IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE
DATE: FEBRUARY 28, 2023 SUIT NO: NICN/ABJ/117/2021
BETWEEN
1. 
ANDERSON U. EZEIBE
[President, Academic Staff Union
of Polytechnics (ASUP)]
2. GBATE MOHAMMED
[Vice President, Academic Staff Union
of Polytechnics (ASUP)]
3. SHAMMAH S. KPANJA
[Secretary General, Academic Staff Union
of Polytechnics (ASUP)]
4. EBARETONBOFA TONWEI THOMPSON
[Assistant Secretary General, Academic
Staff Union of Polytechnics (ASUP)]
5. CHIKA OGONWA
[Financial Secretary, Academic Staff Union
of Polytechnics (ASUP)]
CLAIMANTS
6. MAGAJI RILWAN
[Treasurer, Academic Staff Union
of Polytechnics (ASUP)]
7. HUSSEINI YUSUF
[Internal Auditor, Academic Staff Union
of Polytechnics (ASUP)]
8. ABDULLAHI YALWA
[Publicity Secretary, Academic Staff Union
of Polytechnics (ASUP)]
9. USMAN YUSUF DUTSE
[Ex Officio, Academic Staff Union
of Polytechnics (ASUP)]
10. KASSIM IBRAHIM
[Zone A Coordinator, Academic Staff
Union of Polytechnics (ASUP)]
11. 
NURENI YEKINI
[Zone C Coordinator, Academic Staff
Union of Polytechnics (ASUP)]
12. PRECIOUS NWAKODO
[Zone D Coordinator, Academic Staff
Union of Polytechnics (ASUP)]
[Suing as the National Executive
Committee of the Academic Staff
Union of Polytechnics (ASUP)]
13. ACADEMIC STAFF UNION OF
POLYTECHNICS (ASUP)
AND
1. 
THE PRESIDENT, FEDERAL REPUBLIC
OF NIGERIA
2. ATTORNEY-GENERAL OF THE FEDERATION
3. ENGR. DR. TERLUMUN UTSER
(FEDERAL POLYTECHNIC,
WANNUNE, BENUE STATE)
4. PROF. EDWIN ONYENEJE
(FEDERAL POLYTECHNIC,
OHODO, ENUGU STATE)
DEFENDANTS
5. PROF. EDWARD NTUE OKEY
(FEDERAL POLYTECHNIC,
UGEP, CROSS RIVERS STATE)
6. DR. ZAKARI MIKAILU YA’U
(FEDERAL POLYTECHNIC,
SHENDAM, PLATEAU STATE)
7. PROF. GARBA MOHAMMED NGALA
(FEDERAL POLYTECHNIC,
MUNGONU, BORNO STATE)
REPRESENTATION
Solomon Umoh SAN for the Claimants, with Obinna Mbata, Emmanuel Ekong, Santos O. Emecha, Charles Mbalisi, Victoria Bassey, Eso Betse, Unyime Udofia, Vinda B. Onoche, Caleb. C Adagi.
Aaitikat Omotope Rufai Mrs (Asst Chief State Counsel) for the 1st and 2nd Defendants, with Ngossoo T.A, N.T.A.Uchegbu.
P.C. Ike for the 3rd to 7th Defendants.
JUDGMENT
Introduction and claims
[1] The Claimants commenced this action by Originating Summons on the 21st June 2021 praying for the determination of the following questions:
1. Whether having regard to the provisions of Section 8(1) of the Federal Polytechnics (Amendment) Act 2019, the President is obligated to appoint a Rector of any Federal Polytechnic, including but not limited to the 3rd - 7th Defendants in accordance with the provisions of Federal Polytechnics (Amendment) Act 2019?
2. Whether having regard to the provisions of Section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act, 2019 a Rector of any Federal Polytechnic including but not limited to the Federal Polytechnics where the 3rd - 7th Defendants have been appointed as Rectors must possess the necessary qualification to apply for the post and shall be a chief lecturer in the Federal Polytechnic sector with at least 5 years experience on that position to be appointable inter alia?
3. Whether the appointment of the 3rd - 7th Defendants by the 1st Defendant as the Rectors of the various Federal polytechnics in-spite of their not possessing the qualifications specified by Section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019 is valid in law?
4. Whether the 3rd – 7th Defendants not being persons that have served in the Federal Polytechnic sector at any time let alone attain the rank of chief lecturer with at least 5 years experience on that position are appointable as Rectors of the respective Federal Polytechnics which they have been purportedly appointed to serve?
[2] In the event the questions for determination are answered in their favour, the Claimants are seeking the following reliefs against the Defendants jointly and severally:
1. A Declaration that the appointment of Rectors of Federal Polytechnics including the 3rd – 7th Defendants by the President i.e. the 1st Defendant must be made in accordance with the provisions of section 8 (1) of the Federal Polytechnic (Amendment) Act 2019.
2. A Declaration that a person including the 3rd - 7th Defendants is appointable as a Rector by the 1st Defendant only and only if he possesses the relevant qualifications to apply for the post which shall inter alia be a chief lecturer in the Polytechnic sector with at least 5 years experience on that position among other criteria.
3. A Declaration that the appointment of the 3rd – 7th Defendants by the 1st Defendant contrary to the clear provisions of section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act 2019 particularly with respect to their qualifications is ultra vires the power of the 1st Defendant as set out in the above mentioned Act and indeed null and void.
4. A Declaration that the 3rd – 7th Defendants not being appointable as Rectors of the various Federal Polytechnics in the first place are not qualified to hold office as Rectors of the said Federal Polytechnics.
5. An Order setting aside the purported appointment of the 3rd – 7th Defendants by the 1st Defendant particularly as they failed to meet the minimum statutory qualification of the persons who may apply for the post which shall be a chief lecturer in the polytechnic sector with at least 5 years experience on that position among other criteria.
6. An Order Of Injunction Restraining the 1st and 2nd Defendants either acting by themselves or through their agents or representatives from swearing in the 3rd - 7th Defendants as the Rectors of the newly established Federal Polytechnics in Nigeria or doing anything whatsoever geared towards maintaining and/or recognizing them as such.
7. An Order Of Injunction Restraining the 3rd – 7th Defendants from parading themselves or further parading themselves, assuming office or acting in the capacity of Rectors of the various affected Federal Polytechnics while being statutorily unqualified to apply for the post of a Rector of a Polytechnic let alone being appointable to hold such office.
8. An Order Restraining the 3rd – 7th Defendants whether by themselves, their servants, agents or privies or otherwise howsoever from submitting themselves or applying for appointment for the post of Rector of any Federal Polytechnic particularly as they are not statutorily qualified for such appointment.
9. And For Such Further Relief(s) as this Honourable Court may found the Claimants entitled to in the circumstances of this case.
[3] The Originating Summons is supported by an affidavit sworn to by Ebaretonbofa Tonwei Thompson, the 4th Claimant and the Assistant Secretary General of the Academic Staff Union of Polytechnic (ASUP) to which is annexed exhibits ASUP 1 to ASUP 3, and a written address dated the 15 June, 2021.
In opposition to the Originating Summons, the 1st and 2nd Defendants filed a counter affidavit sworn to by Etah Thomas, Litigation Officer on 29th June 2022 and a written address in support dated the 29th June, 2022.
The 3rd to 7th Defendants in opposition filed a counter affidavit sworn to on 9th February 2022 by the 5th Defendant Prof. Edward Ntui Okey and a written address dated the 9 February, 2022.
