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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 20TH MAY 2026                                

SUIT NO: NICN/IB/103/2016

 

BETWEEN:

Gabriel Ngozi Emecheta                                  -                 -                 -                       Claimant 

 

AND

1          The Hon Minister for Agriculture and Rural Development

2.         The Ministry of Agriculture and Rural Development

3.         Forestry Research Institute of Nigeria, Ibadan

4.         Dr. Isaac I. Ero

5.         The Hon Attorney General of the Federation of Nigeria. -            Defendants

REPRESENTATION

F. A. Adeseun for the Claimant

Sambo Samaila with O.E Okunola for the 1st & 2nd Defendants

Festus Adesiyan for 3rd & 4th Defendants

 

JUDGMENT

1.         Introduction & Claims

1.         This case was initially filed at the Federal High Court, Ibadan Judicial Division. By a letter dated 11/11/2016 it was transferred to this Court pursuant to the Order of Transfer dated 4/7/2016 made by N. Ayo-Emmanuel J of the Federal High Court, Ibadan Division.

 

2.         On 4/7/2017, the Claimant filed a Motion on Notice before this Court pursuant to Order 48 Rules 1,2,3 & 4 of the Rules of this Court. In compliance with the Order of this Court directing the parties to file pleadings, Claimant filed his statement of facts on 17/9/2019 and by his amended processes filed on 15/11/2024 sought the following reliefs against the Defendants –

  1. An Order setting aside or quashing the order of dismissal of the Claimant by the 1st Defendant from the services of the 3rd Defendant contained in the letter Ref. No FMA/DAS/FRIN/OL.1/166 dated 17th of March 1997.
  2. Declaration that the purported dismissal of the Claimant by the 1st Defendant is invalid, null, void and of no effect whatsoever and that the Claimant is entitled to salaries, allowances and emoluments attach to the office of the 3rd Defendant’s Chief Accountant.
  3. Re-instatement of the Claimant to his office as the Chief Accountant and Head of Finance of the 3rd Defendant.
  4. Payment of the salaries, allowances, emoluments and entitlements of the Claimant from April 1997 till December 2020, amounting to =N=60,404,817 (Sixty Million, Four Hundred and Four Thousand, Eight Hundred and Seventeen Naira) and further payments thereafter for the duration of the Claimant’s employment.
  5. =N=500 million damages against the 1st, 2nd, 3rd and 4th Defendants for their unjust interference with the Claimant’s employment and the long term and unjust denial of Claimant’s right to his office, salaries and allowances and depreciation in the value of the said salaries and allowances.

        

3.         The Defendants reacted differently and at different times. 1st and 2nd Defendants filed a Statement of Defence dated 20/11/2024 on 21/11/2024. While 3rd and 4th Defendants filed their Statement of Defence on 4/2/2025 the 5th Defendant did not file any process in defence of this action.

 

2.         Case of the Claimant

4.         On 19/4/2023, the Claimant opened his case. He testified in chief as CW1, adopted his witness statement on oath of 17/2/21 as his evidence in chief and tendered 14 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1 – Exh. C14.

 

5.         Under cross examination, CW1 testified that he was initially appointed as Administrative Staff by 3rd Defendant; that the staff of 3rd Defendant are regulated by the Federal Civil Service Rules; that Federal Civil Servants retire at the age of 60 years; that he was 60 years old on 16/10/14; that he attended a Ministerial Investigation Panel set up by the Hon. Minister of Agriculture and made presentation at the Panel; that he informed the Panel that there was a case at the Federal High Court; that part of the investigation of the Panel was his petition against the 4th Defendant; that he does not know if the 4th Defendant was investigated; that the 3rd Defendant had Governing Council at the time; that his transfer to Zaria did not lead to reduction in his salaries; that he did not report in Zaria; that an order of Court directed him not to report in Zaria; that there was resumption of payment of his salary after Exh C10 and that he was not dismissed. Witness added that the stoppage of his salary came after the letter of dismissal; that he has been in possession of 3rd Defendant Staff Quarters till date; that the last Court sitting at the Court of Appeal before transfer to this Court was not in 2004.

 

6.         CW1 added that the 5th Defendant is the Hon. Attorney General; that it is his duty to represent the Government; that he joined 5th Defendant as a party because he represents the Government; that he was employed by the 5th Defendant while in service; that he worked for the 3rd Defendant; that the 1st Defendant signed his letter of termination of employment; that there were meetings for out of Court Settlement; that he does not know if the 5th Defendant was represented at any of such meetings; that he is suing the 5th Defendant because he is the Chief Law Officer of Nigeria and represents 1st and 2nd Defendants.

