients.Tobi JSC (of blessed memory) in the case of Okonkwo v. Cooperative & Commerce Bank (Nig) Plc&Ors[2003] LPELR-2484(SC)1@51 paras. A admonished thus; "While the point is conceded that an advocate should be sensitive and loyal to his client's case, such   sensitivity and loyalty should not exceed required boundaries, particularly the duty the advocate owe the Court to present the law correctly, even if it is against his client.”

 

33. Let me also say that I bear in mind the position of learned counsel for the 1st and 2nd defendants in his written address in opposition of the Originating Summons that by virtue of Section 5 of the Constitution the 1st defendant has the power to appoint the 3rd, 7th, 9th, 11th and 13th Defendants as they are agents of the 1st Defendants carrying out the executive functions of the 1st Defendant. I have earlier while considering the issue of locus standi considered the extent of the powers of the 1st defendant under Section 5 of the 1999 Constitution as altered. As reasoned supra, the President on whom the Executive powers of the Country is vested by virtue of Section 5 of the Constitution must exercise such powers subject to the provisions of the Constitution and any law made by the National Assembly one of which is the Principal Act (as amended by the Amendment Act) which was obviously breached by the 1st Defendant in the appointment of the 3rd -14th Defendants as Registrars and Bursars of the various affected institution. It is also clear from the above provision that such powers of the President shall extend to execution and maintenance of the provisions of the Constitution and all such laws made by the National Assembly which as reasoned supra includes the Principal Act (as amended). The 1st defendant must of necessity exercise its powers under Section 5 of the Constitution in line with the Constitution and the Acts of National Assembly.

 

34. The 3rd -14th Defendants had stated in paragraph 9 of their counter affidavit in opposition to the Originating Summons that the acts of the 1st defendant was for the good of all and the appointment of the 3rd -14th defendants is thus protected by the doctrine of necessity. In fact, this is the main argument of learned counsel for the 3rd-14th defendants under issue three formulated in his written address in support of counter affidavit. I am mindful of the fact that learned counsel on behalf of the Claimants did not file a reply on points of law to the arguments made in the written address of the 3rd-14th defendants which as reasoned supra means a concession of the arguments. However, as reasoned earlier in this judgment also, failure to contest an argument or issue raised in the brief or written address of the opponent does not in itself amount to merit of the argument or issue so raised, as the Court is still duty bound to consider whether there is merit in such argument. See the case of Aguele v. Aigbogun, supra.What then is the doctrine of necessity all about? The doctrine operates to make that which is otherwise unlawful or illegal lawful or legal by necessity for the greater good of all. The Apex Court in the case of Lakanmi v. Attorney General of Western Nigeria [1970]NSCC 143 the Supreme Court per Ademola CJN (of blessed memory) considered elaborately the concept of doctrine of necessity inter alia thus;

“…Now, to understand, the doctrine of necessity so propounded, we must go into history…We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity. Moreover, it must be remembered that it is not a case of seizing of power by the section of the Armed Forces which started the rebellion. The rebellion had been quelled; the insurgents did not seize power nor was it handed over to them...”

By recognizing the fact that there is a doctrine of necessity we do not alter the law, but apply it to facts as they do exist

