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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE JOHN I. TARGEMA PhD

                                                                                                                       

DATE: 5 JUNE, 2025             SUIT NO: NICN/AWK/14/2024

 

BETWEEN:

Chief Sir Bath Okafor-Ezedinobi, Esq.

(Previously known as Bath Okafor-Onyilo)               -                        Claimant

 

AND

1.     Government of Anambra State

2.     The Secretary to the Government

of Anambra State

3.     The Honourable Attorney General

     Of Anambra State

4.     His Excellency, Dr. Nkem Okeke

(Former Deputy Governor of Anambra State         -                    Defendants

 

 

REPRESENTATION

Chief Sir Barth Okafor Ezedinobi, Esq., represent Himself.

Peter Odili, Esq., Senior State Counsel Anambra State Ministry of Justice, Awka for the 1st – 3rd Defendants.

 

JUDGMENT

INTRODUCTION

1.     The claimant commenced this action against the 1st to 4th Defendant by an originating summons dated 15th March 2024 and filed the same date wherein the claimant formulated for determination SIDC questions to wit

a)    Whether the claimant has suffered injustice, victimization, intimidation in the hands of the Defendants and of the Ukpo people/Community and their hired agents and have incurred series of expenses sequel to the Defendants’ breach of trust in the leakage of his legal opinion and their negligence thereto among other acts.

b)    Whether the Defendants owed the Claimant duty of care including duty to refund or reimburse him N15,000,000 being genuinely claimed as expenses incurred in defending himself and while discharging his duty as Special Assistant to the Governor on legal matter.

c)     Whether the continued and unprecedented act of with holding refusing and showing insensitivity to the claimant’s plight in not paying him of his genuine expenses; his salaries and non-release of his documents/properties without recourse to the economic hardship imposed on him is a malicious act with intent to harm the Claimant’s socio-economic wellbeing.

d)   Whether upon the totality of the consideration of the Claimant’s rights pursuant to the employment laws, it is illegal and unlawful for the Defendants to withhold payment of the Claimant’s salaries from March 2022 till date even when no letter has been given to him terminating his employment as Special Assistant to the Governor of Anambra State on legal matters and following the abrupt decision and locking of his office.

e)    Whether the action of the 4th Defendant and by extension all the defendants in taking decision and abrupt locking of the Claimant’s office with his documents/properties inside it including Six (6) International Passports belonging to him and his family members from 15th November, 2021 till date for no just cause and without hearing from him and without any remedy or compensation offered to the Claimant constitutes a breach of the Claimant’s Fundamental Human Rights secured under sections 36, 42(1) and 44(1) of the Constitution of the Federal Repu8blic of Nigeria 1999 (as Amended)

f)      Whether the Defendants have any justification in having not paid the Claimant the N1500,000 (One Million Five Hundred Thousand) duly approved by the immediate post Governor and based on the memorandum raised by the 3rd Defendant and whether Claimant’s appointment as Special Assistant has been duly terminated or same still valid and running.

 

2.     Upon determination of the Six (6) questions, the Claimant is seeking for the reliefs hereunder against the Defendants jointly, severally and in the alternative as follows:

i)      A DECLARATION that the Governor of Anambra State (The Defendants) though the former or immediate past Governor having appointed or employed the Claimant to work for him or the State Government under his watch owed him a duty of care in all ramifications in the cause of discharging his duties as such or in that ramifications in the cause of discharging his duties as such or in that capacity or regard; except where he deliberately committed a crime.

ii)    A DECLARATION that the Government of Anambra State (The Defendants) or through any of its officers having sought for the Claimant’s legal opinion and obtained same in trust, ought not to have reached that trust by leaking same to Ukpo people or community or any third party.

iii) A DECLARATION that the Government of Anambra State (The Defendants) having stood by and watched the Claimant to suffer injustice, victimization and intimidation in the hands of the said Ukpo people/community and or their hired agents; and also having neglected, refused or failed to offset the expenses incurred by the Claimant in the course cause of defending himself and or failed to reimburse him of his genuine claims to that effect is in negligence of the duty of care it owes the Claimant and which negligence resulted in breach of the said duty of care.

iv) A DECLARATION that the 4th Defendant’s actions and by extension all the Defendants’ actions in taking decision and the abrupt locking/denial of Claimant access to his office with his documents/properties inside it including Six (6) International Passports belonging to him and his family members from 15th November 2021 till date for no just cause and without hearing from him and without and remedy or compensation offered to the Claimant is unlawful, illegal. unconstitutional and a breach of the Claimant’s rights.

v)    A DECLARATION that it is illegal. Unconstitutional and unlawful for the Defendants to withhold payment of the Claimant’s salaries from March, 2022 till date even when no letter has been given to him terminating his employment as Special Assistant to the Governor of Anambra State on legal matters and following the abrupt decision and locking his office/denial of access to same.

vi) A DECLARATION that it is illegal, malicious, unconstitutional and unlawful for the Defendants to continue their unprecedented acts of withholding, refusing and showing insensitivity to the Claimant’s plight in not paying him of his genuine claims of expenses; his salaries and non-release of his documents/properties without recourse to the economic hardship imposed on him by their acts and with intent to harm his socio-economic wellbeing and to taunt him.

vii)                       AN ORDER of the Honourable Court directing the Governor of Anambra State or the Defendants jointly and severally to pay to the Claimant a total sum of N15,000,000 (Fifteen Million Naira) already demanded from them as special damages being expenses he incurred in defending himself.

viii)                    AN ORDER directing the payment to the Claimant of N500,000,000 (Five Hundred Million Naira) general damages against the defendants jointly and severally.

ix)  AN ORDER directing the Defendants to pay 10% (Ten percent interest per month on the sum(s) awarded above from the date of judgment until the full and final liquidation of the said sum(s)

x)    AN ORDER directing the defendants to pay the sum of N5,000,000 (Five Million Naira) being the cost of prosecuting this case.

xi)  SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.

