Lagos – His Lordship, Hon. Justice E. A. Oji of the National Industrial Court of Nigeria, sitting in Lagos, on Monday 3rd December 2018 in a landmark judgment declared the Letter of purported termination of HON. JUSTICE ADESUYI OLATERU-OLAGBEGI (Claimant) appointment as Chairman, Governing Council LMDC dated 2nd May 2018 authored by HON. CHIEF JUDGE OF LAGOS STATE (1st Defendant) as ultra vires, null, void and of no effect whatsoever being contrary to the provisions of the LMDC Law 2015. The court further declared that the Claimant is and remains the Chairman, Governing Council of Lagos Multi-Door Courthouse (LMDC) until the expiration of his current term of office on the 9th of July, 2020.
The claimant claimed against the defendants among others; AN ORDER voiding the purported termination of the Claimant as Chairman Governing Council LMDC by the 1stDefendant. AN ORDER that the Claimant remains the Chairman of the Governing Council of LMDC until the expiration of his current term of office on the 9thJuly, 2020.
Likewise, AN ORDER of perpetual injunction restraining the 1stDefendant or any person for the time being occupying the office thereof, by his or herself, agent, or privies thereof from preventing, disturbing or restraining the Claimant in any form from performing the functions of the office of the Chairman, Governing Council of LMDC and from interfering in the activities and management of the affairs of LMDC until the expiration of the Claimant's term of office on the 9thJuly, 2020.
In further response, 1st Defendant brought a Notice of Preliminary Objection challenging the jurisdiction of the Court, On the grounds that the National Industrial Court is a Court of limited jurisdiction, having power in respect only of the specific subject matter enumerated in the Constitution of the Federal Republic of Nigeria and the National Industrial Court Act 2006.
That the relationship between the Claimant and the Applicant has never been or purported to be one of employer and employee. That By virtue of section 91 of the Labour Act, a person exercising administrative, executive, technical or professional functions as public officers or otherwise is excluded from the definition of a “Worker”.
Learned SAN, Counsel to the defendants submitted that this is not a matter which comes within the jurisdiction of the National Industrial Court as prescribed by statutes and rather the High Court of Lagos State is the appropriate forum for the resolution of this dispute.
In the Reply, Defendant/Applicant argued that the jurisdiction of this Court, as provided in the Constitution, is with regards to disputes arising from the reward of persons whose employment positions are stated therein would be decided by the National Industrial Court and the list that follows is a list of rewards that can accrue to an employee.
His case is that until 24thApril, 2014, he was a Judge of the Lagos High Court until his retirement from the bench on the 24thApril, 2014 upon the attainment of the statutory retirement age of sixty five years. He continued to serve after his retirement which includes his appointment as Chairman, Governing Council Lagos Multi-Door Courthouse.
He stated that under the Lagos Multi-Door Courthouse (LMDC) Law 2007 or the amended 2015 version, his appointment is for a period 3 years which may be extended on the expiration of same for a second term of another 3 years.
That the 1stDefendant by a letter to the Claimant dated 2ndMay, 2018 stated that she had been advised by Lagos State Judicial Service Commission that there was no record of or recommendation of the Claimant’s appointment as Chairman of LMDC. The 1stDefendant, by the said letter purportedly terminated his appointment as the Chairman of Council of LMDC in flagrant disregard of S. 14 of the LMDC Law 2015 and of the Rules of natural justice.
By Counter-affidavit deposed to by Personal Assistant to 1st Defendant; it is the 1st Defendant’s case that the Claimant’s appointment and subsequent purported re-appointment were neither based on the “recommendation” of the Commission, nor was it subject to the “terms and conditions” of the Commission, as provided by the LMDC Laws of 2007 and 2015 respectively.