35. Lord Pearce in his minority decision in the case of Madzimbamuto v. Ladner-Burke [1969]1 A.C 645 @737-740 (which case was relied on by the Supreme Court in Lankanmi v. AG Western Nigeria, supra and Oguebie & Anor v. Odunwoke&Ors [1979] LPELR-2315(SC)1@ 11-31 paras. B while accepting this doctrine held thus;”The Judges lawfully appointed under the 1961 Constitution and representing its judicial power, have been entrusted by both sides with the duty of continuing to sit. They have continued to sit as Judges under the 1961 Constitution although the country is in the control of an illegal government which does not acknowledge or obey that Constitution and does not acknowledge any right of appeal to their Lordships' Board. This is an uneasy compromise, which has been adopted by both sides from, no doubt, a consideration of many factors. The primary reason, one presumes, is the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful. This would accord with the common sense view expressed by Grotius. For this reason, it is clearly desirable to keep the Courts out of the main area of dispute, so that whatever by the sanctions or other pressure employed to end the rebellion, the Courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order. Such a compromise is bound to create difficulties in its application. The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order. Rebusicstantibus, regardless of whose fault it is that the crisis had been created or persists.”  In the case of Lakanmi supra eventhough, the Supreme Court recognized the existence of the doctrine of necessity and held that the then Military Government was a child of necessity due to all that had happened in 1966, it still allowed the appeal of the appellant. This was because according to the Court though the Federal Military Government had a good purpose when it passed Edict No 5 of 1967 and Decree no 45 of 1968 which was to clean up a particular corrupt section of the Country, but in its pursuit however well-meaning fell into the error of passing legislation which in effect passed judgment and inflicted punishment or eroded the jurisdiction of the Court in a manner that the dignity and freedom of an individual, once assured are taken away, the courts must intervene. The Court was very emphatic that every case must be treated based on its own peculiarities placed before the Court. The Court was of the view that based on the facts of that case, the provisions of Decree No 45 of 1968 are such as are not reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfill. Accordingly, the Court declared both Edict No 5 of 1967 and Decree no 45 of 1968 ultra vires, illegal and null and void. Howbeit, I must say that it is clear from the above cases referred to by this Court that the doctrine is only applicable where there is a matter of extreme urgency that would have made an originally illegal act legal in order to maintain law and order. Put in other words, the doctrine will only be applied where the illegal act done or step taken was imperatively and inevitably necessary to save the situation return to normal conditions in view of the urgency in order to maintain law and order. Thus, there must be exceptional circumstances justifying the act. Is the doctrine capable of being applied to the act of the 1st defendant in this case? I do not think so. I will proceed to explain why.

 

36.  My explanation will also take me to the positions of all the Defendants in their respective counter affidavit and written address that the appointments were made in order to avoid vacuum in the Administration of the newly established Polytechnics. Let me say that the contention of the Claimants in the affidavit in support of the Originating Summons that the 1st Defendant appointed the 3rd to 14th Defendants as Registrars and Bursars along with members of the Councils of the Polytechnics was never controverted or denied by any of the Defendants in their counter affidavits. It is settled law that unchallenged or uncontroverted affidavit evidence is deemed admitted by the adverse party and the Court will normally admit it. See the cases of Seven-Up Bottling Co Plc v. New Nyanya Transport Co Ltd & Ors [2021]LPELR-55434(CA)1@64-65, Para E; Obumseli & Anor v. Uwakwe [2019]LPELR-46937(SC)1@19-29, Para E; Ugo&Ors v. Maha&Ors [2016] LPELR-25930(CA)1@9 paras. D; Lawson-Jack v. SPDC (Nig) Ltd &Ors [2002]LPELR-1767(SC)1@16, Para D. Besides, the 3rd to 14thdefendants admitted this much in paragraph 5.6 of their written address in support of their counter affidavit wherein it was submitted on their behalf by Counsel that in view of the fact that the Polytechnics were newly established, it became expedient for the President to appoint the Registrars and Bursars alongside the Board. It is thus deemed admitted that the 1st defendant made the appointments of the 3rd -14th  defendants together with that of members of the Governing Council. Since the 1st defendant has appointed the members of the Governing Council of the affected institutions, it ought not to appoint in addition Registrars and Bursars for the affected newly established Polytechnics, that is the statutory duty of the Governing Council. The first Defendant ought to allow the newly appointed members of the Governing Council to carry out their statutory duty of appointing the Registrars and Bursars in the affected Polytechnics. The defendants particularly, the 3rd -4th defendants have not necessitated the extreme situation or urgency that was in place that would necessitate the 1st defendant to appoint 3rd -14th defendants when he has appointed the members of the Governing Council, whose duty it is to appoint the 3rd to 14th defendants. They have not shown that Students have started applying to the schools or making payments which could lead to chaos if there was no Registrar or Bursar in place at the time which would have necessitated the 1st defendant to appoint the 3rd to 14th defendants as he did alongside the members of the Governing Council appointed. In my view, it has not been shown that there was any extreme matter of urgency that will necessitate the way the 1st defendant acted in order to protect the citizenry and ensure maintenance of law and order. I therefore do not share the sentiments of the 3rd -14th defendants that the act could be legitimized under the doctrine of necessity. The doctrine in my view is not capable of application in this case considering the peculiar facts and circumstances of this case. The Defendants have not shown any urgent situation that has made it imperative or inevitable for the President to do what he did in this case. There was no extreme urgency for the President to have appointed the 3rd to 14th Defendants as Registrars and Bursars in breach of Section 10 of the Federal Polytechnic Act, Cap F17, supra as amended by the Amendment Act especially in this instance where the President just appointed members of the Governing Council of the Institution. The fact that the Polytechnics were newly established alone is not enough to show exceptional circumstance to invoke the doctrine of necessity. The defendants have not shown any extreme urgency showing that the Polytechnics just created were in dire need of Registrars and Bursars and that it would do greater harm if the newly appointed members of the Governing Council of the Polytechnics are to be waited upon to carry out their statutory duties of appointing the Registrars and Bursars for these Schools.