3.         Case of the Defendants

7.         1st and 2nd Defendants opened their defence on 17/2/2025. They called one Dauda Joshua Jonathan as a sole witness – DW1. DW1 adopted his witness deposition of 21/11/2024 as his evidence in chief and tendered one document as exhibit. The document was admitted in evidence and marked as Exh. D1.

 

8.         Under cross examination DW1 stated that he became a staff of the 1st Defendant in 2020; that a letter with proper reference number  from the 1st Defendant would be easily located should there be a need for it; that a letter from the 1st Defendant without proper reference number cannot be easily located; that a letter without proper reference number may not have originated from the 1st Defendant and that 2nd Defendant has a copy of Exh. D1. 

 

9. DW1 added that Exh. D1 originated from the 2nd Defendant; that 2nd Defendant has control over some Government parastatals; that as at 1995, 2nd Defendant had supervisory control over the 3rd Defendant; that where the Board of a parastatal is not constituted the Minister in charge takes control and that he does not know if as at 1995 the Board of the 3rd Defendant was not constituted.

 

10.       On 19/3/2025 the 3rd and 4th Defendants entered their defence. They called one Oladayo Adeoti Snr who testified as DW2. DW2 adopted his witness statement of 11/2/2025 as his evidence in chief and tendered 2 documents as exhibits. The documents were admitted in evidence and marked as Exh. D2 & Exh. D3.

 

11. DW2 testified under cross examination that it is accurate to say that correct information on salary can only be obtained from the Finance Department of the 3rd Defendant; that any major reorganisation in the 3rd Defendant would be in writing; that if the functions of a Principal Officer of the 3rd Defendant are to be reassigned, it will be in writing; that it is correct to say that the Chief Accountant of the 3rd Defendant is a Principal Officer; that if the Governing Board of the 3rd Defendant is to take an action there will be a Circular to that effect; that it is not correct to say that any general redeployment of staff of 3rd Defendant can only be done by the Board; that the Director General or Executive Director can order a general redeployment of staff; that he has seen the Report of the Investigation Panel; that he has also seen the representation made by the Claimant to the Investigation Panel; that he became a staff of the 3rd Defendant in 2018; that he did not witness the events leading to the case and that he derived information about this case from what he was told and what he read in the files. Witness further testified that 3rd and 4th Defendants requested the 1st and 2nd Defendants to issue a letter of dismissal to the Claimant.

 

4.         Final Written Addresses

12.       At the close of trial, the Court directed the parties to file their final written addresses in accordance with the Rules of Court. The 1st & 2nd Defendants filed a final written address of 4 pages. It was dated and filed on 9/7/2025. In it Sabo Samaila of Counsel set down a lone issue for determination thus –

 

Whether this Honourable Court has the jurisdiction to hear and determine a matter that is statute barred

 

13.       Counsel submitted that the main objective of the Public Officers’ Protection Act was to ensure that public officers are not distracted from their public functions and duties at the instance of many pending litigations against them; it is trite that to validly institute a civil action there is a time limit which such action can be brought before the Court for proper adjudication; that Section 2(a), Public Officer’s Protection Act provides a period of 3 months within which such claim as the one before  this Honourable Court be brought after the act that precipitated in the suit citing Ibrahim v. J.S.C, Kaduna State (1998)14 NWLR (Pt. 584)1; that it is sufficient if prima facie the date of taking the action is outside the prescribed time citing Hassan v. Aliyu & Others (2020) NWLR (Pt. 1223) 619. Counsel submitted that Claimant averred that by a letter from the 1st Defendant dated 17/3/1997 he was dismissed; that he did not approach the National Industrial Court that is vested with jurisdiction on industrial matters but rather went to the Federal High Court in Ibadan until the suit was transferred after several years in the Federal High Court; that the suit of the Claimant is statute barred, stale, dead and buried and never to be revived citing Zubair v. Kolawole (2019)11 NWLR (Pt. 1682) 66. Accordingly learned Counsel urged the Court to resolve this issue in favour of the 1st and 2nd Defendants and dismiss the case of the Claimant.