 

3.     Accompanying the Originating Summons is an 80 paragraphs affidavit along with Exhibits BO1 to BO28 deposed to by the Claimant himself.  Attached also is a Written Address of the Claimant’s Counsel dated and filed on 15th of March 2024.

 

CASE OF THE CLAIMANT

4.     The Claimant averred that he was employed as a Special Assistant to the Immediate Governor of Anambra State on legal matters and was posted to the Office of the Deputy Governor of Anambra State (the 4th Defendant). The Claimant averred that he received a letter addressed to the 4th Defendant by the 3rd defendant wherein the 4th Defendant in seeking his legal opinion wrote at the foot of it “SA (legal) read and revest ASAP.”  The Claimant averred that there were other documents attached to the said letter including a judgment of the Supreme Court.  The Claimant averred that the letter was Captured “RE ENROLLED JUDGMENT ORDER OF THE SUPREME COURT OF NIGERIA IN SUIT NO SC/589/2016 between Uyaemewam Nwora & ors vs Nweke Nwabueze & ors.  For The Attention of the Boundary Committee Chairman by Dr J.O Ibik SAN and another Letter Titled In the matter of Suit No:  AA/55/75 & AA/11/77 consolidated Appeal Nos: CA/E/30/2009 And Sc/589/2016. Exparte Application for Boundary Adjustment by a party to the Dispute – By Dr. Mike E. Ajogwu SAN.

 

5.     The Claimant averred that the 3rd defendant advised the 4th defendant thus “The Anambra State Boundary Committee cannot determine the boundary between the three Communities on an invalid judgment that the Supreme Court told the parties to go back to the high Court and sort out.  The communities should go back to the Anambra State High Court to settle their scores.”  The said letter was marked Exhibit “BO3. The Claimant averred that going through the letter and judgment attached, he found out that there was a protracted issues of land dispute between Ukpo and Ukwulu Communities against Abba Community which has been litigated from High Court to the Supreme Court in which Ukpo and Ukwulu Communities are claiming that Supreme Court has given them title over the land and consequently they wrote to the Governor, the Deputy Governor/Chairman State boundary Committee and surveyor General of Anambra State through their Solicitors asking them to demarcate the boundaries of the land in their favour.  The Claimant also averred that Abba Community through their Solicitor wrote to the same authorities above, asking them not to establish the boundaries of the land in dispute for reasons of same having not be concluded.

 

6.     The Claimant averred that he found out that issue of title to land never went to or canvassed at the Supreme Court rather it was mainly issue of non – compilation of records of the High Court at the Court of Appeal were mainly discussed and ruled upon by the Supreme Court wherein Supreme Court termed what transpired in between as a mess and advised that same be sorted out at the High Court.  The Claimant averred that on 11th June 2019 through a letter to the 4th Defendant he advised him that the 3rd Defendant was right in coming to the conclusion that “The Anambra State Boundary Committee cannot validly determine the boundary between the three (3) Communities,” and that Anambra State Boundary Committee can do better by doing away with any petition which brought the case to her to allow all the parties access to Court.  The Claimant averred the letter was annexed and marked Exhibit “BO4.”  The Claimant averred the upon the receipt of the said legal opinion on 11th June 2019, the 4th Defendant called him at midnight the next day on phone to further enquire whether his opinion and that of the 3rd defendant are the real position of things.  The Claimant averred he further told the 4th Defendant that his legal opinion and that of the 3rd Defendant are protected under section 39(1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and that both opinions suggested that parties should go back to Court for proper interpretation.  The Claimant averred that he received a letter dated 24th June 2019 from a Counsel to the said Ukpo Community asking him to retract his legal opinion to the 4th Defendant and send them a copy of his retraction with a veiled threat.  The Claimant averred that the letter made it clear that his legal opinion on the issue to the 4th Defendant has been leaked to Ukpo Community.  The said letter was annexed as Exhibit ‘BO5.’  The Claimant averred that he also received phone call with a hidden number putting pressure on him to do as directed in the letter with a veiled favour if he complies and another veiled threat if he refuses.  The Claimant averred he brought the issue of the leaked legal opinion and the vieled threats to the 3rd and 4th Defendants verbally and they assured him of their support and protection and that they would communicate same to the Governor.

 

7.     The Claimant averred that on the 12th September 2019, he received a letter from the National Secretariat of the Nigeria Bar Association, Abuja requesting that he should respond to an allegation of professional misconduct leveled against him and two other legal practitioners in that he and two other legal practitioners filed a fresh High Court case in a land dispute already settled by the Supreme Court.  The letter was annexed and marked Exhibit ‘BO6.’  The Claimant averred that subsequently the said Ukpo Community for reasons of corruption and in connivance with the the Secretary of the NBA Disciplinary Committee’s Panel B got almost the entire media House in Nigeria with the publication of their distorted, diversionary and misleading libelous petition against him.  The Claimant averred The Sun Publishing Limited and Vanguard Media Limited among other on their online news report of 16th September, 2019 published the report of the libelous allegation against him and even repeated it on the 2nd of April, 2020. The Claimant averred the news was captured “UKPO/ABBA LAND DISPUTE:  NBA QUERIES 3 LAWYERS. The Claimant averred the opening paragraph of the offensive publication read thus: “the Nigeria Bar Association (NBA) has requested three legal practitioners in Anambra State to respond to a petition written against them for filing a motion at the High Court on a case already determined by Supreme Court.  The printout of the said publication at the Sun Publishing Limited’ website was annexed as Exhibit BO7.  The claimant averred that he is not a Counsel to any of the parties in dispute and as such did not file any Court process in the case as the petition and publication alleged.  The Claimant averred that upon the publication of the said petition, which was published online3 and was react by people all over the world (including the Defendants) he was inundated with calls from friends, political associates, professional colleague and clients inquiring about his role in the said suit.