In response to the counter affidavit and address of the 3rd to 7th Defendants, the Claimants filed a further affidavit on 1st June 2022 sworn to by Shammah S. Kpanja, the Secretary General of the Academic Staff Union of Polytechnics (ASUP) and a reply on points of law. Also in reaction to the 1st and 2nd Defendants counter affidavit, the Claimants on 27th October 2022 filed a further affidavit which was also sworn to by Shammah S. Kpanja, and a reply on points of law.
Submissions of the Claimants
[4] The facts upon which the Claimants have premised their questions for determination and the reliefs they seeking are as contained in the supporting affidavit. To state the Claimants case concisely, sequel to the establishment of six (6) new Federal Polytechnics in April 2021 by the Federal Government, the 1st Defendant appointed the 3rd to 7th Defendants as Rectors of the newly established Federal Polytechnics alongside the members of the Governing Councils respectively. The Claimants assert that by Law, the 1st Defendant is to be guided by the provisions of section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act 2019 that lays down the requisite qualifications a prospective appointee for the position of Rector in the Federal Polytechnic must possess.
[5] It is the position of the Claimants that the 1st Defendant in exercising his power to appoint the Rectors did not comply with the provisions of the law when he appointed the 3rd to 7th Defendants as Rectors as they had not worked or served as Chief Lecturers for at least a period of 5 years in the Federal Polytechnic sector as statutorily
required. That they are not qualified to apply for the post of Rector, let alone being appointed to occupy the office. The Claimants further assert that the 1st Defendant in exercising his power of appointment, purportedly appointed statutorily unqualified persons (3rd to 7th Defendants) as Rectors thereby rendering the appointment illegal, unlawful, null and void.
[6] The Claimants issues for determination are the legal questions already submitted to the Court. I will again reproduce them for ease of reference:
1. Whether having regards to the provisions of Section 8(1) of the Federal Polytechnics (Amendment) Act 2019, the President is obligated to appoint a Rector of any Federal Polytechnic, including but not limited to the 3rd-7th Defendants in accordance with the provisions of Federal Polytechnics (Amendment) Act 2019?
2. Whether having regards to the provisions of Section 8 (2) (a)(i) a Rector of any Federal Polytechnic including but not limited to the Federal Polytechnics where the 3rd -7th Defendants have been appointed as Rectors must possess the necessary qualification to apply for the post and shall be a Chief lecturer in the federal polytechnic sector with at least 5 years experience on that position to be appointable inter alia?
3. Whether the appointment of the 3rd -7th Defendants by the 1st Defendant as the Rectors of the various Federal Polytechnics in spite of their not possessing the qualifications specified by Section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019 is valid in law?
4. Whether the 3rd – 7th Defendants not being persons that have served in the federal polytechnic sector at any time let alone attain the rank of Chief lecturer with at least 5 years experience on that position are appointable as Rectors of the respective polytechnics which they have been purportedly appointed to serve?
[7] Learned Senior Counsel on issue 1, referred to the provisions of section 8 (1) and section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019 reproduced as follows:
8 (1)- There shall be a Rector for each Polytechnic (“The Rector”) who shall be appointed by the President in accordance with this section.
8(2)(a)(i)- Qualifications of the persons who may apply for the post, which shall be a Chief Lecturer in the Polytechnic sector with at least five years experience on that position among other criteria.
He submitted that in the appointment of a Rector of any Federal Polytechnic the provisions of Section 8(1) of the Federal Polytechnics (Amendment) Act, 2019 must be strictly complied with to the letter. He further submitted that where a statute prescribes a way or method of doing a thing, such a way or method must be strictly complied with in order to validly do such thing as doing otherwise will render same invalid citing Onjeh & Anor v Mark & Anor (2015) LPELR – 25974, United Geographic (Nig) Ltd & Ors v Mosheshe (2014) LPELR 24464.
[8] Learned Senior Counsel submitted that the only way the 1st Defendant can appoint the Rectors of the Federal Polytechnics is as prescribed by section 8 (1) of the Act as he has no liberty to deviate from statutory provisions. He argued that any criteria employed or method used in the appointment of the 3rd – 7th Defendants as Rectors of Federal Polytechnics in question that does not comply with Section 8(1) & (2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019 is null and void. It was his submission that the provisions of section 8 (1) do not admit of the exercise of discretion as to the mode of appointment as it must be in accordance with the provision of section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act that states clearly the qualification of persons eligible for appointment into the office of Rectors of Federal Polytechnics.
[9] Learned Senior counsel submitted that from the provision of section 8(2)(a)(i), the qualification for those eligible for appointment as Rectors has been prescribed to include that the person apart from the basic academic qualification has been a Chief Lecturer in the polytechnic sector for a period of at least 5 years preceding the time of the appointment. He submitted that this is the mandatory requirement for eligibility for the appointment of Rectors to Federal Polytechnics which the 1st Defendant must comply with and ought not to deviate from under any guise. He contended that the 1st Defendant made the appointment of the 3rd – 7th Defendants outside the prism of the provision of Section 8(2)(a)(i) of the Federal Polytechnic Act, 2019 which stipulates the above qualification. He submitted that the appointed Rectors have not and are not qualified to be appointed as Rectors of the Federal Polytechnics in issue because they have not worked in the Federal Polytechnic sector, neither were they Chief Lecturers occupying that position for 5 years preceding the appointment.
[10] Learned Senior Counsel submitted that where the word ‘shall’ is used in a provision of a statute, it denotes and connotes mandatoriness and as such cannot be varied or interpreted otherwise to deviate from the intentions of the lawmakers. He cited Ugboji v State (2017) LPELR – 43427. He submitted that not only have the provisions of Section 8(1) & (2)(a)(i) of the Federal Polytechnics (Amendment) Act,
2019 provided for the qualifications of persons appointable as Rectors of Federal Polytechnics but is also pre-emptory in leaving no discretion on the part of the President to waive in any form the statutory requirement in respect of the qualification for appointment as Rectors of Federal Polytechnics. He submitted that the words used in the provision for the qualification of persons to be appointed as Rectors are clear and unambiguous and should be given its ordinary meaning relying on N.P.A. Plc v. Lotus Plastics Ltd & Anor (2005) 19 NWLR ((Pt. 959) 158 at 183-184, Paras. H-B. He then urged the Court to construe the provisions of section 8(1), and 8 (2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019 in the ordinary meaning.
[11] Learned Senior Counsel argued issues 2, 3, and 4 together. He stated that it was necessary to mention the previous appointments of the 3rd -7th Defendants to bear out the fact that they were not statutorily qualified to be appointed Rectors of the newly established Federal Polytechnics. The 3rd Defendant, Dr. Terlumun Utser appointed as Rector of the newly established Federal Polytechnic Wanune, Benue State was the Managing-Director of the Lower Benue River Development Authority while the 4th Defendant, Prof. Edwin Onyeneje, the Rector of the newly established Federal Polytechnic, Ohodo, Enugu, was never a Chief Lecturer in the Polytechnic sector at the time of his appointment, and he had never been employed as a lecturer in any Federal polytechnic in Nigeria.
[12] The 5th Defendant, Prof. Edward Ntui Okey, the Rector of the newly established Federal Polytechnic, Ugep, Cross River State was until his appointment, a Lecturer in the Faculty of Biological Sciences, Cross River University of Technology, Calabar, Cross River State while the 6th Defendant, Dr. Zakari Mikailu Ya’u, the Rector of the newly established Federal Polytechnic Shendam, Plateau state, was in the National Energy Commission before his appointment. The 7th Defendant, Prof. Garba Mohammed Ngala, appointed as the Rector of the newly established Federal Polytechnic, Munguno, Borno State, was a Lecturer at the Department of Mechanical Engineering, University of Maiduguri.