 

14.       The final written address of the 3rd and 4th Defendants was dated and filed on 4/8/2025. In it Festus Adesiyan of Counsel set down 2 issues for determination thus –

  1. Whether the Claimant was not validly dismissed from the services of the 3rd Defendant by the 1st and 2nd Defendants.
  2. Whether from the totality of the evidence adduced and documents tendered before this Honourable Court, the Claimant has proved his case to entitle him to the reliefs sought against the 3rd and 4th Defendants.

15.       In arguing the first issue, learned Counsel submitted that in a case of this nature where an employee complains to Court of his dismissal, what the Court is expected to look out for is whether the dismissal was in accordance with the terms of the employment and whether the principles of audi alterem paten which impose duty on the employer to act fairly has been observed citing Momoh v. CBN (2007) LPELR-8842 & University of Calabar v. Essien (1996)10 NWLR (Pt. 447) 225; that it is in evidence that Claimant was dismissed as a result of his refusal to proceed to Zaria branch of the 3rd Defendant on transfer; that his refusal is an act of misconduct and/or insubordination on his part; that insubordination connotes disobedience and that disobedience of an employer’s lawful order is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of an employee citing Tellat Sule v. Nigerian Cotton Board (1985)6 S.C 62, (1985)2 NWLR (Pt. 5) 17 at 38 & University of Calabar v. Essien (1996)10 NWLR (Pt. 447) 225 at 262. Learned Counsel added that when the 3rd Defendant resumed payment of his salary after his initial suspension, Claimant refused to obey the Order of the Federal High Court for him to proceed on transfer to Zaria; that it is incumbent on every party to a cause or matter to obey a subsisting Order until it is set aside citing Oguebego v. Peoples Democratic Party (2016)4 NWLR (Pt. 1503) 446 at 480; that the insubordination of the Claimant both to his employer and the Court led to his summary dismissal and that 1st Defendant rightly acted in this capacity at the relevant time in the instant case where the Board of the 3rd Defendant was not constituted. Counsel urged the Court to so hold.

 

16.       Counsel submitted further that a Ministerial Panel was set up by the Defendant where the Claimant made representation; that Claimant admitted at trial that part of the things investigated by the Panel was his petition against the 4th Defendant to the effect that the 4th Defendant misappropriated the funds of the 3rd Defendant and that the dismissal of the Claimant was recommended by the Ministerial Panel. Learned Counsel prayed for the Court to resolve the first issue in favor of the 3rd and 4th Defendants.

 

17.       On the second issue, learned Counsel submitted that a Claimant must succeed on the strength of his case and not on the weakness of defence especially where the Claimant is seeking declaratory reliefs; that in a case of this nature, Claimant has the onus on him to place before the Court the terms of his employment and prove in what manner the said terms were breached by his employer citing Skye Bank Plc v. Adedokun Olusegun Adegun (2024) LPELR-62219(SC); that Claimant failed to prove either the terms of his employment or the manner in which the terms were breached by the Defendants; that the Defendants as employers are not under any obligation to prove any of these citing Okomu Oil Palm Company Ltd v. Iserhienrhien (2001) LPELR-2471(SC); that failure of the Claimant to plead his terms of employment is fatal to his case and also raises a presumption that had the Claimant produced it the contents would have been against him citing NAS Ltd v. UBA Plc (2005)14 NWLR (Pt. 945) 421 at 437, 441.  

 

18.       Learned Counsel further submitted that the Claimant who wrote a petition against the 4th Defendant to the 1st and 2nd Defendants cannot be allowed to turn around and claim that the same 1st and 2nd Defendants do not have supervisory power over the 3rd Defendant or to issue the letter of dismissal already admitted before this Court; that a party will not be allowed to benefit from his own wrong citing Enekwe v. IMB (Nig.) Ltd (2007)All FWLR (Pt. 349) 1053 at 1082; that the Claimant who prayed for the Court’s discretion and the payment of his salary was resumed failed to comply with the Order of Court to proceed on transfer is not entitled to the reliefs sought in this case citing Lawal-Osula v. Lawal-Osula (1991)3 NWLR (Pt. 382) 128 at 143 – 144; that from the evidence led, Claimant attained the retirement age of 60 years on 16/10/2014 when he would have retired were he to still be in the service of the 3rd Defendant yet the reliefs being sought by the Claimant extended to December 2020 indicating over-bloated entitlement and that the salaries claimed are without basis as the scale of salary of the 3rd Defendant is currently not before the Court. Learned Counsel urged the Court to dismiss the case of the Claimant in its entirety.