 

8.     The Claimant averred that sequel to this development, he decided to challenge the said defamatory publication to save/protect his social, traditional, religious, political and most importantly legal reputations, as well as respond and follow the petition to legal conclusion.  The Claimant averred that on the 28th September 2019, he submitted his response to the petition at the National Secretariat of NBA, Abuja and waited for hearing of the petition by the Committee.  The response submitted to NBA was annexed as Exhibit BO8.

The Claimant averred that he informed the 3rd and 4th Defendants of his ordeal in the hands of Ukpo Community, their Solicitors and some bought over officials of the NBA and they told him that the 1st Defendant have taken notice of the desperation and High handedness of the said Ukpo Community and has set up Administrative Panel of enquiry to deal with the situation.

The Claimant averred that the 3rd and 4th Defendants told him to do anything legally and within his reach to protect and defend himself and that they will bring it to the attention of the Governor so that he (the Claimant) will be assisted and reimbursed.

The white paper of the panel of enquiry was annexed as Exhibit ‘BO9’.  The claimant averred that in compliance with the above directive he filed Suit Numbers CV/1693/2020; A/23/2020 and the Disciplinary Committee’s matter.  The Claimant averred that on 27th September 2021, he wrote to the 4th Defendant and copied the 3rd Defendant with “NOTIFICATION OF EXPENSE …” CUM “PASSIONATE APPEAL …” notifying the Defendants of the expenses.  The letter is annexed as Exhibit “BO10”.  The Claimant averred that he was not served with any notice of hearing or invitation until 3rd April 2020 when a publication was made on Daily Sun Newspaper and was further carried by African Independent Television (AIT) and Channels Television on their morning newspapers reviews that NBA Disciplinary Committee summoned 3 lawyers over Ukpo/Abba land dispute at the front page and a Libeous report at pages of the Daily Sun of April 3rd 2020.  The publication was annexed as Exhibit ‘BO11’.

 

9.     The Claimant averred that as a result of the offensive publications by the Ukpo Community and their hired agents, he filed a Suit No: CV/1693/2020 against the Sun publishing Limited and others at Abuja at a huge cost.  The writ of summon annexed as Exhibit ‘BO14’.  The Claimant also averred he filed Suit No A/231/2020 against Samuel Udenta Esq and Vincent Oyilagu (The President General of Ukpo Community) at a huge cost.

The Claimant averred he also filed a suit against the Secretary of NBA Disciplinary Committee’s Panel B and two other media Companies over publication of the petition to the media in Suit No CV/741/2020.  The Originating Summons was annexed as Exhibit ‘BO16’.  The Claimant averred that judgment was delivered on 17th January 2023 in Suit No CV/741/2020 vindicating him of the whole madness.  The Certified True Copy of the said judgment was annexed as Exhibit ‘BO17’. The Claimant averred that notification of expenses was followed up by the 3rd Defendant and the immediate past Governor of the 1st Defendant approved a total sum of N1,500,000(One Million Five Hundred Thousand Naira) out of N2,500,000(Two Million Five Hundred Thousand Naira) being sought. The approval of N1500,00 was annexed as Exhibit “BO18”.  The Claimant averred that the release of the said approved sum could not be effected before the tenure of the immediate past administration of the 1st defendant ended on the 17th March 2022. The Claimant averred that Government being a continuity at expiration of the tenure of the last administration of the 1st Defendant, this present Government being led by Prof Charles Chukwuma Soludo took over the mantle of leadership of the 1st Defendant and continued with its policies programs among others as well as inheriting its assets and liabilities.  The Claimant averred that on 25th May 2022 he wrote a letter to the Governor of Anambra State a letter filed “RE: DELAY IN PAYMENT OF EXPENSES INCURRED WHILE DISCHARGING MY DUTY AS SPECIAL ASSISTANT ON LEGAL MATTERS AND WHICH WAS APPROVED BY EX- GOVERNORWILLIE OBIANO”.  The letter was annexed as Exhibit “BO19”.

The Claimant averred that the bills and expenses being incurred by him on the issues at hand kept accumulating and all efforts to get the 1st Defendant to reimburse him of the money proved abortive.  The Claimant averred that on 25th January 2023 he wrote a detailed and comprehensive demand letter to the Governor in – charge of the 1st Defendant and Copied the 2nd and 3rd defendants reminding them of the said notification of expenses and demanding for immediate payment of same.  The Claimant averred he also wrote a letter on 8th January 2023 giving proper pre-action notice of three months to the defendants through the 2nd defendant.  The pre – action notice annexed as Exhibit ‘BO21’

The Claimant averred that the defendants owed him a duty of care and was negligent and in breach of their duty of care when they leaked his legal opinion to the third party.  The Claimant averred that as a result of the defendants’ acts and omissions, he has suffered wrong and damages and every effort made by him for the defendants to pay him or reimburse him any expenses did not yield the desired result.

