IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 1 ST DAY OF JULY 2020
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/36/2019
IN THE MATTER FOR INTERPRETATION AND ENFORCEMENT OF FUNDAMENTAL RIGHTS TO THE APPLICANT TO FREEDOM FROM DISCRIMINATION, RIGHT TO HAVE HIS EQUAL ACCESS TO THE PUBLIC SERVICE, RIGHT TO WORK UNDER EQUITABLE AND SATISFACTORY CONDITIONS OF SERVICE TO RECEIVE PAY, RIGHT TO FREE CHOICE OF EMPLOYMENT AND PROTECTION AGAINST UNEMPLOYMENT AND RIGHT TO PERIODIC HOLIDAYS WITH PAY UNDER CHAPTER IV OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AND UNIVERSAL DECLARATION OF HUMAN RIGHTS RELATING TO THE APPLICANT’S FUNDAMENTAL HUMAN RIGHT
BETWEEN:
YAHAYA IBRAHIM SHINKO………………….APPLICANT
AND
1. NIGERIA ARMY COUNCIL}
2. CHIEF OF ARMY STAFF }…………………..RESPONDENTS
J U D G E M E N T
The Applicant was employed by the 1 st Respondent as a Direct Regular Commissioned Officer (DRCO) but he was compulsorily retired on 31/03/1999 on the ground that his service was no longer required. The Applicant challenged his compulsory retirement by filing a suit at the Federal High Court in Suit No: FHC/KD/CS/4/2004. On 02/12/2005, the Court Coram: Hon. Justice A. M. Liman gave judgement in favour of the Applicant and declared that his compulsory retirement by the Respondents was unlawful and granted his claims for promotion and other entitlements.
The Applicant’s grouse against the Respondents is their refusal and/or failure to enforce the judgement granted in his favour by the Federal High Court in spite of his several appeals and petitions.
2. Being aggrieved by the action of the Respondents, the Applicant commenced the present action on 18/10/2019, vide Originating Motion , for the enforcement of his fundamental human rights wherein he claimed against the Respondents, the reliefs set out as follows:
1. An Order enforcing and securing the Applicant’s fundamental/human rights by granting the Orders below:-
a.A declaration that by virtue of the subsisting judgment of the Federal High Court by which the erstwhile compulsory retirement of the Applicant was declared as null, void and of no effect and entitled to all his mandatory promotions as enshrined in the conditions of service of the Nigerian Army vide Exhibit “B”, the continues (sic) refusal by the Respondents to give the Applicant equal access to work in the Nigerian Army, restore, accord grant him equal salary, annual leave grand (sic) and allowance, accommodation allowance, all the equal rights and benefits of a serving officer including promotions and privileges with updated/enhanced remunerations, emoluments, access to use the military facilities, properties and services available to advance, receive salary and allowances, get promoted and attain higher ranks, attend courses locally and internationally and to receive any of the various awards of service/honour, services, properties, facilities and treatment for medical health care and child birth in government hospital and at public expense, which were accorded by the Respondents to other serving officers of his rank and status in accordance with the Armed Forces Act, Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers vide Exhibit “D” and all relevant Laws in force for the period from 04 th January, 1997 through the ranks to date as at 30 th September, 2019 is a gross infringement on the Applicant’s fundamental/human right to freedom from discrimination, right to have his cause heard, right of being equal before the law, right to equal protection of the law, right to equal access to the public service, right of access to public property and services in strict equality of all persons before the law, right to work under equitable and satisfactory conditions of service to receive pay, right to free choice of employment and protection against unemployment and right to periodic holidays with pay, respectively as provided for under section 42 (1) (2) of the Constitution of the Federal Republic of Nigeria 1999, Section 1, Article 2, 3 (1) (2), 7, 13 (1) (2) & 15 of the African Charter on Human Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria and Article 2, 7, 21 (1), 23 (1) (2) & 24 of the Universal Declaration on Human and Peoples Right.