 

19.       The final written address of the 5th Defendant was dated 31/7/2015 but filed on 5/8/2015. Counsel set down 2 main issues for determination as follows –

  1. Whether the applicant has established any reasonable cause of action against the 5th Defendant.
  2. Whether the 5th Defendant is a proper party in this suit.

20.       In arguing both issues together, learned Counsel submitted that the Claimant has not succeeded in establishing any reasonable cause of action against the 5th Defendant; that where a party fails to disclose any reasonable cause of action in a suit against a party, no further evidence shall be required to determine the action against such party citing Tabiowo v. Disu (2008)7 NWLR (Pt. 1087)533 at 545-546; that the case of the Claimant can be sustained without the joinder of the 5th Defendant who is just a nominal party; that the Attorney General of the Federation joined as the 5th Defendant is not a necessary party in this suit; that it is only when the claim or complaint is directly against the State or the Federal Government that a suit can properly lie against the Attorney General of the State or of the Federation as the case may be citing A.G, Kano State v. A.G Federation (2007)6 NWLR (Pt. 1029)164 at 192. Learned Counsel urged the Court to decide this matter in favour of the 5th Defendant and strike out its name from this suit on the ground that the suit can be completely, properly, effectually and finally determined without the joinder of the 5th Defendant.

 

21.       The Claimant filed his final written address on 12/9/25. It was dated same date. The following 6 issues were set down for determination –

  1. Whether this action is statute barred by reason of Public Officers Protection law.
  2. Whether the 5th Defendant is a proper party to this action.
  3. Whether there is any credible evidence that the Claimant has been dismissed from the services of the 3rd Defendant.
  4. Whether any dismissal of the Claimant could be effective when suit No: FHC/IB/CS/65/95 was pending.
  5. Whether the 1st Defendant has any role in the discipline of the Claimant.
  6. Whether the Claimant has proved his claims.

22.       On issue 1, learned Counsel submitted that the issue of statute of limitation as raised on behalf of the 1st and 2nd Defendants for the first time through their written address is not competent citing Order 30 Rule 8(2) of the Rules of this Court; that such point ought to be raised properly in the pleadings and not having raised it in the pleadings it is late in the day for the 1st and 2nd Defendants to raise same citing Kano v. Oyelakin (1993)3 NWLR (Pt. 282)399, Ajayi v. Adebiyi & Ors (2012)LPELR-7811(SC). Counsel submitted further that the argument of Counsel that Claimant ought to have filed this action at the National Industrial Court of Nigeria at the time lacks merit as the National Industrial Court did not have the kind of jurisdiction it now exercises in 1997 citing NUT, Niger State v. COSST, Niger State Chapter & Ors (2011)LPELR-20028(CA). Learned Counsel urged the Court to hold that this action is not statute barred.

 

23.       On issue 2, Counsel submitted that the Federal Attorney General can be sued as a Defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorised agencies arising from any act or omission complained of; that the act of a Minister is the act of the President who is acting through the Minister citing Section 5(1) of the Constitution & Ezomo v. A.G Bendel State (1986) LPELR-1215(SC). Learned Counsel prayed the Court to so hold.

 

24.       On whether there is any credible evidence that the Claimant has been dismissed from the services of the 3rd Defendant, learned Counsel submitted that there is none; that it is the lack of evidence of dismissal that made the Claimant to be insisting that his dismissal was merely purported and not real; that all that was served on the Claimant as a letter of dismissal was a photocopy letter Ref. No. FMA/DAS/FRIN/Vol. 1/66 dated 17/3/1997; that the original copy of this letter was never produced; that the letter could not have been served by the Governing Board of the 3rd Defendant since the Governing Board was not in existent at the time; that the Claimant has never seen or at least has never been served the original letter; that Claimant has never been served with any letter of dismissal properly so called and that that is why the 3rd and 4th Defendants claimed that it was a non-existent Governing Board that served the non-existent letter and that this supports the Claimant’s claim that his employment has never been brought to an end and consequently he is entitled to his salaries and allowances. Counsel prayed the Court to hold as such.