It is stated on behalf of 1st Defendant that a former Attorney-General of Lagos State and a Life Bencher, forwarded to the Honourable Chief Judge of Lagos State, a Public Notice for the registration of an organisation known as “Organisation of Professional Dispute Resolvers” which listed the Claimant as one of the Trustees of the Organisation, and which was in direct competition with the Lagos Multi-Door Courthouse thus creating a manifest conflict of interests.
It is further the case of the 1st Defendant that the LMDC Law 2015 makes whoever occupies the office of the Chairman of the Governing Council of the LMDC an appointee of the 1stDefendant and such appointee is required by law to send regular updates to the 1stDefendant but however, the Claimant neither consulted with the 1st Defendant, nor informed her of his decision to become a Trustee of an organisation which is in direct competition with the LMDC.
That On 13thApril 2018, the 1stDefendant wrote again to the Claimant requesting for his urgent response which the Claimant replied to by letter dated17th April 2018 wherein he acknowledged that the “Organisation of Professional Dispute Resolvers” and the “Lagos Multi-Door Courthouse” have the same objectives and confirmed that he had agreed to become a Trustee of the Organisation which necessitated the 1stDefendant requesting the Claimant to vacate the office of the Chairman of the LMDC in view of the very clear and apparent conflict of interests. However, the Claimant did not comply with the 1st Defendant’s request.
By a letter dated 30thApril 2018, the Director of Administration and Human Resources of the Commission informed the 1stDefendant that the Claimant’s appointment was neither brought before, nor referred administratively to the Commission which led the 1st Defendant to the irresistible conclusion that the Claimant’s purported appointment was not made in compliance with the LMDC Law.
On the issue of conflict of interest, Claimant, after referring to the objectives of the two bodies in contemplation, states that the Organisation of Professional Dispute Resolvers are not in competition with the LMDC, and as such, there could be no conflict of interest.
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice E. A. Oji having found that the subject matter of this suit falls within the jurisdiction of this Court, assumed jurisdiction to determine the issues raised by the parties in line with section 254C(1) of the 1999 constitution (as amended) and expressed thus;
“My view is that, if 1st Defendant asserts that Claimant was not appointed according to laid down procedure, it behooves the 1st Defendant to prove this fact, as 1st Defendant himself, concedes that it is not an issue the Claimant should know. Our evidential law is premised on ‘he who asserts; proves’.
“I have gone through the case of 1st Defendant, and have not found:(1) proof that the appointment was not made in accordance with the LMDC Law; and (2) any rebuttal to the presumption which the law makes, that the appointment was regular.
“With all these unresolved queries, the only conclusion left to the Court in the circumstance, is to, in line with previous decisions as cited, and the Evidence Act, presume regularity of the appointment of the Claimant.
“By all these, I find that the presumption of regularity operates in favour of the Claimant. I therefore hold that his appointment and re-appointment were made in accordance with the LMDC Law, and therefore valid.
“The evidence before this Court, shows clearly that the above provision of the law was not complied with in the purported act of termination of the Claimant. This would mean that the termination of the Claimant was not in line with the provision of the statute governing his appointment. In line with a long list of cases, the termination is therefore, illegal, null, void and of no effect.
“It is therefore hereby declared that the Claimant is and remains the Chairman, Governing Council of Lagos Multi-Door Courthouse (LMDC) until the expiration of his current term of office on the 9th July, 2020.
“It is hereby declared that the said purported termination of the appointment of the Claimant as the Chairman, Governing Council of LMDC is unconstitutional being gravely in breach of his fundamental human right to natural justice.
“The 1st Defendant or any person for the time being occupying the office thereof, by his or herself, agent, or privies thereof is restrained from preventing, disturbing or restraining the Claimant in any form inconsistent with the provision of the LMDC Law 2015, from performing the functions of the office of the Chairman, Governing Council of LMDC and from interfering in the activities and management of the affairs of LMDC, in any manner inconsistent with the LMDC Law, until the expiration of the Claimant's term of office on the 9th July, 2020.” Justice Ama Oji declared