b. An Order directing the Respondents to forthwith restore, accord and grant all the rights due to the Applicant as of a serving officer of the Nigerian Army as a public service, including all promotions and privileges with updated/enhanced remunerations, emoluments, benefits, salaries, annual leave grand, medical allowances, and accommodation allowances, as accorded by the Respondents to serving officers of his rank and status under the Armed Forces Act and Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers vide Exhibit “D” for the period from 04 th January, 1997 through the ranks to date, to commensurate with his fundamental/human right to freedom from discrimination, right to have his cause heard, right of being equal before the law, right to equal protection of the law, right to equal access to the public service, right of access to public property and services in strict equality of all persons before the law, right to work under equitable and satisfactory conditions of service to receive pay, right to free choice of employment and protection against unemployment and right to periodic holidays with pay.
c. An Order of mandatory injunction compelling the Respondents to forthwith pay the Applicant the total amount of N118,223,029:97 as the outstanding salaries, accorded by the Respondents to other serving officers of his rank and due to him, as accorded by the Respondents to other serving officers of his rank and status under the Armed forces Act, Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers vide Exhibit “D” and all applicable laws in force for the period of service in the Nigerian Army from 04 th January, 1997 through the ranks to 30 th April, 2019 to commensurate with his fundamental/human right to freedom from discrimination, right to have his cause heard, right of being equal before the law, right to equal protection of the law, right to equal access to the public service, right of access to public property and services in strict equality of all persons before the law, right to work under equitable and satisfactory conditions of service to receive pay, right to free choice of employment and protection against unemployment and right to periodic holidays with pay, until he is reinstated; Or, where reinstatement of the Applicant by the Respondent is impossible:
d. An Order of mandatory injunction compelling the Respondents to forthwith pay the Applicant the sum of N141,733,840:75 standing as the total salary, accommodation allowance and annual leave grand/allowance for his unexpired term of employment commencing from the periods stated in the subsisting judgment/order of the Federal High Court vide Exhibit “B” in the rank of Captain from 04 th January, 1997 to 03 rd January, 2002 and rank of Major from 04 th January, 2002 until the 26 th day of March 2025 when he will be due to properly disengage/retire from the Nigerian Army at the age of 56 years and to calculate and pay his entitled gratuity as provided for under the Armed Forces Act and Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers vide Exhibit “D”, and pay him the sum of N50,000,000:00 to compensate the general damages he incurred as a result of the actions and inactions of the Respondents in depriving and denying him the enjoyment of the equal rights and privileges of a serving officer they accorded to other officers of his rank and status including denial of promotions to the ranks of Lieutenant Colonel, Colonel, Brigadier-General and Major-General, denial of enhanced salary, allowances, rights and privileges attributable to every promotion to such higher ranks, denial of the use of the available military properties, facilities and services to advance, attend courses locally and internationally at public expense, denial to hold command/staff posts, denial to serve and receive his entitled awards of service/honours/decorations entitled hi for the military service he rendered and the denial for him and his family to receive medical treatment including medical health care and child birth in government hospital and at public expense and the exposal and subjecting him and his family to pass through hardship and borrowing to survive with excessive interest to feed him, get shelter and for the children to attend schools as a result of withholding his entitled salary for a period of well over sixteen (16) years for no just reason.
To support the application, the Applicant filed a Statement setting out the facts, the reliefs sought, the grounds upon which the reliefs were sought and a 30 - paragraphs Affidavit,to which five (5) documents were attached as exhibits. Also filed alongside the application is the Applicant’s learned counsel’s written address of legal arguments to further support same.
3. In reaction to the Originating Motion, the Respondents filed a Counter-Affidavit on 25/11/2019. Accompanying the Counter-Affidavit is also the Respondent’s learned counsel’s written submissions in opposition to the application.The Respondents also filed a Notice of Preliminary Objection on 25/11/2019 to the present action challenging the jurisdiction of the Court to entertain the matter.