 

25.       On whether any dismissal of the Claimant could be effective when Suit No. FHC/IB/CS/65/95 was pending, learned Counsel submitted that even assuming without conceding that the letter of dismissal of 17/3/1997 could be regarded as official, the letter could not be effective in the circumstances in which it was issued in view of the pending Suit No FHC/IB/CS/65/95; that the suit was instituted by the Claimant to challenge his transfer at the time the letter was issued; that the reason for the dismissal was refusal to accept transfer; that this was the exact reason for the suit at the Federal High Court and that the letter of dismissal having been issued during the pendency of an action to set it aside is a violation of the rule of law citing Garba v. Federal Civil Service Commission (1988)LPELR-1304(SC). Learned Counsel urged the Court to so hold.

 

26.       On issue 5 whether the 1st Defendant has any role to play in the discipline of the Claimant, Counsel submitted that the 1st Defendant on whose behalf the letter of dismissal was written has no legal competence to do so; that both 1st and 2nd Defendants did not challenge paragraphs 12-17 & 36 of the statement of facts; that on point of pleadings and evidence the 1st and 2nd Defendants whose action is being sought to be quashed or invalidated have admitted the case of the Claimant as far as the validity of their letter is concerned citing NBC Plc v. Ubani (2013) LPELR-21902(SC) & Ndulue & Anor v. Ojiakor & Ors (2013) LPELR-19889(SC). Learned Counsel prayed the Court to hold that the Minister has no business with this matter at all and resolve this issue in favor of the Claimant.

 

27.       On whether the Claimant has proved his claims, Counsel submitted that the 3rd Defendant’s Governing Board has not activated anything or any procedure contained in the Claimant’s letter of employment, or Civil Service Rules or any law to bring Claimant’s employment to an end; that Claimant has stated in paragraph 32 the documents that could give a more accurate information about the salaries and allowances of the Chief Accountant and notice given to the 3rd Defendant to produce same; that there is no joinder on the Claimant’s claim in paragraph 33 of the statement of facts for =N=24,883,617 covering April 1997 to February 2011; that there is also no joinder on the Claimant’s averment that his monthly salaries and allowances from March 2011 is =N=303,600; that production of any document or salary scale to prove these facts are uncalled for since they are not denied and that this Court is not being called upon to investigate anything on this issue. Counsel cited Ndulue & Anor v. Ojiakor & Ors (2013) LPELR-19889(SC), Cappa & D’Alberto Ltd v. Akintilo (2003) LPELR-829(SC) & NBC Plc V. Ubani (2013) LPELR-21902(SC). Learned Counsel prayed the Court to grant all the reliefs sought by the Claimant.

 

5. Decision

28.       This case has a chequered history. It is probably one of its own kind in the history of this Court. I also dare say that it is perhaps the oldest in the docket of the National Industrial Court of Nigeria. Its history is traced back to 1997 when the Claimant approached the Federal High Court, Ibadan Judicial Division in Suit No. FHC/IB/CS/42/97 and sought among other reliefs, leave of Court to apply for  Judicial Review, namely, an Order of Certiorari to quash the Order of his dismissal by the 1st Respondent as contained in letter Ref. No. FMA/FRIN/vol. 1 of 17th March 1997. By a letter dated 11/11/2016 it was transferred to this Court pursuant to the Order of Transfer dated 4/7/2016 made by N. Ayo-Emmanuel J of the Federal High Court Ibadan Division. Pursuant to an order of this Court made on 9/7/2019 for the parties to file their pleadings, all the parties except the 5th Defendant filed pleadings as directed.

 

29.       The facts of this case, in brief, as revealed from the pleadings filed are that Claimant was employed by the 3rd Defendant as its Chief Accountant and Head of its Finance section. The record shows that he, at a time, wrote petition against the 4th Defendant in which he alleged that the 4th Defendant was involved in financial malpractices and embezzlement of the funds of the 3rd Defendant. The petition was forwarded to the 1st Defendant who happened to be the supervisory Minister of the 3rd Defendant. Consequent upon the petition, 1st Defendant set up a Ministerial Panel of Enquiry to investigate the affairs of the 3rd Defendant. Claimant also appeared before the Panel and made representation. The report of the Panel appeared to have indicted the Claimant, and he was transferred to the Zaria branch of the 3rd Defendant. Claimant refused to proceed on transfer. 1st Defendant as the supervising Minister intervened. Yet Claimant refused to proceed on transfer. Claimant was subsequently dismissed by a letter dated 17/3/1997. The letter of dismissal in 2 paragraphs states thus –

 

“          The Ministerial Investigation Panel set up by the Honourable Minister to investigate the crisis at the Forestry Research Institute has submitted its Report. The Report viewed with concern your activities at the Institute particularly your refusal to accept posting instructions as contained in the deployment document No: FRI/ADMIN.79/VII/267 of 24th May, 1998 even after the personal intervention of the Honourable Minister of State.

