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Owerri---His Lordship, Hon. Justice O. O. Arowosegbe of the National Industrial Court of Nigeria, sitting in Owerri on Wednesday 18th July 2018 in a ruling dismissed preliminary objection filed by Abia State Polytechnic (Defendant/Applicant) challenging the jurisdiction of the court to hear the suit brought by DR EZE NWOKEOCHA OGBONNAYA (claimant) for lacking merit and also hold that there is a reasonable cause of action in this suit.
This suit was commenced via a Complaint dated 27th July 2017, the claimant seeking among others; A DECLARATION of this Honourable Court that the purported oral removal of the Claimant from office as the Director Medical Services on 16/5/2017 is illegal and Ultra vires the terms of the Claimants Employment as protected by the Abia state Polytechnic Law CAP 29 LABS 2005 and the Regulations governing the Conditions of service for Senior Staff of the 1st Defendant. AN ORDER of Mandatory injunction compelling the Defendants, their servants, agents or privies to restore the Claimant to his position as Director Medical Services Abia State Polytechnic and to pay him all the emoluments, salaries and allowances due him in that position from the date of the wrongful removal to the determination of this suit and thereafter till the Claimant retires from service.
On 18th October 2017 the defendants filed their Statement of Defence accompanied with Notice of Preliminary Objection that the honourable court lacks the jurisdiction to hear and determine the suit/claim of the claimant as no reasonable cause of action has arisen and The claimant/respondent lacks the competence to have the matter brought before this honourable court at this time having not exhausted the mandatory domestic options available to her to sufficiently and correctly allege or contend that his appointment with the Abia State Polytechnic has been terminated.
Counsel to the defendant argued that no material has been placed before this Court to show that section 12(13) of the Polytechnic Law had been complied with. Counsel submitted that as this claim cannot now be enforced, there is no cause of action, and where no cause of action is disclosed the case must be struck out.
Counsel to the claimant in opposition argued that determination of whether a claimant has a reasonable cause of action is made from perusal of the pleadings of the claimant and not from any other extraneous process. Counsel submitted the wrongful acts of the defendants in removing the claimant as the Director of Medical Director Service and stoppage of his salaries as pleaded gave the claimant his cause of action.
Counsel now replied to the issue of failure to explore the internal administrative mechanism of settling disputes as provided by section 12(13) of the Polytechnic Law by arguing that section 12(4) of the Polytechnic Law excludes senior staff like the claimant, and that by virtue of section 12(13) of the Polytechnic Law, the claimant is a senior staff and that the defendants could not rely on section 12(11) of the Polytechnic Law, as it does not require exhaustion of internal domestic remedy of senior staff. Counsel therefore urged the Court to dismiss the NPO. I now move to the reply on points of law filed.
After reviewing the argument, processes filed and the submissions of learned Counsel for both parties, the Court Presided by Hon. Justice O. O. Arowosegbe therefore hold that there is a reasonable cause of action in this suit.
On the issue of exhausting internal administrative mechanism of the defendants’ before approaching the Court, his lordship stated that, the Polytechnic Law did not in any place stipulate that a senior staff should seek redress internally on issue of termination or any other infringement of his employment relationship with the defendants.
“Having reached this conclusion, it is evident that the lone issue formulated in the NPO must be resolved in favour of the claimant/respondent and against the defendants/applicants. The lone issue formulated in this NPO is therefore resolved against the defendants/applicants and in favour of the claimant/respondent. The NPO therefore lacked merit, and is accordingly dismissed. The jurisdiction of the Court therefore remained intact.” The Court Ruled.
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