[13] Learned Senior Counsel stated that by the provisions of Section 8(2)(a)(i) of the Federal Polytechnic (Amendment) Act, 2019 only persons who among other qualifications are serving Chief Lecturers in the Federal Polytechnic sector with at least 5 years experience on that position among other criteria are qualified to be appointed as Rectors of Federal Polytechnics inclusive of the Federal Polytechnics where the 3rd – 7th Defendants have been purportedly appointed as Rectors. He submitted that any form of deviation or disregard of Section 8(2)(a)(i) in the appointment of any Rector of a Federal Polytechnic is a fundamental defect that renders such an appointment null and void, ab initio; as the purportedly appointed Rectors are not appointable not being statutorily qualified for that position, and not being Chief Lecturers in the Federal Polytechnic sector with at least 5 years
experience in such position. He cited Abubakar v INEC (2020) 12 NWLR (Pt 1737) 37, where the Supreme Court held:
Where the Constitution or any other law has made provision or prescribed procedure for the doing of an act, it is the Constitution or Act that must be followed. Anything done outside those provisions either by way of addition, subtraction or amendment would render such act an exercise in futility. In the instant case, the issue of qualification to contest election to the office of President of the Federal Republic of Nigeria being a constitutional issue, it is the Constitution that must be interrogated. It is not open to conjecture, inferences or peradventures.
[14] Learned Senior Counsel submitted that the appointment by the 1st Defendant of the 3rd - 7th Defendants who are neither Chief Lecturers in the polytechnic sector nor possess 5 years experience as Chief lecturers in the polytechnic sector as Rectors of Federal Polytechnics is a clear disregard to the qualification of persons who are qualified to be appointed Rectors of Federal Polytechnics. He argued that this contravenes the clear, unambiguous, mandatory and prescriptive provisions of section 8(2)(a)(i) of the Federal Polytechnics (Amendment) Act, 2019. He submitted that the 3rd – 7th Defendants are not appointable as Rectors of any Federal Polytechnics and thus their purported appointment by the 1st Defendant is illegal, null and void and of no effect as one cannot put something on nothing and expect it to stand citing Macfoy v UAC Ltd (1961) 3 ALL ER 1169 AT 1172, The Council Of Federal Polytechnic, Mubi v. Yusuf (1998) 1 NWLR (Pt. 533) 343. He urged the Court not to lend its aid to the perpetration of any illegality in whatever guise be it in appointment of officers of an institution or in procedure of carrying out any statutory obligation or in any manner whatsoever relying on Sheriff v. PDP (2017) 14 NWLR (Pt. 1585) 212 at 310, Paras D-F. He then urged the Court to grant all the reliefs sought in the Originating Summons.
Submissions of the 1st and 2nd Defendants
[15] The facts upon which the 1st and 2nd Defendants oppose the Originating Summons are as contained in the counter affidavit. To state their position concisely; the six Polytechnics to which the 1st Defendant appointed the 3rd to 7th Defendants to head as Rectors are extra-ministerial departments to which the 1st Defendant has unfettered powers to appoint any persons to head. The executive power of the President to appoint individuals as heads of extra-ministerial bodies cannot be qualified by the provisions of section 8 (1) of the Federal Polytechnics (Amendment) Act 2019 or any other Act or Law, as the Constitution is the grundnorm of all laws, and the Federal Polytechnics (Amendment) Act 2019 is a subsidiary legislation passed by the National Assembly. It is the position of the 1st and 2nd Defendants that the appointment of the 3rd -7th Defendants is at the discretion of the President of the
Federal Republic of Nigeria, and the appointment is in compliance with the provisions of the 1999 Constitution.
[16] The 1st and 2nd Defendants began by raising a preliminary issue as follows:
Whether the service of the Originating processes as well as hearing Notice on the 1st and 2nd Defendants by way of substituted means (publication in Vanguard Newspaper) without attempting physical service first, does not occasion in justice on the 1st and 2nd Defendants and as well amount to denial of fair hearing and non service which rob this court of the jurisdiction to entertain this matter against the 1st and 2nd Defendants?
[17] Learned counsel stated that the 1st and 2nd Defendants object to the service of the originating processes as well as hearing Notice on them by way of substituted means without attempting physical service first. She admitted that the law allows for substituted service but only where personal service cannot be conveniently effected. She stated that the 2nd Defendant the Attorney General of the Federation defends all cases against the President and his office is always open to receive service of court processes. Learned counsel queried why the Claimants served the originating processes as well as hearing notice by substituted means of publication in the Vanguard Newspaper as the court only grants leave for substituted service when the Defendants are evading service or the address for service is unknown which has not been established. She submitted that the Claimants have not justified or established the conditions for service of the originating processes on the 1st and 2nd Defendants by substituted.
[18] Learned counsel stated that the 1st and 2nd Defendants only became aware of this suit through a letter dated 9th May, 2022 from the Ministry of Education addressed to the 2nd Defendant forwarding the originating processes and the publications in the Vanguard Newspaper of Monday July 12, 2021 and Monday August 9th 2021 all attached to the letter. That if not for the letter there is no way the 1st and 2nd Defendants would be aware of the pendency of this suit and same would have occasioned injustice to the 1st and 2nd Defendant and as well amount to denial of fair hearing on their part. She submitted that leave to serve by substituted means was improperly sought and granted and urged the Court to set aside the order for substituted service as the Court is deprived of jurisdiction to entertain the suit referring to Kida v Ogunmola (2006) 6 SC 147 Edna Kangnan v. Eric Kangnan (2019) LPELR – 46502 (CA).
[19] Learned counsel submitted that service by substituted means without attempting physical service first, occasions injustice on the 1st and 2nd Defendants and amounts to denial of fair hearing; and that non service robs the Court of the jurisdiction to entertain this matter against the 1st and 2nd Defendants. She then urged the Court to set aside the order granting leave to the Claimants to serve by substituted means.
[20] The 1st and 2nd Defendant submitted one issue for determination:
Whether the President of the Federal Republic of Nigeria is bound by the provisions of Section 88(2)(i)(a) of the Federal Polytechnic Act in the appointment of Rectors of the newly established Polytechnics?
Learned counsel submitted that a claim for declaratory relief for the determination of the issues raised is an invitation to the court to make a pronouncement as to the legal position of a state of affairs; and the court’s power to make such declaration is discretionary in nature, citing Nabore Properties Limited V. Peace-Cover Nigeria Limited & Ors (2014) LPELR-22586 (CA), Tari Vandighi v. Sebastine Hale (2014) LPELR-24196 (CA) and are not granted as of course but on the strength of the case of the Claimant, A-G Rivers State V. A-G Bayelsa State (2013) 3 NWLR (Pt.1340) 123 at 160-161 Para G-B, Central Bank Of Nigeria v Jacob Oladele Amao & 2 ORS (2011) Vol 201 LRCN.
[21] Learned counsel submitted that the authority to make executive appointments is vested in the President of the Federal Republic of Nigeria pursuant to the provisions of Section 5(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). She stated that subsection 1 (a) of Section 5 of the 1999 Constitution provides for how the said executive powers of the President can be exercised and officers in the public service of the Federation are included as those through whom the President can exercise its executive powers. Counsel referred to Section 318 (1) of the 1999 Constitution for the definition of Public Service of the Federation and submitted that the staff of any educational institution established or financed principally by a Government of a State, places the office of Rectors of Polytechnics in Nigeria as those which the President can exercise its executive powers being staff in service of the Federation and in the capacity of a Rector. She submitted that the President is at liberty to choose persons he desires to work with in the exercise of his executive powers and there is no qualification added by the provision.