 

10.           The Claimant submitted that on 15th November 2021, the 4th Defendant abruptly took decision and locked up their various offices by changing or directing the change of keys to their various offices and without making the keys available to the Claimant and his colleagues. The Claimant averred that the 4th Defendant did this because the Claimant, Dr Charles Nwufoh, Mrs Stella Igboka and now late Hon. Chizor Obierika whom were Senior Political Aides attached to the 4th Defendant did not join him to enter or defect to the All Progressive Congress (APC) during the activities and campaign for the gubernatorial election in 2021 in Anambra State. The Claimant submitted that his belongings stocked in his office including Six (6) International Passports belonging to him, his wife, his three (3) children and his mother in- law among other files, documents and properties have not been given to him till date.  The Claimant averred that on the 29th November 2021 himself and other Senior Political Aides mentioned above wrote to the 1st Defendant and complained officially of the Denial of Access to their respective offices. The fourth letter was annexed as Exhibit “BO23’.  The Claimant averred that upon the receipt of Exhibit “BO23” above, the defendants did nothing to release his document/properties but the 1st defendant issued Exhibit ‘BO2’ approving his posting from the office of the 4th Defendant to the office of the 3rd Defendant. The Claimant averred that his gross pay/salary per month as Special Assistant is N200,921.48 and he was paid last for the month of February 2022.  The Claimant’s pay slip was annexed as Exhibit ‘BO24’; that from March 2022 he has not been paid his salaries by the defendant and no other entitlement have been given to him by the deft.

 

11.           The Claimant went on that sequel to the insensitive nature of the defendants to his plight and refusal, neglect and failure to pay him all the money and other things demanded from them, he filed a Suit No A/123/2023 at the High Court of Anambra State Awka Judicial Division demanding order of Court to compel them to do the needful.  The claimant averred that judgment was delivered on 28th February 2024 in Suit No A/123/2023 upholding and establishing that he had a serious and reasonable cause of action against the defendants but that it is the National Industrial Court that has the jurisdiction to hear and grant the claim and reliefs hence thus Suit:  The Certified True Copy (CTC) of the Judgment was annexed as Exhibit ‘BO26’; that while the Suit No A/123/2023 was pending in Court, the 3rd defendant through her office made a move for settlement out of Court and instructed the Claimant to write again on the subject matter for immediate attention which the claimant did through a letter dated22nd August, 2023. The letter was annexed as Exhibit ‘BO27’. The claimant averred that instead of the defendants to comply with the settlement they sought, they went back and filed a Preliminary Objection seeking for dismissal of the said Suit No A/123/2023 just to further faint and cause more pains on the claimant; that the money he borrowed from the bank to pursue these cases have not been paid and the Interest continues to accumulate.

The claimant attached Exhibit “BO28” which is the bank’s demand for to liquidate the money.

 

SUBMISSION OF THE 1ST – 3RD DEFENDANTS

12.           The 1st – 3rd Defendants formulated three (3) Issues for determination:

i)      Whether from the circumstances and facts of the case, this suit is properly commenced by originating summons to activate the jurisdiction of the Court

ii)    Whether by the circumstances and facts of the case, the 1st – 3rd defendants breached or violated any right of the Claimant including withholding any of his monies or salaries.

iii) Whether the 1st – 3rd defendants failed to protect the Claimant in the discharge of his duty.

 

THE 1ST – 3RD DEFENDANTS ISSUE 1

13.           “Whether from the circumstances and facts this case, this suit is properly commenced by Originating Summons to activate the jurisdiction of the Court.”

The 1st – 3rd Defendants’ Counsel submitted the proceedings may begin by Originating Summons in the following circumstances

a)    Whether the sole or principal question at issue is or likely to be one of the considerations of a written law, or of any deed, will contract or other document or some other questions of law.

b)    Whether there is unlikely to be any substantial dispute of fact.

He referred the Court to Wakwah v. Ossail (2002) 2 NWLR (pt.752) 545 @ 561-562.  Keyamo v. House of Assembly Lagos State (2002) 15 NWLR (pt 799) 605 @ 613. The Counsel submitted that the questions or the issues the Claimant seeks for the consideration of interpretation of this Court are not of any written law, any instrument made under any written law or deed, will, contract or other documents or any other question of law rather they are issues of allegation of the Claimant against the 1st – 3rd defendants which are all denied.  The Counsel submitted that such issues are mostly substantial dispute of facts which can only be resolved through writ of summons and pleading.

    He referred the Court to Dukolu v. Nkemdilim (1982) LPSLR 24023 (SC) @ 16 on the competence of the Court; that complaint of the claimant in this suit bothers among other things on breach of duty of case leaking his legal opinion for a 3rd party, withholding of his salaries, non-payment of expenses incurred while struggling to redeem his image, termination of his employment etc.; that the claimant should prove the claims through the writ of summons and pleadings which will enable the defendants to prove him wrong through their statement of defence and cross-examination; that this suit was not initiated by due process of law and should be struck out for want of jurisdiction.

 

 

THE 1ST – 3RD DEFENDANTS ISSUE 2

14.           “Whether by the circumstances and facts of the case, the 1st – 3rd defendants breached or violated any right of the claimant including withholding any of his money or salaries.  The 1st – 3rd defendants’ Counsel submitted that it is a trite principle of law that for a Citizen to allege the breach of his right, such breached right must fall under the Fundamental Rights enunciated in the Constitution of the Federal Republic of Nigeria (as Amended), sections 33-46 of the Constitution contain such rights.  He referred the Court to Beko Ransome Kuti v. Attorney General of the Federation (1985) 2 NWLR (pt. 6) 211 where the Court held:

     “A fundamental right is a right which stands above ordinary laws of the land which infact is antecedent to the Political Society itself …”

    That the claimant in his claim did not establish any of his right contained in section 33-46 of the Constitution of the Federal Republic of Nigeria (as amended) breached by the 1st to 3rd defendants; that it was not the 1st -3rd defendants that leaked his legal opinion to the Ukpo Community as he alleged and the 1st -3rd defendants owe him no duty of care for any inconveniences emanating from the alleged leaking of his legal opinion to anybody. The Counsel further submitted that the claimant’s appointment with the 1st defendant elapsed with the end of the tenure of the administration that appointed him.  The then outgone administration of the 1st defendant dissolved all its appointments including the claimant’s appointment; that the current administration of the 1st defendant did not re-appoint and the claimant’s appointment ended in March 2022.  The Counsel submitted that the 1999 Constitution of Nigeria (as Amended) makes provision for a tenure of Four years for any administration of the 1st defendant.

