Just In: Industrial Court Finds Cause of Action, Dismisses Preliminary Objection

• 1696 Wednesday 14th March 2018

 

His Lordship, Hon. Justice Z.M. Bashir of the National Industrial Court of Nigeria, Abuja  division today Thursday 14^th March 2018 in a ruling dismissed preliminary objection and order MR OLUSHEUN EKUOYE (Chairman Senior Staff Disciplinary Committee (SSDC) and IZIRIEN SAMSON (Secretary, Senior Staff Disciplinary Committee (S SDC) (Sued for and on behalf of the Senior Staff Disciplinary Committee (SSDC) 4^th and 5^th defendants to be party to the suit MR.ASEMOTA OMORUYI FRANCIS v. THE RECTOR, AUCHI POLYTECHNIC, AUCHI & 4 ORS.

 

This suit originally commenced by a general form of complaint filed on the 20^th of June 2016 which was amended on the 17^th of November, 2017. By the complaint and statement of fact, the Claimant is seeking the following claims against the Defendants jointly and severally among others; (a) A DECLARATION that the Ad-Hoc committee set up by the 1^st to 3^rd Defendants in the absence of a Governing Council of Auchi Polytechnic is ultra vires the powers of the Defendants and therefore illegal, null and void. A DECLARATION that paragraph 16.2 of the Federal Polytechnic Staff Manual 1990 which denies the claimant the right to approach a court of law is contrary to section 6(6) of the 1999 constitution of the Federal Republic of Nigeria and therefore null and void to extent of its inconsistency. (e) AN ORDER setting aside paragraph 16.2 of the Federal Polytechnic Staff Manual 1990. (f) A DECLARATION that the letter of query dated the 8th day of June with Reference No: PC/PH.2977/TI issued to the Claimant based on the report of the Ad-Hoc committee set up by the 1^st and 3^rd Defendant was irregularly issued and therefore null and void and should be set aside.

 

Arising from the Written address filed in support of the motion on notice,  Learned Counsel to the Defendant/Applicant, P.Y. Musa submitted that the 4^th and 5^th Defendants/Applicants, being agents of a disclosed principal, cannot be competently sued for any act/action carried out by them in line with their assigned duties by the principal.

 

He also contended that the suit is premature because from the entire set of facts leading to the filing of this suit, no harm has been done to the Claimant/respondent and that he cannot challenge the powers of his employers to issue him with a query.

 

Counsel added that it is important to note that at the stage the Claimant/Respondent filed this suit, the management of the 3^rd  Defendant/Applicant had not reached any determination as to whether Claimant/Respondent’s response to the query was satisfactory or not,

 

In response to the motion, the Claimant/Respondent filed a written address and reply on point of law on the 24^th of January, 2018.

 

From the said written address, With regards to the 4^th and 5^th Defendants, Learned Counsel argued that they are sued as representatives of the Committee set up pursuant to the Polytechnic Act therefore it is a misconception of the law to say that they are agent of the Polytechnic and they are necessary parties.

 

With regards to the suit being hypothetical or academic, Counsel argued that the matter is predicated on principle of fair hearing so that the 4^th and 5^th Defendant would be bound by the decision of the court.

 

The presiding Judge after reviewing the arguments and submissions of parties expressed thus;

 

I have considered the processes filed and the reviewed all the authorities relied upon by learned Counsel. From the totality of the issues raised in the written addresses before this court and the argument made in furtherance and opposition of same, the issues to be determined by this court are to wit:

 

I must state that in the instant case, I find that the matter is predicated on the antecedent of the query and not necessarily the query itself. i.e. the alleged setting up of the committee by the 1^st Defendant without having the power to do so which eventually lead to issuance of query.

 

While this court will not restrain an employer from issuing a query, what is before this court as presently constituted and deducible from the facts in the statement of fact and the claims is the constitutionality of the committee set up to investigate the affairs of the Claimant leading to the issuance of the query.  This is coupled with the alleged challenge of the right of access to court under paragraph 16.1 of the Federal Polytechnic Staff Manual 1990.

 

Upon the above, it is the finding of this court that there is sufficient cause of action deserving the attention of this court and I so hold.

 

Consequent upon the above, this court finds the presence of 4^th and 5^th Defendants to be crucial and fundamental to the resolution of the matter before this court to and therefore necessary for the final and effectual determination of this suit and I so hold.

 

This issue is therefore resolved in favour of the Claimant/Respondent.

 

In totality, it is the ruling of this Court that the suit of the Claimant as presently constituted discloses a reasonable cause of action and the 4^th and 5^th Defendants are necessary parties in this suit.

 

I find the application of the defendant/Applicant unmeritorious and therefore dismiss same. 

 

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