The Applicant thereafter filed a Further and Better Affidavit in support of his claim on 02/12/2019.
4. The Respondents’ preliminary objection which is supported by a 7 – paragraph Affidavit is premised on three grounds, namely:
a. The cause of action and reliefs sought in the instant application as disclosed in the application is founded on labour and employment dispute and cannot be enforced under the Fundamental Right Enforcement Procedure Rules.
b. By the Supreme Court decision in University of Ilorin & Anor Vs Oluwadare [2006] 14 NWLR (Pt 1000) 751, this Honourable Court lacks jurisdiction to hear and determine a fundamental right application where principal reliefs sought are not based on any breach of the Applicant’s fundamental right enshrined under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
c. The Applicant’s Motion is antithetical to judgement enforcement and an abuse of the processes of this Honourable Court.
5. Also filed alongside is a written address wherein two issues were distilled for determination, namely:
1. Whether this Honourable Court has jurisdiction to entertain the Applicant’s application in view of the Supreme Court decision in University of Ilorin & Anor Vs Oluwadare [2006] 14 NWLR (Pt 1000) 751
2. Whether the method adopted by the Applicant is suitable for the enforcement of Judgement and does not constitute an abuse of the processes of this Honourable Court.
The Applicant’s Counter-Affidavit to the Preliminary Objection was filed on 02/12/2019. Also filed alongside is the written address of his learned counsel.
6. The preliminary objection and the substantive suit were taken together on 11/03/2020, at which the respective learned counsel for the parties adopted and adumbrated upon their respective written arguments to support and oppose the same as the case may be.
I should state that I had carefully considered the totality of the objection and submissions in contending for and against the Originating Motion; and that I had also taken due benefits of the totality of the written and oral arguments vigorously canvassed by Bello Ibrahim Esq. of learned counsel for the Applicant as well as the written and oral submissions of H. S. Danjuma Esq.,of learned counsel for the Respondents, I should be permitted to state that I shall make specific reference only to the submissions of the respective learned counsel that I consider as very salient to the determination of the various issues raised as I deem necessary.
7. It is an age long settled principle of law that the question of jurisdiction goes to the root, fibre and foundation of a case and thus must be first and foremost considered as it forms the basis upon which a Court can entertain a suit. Jurisdiction gives life or otherwise to a suit. See NURTW & Anor Vs RTEAN [2012] LPELR 7840; Mbas Motel Vs Wema Bank PLC [2013] LPELR 20736; Anyanwu Vs Ogunlewe [2014] LPELR 22184; Raha Vs Ige [2017] LPELR 43916
When it is raised at any stage of trial, the Court will have to determine whether the subject matter is within its adjudicatory power. Once a Court finds that it is bereft of the competence to adjudicate on the case, it should hands off, as the law is that no matter how well conducted a case, it becomes a nullity. See N.N.P.C Vs Orhiowasele [2013] 13 NWLR (Pt 1371) 211.
8. Suffice to quickly affirm the trite position of the law and as correctly submitted by the learned counsel for the Respondents that in order to determine whether or not a Court can exercise jurisdiction over a matter, it is the facts averred in the Originating processes and the reliefs endorsed therein alone that the Court is required to examine and no more. See the cases of Anyanwu Vs Ogunewe & Ors [2014] 8 NWLR (Pt 1410) 437 cited by the Respondents’ learned counsel and the cases of F.U.M.B. Ltd Vs Aerobell Nig Ltd [2005] ALL FWLR (Pt 281) 1651 at 1677; Moyosore Vs Gov. of Kwara State [2013] NWLR (Pt. 1293) 242; Guinness (Nig) PLC Vs SKA Nig Ltd [2012] 18 NWLR (Pt. 1331) 179.