[22] Learned counsel submitted that Section 171 (1) of the 1999 Constitution further empowers the President to appoint those through whom he can exercise his executive powers; and that it is deducible from subsection 2(d) of Section 171 of the 1999 Constitution that the six Polytechnics to which the President appointed the 3rd -7th Defendants to head is an extra-ministerial department, and the President has the unfettered power to appoint its head. The 1st and 2nd Defendants referred to Section 8(2)(a)(i) of the Federal Polytechnic Act and submitted that it is settled position of law that the legislative powers of the Federal Republic of Nigeria are vested in the National Assembly in respect of matters in the exclusive and concurrent list in the 1999 Constitution referring to Sections 4(1), (2), & (4) a & b of the 1999 Constitution,
INEC V. Musa (2003) LPELR-24527(SC).
[23] Learned counsel submitted that item 60 (a) Part 1 of the Second Schedule (exclusive list) is a matter incidental or supplementary to Part 1 of the Second Schedule of the 1999 Constitution which the National Assembly has authority to make laws on. That sequel to the Fundamental Objectives and Directive Principles in Chapter Two of the 1999 Constitution, the National Assembly enacted the Federal Polytechnic Act towards ensuring equal and adequate educational opportunities at all levels for citizens of Nigeria. It was the submission of learned counsel that by the communal reading of the provisions of Section 4(2), 18, items, 60(a), 66, 67 & 68 of the Second Schedule of the 1999 Constitution, there is no express or implied power donated to the National Assembly in performing its legislative functions to restrict how the executive powers of the President to appoint individuals to head extra-ministerial bodies should be exercised.
[24] Learned counsel urged the Court to apply the literal interpretation to the provisions of Sections 5(1), 171(1), 4(2), 18, items, 60(a), 66, 67 & 68 of the Second Schedule of the 1999 Constitution (as amended) citing Basinco Motors Ltd v. Woermann-Line (2009) LPELR-756 (SC) on the rules or principles governing the interpretation of statutory provisions. It was the contention of counsel that if the legislators intended that there should be any other grounds the President must follow in the appointment of those that will exercise its executive powers, they would have provided for such. Counsel submitted that the provisions of Section 8(2)(i)(a) of Federal Polytechnic (Amendment) Act 2019 is ultra vires the powers of the National Assembly to make. Counsel referred to the latin maxim ‘expressio unius est exclusio alterius’ (i.e. the expression of one thing is the exclusion of another) and submitted that the non-provision of qualification of a party into extra-ministerial appointment pursuant to Section 171 (2) (d) of the 1999 Constitution is deemed excluded and at the discretion of President and referred to Raymond Temisan Omatseye v Federal Republic Of Nigeria (2017) LPELR-42719 (CA).
[25] Learned counsel referred to Section 1 (3) of the 1999 Constitution on the supremacy of the Constitution and that any law that is inconsistent with its provision is null and void to the extent of such inconsistency citing Marwa & Ors v. Nyako & Ors (2012) LPELR-7837 (SC). It is the argument of counsel that the six Polytechnics in which the 1st Defendant has appointed its Rectors are extra-ministerial departments provided in Section 171 (2)(d) of the 1999 Constitution and as such the President of the Federal Republic Nigeria has the power to appoint any qualified individual from Nigeria, he deems qualified to hold the position of the Rector in those educational institutions, without resort to Section 8(2)(i)(a) of the Federal Polytechnic Act. She submitted that the executive powers of appointment vested on the President pursuant to Section 171 (1) and (2) of the 1999 Constitution is unfettered and absolute and cannot be qualified or modified by the provisions of the Federal Polytechnic Act; and referred to FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361.
[26] Learned counsel submitted that the wording of Section 171 (1) and (2) of the 1999 Constitution (as amended) is clear and unambiguous as to the powers of the President to make statutory appointments and needs no further interpretation. Counsel further submitted that the provisions of Section 8(2)(i)(a) of the Federal Polytechnic Act it regards appointment of the Rectors of the newly established Polytechnics cannot render the exclusive powers of statutory appointment vested on the President under Sections 171 (1) and (2) of the 1999 Constitution null and void. That the Federal Polytechnic Act cannot regulate or qualify the clear provisions of Section 171 (1) of the 1999 Constitution (as amended) to the extent of declaring acts done pursuant to the Constitutional provisions null and void. It was her submission that Section 171 (1) and (2) of the 1999 Constitution (as amended) is the extant provision of the law that will take precedence in the appointment of Rectors of the newly established Polytechnics and Section 8(2)(i)(a) of the Federal Polytechnic Act cannot render the provisions of Constitutional provisions null and void.
[27] Learned counsel submitted that the power of the National Assembly to make laws for peace, order and good government of the Federation relates to only matters listed in Part 1 of the Second Schedule of the 1999 Constitution and the applicable matter in is the establishment and regulation of authorities which in this case is educational institutions such as Federal Polytechnics. Counsel submitted that no power is donated to the National Assembly to restrict the exercise of the executive powers of the President as it relates to appointment into extra-ministerial bodies, such as Federal Polytechnic. It is the submission of counsel that the 1st and 2nd Defendants position might be outlandish but sentiments have no role in judicial deliberations citing Rubber Research Institute Of Nigeria v. Senior Staff Association Of Universities Teaching Hospitals, Research Institutions (2019) LPELR-47553(CA).
Submissions of the 3rd to 7th Defendants
[28] The facts upon which the 1st and 2nd Defendants oppose the Originating Summons are as contained in the counter affidavit. To state their position concisely, the President (1st Defendant) announced their appointments as newly appointed Rectors of the newly established Polytechnics. That the 1st Defendant at the Federal Executive Council proposed the establishment of the five new Federal Polytechnics and in anticipation of enactment of their enabling laws he thereby appointed the 3rd to 7th Defendants as Rectors of the new five (5) Federal Polytechnics pending the enactment of their enabling laws. That at the time this suit was filed, there was no constituted Governing Council members in the five (5) new Federal Polytechnics the 3rd to 7th Defendants were appointed by the 1st Defendant as Rectors to facilitate and superintend their taking off upon final approval by the Federal Executive Council.
[29] It is their position that the 1st Defendant President need not comply with the relevant provisions of the Federal Polytechnics (Amendment) Act 2019 in appointing
them as Rectors because: the proposed new Federal Polytechnics are not listed in the Schedule to the Principal Act and the Federal Polytechnics (Amendment) Act; the proposed new Federal Polytechnics have not yet taken off, neither do they have any enabling laws yet to give them statutory reality; they have only factual reality and no statutory reality/existence; and they are still in their foetal phase as they are yet to be conceived by mother statute and significant infrastructure. It is not correct that they 3rd-7th Defendants are not statutorily not qualified to be appointed as Rectors. The Federal Polytechnics Act and its 2019 Amendment is not a comprehensive composite legislation regulating all the Federal Polytechnics in Nigeria as the National Assembly had already passed the Bills to establish other Federal Polytechnics separate from the ones created by the Federal Polytechnics Act and its 2019 Amendment Act.
[30] Learned counsel to the 3rd -7th Defendants formulated two issues for the determination of the Court as follows:
1. Whether the five New Federal Polytechnics are established by the Federal Polytechnics Act and the Federal Polytechnics Amendment Act 2019 to justify the application of section 8 of the Amendment Act to the appointment of the 3rd to 7th Defendants as rectors by the 1st Defendant/MR President?
2. Whether it is within the competence of the 1st Defendant/MR President to appoint persons as rectors in the absence of any enabling laws establishing the five new Federal Polytechnics?