 

15.           The 1st - 3rd defendants’ Counsel went on that the claimant is not legally entitled to any money for prosecuting his case or to cushion the effect of any hardship occasioned by his effort to redeem his image.  The Counsel submitted that where such arrangement was made between the Claimant and the 1st – 3rd defendants; it only amounted to a gratuities   arrangement; that from the affidavit in support of the originating summons, there is no right of the claimant breached by the 1st – 3rd defendants neither was the claimant owed any money or salaries by them.

 

 

 

1ST – 3RD DEFENDANTS’ ISSUE 3

16.           “Whether the 1st – 3rd Defendants failed to protect the Claimant in the discharge of his duty.”

The 1st – 3rd defendants Counsel submitted that it is the duty of the 1st defendant to protect its Citizens.  This includes the protection of the fundamental rights of the Citizen; that where any person infringes on the rights of a Citizen, such Citizen has the right to approach the Court for redress; that the 1st – 3rd defendants on receiving the information that the claimant was locked out of office by the 4th defendant took step to protect his fundamental right by re-assigning him to the office of the 3rd defendant.  The Counsel further submitted that the 1st defendant gratuitously made some monetary approvals to assist the claimant redeem his image, these steps were made to protect the claimant from the violation of the rights by some persons; that the 1st – 3rd defendants did not at any point fail to protect the claimant in the discharge of his duty.

 

SUBMISSION OF THE CLAIMANT

17.           The claimant formulated four issues for determination:

i)             Whether from the facts and circumstances of this case, the claimant is entitled to the reliefs sought by him from the Honourable Court against the defendants.

ii)          Whether the defendants have any justification for having not paid the Claimant the N15,000,000 (Fifteen Million Naira) expenses he incurred while defending himself as being claimed; especially the already duly approved N1500,000 (One Million, Five Hundred Thousand Naira) by the immediate past Governor and based on the memorandum duly raised by the 3rd defendant.

iii)        Whether the appointment of the claimant as Special Assistant has been duly terminated or same subsists

iv)        Whether the Defendants specially the 1st Defendant is vicariously liable for the actions or inactions of any successive administration of the 1st Defendant.

The Claimant argued issues 1, 2 and 4 together.

 

 

 

CLAIMANT’S ISSUESS 1, 2 and 4

18.           The claimant’s Counsel submitted that the Court in the said judgment of 28th February, 2024 (Exhibit BO26) made it clear and as judgment of Court that “there is a reasonable cause of action disclosed in this Suit; that a cause of action has been defined on plethora of authorities by the Court to mean “a fact when prove would entitle a plaintiff/claimant to a remedy against a defendant(s).  He referred the Court to Bello v. A.G Oyo State (1986) 5 NWLR (pt. 45) 828; Oshoboja v. Amuda (1992) 6 NWLR (pt. 250) 690. The claimant continued that he is entitled to the reliefs sought and that the defendants have no justification not to have paid the claimant the N15,000, 000 expenses he incurred while defending himself as being claimed; especially the already duly approved N1,500,000 by the immediate past Governor and based on the memorandum duly raised by the 3rd defendant; that the defendant failed woefully to satisfy or fulfill the established standard and scope of duty of care forwards the claimant. He referred the Court to Hanseatic International Ltd v. Usang (2003) FWLR (pt 149) 1563 where the Court held that “standard of a master’s duty of care toward his servants or employee is to see that reasonable care is taken, the scope of that duty extends to the provision of safe place of work and access to it and safe system of work.

 

19.           The claimant went on that the reputation of the defendants or the 1st defendant has gone beyond the mere confines of Anambra State.  That these were clear to the extent that through a legal opinion of the Claimant which they leaked to a third party, the Claimant was alleged to have committed an offence and serious professional misconduct; and also of conflict of interest of filing a fresh case in Court for a party while still working for or under the employment of the 1st defendant; that same was circulated and published World Wide on several occasions, leading to filing of sense of Court actions and obtaining judgment at a very huge expenses all to the notice of the defendants who neither reimbursed him of the expenses nor give him query as to why he should be under her employment and at the same time file cases for Clients.  The claimant submitted the defendants admitted Exhibits ‘BO18’, ‘BO19’ ‘BO20’ to ‘BO23’, ‘BO27’ and ‘BO28’ have clearly agreed owing the Claimant duty of care and duty to pay him expenses he incurred as well as being indebted to him as they did not challenge same.  The claimant submitted that desire having not committed any offence, on the 18th November 2021, the 4th Defendant abruptly locked the claimant and others out of their offices without any directive to that effect; that despite his complaints personally and collectively with others to that effect to the other defendants, nothing was done to come to his rescue till date; that by section 42 (1) of the Constitution the claimant was simply discriminated upon because he did not join the 4th defendant in defecting to his new political party; and also by section 44 (1) of the Constitution, the defendants have no right or are prohibited from denying the claimant access to his office thereby seizing or taken possession of his belonging therein compulsorily, even when he is still having interests over those properties.