So, as it is in the instant case, the Court must restrict itself to the Statement of Facts, Affidavit in Support of the Originating Motion and the reliefs sought in determining the issue of jurisdiction.
9. The objection of the learned counsel for the Respondents is basically that in an application for the enforcement of fundamental rights, the principal reliefs sought must be such reliefs that are enforceable under the Fundamental Rights Enforcement Procedure (FREP) Rules. Learned counsel argued that the reliefs sought by the Applicant in the instant case are predicated on issues stemming from employee/employer relationship which have no nexus with the Fundamental Rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned counsel further submitted that where as in the present case the reliefs sought by an Applicant in a Fundamental Right Application are reliefs that cannot be sought under the FREP, the Court lacks jurisdiction to entertain the matter.
10. On the issue of whether this Honourable Court can enforce the judgement of the Federal High Court (FHC), learned counsel for the Respondents is of the view that the order of the FHC attached as Exhibit B to the Application cannot be enforced by way of fundamental rights by this Honourable Court. Learned counsel finally urged the Court to uphold the objection and prayed the Court to strike out the case for want of jurisdiction.
In support of his propositions, learned counsel cited inter - alia the cases of University of Ilorin & Anor Vs Oluwadare (supra); West African Examination Council Vs Akinkunmi [2008] 9 NWLR (Pt 1091) 151; Mustapha Vs Governor of Lagos State [1987] 2 NWLR (pt 58) 539; Tukur Vs Government of Taraba State & Ors [1997] 6 NWLR (Pt 510) 549 and Nwachukwu Vs Nwachukwu [2018] LPELR 44696.
11. The response of the learned Applicant’s counsel in sum is that, this Honourable Court is vested with jurisdiction to hear the Applicant’s case. Learned counsel argued that the Applicant’s main/principal claim is premised on the failure and/or refusal of the Respondents to comply or give effect to the provisions of Section 42 (1) and (2) of the Constitution of Nigeria, the provisions of the African Charter on Human Rights (Ratification and Enforcement) Act and the Universal Declaration on Human and People’s Right; and that the Respondents thereby infringed on the Applicant’s entitled fundamental rights to freedom from discrimination in respect to his employment. In support of his propositions, learned counsel relied on the provisions Section 254C (1) of the Constitution (supra) and the cases of Standard Chartered Bank Vs Adegbite (not properly cited); University of Ilorin & Anor Vs Oluwadare (supra) .
Citing the provisions of Section 12 (1), 15, 54 (2)(a)(i) and (ii) of the National Industrial Court Act 2006 and the case of Obi Vs INEC [2007] 11 NWLR (Pt 1046) 558, learned counsel further argued that the method adopted by the Applicant in instituting the case does not constitute an abuse of process of this Honourable Court.
Learned Applicant’s counsel argued further that on the authority of Standard Chartered Bank Vs Adegbite, this Honourable Court is vested with the jurisdiction to adjudicate on matters of enforcement of fundamental right as it relates to employment.
12. I must state from the outset that the position of the law as posited by learned Applicant’s counsel in the Standard Chartered Bank case is warped and not the correct position. One of the issues determined by the Court of Appeal in the Standard Chartered Bank case was whether the State High Court lacked jurisdiction to entertain cases that were instituted prior to the amendment of Section 254 of the 1999 Constitution. The Court held inter-alia as follows:
“This being the case, the claimant by virtue of Section 46 of the same Constitution, can and rightly approached the State High Court under Section 272 of the CFRN 1999 to ventilate his grievance pertaining to the breach of her constitutional right in the High Court of a State where the breach or anticipated breach occurred. The breach having occurred before the promulgation or amendment to the CFRN, 1999, by the addition of Sub-section C to Section 254, which amendment has no retrospective effect, same cannot deprive the Lagos State High Court of the jurisdiction to hear and to determine the claim of the respondent before it to conclusion. It is apparent that the amendment to Section 254 of the Constitution did not oust the jurisdiction of the High Court retrospectively…..”
