NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HON. JUSTICE Y.M. HASSAN
DATE: 25TH JULY, 2025.
SUIT NO. NICN/IB/120/2020
BETWEEN
MR. AJAYI OLUSOLA ADEDAYO ------------------- CLAIMANT
BOWEN UNIVERSITY -------------------------------- DEFENDANT
REPRESENTATION
T. R. Ojewumi for the Claimant.
K. W. Bankole for the Respondent.
RULING
INTRODUCTION
1. The Claimant commenced this suit via an originating summons dated the 27th day of November, 2020 and filed on the 2nd day of December, 2020 wherein the Claimant submitted two questions for determination as follows:-
1. Whether in view of the Terms in the letter of confirmation of Appointment of the Claimant, the Claimant is entitled to remain in the services of the Respondent till the retirement age.
2. Whether the Claimant is entitled to her allowances and benefits attached to the said positions from July, 2020 until the date of her retirement/reinstatement.
2. The Claimant then prayed for the following reliefs:-
1. A DECLARATION that the termination of the Claimant’s employment via a termination letter dated the 19th June 2020 by the Respondent was unlawful, null and void.
2. A DECLARATION that the termination of the Claimant’s employment via a termination letter dated the 19th June 2020 are in contravention of International best practices and are in contravention of the provisions of the International Labour Organization Termination of Employment Convention of 1982 (No. 158).
3. A DECLARATION that the Claimant by virtue of the terms of the appointment given to him by the Respondent, the Claimant is entitled to remain in the services of the Respondent till his retirement age.
4. AN ORDER reinstating the Claimant into his position of employment with the Respondent as a Senior Clerical Officer in the Registry Department and the payment of all arrears of salaries, allowances and benefits from July 2020 until the date of reinstatement/retirement.
In the alternative to the Fourth Relief above:-
5. AN ORDER directing the Respondent to pay to the Claimant all his salaries he is entitled to till his age of retirement.
3. In support of the Originating Summons is 26 paragraphs affidavit deposed by the Claimant himself. Attached to the Affidavit are annextures, marked as Exhibit A to C respectively. Equally filed in support is a written address dated the 27th day of November 2020.
4. Upon being served with the Originating Summons, the Defendant filed Counter Affidavit of 16 paragraphs deposed to by one Mr. Sunday A. Ilupeju, council officer in the employment of the Respondent Institution. Attached to the counter affidavit are Exhibit B1 and B2. Equally filed in opposition to the Claimant’s Originating Summons is a written address dated 18th day of January 2021. However, by leave of Court, the Defendant filed amended written address on the 25th day of February, 2022.
5. On the other hand, the Claimant filed a further Affidavit on 30th August, 2021 and attached Exhibit F and G thereto. Also, the Claimant filed a reply on point of law on 31st March, 2022.
6. Also, the Defendant filed a further Counter Affidavit dated and filed on 15th day of March 2022 and additional authorities dated 13th May, 2022.
7. Upon going through all the processes filed by the parties, this Honourable Court on 29th November, 2024 directed parties to address it in writing on the appropriateness or otherwise of commencing this suit via an Originating Summons. Sequence to this directive, the Claimant filed it, written address dated 21st day of June, 2024 and filed on the 26th day of June, 2024.
8. In the said written address, learned counsel to the Claimant argued that Originating summons is mostly employed in matter that revolve around interpretation of Statute, Deeds, Wills, Agreement and documentary evidence. It is also employed where it is contemplated that no substantial issues of facts will be involved in the resolution of subject matter of an action. He relied on the case of BARRISTER (MRS) AMANDA PETERS PAM & ANOR V. NASIRU MOHAMMED & ANOR (2008) 16 NWLR (PART 1112) 1 AT 50H TO 51 A – C.
9. Submitting further, counsel stated that the procedure of originating summons is the appropriate one to be used in a dispute as this, considering that what is in dispute is the simple construction or interpretation of documents i.e. Letter of Appointment, letter of confirmation of appointment/regularization and letter of termination of appointment in respect of which pleadings are unnecessary. Reliance was placed on the case of JOSEPH DIN V. ATTORNEY GENERAL OF THE FEDERATION (1986) 1 NWLR (PT. 17) AT PAGE 471 AT 485 – 486 PARAS H – B.
10. Learned counsel contended that the issues formulated has to do with the employment, the letter of employment and letter of termination as issued. That the parties are ad idem that the Claimant was employed and was terminated. Reference was made to the case of CHIEF OF NAVAL STAFF & ANOR V. OKPANACHII (2022) LPELR – 58273 (CA).