 

20.           The claimant submitted that Government or any administration of any government is a continuity and successive and can be sued vicariously; that in this case, Government of Anambra State remains one likewise the Attorney-General of Anambra State, they are both constitutional creation and are the main and right parties to be sued or to defend any suit against the State Government.  He referred the Court to Ezomo v. A.G Bendel State (1986) 4 NWLR (pt 36) 448, where the Court held that the Government of the Federation or of a State is liable to be sued and vicariously too like any other individual by any person aggrieved by its acts without reference to the petitions of Rights Act. The claimant further submitted that the defendants contributed in the predicament and plight of the claimant; that the defendants negligently stood by and allowed the claimant to suffer injustice, untold hardship risk and to be fighting endlessly in defending himself over an allegation that could have led to his name been struck off the Roll of Legal Practitioners in Nigeria. The claimant continued that he paid lawyers her engaged their services to file series of cases at different Courts and States as shown in Exhibits ‘BO10’, ‘BO19’, ‘BO21’ and ‘BO22’; that he was entering flights and buses, including paying for hotel accommodations to attend the cases; that the 3rd defendant has chains of lawyers easily detailed one or two of them to defend the claimant in all the cases. The claimant submitted that he has done nothing to warrant been treated in the manner he is being treated by the defendants.

 

CLAIMANT’S ISSUE 3

21.           “Whether the appointment of the claimant as Special Assistant has been duly terminated or same subsists.

The claimant submitted that he was appointed in 2018 as Special Assistant on legal matters by the 1st defendant with an appointment letter duly given to him personally vide Exhibit ‘BO1’and later in 2021 another letter was given to him reposting him from the office of the 4th defendant to the office of the 3rd defendant vide Exhibit ‘BO2’; that he received his monthly salary last in February 2022 and from March 2022 till date, he has not received any salary and no explanation was given to that effect as claimant has not received any letter terminating his employment with the 1st defendant; that by section 9 (4) of the Labour Act 1974 Cap 198 LFN 1990 makes monthly payment of wages of an employee a must until his retirement or due determination of same in writing and with notice to that effect.  The claimant went on that he has not retired nor his employment duly terminated, therefore the non payment of his salaries from March 2022 is a serious breach under our laws; that section 11 (3) of the Labour Act (supra) made it mandatory for an employer to give an employee a written notice of termination personally terminating his employment and in the absence of the above notice which has not been given to the claimant personally; claimant’s employment/appointment as Special Assistance subsists. The claimant further submitted that it is the law that claimant is not only entitled to be given written notice of at least not less than three months to that effect save in the case of misconduct, an employee is entitled to notice of termination. He referred the Court to Kusamotu v. WEMABOD Estate Ltd (1976) NSS 588. The claimant also submitted that the written termination letter must state clearly the motive for termination of employment, reason for termination of such must be adduced. He referred the Court to Airewele v. Refrigeration Engineers & Contractors Ltd (1980) 4-6 CCHCJ174. The claimant submitted that the defendants having not complied accordingly, the claimants claim for a declaration that his office or appointment as Special Assistant subsists and he is entitled to his monthly salaries from March 2022 till date.

 

COURT’S DECISION

22.           I have carefully considered the processes filed and the submissions by their respective counsel, I will consider four issues for determination in this suit:

1)   Whether the Court has the jurisdiction to entertain this suit as the suit is commenced by originating summons.

2)   Whether from the circumstances and facts of this case, the defendants violated the right of the claimant.

3)   Whether the appointment of the claimant as Special Assistant has been duly terminated.

4)   Whether from the circumstances and facts of this case, the claimant is entitled to the reliefs sought against the defendants.

 

23.           On issue 1: whether the Court has the jurisdiction to entertain this suit as the suit is commenced by originating summons. Jurisdiction is defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought. See AG Lagos State v. Dosummu (1989) 3 NWLR (Pt. 111) 552 if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be. Jurisdiction of Court is therefore considered to be the nerve centre of adjudication and the blood that gives life to an action. See Dapialong v. Dariye (2007) 8 NWLR (Pt. 1036) 332 it is settled that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case becomes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, Skenconsult v. Ukey (1981) 1 SC 6, Alao v. African Continental Bank (2000) 6 SC (Pt. 1) 27. These are four different methods whereby actions are begun in the High Court. They are:

a.      By writ of summons

b.     By petition

c.      By originating summons

d.     By originating motion.

 

24.           Similarly, actions or proceedings may be commenced by originating summons where (a) the sole issue is one of construction of a written law (such as the Constitution) or instrument made under any written law, or deed, will, contract or other document or other question of law (b) where there is unlikely to be any substantial dispute of facts and (c) where the Rules of Court or any statute specifically direct that the action shall be commenced by it. See Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488. Thus, originating summons is used for non-contentious actions that is those actions where facts are not likely to be in dispute. The form of commencement of an action dos not make it incompetent, it does not matter whether the action was begun by writ of summons or by originating summons. What is important is the question of justice of the case. See FGN v Zebra Energy (Ltd) (2000) 18 NWLR (Pt. 798) 162; Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) 199. It is for the Court to direct that parties file their pleadings if the Court is satisfied that the suit ought to be commenced by writ of summons not to decline jurisdiction. However, if the facts are contained in an affidavit which has been controverted, the Court has a duty to ask the parties to adduce oral evidence to resolve the issues in controversy. This suit is commenced by an originating summons as the claimant alleges that his fundamental right was breached which falls under conditions whereby you can commence action through originating summons. Secondly, the claimant in his affidavit alleged the said breach and violation of his right by the defendants. The defendants also by a counter-affidavit joined issues with the claimant and gave their own evidence. It therefore follows that this suit can be resolved by affidavit evidence as facts therein are clear and unambiguous. This Court therefore has the jurisdiction to entertain this suit and I so hold.

 

25.           On issue 2, whether from the circumstances and facts of this case, the defendants violated the right of the claimant.