Contrary to the submission of the learned counsel, the Court of Appeal in the said case did not decide that this Honourable Court has jurisdiction to adjudicate on matters for enforcement of fundamental right that relates to employment, labour matters and from discrimination. It is my considered view that the submission and reliance of learned counsel on the Standard Chartered Bank case is not only mischievous but a calculated attempt to mislead the Court. The entire argument is hereby discountenanced.
13. Now, I consider it very pertinent and very significant to emphasize and put in proper perspective from the outset that the focal essence of the FREP is simply and strictly for the Court to enforce the protection of citizens’ fundamental rights preserved by Chapter IV of the Constitutionandthe other recognized Human Rights Instruments, where an infringement is established or perceived. The procedure under the FREP Rules , pursuant to the provisions of Section 46 (1)of the Constitution, entitles any person who alleges that any of the provisions of Chapter IV of the Constitution and any other recognized Human Rights Instruments which make provisions for the fundamental liberties of citizens, has been, is being or is likely to be contravened in relation to him, to apply to the appropriate Court in the State where the infringement occurs or perceived to occur, for redress.
I must also take cognizance of the fact as correctly submitted by the learned Applicant’s counsel that by Section 254C (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Honourable Court has jurisdiction in cases; “relating or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine” .
14. The case of the Applicant seems to me very simple. He was compulsorily retired from the services of the 1 st Respondent on 31/03/1999. Thereafter, he challenged his retirement as being unlawful and sought redress at the Federal High Court in Suit No: FHC/KD/CS/4/2004. Attached to the Originating Motion as Exhibit B, is the certified true copy of the judgement of the Federal High Court which declared the Applicant’s compulsory retirement as null and void and by which his claims were also granted by the Court. According to the facts deposed in the Affidavit in support, after he obtained the judgement, the Respondents failed and refused to give effect or enforce the Applicant’s entitlement to the judgement. The Applicant made several efforts including writing letters and petitions to the appropriate authorities but all his efforts did not yield any positive result. Consequently, this suit was instituted to enforce his fundamental rights which the Applicant claim has been trampled by the Respondents.
15. The question to be decided in the present case, therefore, is whether, on the basis of the Affidavit evidence placed before this Honourable Court, the present application is not incompetent and whether this Court is clothed with the jurisdiction to entertain same.
As a starting point, I wish to restate or reiterate the position of this Court that Section 254C (1) (d) of the Constitution (supra) cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules. See Comrade (Evang.) Olowo Preye Grace Vs PENGASSAN & 3 Ors Unreported Suit No. NIC/EN/10/2011 delivered on 05/07/2011; Alhaji Lateef Akinsola Vs NURTW & Ors [2013] 33 NLLR (Pt 96) 399 NIC and Alozie C. Manasse Vs Sterling Bank & Anor Unreported Suit No. NIC/LA/173/2017 delivered on 16/02/2018.
In various decisions, the Court of Appeal have equally pronounced on the inappropriateness of filing under the Fundamental Rights (Enforcement Procedure) Rules issues of labour especially wrongful dismissal or termination or suspension since this belongs to a different class of action from actions on contravention or threatened contravention of a fundamental right. These cases have held that when an application is brought under these Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement thereof should be the main claim and not an accessory claim. These cases stressed that only a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the procedure.
See ACB Ltd Vs Ufondu [1997] 10 NWLR (Pt 523) 169 CA; Hon. Justice E. I. Isuama Vs Gov. Ebonyi State & Ors [2006] 6 NWLR (Pt 975); Musa Hammawa Abba Vs JAMB & Anor Suit No: CA/YL/7/2013, the judgment of which was delivered on 4th December 2014.