[31] He submitted that the cardinal principle in interpretation of statutes is that the meaning must be derived from the plain and unambiguous expressions or words employed. He further submitted that the law is immutable that the literal rule of interpretation must always be resorted to unless it will lead to clear absurdity or inconsistency with provisions of the statute as a whole citing PDP v INEC [2014] 17 NWLR (Pt 1437) 525;(2014) LPELR-23808(SC); Ugwu v Ararume [2007] 12 NWLR (Pt 1048) 367; Adejumo v. Military Governor Of Lagos State (1972) 3 SC 45; Ojokolobo v. Alamu (1967) 3 NWLR (Pt. 61) 377. It was his submission that the five new Federal Polytechnics which are not listed in the 1st Schedule to the Principal Act (Federal Polytechnics Act, CAP F17, LFN 2004) or the Schedule to the Federal Polytechnics Amendment Act 2019 are not within the applicable ambit of the legal regime of these Acts.
[32] Learned counsel stated that the Federal Polytechnics Act established a number of Federal Polytechnics seen the 1st Schedule to the Principal Act, i.e. the Federal Polytechnics Act, CAP F17, LFN 2004 and subsequently amended in 2019 to include eight (8) additional Federal Polytechnics as seen in section 14 of the Federal Polytechnics Amendment Act 2019. He referred to the title of the Federal Polytechnics Act: “An Act to establish polytechnics in various parts of the country to provide full-time courses to technology, applied science, management and other fields of studies and to make provisions for the general administration of such polytechnics”. He submitted that the term “such polytechnics” simply portends those Federal Polytechnics established and listed in the First Schedule to the Principal Act as what the 2019 Amendment did was to establish additional eight (8) Federal Polytechnics and harmonize the tenure of the Principal Officers of the established Federal Polytechnics. That the five New Federal Polytechnics are not mentioned in the Principal Act and the 2019 Amendment Act.
[33] Learned counsel submitted that the Court would not import words, expressions or Federal Polytechnics not provided or established and listed into the Federal Polytechnics Act and its 2019 Amendment Act for the constitutional competence to do so resides within the National Assembly pursuant to section 4 of the 1999 Constitution (as amended). He submitted that until the Federal Polytechnics Act is further amended or separate enabling law(s) in that behalf are enacted to establish these New Federal Polytechnics, they cannot be deemed to be within the envisage of the Federal Polytechnics Act CAP F17, LFN 2004 and the Federal Polytechnic Amendment Act 2019. Thus the Court is bound to restrain itself to the clear letters of the subsisting Principal Act and the 2019 Amendment as holding otherwise would amount to judicial legislation.
[34] It was the contention of learned counsel that it cannot be reasonably said that it was a case of historical accident or legislative cosmetics that the National Assembly dissipated efforts and resources in enacting the Federal Polytechnics (Amendment) Act in 2019 as same was enacted against the backdrop of establishing additional eight (8) Federal Polytechnics that hitherto had no statutory existence and accordingly, the Principal Act was amended to bring the eight (8) established Federal Polytechnics within the applicability amplitude of the legal regime of the Acts. He submitted that the intendment of the drafters of the Federal Polytechnics (Amendment) Act 2019 is to provide inter alia a statutory regime as enabling law(s) of the additional eight (8) Federal Polytechnics established thereunder since without such statutory underpinning the additional Federal polytechnics will lack the statutory life and limb to exist.
[35] Learned counsel referred to Auchi Polytechnic as one of the eight additional Federal Polytechnics created by the Federal Polytechnics (Amendment) Act 2019 stating that Auchi Polytechnic was hitherto a State Polytechnic by virtue of section 3 of Auchi Polytechnic Law, CAP 11, Laws of Bendel State. He submitted that there cannot be establishment of a Federal Polytechnic in Nigeria without a statutory underpinning forming its enabling law. That this is the rationale behind the National Assembly’s action in amending the Principal Act to establish additional eight (8) Federal Polytechnics under the Federal Polytechnics (Amendment) Act 2019. Counsel submitted that the Federal Polytechnics Act, CAP F17, LFN 2004 and the Federal Polytechnics (Amendment) Act 2019 is not a comprehensive composite legislation on establishment of Federal Polytechnics in Nigeria as the National Assembly had also
enacted enabling laws establishing separate Federal Polytechnics different from the ones listed in the Schedule to the Principal Act and its 2019 Amendment.
[36] He submitted that it will be out of place and tantamount to interpretative summersault to assume that the Principal Act and its 2019 Amendment apply to all the Federal Polytechnics in Nigeria or worst still as herein, where the five newly established Polytechnics are yet to be legally established or be clothed with legislative toga. That if the Principal Act was intended to be a composite legislation on establishment of all the Federal Polytechnics in Nigeria, the National Assembly would not have amended the Principal Act to include the additional eight (8) Federal Polytechnics since same would have operated and deemed applicable to them without any need to amend the Principal Act to include the additional Federal Polytechnics thereby created. It was his submission that the Newly Established Federal Polytechnics are not listed in the Schedules and by the expressio unius rule (expressio unius est exclusion ulterius), the express mention of a thing implies the exclusion of others not expressly mentioned in a statute citing Buhari v. Yusuf (2003) LPELR 812 (SC).
[37] Learned counsel argued that since the five New Federal Polytechnics are not mentioned or listed in the Federal Polytechnics Act or its 2019 Amendment automatically excludes the New Federal Polytechnics which otherwise would have been included by implication. That EXHIBIT A1-A3 annexed to the 3rd to 7th Defendants’ affidavit are separate Bills that seek to establish some other Federal Polytechnics in Nigeria to evince the immutable intendment of the National Assembly that the Federal Polytechnics Act and its 2019 Amendment relied upon by the Claimants in these proceedings is not intended to cover all Federal Polytechnics in the Country.
[38] Learned counsel submitted that the executive powers of the Federation is vested in the President under section 5 of the 1999 Constitution (as amended) citing A-G Federation v Abubakar [2007] 10 NWLR (PT. 1041) 1, at 82, Olaniyi v. Olayioye (2014) ALL FWLR (Pt. 745) 363;(2014) LPELR-20502 (CA). He submitted that the term executive power includes all ministerial and administrative powers of the executive; and that it is a fact of common knowledge that Federal educational Institutions in Nigeria are established preliminarily by executive fiat/approval which is followed by formal presentation of executive Bills to the National Assembly for legislative process pursuant to section 58 of the 1999 Constitution of the Federal Republic of Nigeria 1999. The executive Bill would eventually become an Act of the National Assembly upon the President/1st Defendant assenting to the final Bill passed by the National Assembly. He submitted that the Court is enjoined by section 124 of the Evidence Act 2011 to take judicial notice of this citing Dashe v. Jatau (2016) LPELR-40180 (CA); Amechi v. INEC (2008) LPELR-446(SC); Saraki V. Kotoye (1990) LPELR-15503(SC).
[39] Learned counsel contended that in reality where a new Federal tertiary education is proposed to be established in the Country, the 1st Defendant may personally or through the Honourable Minister of Education appoint a person or in some cases a Chief Executive to superintend and report to the President on the activities that form the precursor to the taking off of the emerging statutory outfit such as the five New (5) Federal Polytechnics which are the subject of this proceedings. That at this stage there may hardly be sufficient infrastructure and funds to sustain same, there may also not be any constituted Governing Council, no students and other paraphernalia and apparatus to commence the operation of the educational Institution. That this is the stage these New Federal Polytechnics are. And this informs the rationale behind the 1st Defendant appointing the 3rd to 7th Defendants as Rectors to oversee these new Federal Polytechnics.