            

I am therefore directed to inform you that after due consideration of the Report of the Ministerial Investigation Panel, The Honourable Minister has approved your immediate dismissal from the services of the Forestry Research Institute for your refusal to accept transfer and in the public interest”.

 

30.       It is the evidence of the Claimant that payment of his salary which was initially stopped was resumed and that subsequent stoppage of same was after the letter dismissing him from service.

 

31.       I have read and clearly understood all the processes filed by the parties on either side. I heard the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted at trial. I also listened attentively to the submissions of learned Counsel at the stage of adopting their final written addresses. Having done all this, I set down these 3 issues for the just determination of this case thus –

  1. Whether the case of the Claimant is barred by the statute of limitation.
  2. Whether the dismissal of the Claimant by the Defendants is null and void.
  3. Whether the Claimant is entitled to all or some of the reliefs sought against the Defendants.

32.       The first issue for determination is whether the case of the Claimant is barred by the statute of limitation. Learned Counsel to 1st & 2nd Defendants Sabo Samaila of Counsel strenuously canvassed the point that the case of the Claimant is barred by the statute of limitation. His argument is that the cause of action of the Claimant arose in 1997 when he was dismissed; that he approached the Federal High Court for redress only to be sent back to the National Industrial Court and that he had 3 months within which to approach the National Industrial Court for judicial redress and not having done so within the time allowed his case is barred by statute.

 

33.       When a litigant contends that the suit against him is barred by the statute, it raises question as to the competency of the suit before the Court. It is also a challenge to the Court before which the suit is filed to exercise its judicial power over the parties and the suit. Once a Court lacks jurisdiction to hear and determine a cause or matter, it is immaterial the erudition and the genuine intention of the Judex, any effort dissipated in resolving same is an effort in futility. Now in a matter of this nature, it is imperative for the Court to first find out when the cause of action arose. This is determined by looking at the when the Claimant’s cause of action accrued; find out the date when the Claimant filed his suit and compare same with the period allowed by the statute. 

 

34.       But is the instant case barred by statute? Sabo Samaila of Counsel cited Section 2(a), Public Officer’s Protection Act as having negatively affected the suit of the claimant. Of a truth by that legislation an action in which a public officer is to be a party must be commenced against him within 3 months of accrual of cause of action. It is also true that the cause of action of the Claimant arose in 1997 following his dismissal by the 3rd Defendant. But the instant suit was not freshly commenced at the National Industrial Court of Nigeria. It was commenced in 1997 at the Federal High Court, Ibadan Judicial Division but only transferred in 2016 to this Court. I dare say that the Federal High Court rightly transferred this case to this Court having been so conferred with statutory power to do so. In this respect, Section 24(3) of the National Industrial Court Act, 2006, provides-

"Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed to include the power to make rules for the purpose of this subsection."

 

35.       It is therefore correct to state that contrary to the submission of learned Counsel for the 1st & 2nd Defendants the Federal High Court is empowered by Section 24(3) of the National Industrial Court Act, 2006, enacted by the National Assembly to transfer a matter wrongly brought before it to the National Industrial Court. Thus, it is in the exercise of that power that N. Ayo- Emmanuel J of the Federal High Court transferred this case to this Court on 4/7/2016. Accordingly, I resolve the first issue in favor of the Claimant. I hold that this case is not barred by the statute of limitation and hence the rights being ventilated are not sterile or barren.

 

36.       The second issue for determination is whether the dismissal of the Claimant by the Defendants is null and void. Part of the reliefs sought by the Claimant and indeed his second relief is for -

 

“Declaration that the purported dismissal of the Claimant by the 1st Defendant is invalid, null, void and of no effect whatsoever and that the Claimant is entitled to salaries, allowances and emoluments attach to the office of the 3rd Defendant’s Chief Accountant”.

 

37.       Firstly, declaratory reliefs are discretionary remedies. They are not granted as matter of course. A declaratory relief is not just for asking and receiving. An applicant for it must satisfy the Court that he is entitled to same in the fullest meaning of the word.