 

37. I take note of the fact that paragraph 6 of the Counter affidavit of the 3rd-14th Defendants in opposition to the Originating Summons states that the deponent knows as a fact that the Act does not contemplate wholesome application of its letter with regards to appointment of Bursars, Librarians etc for newly established Polytechnics. If the Act wants its provisions not to be applicable to newly established Polytechnics it would have explicitly stated so and exempted them from the applications of its provision which includes new Section 10 of the Principal Act (as amended). I must at this stage point out that the said newly established Polytechnics are not yet contained in the Schedule to the Federal Polytechnics Act (as amended by the Amendment Act). This Court has taken judicial notice of the fact that they were just established in 2021 after the last amendment done to the Federal Polytechnics Act in 2019 and so they could not have been validly listed as one of the Federal Polytechnics in the 2019 Amendment to the Federal Polytechnic Act. Be that as it may, the NICN in an earlier decision has recognized the factual existence of the newly established Federal Polytechnics eventhough they may not have been taken care of in the Federal Polytechnics(Amendment) Act, 2019 and the fact that the activities of these newly established Polytechnics to be conducted in line with the provisions of the extant law which is the Amendment Act. In the decision of this Court per Obaseki-Osaghae in unreported Suit No NICN/ABJ/117/2021; Anderson U. Ezeibe& 12 Ors v. The President of Federal Republic of Nigeria & 6 Ors which judgment was delivered on February, 28, 2023 held thus at paragraphs 66-70 thus;

“…Learned counsel to the 3rd to 7th Defendants has argued that the new Polytechnics have no enabling laws because they are not listed in the schedule to the Federal Polytechnics (Amendment) Act 2019, nor are they mentioned in the Polytechnic Act of 1979 and are not covered by the 2019 Amendment Act. The affidavit evidence reveals that the 8 Polytechnics established between 1979 and 2019 had been in existence and in full operation before 2019 amendment of the composite and principal legislation the Federal Polytechnics (Amendment) Act 2019, which then listed them. The 8 Federal Polytechnics had been admitting students, graduating them with convocation ceremonies as revealed in the affidavit evidence. All of these were done before the 2019 Amendment Act in which they were listed. Is counsel saying the 8 Federal Polytechnics had no factual or statutory reality before they were listed in the Federal Polytechnics (Amendment) Act 2019? There can be no gainsaying that it is impossible for new Polytechnics established in 2021 to be listed in the Federal Polytechnics (Amendment) Act, 2019

Section 124(1) (a) of the Evidence Act provides that proof is not required of a fact of the knowledge of which is not reasonably open to question and which is common knowledge in the locality generally. It is common knowledge for which this Court will take judicial notice of that the procedure established by the Federal Government is to establish the Polytechnics after approval by the Federal Executive Council, appoint Rectors and members of Governing Council and duly inaugurate same. Subsequently, as was the case of the 8 Federal Polytechnics established after the promulgation of the 1979 Federal Polytechnic Act, list the new Polytechnics in any subsequent amendment of the Act. If as the 3rd -7the Defendants argue that the Polytechnics have no statutory reality, then on what authority do they exist and function? The only law in Nigeria for the administration of Federal Polytechnic is the Federal Polytechnic (Amendment) Act, 2019 and I so hold.