11. Consequently, counsel submitted that the crux of the Claimant’s case has been narrowed down to the said terms in the letter of regularization, appointment and termination which this Honourable Court only needs to interprete or give meaning to, this suit can effectively be adjudicated upon via an originating summons.
12. In another submission, counsel stated that in an Originating Summons application, affidavit takes the place of pleading. That reliance is placed on affidavits and facts are not on dispute. Reference was made to the case of RAM V. MOHAMMED (2005) 5 – 6 SC (PT.1) P.53 (2005) 16 NWLR (PT. 1112) 1; OSUNBADE V. OYEWUMI (2007) 4 – 5 SC P. 95; ADEYELU 11 V. AJAGUNGBADE III (2007) 14 NWLR (PT. 1053) 1; JEU V. IYORTYOM (2014) 14 NWLR (PT. 1428) 575 AT 615, PARAS G – JH.
13. It is the further submission of the Claimant’s counsel that from the facts before this Court, there is no hostility between the parties, the parties are ad idem on the facts of this matter. That it is settled when parties are in agreement with the facts of a matter the best way to commence such an action is via originating summons. He cited in support the case of CHIEF OF NAVAL STAFF & ANOR V. OKPANACHI (2022) LPELR – 58273 (CA).
14. In addition, counsel submitted that there are no serious contentious issue in respect of this matter as the dispute has been narrowed down the terms in the letter of confirmation/regularization issued to the Claimant by the Respondent and all the relevant documents by both the Claimant and Respondent including the letter of appointment, Letter of Confirmation/Regularization, Minutes of Meeting by the committee of the Respondent, statement attributed to Ex – President Olusegun Obasanjo are before the Court as Exhibits for the Court to peruse thus there is no need to order pleadings as the Court can effectively determine this suit as currently constituted via an originating summons. Reliance was placed on the case of FAMFA OIL LTD. V. A.G. FED. (2003) 18 NWLR (PT. 852) 453, P. 467, PARAS D – F.
15. Finally, counsel submitted that this matter is largely formulated on documentary evidence and the documents annexed to the affidavit as Exhibits are enough to determine this suit. That it is trite that document speaks for itself and no amount of oral evidence can negate or contradict the contract of a document. Reference was made to SECTION 132 (A) of THE EVIDENCE ACT, 2011, NUBIA V. ATTORNEY GENERAL RIVER STATE (1999) 12 NWLR (PT. 593) 82; B.O.N. LTD. V. AKINTOYE (1999) 12 NWLR (PT. 631) 392; U.B.N PLC. V. OZIGI (1994) 4 NWLR (PT. 333) 385; AND KOIKI V. MAGNUSSON (1999) 8 NWLR (PT. 615) 492; EMEKA V. IKPEAZU & ORS (2017) 3 – 4 M.J.S.C (P. 108) PARAS G AND AG BENDEL STATE VS UBA LTD (1986) 4 NWLR (PT. 337) 547 AT 563.
16. To this end, counsel urged the Court to resolve the issue in favour of the Claimant.
17.The Respondent’s written address as directed by the Court is dated 28th day of November, 2024 and filed same day. In the said written address learned counsel to the Respondent formulated a lone issue for determination which is whether is the circumstances of this case, the Claimant ought to commence this action by way of Originating Summons.
18. In arguing the issue, counsel submitted that this matter is a contention one as the parties are not in agreement with different issues, especially regarding some of the Exhibits attached in their respective Affidavit i.e. Exhibits F and G which the Claimant attached to its further affidavit dated 27th August 2021 and to which the Respondent claimed that Exhibit G did not emanate from her while the content of Exhibit F is not connect.
19. Arguing further, counsel submitted that a contentions matter must be commenced by writ and where it is commenced by Originating Summons, the same must be converted to wit of summons. Reliance was placed on the case of P.D.P. V. NWOKO & ORS. (2019) LPELR – 47900 (CA).
20. To this end, counsel pray the Court to order that the Originating Summons be converted to pleadings to enable the parties concerned to properly ventilate their respective case.
COURT’S DECISION
21. I have perused carefully the parties, ordered written addresses on the appropriateness or otherwise of the Claimant. Commencing this suit via an originating summons and I have considered the argument and submissions both for and against. It is therefore my view humbly that the issue for determination at this stage is whether the mode adopted by Claimant to commence this suit is appropriate or not in view of the affidavit and documentary evidence before the Court.
22. A careful perusal of the entire content of the provisions of Order 3 and in particular Rules 6 (1) & (2) and (17) (a), and (c) of the National Industrial Court of Nigeria (civil procedure) Rule 2017 will revealed clearly that Originating Summon is one of the Procedures meant for commencement of action before the Court for any person Claiming to be interested under an enactment, constitution, agreement or any other written instrument, may by Originating Summons apply to the Court for the determination of any question of construction arising from the instrument and for a declaration of the rights of the person (s) interested, in so far as such question of construction arises from a subject matter over which the Court has jurisdiction.