 

38. In Attorney General of Rivers State v. Attorney General of the Federation & Anor (2022) LPELR-57708(SC), commenting on the nature and the granting of declaratory relief, Ogunwumiju, J.S.C said -

"A declaratory relief is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. Although the power to make a binding declaration of right is a discretionary power, the Plaintiff must establish a right in relation to which the declaration can be made. The claim to which the declaratory relief relates must be substantial. Thus, a declaration will only be granted where there is a breach of a right. It is the practice that a declaratory relief will be granted where the Plaintiff is entitled to relief in the fullest meaning of the word. Furthermore, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant. It should also not be contrary to the accepted principles upon which the Court exercises its jurisdiction." 

 

39.       The same position was taken by Uchechukwu Onyemenam, JCA in Solomon U. Salami v. Okogbo Community Bank Limited & Ors (2022) LPELR-57584(CA) when his lordship stated emphatically that a declaratory judgment is discretionary and that it is granted only where the plaintiff is able to convince the Court, that where all facts are taken into account, he will be entitled to the exercise of the Court's discretion in his favor. Thus, the Claimant is under an obligation to satisfy the Court on his entitlement to the declaratory relief sought against the Defendants.

 

40.       In an action of this nature where an applicant seeks a declaration nullifying his disengagement from service the caselaw is replete of the burden he must discharge. In a long line of judicial decisions from Katto v. C.B.N. (1999) NNLR (Pt. 607) 390, and Bamgboye v. Ilorin (1996) 6 SCNJ 295 at 323-324,  Anaja v. UBA Plc (2010) LPELR-3769(CA) to Skye Bank Plc v. Adegun (2024) LPELR-62219(SC), the Courts have held that the Claimant who alleges wrongful dismissal has the onus of proving this assertion. He must show and satisfy the Court, the terms of his employment and the way and manner those terms were breached by the employer. This is because the foundation for seeking nullity of the disengagement in the first place is a breach of the terms and conditions of engagement. It is not for the employer to prove anything until the employee discharges the burden on his shoulders. Now what are the terms and conditions of engagement between the Claimant and his employers? How and in what manners were those terms and conditions of engagement breached by the employer? These are questions for the Claimant to provide answers to. In proving his case, Claimant tendered 14 exhibits, marked as Exh. C1 – Exh. C14. Exh. C1 is the offer of appointment to the Claimant and Exh. C2 indicates his Salary on Appointment. Exh. C3 is Appointment of a New Head of Finance. Exh. C4 is Affidavit in Support of Motion deposed to by one Dr. Isaac I. Ero – the 4th Defendant. Exh. C5 is a Circular on Appointments, Promotions, Transfers and Posting of Officers while Exh. C6 is a Circular on Repeal of the Civil Service Decrees. Exhs. C7, C9, C10 & C14 are various Orders issued at different times by the Federal High Court, Ibadan Judicial Division. Exh. C8 is the letter of dismissal issued to the Claimant while Exhs. C11, C12 & C13 are documents dealing with finances of the Defendants.

 

41.       Now what are the terms and conditions of engagement binding the Claimant and his employers? Only Exh. C1 provides some information in this respect. That exhibit is the Offer of Appointment issued to the Claimant on 20/2/1991. The second paragraph of the exhibit provides some information on the applicable terms. It states that –

“Your appointment which is at the pleasure of the GOVERNING BOARD, FORESTRY RESEARCH INSTITUTE OF NIGERIA, IBADAN is subject to the current rules and regulations approved for the Federal Public Service of Nigeria as well as other regulations which may be stipulated from time to time by the GOVERNING BOARD, FORESTRY RESEARCH INSTITUTE OF NIGERIA, IBADAN or its duly Authorised Agent”.

 

42.       What this exhibit has done in essence is to give a direction as to where to look for the terms of engaging the Claimant. The exhibit referred to the current rules and regulations approved for the Federal Public Service of Nigeria as well as other regulations which may be stipulated from time to time by the GOVERNING BOARD, FORESTRY RESEARCH INSTITUTE OF NIGERIA, IBADAN or its duly Authorised Agent. Those rules and regulations are not before this Court in the instant case. It is for the Claimant to provide those rules and regulations. It is also his duty or that of his Counsel to draw the attention of the Court to how the applicable rules and regulations were breached by the Defendants. Until the Claimant satisfies these conditions he would not be entitled to the grant of the declaration sought in the fullest meaning of the word according to Ogunwumiju, JSC as pointed out in Attorney General of Rivers State v. Attorney General of the Federation & Anor (2022) LPELR-57708(SC). Interestingly, the Claimant while under cross examination on 17/4/2024 testified, among others, that “.. that the staff of 3rd Defendant are regulated by the Federal Civil Service Rule...” Unfortunately, the applicable Federal Civil Service Rule was not placed before the Court. Should the Court have gone in search of the Federal Civil Service Rule? Absolutely No.