Applying the provisions of section 152 of the Evidence Act, 2011, the 3rd -7th Defendants are estopped by their conduct and representation from denying the factual and legal existence of the various Federal Polytechnics in which they have been appointed Rectors in order to avoid the application and implication of the provisions of Section 8 of the Act, while taking the full and unqualified benefit of the position of Rectors including enjoying the tenor guaranteed under the Act…

…I find that the 3rd to 7th Defendants are not qualified statutorily to be appointed Rectors of the five (5) newly established Federal Polytechnics. I hold that the 3rd to 7th Defendants failed to meet the qualifying mandatory provisions of section 8)2) (a) (i) of the Federal Polytechnics (Amendment) Act, 2019…

38. It is clear from the above that newly established Polytechnics who were not listed in the Amendment Act still have factual existence and are no doubt governed by the statutory provisions in the Amendment Act nonetheless. It is settled law that where a Statute makes provisions for a particular method of doing things, or the performance of a duty, that method and no other must be adopted. In  the case of Mega Progressive Peoples Party v. INEC [2015] LPELR-25706 (SC), the Supreme Court, per Muhammad, JSC (Rtd) succinctly puts it thus: “Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to nullity.” [Emphasis mine].See also cases of Inc. Trustees Of United Visionary Youth Of Nigeria v. Sukubo [2021]LPELR-52916(CA)1@40 paras. A; Amasike v. The Registrar General, C.A.C. & Anor [2010] LPELR-456(SC)1@54 paras. B-B and; Co-operative and Commerce Bank Nig. Ltd. v. A.G. Anambra State [1992] 8 NWLR (Pt. 261) 528@556. This is equally expressed in the latin maxim “A verbis Legis Non Rest Recedendum” meaning that “From the words of the law, there must be no departure”. This Court is empowered to take judicial notice of facts that are not open to question and are of common knowledge in the locality where the proceedings are taken or generally  and which knowledge the Court may acquire in whatever manner it thinks fit by virtue of Section 124 (1) and (2) of the Evidence Act, 2011. See the cases of  Gangum v. Dosunmu [2019]LPELR-47853(CA)1@19-20, Para F and Ogar v. Iloetomma [2015]LPELR-40694(CA)1@38, Para A. It is a fact of common knowledge which is not open to question that the Governing Council of the said newly established Polytechnics have been inaugurated since January 2022. From the counter affidavit of the 3rd -14th defendants which was just filed on 31st May 2023 this year, the appointment of the 3rd and 14th Defendants by the 1st Defendant are still running even after the inauguration of the Governing Council earlier appointed. I say so in view of the fact that the 7th Defendant who deposed to said counter affidavit is still the Registrar of one of the affected Polytechnics. In fact he deposed in paragraph 11 of the said Counter affidavit that removal of the 3rd -14th defendants would occasion untold hardship on the affected newly established Polytechnics. I cannot agree that the removal of the 3rd to 14th Defendants would occasion untold hardship on the Polytechnics because as stated supra the Governing Councils of the said Polytechnics have already been inaugurated and they can perform their statutory responsibilities of appointing new Registrars and Bursars in line with the dictates of the law. It is so obvious that the appointment of the 3rd to 14th Defendants is not as a result of necessity as stated repeatedly hereinbefore, because if it was, their appointments were only supposed to be in acting capacity pending when the Governing Councils would be inaugurated which obviously is not the case here because as shown by the counter affidavit the appointment is still running even after the inauguration of the respective Governing Councils. Let me say that the Court in the case of Gomwalk & Ors v. Okwosa [1998] LPELR-6052(CA)1@9-20 paras. C; have held that an Educational Institution with its Governing Council cannot be said to be a Ministry or Extra-ministerial Department. A Federal Polytechnic whose Governing Council has been appointed as stated by the uncontroverted facts in the affidavit of Claimants in support of their Originating Summons and which as reasoned supra the said Governing Council is now inaugurated since 2022 is not an appendage of the Federal Ministry of Education or any Extra Ministerial Department that the 1st Defendant can appoint its Registrar and Bursar in breach of the law. In view of all reasoned supra, I find that the appointments of the 3rd to 14th Defendants by the 1st Defendant as Registrars and Bursars of the newly established Polytechnics is in breach of the extant laws on Federal Polytechnics in Nigeria which is the Federal Polytechnic Act, Cap F17, Laws of the Federation, 2004 as amended by the Federal Polytechnics (Amendment) Act, 2019 and thus the continued stay of the 3rd to 14th Defendants in such position even after the inauguration of the Governing Council is flagrant contravention of the law which cannot be allowed to stand. Thus, the 3rd to 14th Defendants occupied their position as Registrars and Bursars of the affected Polytechnics de facto from their purported appointment in 2021 till date. Thus, the said appointments cannot stand. See the case of Ladoja v. INEC [2007] LPELR-1738(SC)1@39-40 paras. E. Accordingly reliefs 1, 2, 3 and 5 in the Originating summons succeed.