[40] Learned counsel submitted that in the light of this conventional reality, it is very well within the competence of the 1st Defendant’s executive powers in section 5 of the 1999 Constitution to appoint the 3rd to 7th Defendants as Rectors of the new Federal Polytechnics as this is the convention without which it will not be pragmatically feasible to set up New Federal Polytechnics in the Country. He referred to section 8 of the Federal Polytechnics (Amendment) Act 2019 and submitted that although the 1st Defendant is invested with the statutory power to appoint “the Rector” of each of the Federal Polytechnics listed in the 1st Schedule to the Act to be in congruence with the provisions of the section, that the provision applies in a situation where there is an already serving/sitting Rector and not in the present circumstance where there are no y sitting/serving Rectors for the new Federal Polytechnics established by the 1st Defendant which Polytechnics are yet to have enabling laws.
[41] Learned counsel submitted that assuming but not conceding that section 8 of the Federal Polytechnics (Amendment) Act applies in the instant case to regulate the appointment of the 3rd to 7th Defendant’s appointment as Rectors by the 1st Defendant, the peculiar circumstance of absence of any sitting/serving Rectors clearly removes the instant case from the application, scope and purview of section 8 of the Federal Polytechnics (Amendment) Act 2019. He argued that as at the relevant time of appointment of the 3rd to 7th Defendants/Applicants as Rectors there was no inaugurated Governing Council. He submitted that in such a peculiar situation the 1st Defendant may well appoint any suitable persons with proven academic and professional records as the 3rd to 7th Defendants as pioneering rectors, more so as the Polytechnics are yet to have enabling laws. That this is the factual reality on how a Federal Polytechnic and indeed any other Federal Tertiary institution is established and takes off in Nigeria.
[42] He then urged the Court to dismiss the suit as section 8 of the Federal Polytechnics (Amendment) Act 2019 sought to be relied upon by the Claimants does not apply in the circumstance of this case as it is within the competence of the 1st
Defendant to appoint the 3rd to 7th Defendants as Rectors of the five New Federal Polytechnics.
Claimants Reply on Points of Law
[43] Learned Senior Counsel submitted that the National Industrial Court (Civil Procedure) Rules, 2017 empowers the Court to grant orders for substituted service of notices or documents authorised to be served by the Rules where prompt service of such documents or notices cannot be effected. That from the clear provisions of the Rules governing service of processes, there is nowhere it is mandatory that there must be an attempt at ‘physical service’ as alleged by the 1st and 2nd Defendants before substituted service can be effected on a party. He referred to Order 7 Rule (1)(9) and Order 7 Rule (1)(j) of the Rules and submitted that a community reading presupposes or shows that a process served by substituted means irrespective of whether there was an attempt at personal service or not before substituted service is immaterial, all that is required is that the mode of service is permitted or directed by the Court as the real essence of service is for a party to be put on notice of the pending litigation against him citing Rivers State Government v. Specialist Konsult (2005) 7 NWLR (Pt. 923) 145 at 167, paras. B-F.
[44] He stated that the Claimants application for substituted service was granted on July 02, 2021 and in compliance with the order of the Court published the processes in the Vanguard Newspapers of July 12, 2021, and the hearing notice physically served on the 2nd defendant to become aware of the pendency of a suit against them has been achieved. He urged the Court to hold that the service of the originating processes in the Vanguard Newspaper publication in compliance with the order made by this Court was good service and in line with the provisions of the Rules.
[45] Learned Senior Counsel submitted that while the 1st and 2nd Defendants do not query that the Federal Polytechnics Act (as amended) makes provisions for appointment of Rectors in Federal Polytechnics, they argue that the provisions of the Act restrict and/or fetter the powers of the 1st Defendant as contained in the 1999 Constitution (as amended) in making appointment of persons as Rectors, and thus that Section 8(2)(i)(a) of the Federal Polytechnics Act (as amended) is ultra vires the powers of the National Assembly to make. He submitted that when the National Assembly in exercise of their powers vested by the Constitution and in so doing passes a legislation as a Bill which the 1st Defendant participated in making by exercise of his discretion to sign the said Bill into law, and such bill having become an Act of parliament, the 1st Defendant, and the 2nd Defendant are estopped from challenging the validity or legality or legitimacy of that law. He cited The President Federal Republic Of Nigeria V National Assembly & Ors (2021) LPELR-58516 (SC).
[46] Learned Senior Counsel submitted that the 1st Defendant having signed and assented to the passage of the said Federal Polytechnics Act, 2019 (as amended), the
only responsibility and duty to be discharged by the 1st Defendant, as clearly pointed out by the apex court in The President Federal Republic Of Nigeria V National Assembly & Ors supra per Aboki, JSC is for him to enforce and comply with the law:
Moreover, by Section 58 of the 1999 Constitution, as amended, once there is an assent to a Bill, it signifies the acceptance and concurrence of the Presidency to the entirety of the Bill to become an Act of the National Assembly. Having given his Assent to the Bill, the 1st plaintiff cannot under any guise, turn around to invoke the judicial process to challenge the constitutionality, validity or otherwise of an Act of the National Assembly, duly made in the exercise of its legislative powers. This goes against the spirit and letter of Section 4 of the 1999 Constitution, as amended.
[47] Learned Senior Counsel submitted that the 1st and 2nd Defendants by virtue of Section 169 of the Evidence Act, 2011 are estopped from taking any action to avoid implementing the letters of the Federal Polytechnics Act, 2019 (as amended) after the 1st Defendant had signed same into law. He submitted that the 3rd to 7th Defendants being Federal Polytechnics are not extra-ministerial departments of the Federal Government which are subject to exercise of the discretionary powers of the 1st Defendant. He submitted that by virtue of Section 3 of the Federal Polytechnics Act, 2019 (as amended), there is established for every Federal Polytechnic in Nigeria a Governing Council which is a body corporate with perpetual succession, a common seal and may sue and be sued in its name. He further submitted that every Federal Polytechnic through its Governing Council has a separate legal personality of its own and cited Gomwalk & Ors v Okwosa (1998) LPELR 6052 (CA) where the Court of Appeal held that a Federal Polytechnic is not a ministry or extra-ministerial department. He then submitted that the 1st and 2nd Defendants’ case is unsustainable, untenable and should fail.
[48] Learned Senior Counsel replying the 3rd -7th Defendants submitted that having by their own admissions in their affidavit agreed that the Polytechnics are in factual existence and members of their Governing Councils appointed and formally inaugurated, the 3rd -7th Defendants appointed as Rectors, they are bound by their admissions. He relied on section 123 of the Evidence Act and Akinyele Olaiya v The State LER (2017) SC 562/2014, Ogedemgbe Surajudeen Ola v University of Ilorin & 2Ors (2014) 15 NWLR (Pt 1431). He stated that the Appropriation Act 2022 made substantial budgetary provisions for the newly established Polytechnics.
[49] Learned Senior Counsel contended that the 3rd to 7th Defendants have not by affidavit evidence shown that they are Lecturers in the Polytechnic sector that have attained the position of Chief Lecturer and have spent five years in the position of Chief Lecturer. He submitted that a counter affidavit is an affidavit made to contradict and oppose facts in another affidavit with the respondent’s version of what happened
citing Ogedemgbe Surajudeen Ola v University of Ilorin & 2Ors (2014) 15 NWLR (Pt 1431). He argued that the 3rd -7th Defendants have not contradicted the Claimants assertions that they are not statutorily qualified to be appointed as Rectors.
[50] It was his submission that prior to the amendment of the Federal Polytechnics Act 2019, the subsisting legislation being the Federal Polytechnics Act 1979 Cap 57 LFN 2010 contained a list of 16 Polytechnics. Eight new Polytechnics were established between 1979 and 2019 and were in existence and in full operation before the 2019 amendment of the composite and principal legislation being the Federal Polytechnics Act (as amended in 2019)which then listed them in the Act. He submitted that this is the established procedure and is applicable to the new Polytechnics established in 2021.