Every human being has certain fundamental rights which every individual and government must uphold and respect. Thus, Human rights could be generally defined as these rights which are inherent in our nature and without which we cannot function as human beings. Human rights are universally regarded as inalienable and constitute the birth right of the individual as human beings. Therefore, no person may be deprived of his or her human rights by anyone or authority whatsoever. See New Patriotic Party v. IGP Accra (2000) 2 HRLRA 1. Fundamental rights on the other hand, remain in the realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country, that is, the Constitution. Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, Enahoro v. Abacha (1998) 1 HRLRA 424. The claimant submitted that despite not having committed any offence, was on the 15th November 2021 abruptly locked out of office sequel to the 4th defendant’s abrupt decision, action and directive to that effect. That despite the claimant’s complaints personally and collectively with others to that effect to the other defendants, nothing was done to come to his rescue till date. He referred the Court to Exhibits “BO23” and “BO27” as well as paragraphs 67, 68, 69, 70 and 71 of the affidavit setting out the facts relied upon in this case. The claimant submitted that by section 36 of the Constitution, right to fair hearing is granted to the claimant as a Nigerian Citizen.  That such a decision and action could not have been taken or reached against the Claimant without hearing from him or offering him opportunity to be heard.  The Claimant submitted that by section 42 (1) of the said Constitution above, the claimant was simply discriminated upon because he does not belong to or joined the 4th defendant in defecting to his new political party The All Progressive Congress (APC) from the All Progressive Grant Alliance (APGA). The claimant also submitted that by section 44(1) of the said Constitution, the defendants have no right or are prohibited from denying the claimant access to his office thereby seizing or taking possession of his belonging therein compulsory; even when he is still having interests over those properties.

 

26.           The 1st – 3rd defendants counsel in response submitted that it is the constitutional duty of the 1st defendant to protect its citizens. That the 1st-3rd defendants on receiving the information that the claimant was locked out of office by the 4th defendant took step to protect his fundamental right by re-assigning him to the office of the 3rd defendant.  The Counsel to the 1st – 3rd defendants also submitted that the 1st defendant gratuitously made some monetary approvals to assist the claimant redeem his image, these steps were made to protect the claimant from the violation of his rights by some persons.  That the 1st – 3rd defendants did not at any time fail to protect the claimant in the discharge of his duty.  The 1st – 3rd defendants Counsel further submitted that the 1st defendant gratuitously made some monetary approvals to assist the claimant redeem his image, these steps were made to protect the claimant from the violation of his rights by some persons.

     The claimant raised two issues of violation of his rights here.  One that the 4th defendant denied him and some colleagues access to his office by locking them out of the office and changing new keys to the office.  Secondly that legal opinion he wrote to the 4th defendant on the Issue of Ukpo Community/ABBA Community/Ukwulu Community was leaked and the Ukpo Community started threatening him through their lawyer. The 1st – 3rd defendants admitted that immediately the claimant wrote Exhibit ‘BO23’ complaining he was locked out of his office, the 1st defendant took action and posted him to the office of the 3rd defendant to make sure he was protected.  Similarly, the 1st – 3rd defendants submitted that the 1st defendant gratuitously made some monetary approvals to assist the claimant redeem his image to protect the claimant from the violation of his rights by some persons.  The claimant on the other hand did not rebut these assertions.  In other words he admitted the assertions.  The law is that facts admitted need not be proved. See Section 123 of the Evidence Act. The claimant by paragraph 56 of his affidavit in support of the originating summons state that the immediate past Governor in charge of the 1st defendant approved the sum of N1500,00 (One Million Five Hundred Naira) on his behalf to cushion the effect of expenses he spent in seeking redress in Court to redeem his image.  By this it shows the defendant showed a duty of care in the employer/employee relationship and did the needful to protect the rights of the claimant.  The claimant cannot therefore argue that his rights were violated as it is seen the defendants did what is expedient to do in these circumstances.

 

     Issue 3

27.Whether the Appointment of the claimant as Special Assistant has been duly terminated.

     The claimant submitted that in 2018 he was duly and meritoriously appointed a Special Assistant on legal matters by the 1st defendant with an appointment letter duly given to him personally. The claimant submitted that in in 2021 another letter was given to him personally reposting him from the office of the 4th defendant to the office of the 3rd defendants.  He referred the Court to Exhibits ‘BO1’ and ‘BO2’. The claimant further submitted that he received his monthly salaries last in month of February 2022 and from March 2022 till date, he has not received any salary and no explanation was given to that effect; that he has not received any letter terminating his employment with them. He referred the Court to section 9 (4) of the Labour Act 1974 Cap 198 Laws of the Federation of Nigeria 1990 which makes monthly payment of wages of an employee a must until his retirement or due termination of same in writing and with notice to that effect.  The Claimant submitted that he has neither retired nor his employment duly terminated in accordance with Labour laws therefore the non payment of his salaries from March 2022 is a serious breach under our laws.

     Furthermore, the Claimant submitted that he is not only entitled to his work, rather a notice of at least not less than three months to that effect save in the case of misconduct, an employee is entitled to notice of termination.  He referred the Court to Kusamotu v. Wemabod Estate Ltd (1976) NSS 588.

In conclusion, the Claimant submitted that the defendants having not complied accordingly, the claimant’s claim for a declaration that his office or appointment as Special Assistant subsist and he is entitled to his monthly salaries from March 2022 till date. The 1st – 3rd defendants submitted that the claimant’s appointment with the 1st defendant elapsed with the end of the tenure of the administration that appointed him. That the then outgoing administration of the 1st defendant dissolved all its appointments including the claimant’s appointment; that the current administration of the 1st defendant did not re-appoint the claimant and his appointment therefore ended in March 2022; that the 1999 Constitution of Nigeria (as amended) makes provision for a tenure of four years for any administration of the 1st defendant.