 

39. I intentionally omitted relief 4 and I will explain why afterwards. Relief 4 which seeks an order of this Court restraining the 1st defendant from swearing in the 3rd to 14th Defendants as Registrars and Bursars in my view is now overtaken by event. I say so in view of the fact that this action was instituted on 30th August 2021, and as stated earlier from the counter affidavit of the 3rd to 14th Defendants which was deposed to by the 7th Defendant, it is clear that they have been so acting because it was averred in paragraph 11 of the said counter affidavit that the removal of the 3rd to 14th Defendants will occasion untold hardship on the said Polytechnics. In effect, it is clear that they have been so acting in the said positions since then and which presumably means they have been sworn in for them to be so acting since then till now. In the case of Nyako v. Adamawa State House Of Assembly &Ors [2016] LPELR-41822(SC)1@ 24-25 paras. E per Dattijo- Muhammad, J.S.C(Rtd) held thus;“Granted without conceding that there is a decision of the lower Court, on the merits, refusing the grant of appellant's 6th relief since, with the expiration of the tenure of the appellant as the elected Governor of Adamawa State, the relief has become overtaken, spent, academic and useless, endorsing such a decision by this Court would be an abiding duty. Finally, learned senior counsel to the appellant needs to be reminded that a litigant's injury is only compensated if the Court is so urged and it is granted not necessarily in the manner the relief is sought. The Court makes the grant only if the law so accommodates the claimant. Where the claimant withdraws the relief of the injury he claims and his entitlement cannot be determined in the first Place, the Court will be without the jurisdiction to compensate the injured person. Addedly, where the grant of the relief urged on the Court has become untenable and academic the Court will lack the jurisdiction of granting such a relief that has become hypothetical, of no value and unenforceable. See Ladoja v. INEC (supra) and Marwa v. Nyako (supra).” [Emphasis mine]. Since the 3rd to 14th Defendants have presumably been sworn in since they have been in the capacity which they were appointed since then, relief 4 has become overtaken, spent and granting such at this stage has become merely academic and of no utilitarian value.  It is in the light that this Court will refuse relief 4. Relief 4 is thus refused.

 

40. For the avoidance of doubt and the reasons earlier given, I hereby declare and order as follows;

1.      It is declared that the appointment of a Registrar and Bursar of any Federal Polytechnic including but not limited to the 3rd to 14th Defendants by the President must be made in accordance with the provisions of Section 10 of the Principal Act (as amended by the Federal Polytechnics (Amendment) Act, 2019)

2.      It is declared that the appointment of a Registrar and Bursar of any Federal Polytechnic of the 3rd to 14th Defendants by the 1st Defendant rather than the Governing Council of the respective Federal Polytechnics in breach of the extant law is ultra vires, null and void.

3.      The purported appointment of the 3rd to 14th defendants by the 1st Defendant as Registrars and Bursars of the respective newly established Polytechnic in contravention of the law is hereby set aside.

4.      The 3rd -14th Defendants are restrained from parading themselves or further parading themselves, assuming office and acting in the capacity of Registrars and Bursars of Federal Polytechnics.

5.      Parties are to bear their respective cost.

Judgment is accordingly entered.

 

                                                                                                Hon. Justice. O.O. Oyewumi

 

                                                                                                            Presiding Judge