[51] Learned Senior Counsel submitted that the Federal Polytechnics Act (as amended in 2019) is the extant law for the administration of Federal Polytechnics as there is no other law for their administration. He submitted that the Bills passed between 2019 and 2020 are not Law citing Ogboru & Anor v Uduaghan & Ors (2011) LPELR-8236 (SC). He further submitted that there is no contemplation of a distinction in the Act between the appointment of “pioneer” Rectors and replacement of sitting Rectors. That if there was any such contemplation, the Act would have made requisite provisions. He submitted that the cardinal rule in interpretation of statute is to give effect to the intention of the legislature citing Gana v SDP & Anor (2019) LPELR -47153 (SC).
[52] Learned Senior Counsel relying on section 151 of the Evidence Act 2011 submitted that the Defendants are estopped by their conduct and representation from denying the fact of the existence in fact and in law of the new Federal Polytechnics and the fact of the appointment of the 3rd -7th Defendants as Rectors, albeit unlawfully. He cited Onwu &Ors v Nka & Ors (1996) LPELR-2711 (SC), Pina v Mai-Angwa (2018) LPELR-44498 (SC). He then urged the Court to grant the Claimants prayers.
Decision
[53] I have carefully considered the Originating Summons, the affidavit evidence of the parties, arguments, submissions and authorities cited by counsel. I will first determine the preliminary issue raised by the 1st and 2nd Defendants on the issue of substituted service of the originating processes and hearing notice by publication in the Vanguard Newspapers. On 2nd July 2021, the Claimants sought and obtained an order of this Court to serve the originating process and hearing notice in this suit by substituted means, specifically by publishing the originating processes in the Vanguard Newspaper.
[54] Order 7 Rule (1) (9) and Order 7 Rule (1) (i) (j) of the 2017 Rules of this Court are reproduced as follows:
(1) (9) Where prompt service of notice or documents authorized to be served by these Rules cannot be effected in any manner provided in this Rules, a party may by Motion ex-parte move the court for an order of substituted service to be effected by way of posting, publication in the media or any other means possible as the court may deem effective and just.
(1) (1) Any process or document required or authorized by these Rules or ordered by the Court to be served on any person who is a party in a matter may be served on any person who is a party in a matter may be served as follows:
(j) by any means permitted by the Rules of this Court or as may be directed by the Court.”
[55] These provisions empower the Court to permit substituted service of processes, notices, documents, irrespective of whether there was an attempt at personal service or not where prompt service of processes cannot be effected in any manner provided by the Rules. Is counsel saying the Claimants should have effected physical service on the 1st Defendant who is the President of the Federal Republic of Nigeria? This will be absurd. The essence of service is to ensure that a party is put on notice of the pending litigation, Rivers State Government v Specialist Konsult (2005) 7 NWLR (Pt 923) 145 at 167 para B-F, 172 para F. The 1st and 2nd Defendants have acknowledged in paragraph 5 (b) of their counter affidavit that the originating processes and the hearing notices were served on all the Defendants through substituted means on 9th August 2021 in the Vanguard Newspaper. This is proper and effective service as provided by the Rules to all the Defendants.
[56] The affidavit evidence reveals that the hearing notice was physically served on the 1st and 2nd Defendant on 11th August 2021 at the Federal Ministry of Justice (HAGF Registry). How then can learned counsel say the 1st and 2nd Defendants only became aware of the pendency of the matter through a letter dated 9th May 2022, and that the Claimants never made any attempt to serve the originating processes physically? This is far from the truth. The Claimants acted in compliance with the order for substituted service; which is proper and valid service for all purposes. The 1st and 2nd Defendants have not been denied a fair hearing as they were served and have appeared in court to defend this suit; The Court is not deprived of jurisdiction to entertain this suit on the ground of service or fair hearing. The preliminary issue lacks merit and is dismissed.
[57] It is pertinent at this juncture to reproduce the provisions of section 8(1) and section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019, the subject matter of this suit:
8. (1) There shall be a Rector for each Polytechnic (“the Rector”) who shall be appointed by the President in accordance with this section
(2) (a) (i) qualifications of the persons who may apply for the post, which shall be a Chief Lecturer in the Polytechnic sector with at least five years experience on that position among other criteria;
[58] The sum up of the submissions of the 1st and 2nd Defendant is that the Federal Polytechnics to which the 1st Defendant appointed the 3rd to 7th Defendants to head as Rectors are extra-ministerial departments in which the 1st Defendant has unfettered powers to appoint persons into. Put in another way, while the 1st and 2nd Defendants admit that the Federal Polytechnics Act (as amended) makes provisions for appointment of Rectors in Federal Polytechnics, it is their argument that the provisions of the Act restrict and/or fetter the powers of the 1st Defendant as contained in the 1999 Constitution (as amended) in making appointment of persons as Rectors, and therefore section 8(2)(i)(a) of the Federal Polytechnics (Amendment) Act 2019 is ultra vires the powers of the National Assembly to make.
[59] The National Assembly had passed the Federal Polytechnics (Amendment) Bill and thereafter transmitted same to the 1st Defendant for consideration and exercise of his discretion; specifically whether to assent to the Bill or not to assent. The 1st Defendant considered the Bill, exercised his discretion, and assented to it by signing it into law on 18th June 2019. The 1st Defendant having participated by exercising his discretion and signing the Bill into law, it has become an Act of Parliament. The arguments and submissions of learned counsel to the 1st and 2nd Defendants on this issue is without any doubt a subtle invitation to this Court to query the provisions of the Federal Polytechnics (Amendment) Act 2019 which the 1st Defendant assented to and signed into law on the grounds that the provisions of the Act allegedly fetters the executive powers of the 1st Defendant.
[60] The Supreme Court in The President Federal Republic Of Nigeria v National Assembly & Ors (2021) LPELR-58516 (SC) per Emmanuel Akomaye Agim JSC put the position of the law very succinctly:
...there is no provision of the constitution that vests the President with the power to challenge the validity of an Act of the National Assembly that has come into being after his assent or after he had withheld his assent. Also, his assent to the enactment of the said Act operates to estop him from challenging the Act as invalid for any reason.
[61] The 1st Defendant having assented to the Federal Polytechnics (Amendment) Act 2019 and signed same into law has by his declaration and action caused the Claimants to believe as true the provisions of the Act as the extant and composite law guiding the administration of Federal Polytechnics in Nigeria. The 1st and 2nd Defendants by virtue of section 169 of the Evidence Act 2011 are estopped from challenging the validity, legality, or legitimacy of the Federal Polytechnics (Amendment) Act 2019; and from taking any action to avoid implementing the letters of the Act. The only
responsibility and duty to be discharged by the 1st Defendant as stated by the Supreme Court in The President Federal Republic Of Nigeria v National Assembly & Ors supra is for him to comply with the law and enforce it.
[62] Learned counsel to the 1st and 2nd Defendants has submitted that the Federal Polytechnics are extra ministerial departments of the Federal Government and as such the 1st Defendant is empowered to appoint any person of his choice to head such a department. Section 3 of the Federal Polytechnics (Amendment) Act 2019 provides:
3 (1) There is established for each Polytechnic a Governing Council (in this Act referred to as Council) which-
(a) is a body corporate with-
(i) perpetual succession, and
(ii) a common seal; and
(b) may sue and be sued in its corporate name.