 

28.           Section 180 (2) of the Constitution provides thus:

The Governor shall vacate his office at the expiration of a period of four years commencing from the date when

(a) in the case of a person first elected as Governor under this Constitution, he took the oath of Allegiance and oath of office ; and

(b)the person last elected to that office took the oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

The claimant Exhibit ‘BO1’ was appointed Special Assistant Legal by Governor Willie Obiano with effect from 1st May 2018. By this appointment, the claimant was a Special Assistant Legal to Governor Willie Obiano whom the said Governor left office in March 2022. The office of a Special Assistant is not constitutional rather it is appointment given by the Governor at his discretion choses whom to give and when to give it.  The office elapses at the end of the tenure of the Governor.  It does not continue with the next Governor on the premix that Government is continuous. The new Governor will also appoint his own Special Assistant. The claimant did not exhibit any employment letter given to him by Governor Soludo (the present Governor of Anambra State.) hie argument that no termination was given to him do not apply in this regard. The tenure of the Governor that appointed the claimant ended in March 2022 same it is with the tenure of office of the claimant and I so hold.

 

ISSUE 4

29.           Whether from the circumstances and facts of this case, the claimant is entitled       to the reliefs sought against the defendants.

In civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and on balance of probabilities.  It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift.  A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Iman v. Sheriff (2005) 4 NWLR (Pt. 9114) 80 Agbi v. Ogbeh (2006) 11NWLR (pt. 990) 65. The claimant alleged the legal opinion he wrote to the 4th defendant in the cause of his duty leaked and some persons in Ukpo Community started calling him on phone to threaten him.  The claimant did not prove who leaked the legal opinion and did not also say the particular person that called him on phone to threaten him nor did he show proof of the alleged threat. The law is that he who asserts must prove, the standard of proof required is on a preponderance of evidence and balance of probabilities. See Longe v. FBN Plc (2006) 8 NWLR (pt. 969) 228 Audu v. Guta (2004) 4 NWLR (pt. 864) 463. The claimant also alleged that he was locked out of his office by the 4th defendant thus violating his right and also seizing his passport and that of his family.  Assuming but not conceding the 4th defendant changed the locks of the keys to his office including the claimant’s office, the claimant did not show to the Court that he tried to go into his office to collect his passport and that of his family and the 4th defendant refused him entrance.  It therefore means the claimant did not attempt to collect his passport and that of his family.  He cannot therefore be entitled to the reliefs sought on this Issue.

 

30.           The claimant also sought damages from the defendants both general and Special damages. Damages are money claimed by or ordered to be paid to a person as compensation for less or injury.  In other words, damages are the wronged is entitled to receive from the wrong doer as compensation for the wrong.  See Union Bank of Nigeria Plc v. Mr. N.M. Okpara Chimaeze (2014) 33 WRN 11. General damages are damages the law presumes that follow from the type of wrong complained of and do not need to be specially claimed.  While special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong.  It is trite that where the claimant specifically alleges that he suffered special damages, he must perforce prove it.  The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable the less or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed.  A damage is special in the sense that it is easily discernable and quantified.  It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions.  See UBN Plc v. Chimaeze (supra).

 

31.           The law provides that in determining what constitutes special damages, it is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the context of nominal award. See Patric Ogbonna v. Christian Ogbonna & another (2014) 23 WRN 48. The claimant did not raise particulars of the special damage in his affidavit in support of the originating summons nor in his further affidavit. The claimant claimed Fifteen Million Naira (N15,000,000) as special damages. The law provides that special damages must be specially pleaded and strictly proved. The term ‘strict proof required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. See Abdullahi v. Raji (1998) 1 NWLR (PT. 534) 481. The claimant did not show to the Court the particulars of the Fifteen Million Naira (N15,000,000) he claimed as special damage.  Thus, the Claimant has failed to prove the special damages as required by law and same is refused.

 

32.A declaration is a discretionary remedy. A claimant seeking such a remedy has therefore the legal burden of proof as well as evidential burden under the Evidence Act, that is proof on the balance of probabilities or preponderance of evidence.  See Adebayo v. Adusei (2004) 4 NWLR (Pt. 862) 44. The claimant also claimed general damages of Five Hundred Million Naira (N500,000,000) against the defendants.  The law is that general damages follow from the type of wrong complained of. The claimant has not shown the great wrong committed by the defendants to warrant the said amount being claimed.  The claimant alleged he instituted actions in Court to redeem himself of all the allegations ranging from Ukpo Community/ABBA Community/ukwulu Community and the Disciplinary Committee of Nigeria Bar Association.  The claimant also claimed the 1st defendant approved the sum of One Million Five Hundred Thousand Naira (N1,500,000 to assist him in the pursuit of the cases.  The claimant also claimed that this N1,500,000 has not been paid. The defendants on the other hand admitted the said money was approved but claimed that the present Government is still investigating on it. Thus, what is admitted need not be proved. Government is a continuous one inheriting all the Assets and liabilities of the former.  It then means that the defendants ought to have paid this One Million, Five Hundred Thousand Naira to the claimant as approved by the 1st defendant.

 

33.           Award of general damages is always at the discretion of the trial Court and it needs not be specifically pleaded. It is such a loss which flows naturally from defendants’ act. See Ogbonna v. Ogbonna (supra). The claimant case succeeds in part and I make the following orders in terms of the claimant’s case:

1.     An order directing the 1st defendant to pay to the claimant the sum of One Million, Five Hundred Thousand Naira (N1,500,000.00) approved by the 1st defendant under the former administration.

2.     An order directing the defendants to pay the sum of Two Million Naira (N2,000,000.00) being the cost of prosecuting this case.

3.     An order directing the defendants to pay 10% (ten percent) interest per month on the sum(s) awarded above from the date of judgment until the full and final liquidation of the said sum(s).

 

34.           Judgment is entered accordingly.

 

 

 

Hon. Justice J.I. Targema, PhD