23. However, by the proviso to Order 17 Rule 1, where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of Originating summons, but by complaint.
24. It is trite law that Originating Summons is the most appropriate mode for the commencement of suits for the interpretation of collective agreements and trade Unions Constitutions, Interpretation of International Labour Standards and Labour Convention/treaties applicable to labour and Employment issues, matters relating to or connected with the interpretation and application of the provisions of Chapter IV of the 1999 Constitution, as amended, as this relates to any employment, labour industrial relations, Trade unionism and other matters which the Court has jurisdiction to entertain. When a suit is commenced by Originating Summons, the need to call evidence or prove any fact in issue is dispensed with Originating Summons, parties are in ad idem respecting facts in issue, the only areas or disagreement being the construction or interpretation of or the meaning to ascribe to the particular instrument, enactment or agreement in contention. Where there is therefore the likelihood of facts being contested or disputed, originating summons procedure is not appropriate.
25. KAYODE ESO JSC (OF BLESSED MEMORY) IN NATIONAL BANK OF NIGERIA V. ALAKIJA (1978) 9 – 10 SC 39 AT 71, CITING DOHERTY V. DOHERTY (1964) 1 ALL NLR 299, OLUMIDE V. AJAYI (1997) 8 NWLR (PT. 517) 433 AT 442 – 443, ANATOGU V. ANATOGU (1997) 9 NWLR (PT. 519) 49 AT 70 – 71 AND EZEIGWE V. NWAWULU (2010) 4 NWLR (PT. 1183) 159 AT 191 stated the position of the law regarding Originating Summons thus:-
“In other words, it is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute on question of facts or the likelihood of such dispute. Where for instance, the issue is to determine short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings, Originating Summons could be applicable”
26. In addition, Ogakwu JCA having reviewed series of appellate decisions on Originating Summons including Pam V. Mohammed (2008) 16 NWLR (PT. 1112) 1 AT 15 MICHAEL V. MIMA PROJECTS VENTURES LTD (2002) 24 WRN 71 AT 81 and OSSAI V. WAKWAH (2006) ALL FWLR (PT. 303) 239 AT 254 – 255 in Registered Trustees of Auto Spare Parts and Machinery Dealers Association & ANOR V. MR. OBOJIOFOR OBINNA JOHN & ORS (2020) LPELR – 49541 (CA) concluded that:-
“The underlying principle in all these decisions is that Originating Summons may only be used in initiating proceedings to obtain declarations or decisions of Court on the construction or interpretation of documents, instruments or statutory provisions in circumstances where there is no dispute on question of facts or the likelihood of such dispute. In other words, where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, Originating Summons cannot be applicable.”
27. At this juncture, I have taken a critical examination of the Affidavit evidence before the Court particularly paragraph 3 of the Further Affidavit in response to the Respondent’s Counter Affidavit and paragraphs 5 and 8 of the further counter Affidavit in reply to Claimant’s Further Affidavit, it is clear that the dispute therein is not peripheral as stated in the case of SANI V. KOGI STATE HOUSE OF ASSEMBLY (2019) LPELR (46404) 1 AT 13 – 16 that where the disputes are peripheral and not material to the live issues, an action can be sustained by Originating Summons.
28. It is clear as daylight that the issue as to the entitlement of the Claimant as to the sums claimed is not peripheral. It is without doubt substantial. Moreso, the dispute as to the facts in this suit is evidenced by the nature of strange process filed by the Defendant i.e. Further Counter Affidavit in Reply to Claimant’s Further Affidavit. All these are pointer to a singular conclusion that the facts of this case are contentious and hostile, not appropriate to be resolved via an Originating Summons.
29. In the light of the foregoing, it is my considered Opinion that the facts of this case are contentious and hostile and there is need for calling of witnesses and /or settling of pleadings in the interest of justice. In this respect, I refer to order 3 Rules 17 (2) of the Rules of this Court which provides thus:-
“Where in the opinion of the Court, a suit commenced by Originating Summons raises substantial issues and dispute of facts, the Court shall not strike out the matter but may order its conversion to complaint and direct the parties to file exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial.”
30. In the final analysis, I hereby resolve the issue for determination in favour of the Respondent and against the Claimant and hold very strongly that this suit is not appropriate to be commenced by an Originating Summons for the reasons stated above, on that note, I hereby direct the parties to file and exchange pleadings in the interest of justice.
31. Ruling is entered accordingly.
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Hon. Justice Y. M Hassan
Presiding Judge