[63] In other words, each Federal Polytechnic through its Governing Council has a separate legal personality of its own. The Governing Councils of the newly established Polytechnics as revealed in the affidavit evidence have already been formally inaugurated by the Hon Minister of Education. A Federal Polytechnic cannot be construed to mean a ministry or extra-ministerial department that the 1st Defendant can appoint anyone he deems fit, see Gomwalk & Ors v Okwosa [1999] 1 NWLR (Pt 586) 225 at 237-238 para G-D; (1998) LPELR 6052 (CA). I hold that the new Federal Polytechnics subject matter of this suit are not extra-ministerial departments.
[64] With regards to the arguments and submissions of the 3rd to 7th Defendants, they admit in their counter affidavit that the 1st Defendant announced their appointments as as Rectors of the newly established Federal Polytechnics, and that they only have ‘factual reality’. Factual reality is indicative of the ‘fact’ that the newly established Polytechnics are in existence; and the 3rd to 7th Defendants have commenced duties as substantive Rectors of the respective Polytechnics. The Law is settled that admitted facts require no further proof, see section 123 of the Evidence Act, Unity Bank v Denclaff (2012) 18 NWLR (Pt 1332) 293 SC.
[65] The affidavit evidence reveals that the Polytechnics are all captured in the Appropriation Act 2022 and the Federal Government made substantial budgetary provisions in the Appropriation Act for the newly established Polytechnics that the 3rd to 7th Defendants head as Rectors. Now, the Federal Government would not have made these budgetary provisions if the Polytechnics are in their “foetal phase yet to be conceived by mother statute and significant infrastructure” as argued by learned counsel to 3rd- 7th Defendants. The 3rd to 7th Defendants cannot approbate and reprobate at the same time by saying that Polytechnics are still in their “foetal phase as they are yet to be conceived by mother statute and significant infrastructure”. I find
that they are in existence, budgetary provisions have been appropriated for the new Polytechnics, and they are being administered by the 3rd – 7th Defendants as Rectors.
[66] Learned counsel to the 3rd to 7th Defendants has argued that the new Polytechnics have no enabling laws because they are not listed in the schedule to the Federal Polytechnics (Amendment) Act 2019, nor are they mentioned in the Federal Polytechnic Act of 1979 and are not covered by the 2019 Amendment Act. The affidavit evidence reveals that the 8 Federal Polytechnics established between 1979 and 2019 had been in existence and in full operation before the 2019 amendment of the composite and principal legislation the Federal Polytechnics (Amendment) Act 2019, which then listed them. The 8 Federal Polytechnics had been admitting students, graduating them with convocation ceremonies as revealed in the affidavit evidence. All of these were done before the 2019 Amendment Act in which they were listed. Is counsel saying the 8 Federal Polytechnics had no factual or statutory reality before they were listed in the Federal Polytechnics (Amendment) Act 2019? There can be no gainsaying that it is impossible for the new Polytechnics established in 2021 to be listed in the Federal Polytechnics (Amendment) Act 2019.
[67] Section 124(1) (a) of the Evidence Act provides that proof is not required of a fact the knowledge of which is not reasonably open to question and which is common knowledge in the locality generally. It is common knowledge for which this Court will take judicial notice of that the procedure established by the Federal Government is to establish the Polytechnics after approval by the Federal Executive Council, appoint Rectors and members of the Governing Council and duly inaugurate same. Subsequently as was the case of the 8 Federal Polytechnics established after the promulgation of the 1979 Federal Polytechnic Act, list the new Polytechnics in any subsequent amendment of the Act. If as the 3rd to 7th Defendants argue that the Polytechnics have no statutory reality, then on what authority do they exist and function? The only law in Nigeria for the administration of Federal Polytechnics is the Federal Polytechnics (Amendment) Act 2019; and I so hold.
[68] Applying the provisions of section 151 of the Evidence Act 2011, the 3rd to 7th Defendants are estopped by their conduct and representation from denying the factual and legal existence of the various Federal Polytechnics in which they have been appointed Rectors in order to avoid the application and implication of the provisions of Section 8 of the Act, while taking the full and unqualified benefit of the position of Rectors including enjoying the tenor guaranteed under the Act.
[69] It is settled that the cardinal rule in interpretation is to give effect to the intention of the legislature. See A-G Federation v A-G Lagos State (2013) 16 NWLR (Pt 1380) 249, Gana v SDP (2019) LPELR-47153 (SC). The provisions of section 8(1) and section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019 are mandatory with the use of the word “shall”. It leaves no room for conjecture. The provisions are clear and unambiguous. The intention of the legislature is to create uniformity in the
qualification of persons who are appointed as Rectors in the Federal Polytechnic sector. This is crucial so as not to create “needless Industrial crisis” in the Polytechnic sector.
[70] The 3rd to 7th Defendants have not placed any evidence before the Court in proof of the fact that they have met the statutory qualifications of Chief Lecturer in the Polytechnic sector with at least five years experience on that position as provided in section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019. They have failed to contradict or counter the fact that they are not statutorily qualified to hold the post of Rector of the newly established Federal Polytechnics. An unchallenged or uncontroverted evidence requires no further proof and is deemed admitted, see Hillary Farms & Ors v MV Mahtra & Ors (2007) LPELR-1365 (SC). I find that the 3rd to 7th Defendants are not qualified statutorily to be appointed Rectors of the five (5) newly established Federal Polytechnics. I hold that the 3rd to 7th Defendants failed to meet the qualifying mandatory provisions of section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019.
[71] For all the reasons given above I hereby declare and make the following Orders:
1. It is Declared that the appointment of Rectors of Federal Polytechnics including the 3rd – 7th Defendants by the President i.e. the 1st Defendant must be made in accordance with the provisions of section 8 (1) and 8 (2) (a) (i) of the Federal Polytechnic (Amendment) Act 2019.
2. It is Declared that a person including the 3rd - 7th Defendants is appointable as a Rector by the 1st Defendant only and only if he possesses the relevant qualifications to apply for the post which shall be a Chief Lecturer in the Polytechnic sector with at least 5 years experience on that position among other criteria.
3. It is Declared that the appointment of the 3rd – 7th Defendants by the 1st Defendant contrary to the clear provisions of section 8 (2) (a) (i) of the Federal Polytechnics (Amendment) Act 2019 particularly with respect to their qualifications is ultra vires the power of the 1st Defendant as set out in the above mentioned Act, and is null and void.
4. It is Declared that the 3rd – 7th Defendants not being appointable as Rectors of the various Federal Polytechnics in the first place are not qualified to hold office as Rectors of the said Federal Polytechnics.
5. The purported appointment of the 3rd – 7th Defendants by the 1st Defendant is hereby set aside as they failed to meet the minimum statutory qualification of the persons who may apply for the post which shall be a Chief Lecturer in the Polytechnic sector with at least 5 years experience on that position among other criteria.
6. An Order of Injunction restraining the 1st and 2nd Defendants either acting by themselves or through their agents or representatives from doing anything whatsoever geared towards maintaining and/or recognizing the 3rd -7th Defendants as Rectors of the said Federal Polytechnic.
7. An Order of Injunction restraining the 3rd – 7th Defendants from parading themselves or further parading themselves, assuming office or acting in the capacity of Rectors of the various affected Federal Polytechnics while being statutorily unqualified to apply for the post of a Rector of a Federal Polytechnic.
8. The 3rd – 7th Defendants are hereby restrained whether by themselves, their servants, agents or privies or otherwise howsoever from submitting themselves or applying for appointment for the post of Rector of any Federal Polytechnic not being statutorily qualified for such appointment.
10. Costs in the sum of N500,000.00 awarded the Claimants.
Judgment is entered accordingly.
____________________________
Hon Justice O.A.Obaseki-Osaghae