16. The more recent decision in SSAUTHRIAI Vs Olotu [2016] 14 NWLR (Pt 1531) 8 at 18 is even more forceful in disallowing in the National Industrial Court any matter filed under the Fundamental Rights (Enforcement Procedure) Rules. The Court of Appeal relying on Section 46(1), (2) and (3) of the 1999 Constitution, had this to say:
“It is clear, therefore, that the National Industrial Court…has limited jurisdiction on disputes relating to the provisions of Chapter IV of the said Constitution. This is because of the clear and unambiguous provisions of section 254C (1) (d) of the amended Constitution…
In a limited sense, therefore, the jurisdiction of the National Industrial Court is only in respect of disputes over the interpretation and application of the provisions of Chapter IV of the Constitution and not the enforcement of the rights specified under the Chapter. The National Industrial Court has no jurisdiction to hear and determine the appellant’s originating application for the enforcement of their specified fundamental rights as enshrined in Chapter IV of the Constitution…(Underlining for emphasis)
17. It should be noted further and as stressed in SSAUTHRIAI Vs Olotu (supra) that Section 46(1) of the 1999 Constitution, as amended, states that:
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress”.
By this provision, the application is to be to a High Court for purposes of Section 46 of the Constitution and the Rules made thereunder. Section 46(2) talks of the High Court having original jurisdiction to hear and determine any application made to it in pursuance of the provisions of Section 46 itself. And by Order I Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, “High Court” means the Federal High Court or High Court of a State or the High Court of the Federal Capital Territory. The point is that the National Industrial Court of Nigeria is not a High Court.
18. At this juncture, it is pertinent to reaffirm the principle of law and as correctly submitted by the learned counsel for the Respondents that for a Court to be competent to assume jurisdiction to entertain an application for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, the enforcement of the fundamental right should be the main claim and not an accessory claim. This was the decision of the Supreme Court in University of Ilorin & Anor Vs Oluwadare (supra) cited by the learned Respondents’ counsel. See also: Tukur Vs Govt of Taraba State [1997] 6 NWLR (Pt 510) 549 @ 576 - 577; Jack Vs University of Agriculture [2004] 1 SC (Reprint) (Pt ii) 100 @ 112; Tukur Vs Govt of Gongola State [1989] 4 NWLR (Pt 117) 517 @ 548; Emeka Vs Okoroafor & Ors [2017] 11 NWLR (Pt 1577) 411.
19. The Applicant’s counsel argument in his reply is that the main/principal claim or relief of the Applicant is for the enforcement of his fundamental right against discrimination among other officers of his rank and status which right according to the Applicant is being trampled upon by the Respondents by denying him access to the 1 st Respondent as ordered by the judgement of the FHC.
I have insightfully considered the reliefs the Applicant claimed as well as the facts disclosed by the affidavit in support of his claim which I had stated above. The declaration sought by the Applicant is to give, restore and accord him equal access, equal rights and benefits of a serving officer and to work in the Nigeria Army; and to grant his salaries, allowances. The said reliefs show very clearly that his desire is principally for his reinstatement to the services of 1 st Respondent as granted by the order of the Federal High Court.
20. It seems translucent to me that the reliefs as claimed and the facts upon which they are predicated does not infringe the fundamental right to freedom from discrimination as enshrined in Section 42 of the 1999 Constitution.
In Iheme Vs Chief of Defence Staff [2018] LPELR 1 at 14-18, Onyemenam, JCA expounding on the principle held as follows:
"On the question whether the action before the trial Court was that of tort or one seeking to secure the enforcement of the Appellant's fundamental right.
A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party's right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered.”
21. I have taken a cursory examination of the claims of the Applicant and I agree with the submissions of the learned counsel for the Respondents that the Applicant’s case is not hinged on the gross violation of his Fundamental Human Rights particularly his right to freedom from discrimination. The instant suit filed for the enforcement of the Applicant's fundamental rights to freedom from discrimination, right to equal protection of the law, right to access to public property was instituted in subtle way to enforce the judgement of the Federal High Court reinstating him to the services of the 1 st Respondent. It is glaring from facts deposed in paragraphs 14, 16, 17, 18 and 19 of the Affidavit in support of the application that this suit was instituted when the Applicant was unsuccessful in his bid to have the Respondents enforce the judgement of the Federal High Court granted in his favour.
22. Now, for completeness, I note that Exhibit C attached to the Affidavit in support of the Motion is the report of the Committee on Ethics, Privileges and Public Petitions. The Applicant had written a petition to the said Committee. The report on the proceedings of the Committee is a bit lengthy and I spare myself of the tedium of reproducing the same. After reviewing the Applicant’s petition, the Committee at page 1565 of Exhibit C resolved that the Senate should direct the Applicant to approach the Federal High Court to enforce the judgement it entered in his favour against the 1 st Respondent in 2004. These reliefs sought by the Applicant before the Federal High Court centred principally on his dismissal from the 1 st Respondent.
So, from the contents of the exhibits attached to the Motion one may ask, where is the discrimination alleged by the Applicant?
The Applicant had ingenuously crafted an otherwise matter for enforcement of judgement to fit into the special procedure offered under Section 254C (1) (d). That special procedure, on the peculiar facts of this case, does not avail him to ventilate his grievance against the Respondents for their refusal to enforce the said judgement. The claims or reliefs sought by the Applicant are not fundamental right as enshrined under Chapter IV of the 1999 Constitution (as amended). To put it differently, the reliefs sought are not capable of enforcement under Section 254C (1) (d) of the 1999 Constitution. And I so hold.
23. Learned Respondents’ counsel further alluded to the fact that the filing of the instant case as abuse of court process.
It is trite that the concept of abuse of court process is imprecise. It involves circumstances and situations of infinite variety and condition. But a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. See Lokpobiri Vs Ogola [2015] LPELR 40838 ; Ojo Vs A.G. Oyo State [2008] 15 NWLR (Pt 1110)309; First Bank PLC Vs T.S.A Industries [2012] 12 NWLR (Pt 1320)326; N.D.I.C. Vs U.B.N PLC [2015] 12 NWLR (Pt 1473) 246
Essentially, the circumstances under which a process of Court is used or employed and for what purpose, determines whether or not such a process constitutes an abuse of Court process.
When an abuse of Court process is said to occur, it exhibits a situation where a party has irritated a court process with the clear lack of bona fides leading to the annoyance and irritation of the other party with the aim to over – reach, with attendant result of having the Court itself directly vexed. See Amaefule Vs The State [1988] 2 NWLR (Pt 75) 156; Dingyadi Vs INEC [2011] 10 NWLR (Pt 1089)
It was also held in N. I. C Vs F. C. I. Company Limited [2007] 2 NWLR (Pt 1019) 610, that the rationale of the law behind the concept of abuse of Court process is that there must be an end to litigation, and a litigant should not be made to suffer the same rigor or jeopardy for the same purpose twice.
24. In my considered view, it is an improper use of judicial process for the Applicant to surreptitiously file a fresh action to enforce the execution of a judgment of FHC, a Court of co-ordinate jurisdiction, in the pretext of instituting the suit under the provision of Section 254C (1) (d).
I must completely agree with the Respondents’ learned counsel that the present action is another classical case of abuse of the judicial process. It must not be allowed to stand. And I so hold.
It is settled that where a Court holds that its process has been abused, the proper order to make is for dismissal of the action.
In the final analysis, having come to the conclusion that the Applicant’s present action here constitutes a flagrant abuse of the judicial process of this Court, the Respondents’ application succeeds thereby; and in effect, the substantive suit must be and it is hereby accordingly dismissed.
There shall be no order as to costs.
SINMISOLA O. ADENIYI
(Presiding Judge)
01/07/2020
Legal representation:
Bello Ibrahim Esq for Applicant
H. S. Danjuma Esq. for Respondents