 

43. It is not the duty of a Court, as noted by Kekere-Ekun, J.C.A (as he then was) ((Now Hon CJN) in Lawal v. Eleko & Ors. (2010) LPELR-4426(CA) to go in search of evidence in support of a party outside of what is presented. The duty of the Court is simply that of an Adjudicator and NOT an Investigator. To do otherwise will turn the Judex to a partial arbiter.

 

44. There is no foundation upon which to resolve this issue in favor of the Claimant. The terms and conditions of his engagement which are sine qua non to the granting of the declaratory relief sought is not made available to the Court. Accordingly, I refuse to grant the declaration sought. I hold that the dismissal of the Claimant by the Defendants is not null and void. I resolve this issue in favor of the Defendants.

 

 45.      The third issue for determination is whether the Claimant is entitled to all or some of the reliefs sought against the Defendants. The resolution of issue 2 against the Claimant makes the consideration of this issue almost otiose. This is for the simple reason that all the reliefs sought by the Claimant rest on a positive declaration being made in his favor respecting the nullity of his dismissal. Thus with the holding that his dismissal is not null and void there is nothing upon which to found any reliefs. There is therefore nothing else to add especially regarding reliefs 1, 2 & 3. I am however inclined to, for whatever it is worth, comment on relief 4. The relief is for –

“Payment of the salaries, allowances, emoluments and entitlements of the Claimant from April 1997 till December 2020, amounting to =N=60,404,817 (Sixty Million, Four Hundred and Four Thousand, Eight Hundred and Seventeen Naira) and further payments thereafter for the duration of the Claimant’s employment”.

 

46.       It is trite that the sum claimed by the Claimant here is a sum certain. It amounts to a claim in special damages. The law requires that it be specially pleaded and strictly proved. It is unfortunate that Claimant in seeking to prove this head of claims did not think it fit, to at least, exhibit his payslip. This would have showed how much he was paid by the Defendants monthly as salary and allowances. The question thus arises as to how he arrived at the figure claimed. Secondly, Claimant sought payment of his salaries, allowances, emoluments and entitlements from April 1997 till December 2020, amounting to =N=60,404,817 (Sixty Million, Four Hundred and Four Thousand, Eight Hundred and Seventeen Naira) and further payments thereafter for the duration of the Claimant’s employment.

 

47.       Yet while being cross examined by Festus Adesiyan of Counsel to the 3rd & 4th Defendants on 17/4/2024 testified inter alia that -

“... that the staff of 3rd Defendant are regulated by the Federal Civil Service Rules; that Federal Civil Servants retire at the age of 60 years; that he was 60 years old on 16/10/14...”

 

48.       In other words, Claimant admitted he would have retired from the 3rd Defendant on 16/10/2024 upon attaining the age of 60 years. Yet his Counsel sought payment of salaries and allowances to him till 6 years even after retirement. This head of relief is not proved as required by law. It is therefore refused and dismissed. The claim for =N=500 million in damages against the 1st to 4th Defendants is also refused and dismissed for lacking in merit. It is apparent that none of the reliefs sought by the Claimant is proved. None is accordingly granted. 

 

46.       Before I draw a curtain on this Judgment, I am inclined to make a comment or two on this case. This is one case that would have been avoided with perhaps some measure of discretion. Claimant has been in Court in this case since 1997. About 4 different Hon Judges of different Courts have had to handle his matter. Claimant has been out of job since 1997. He is now elderly. He attained age 60 in 2014, according to him. He has advanced in age and well over 70 years by now. Every time he appears in this Court, the human in me is stirred up and aroused. I wished I could help the Claimant. Unfortunately, it is late in the day. Perhaps if the Claimant had proceeded to Zaria on posting in 1997, more importantly after the personal intervention of the 1st Defendant who happened to be the supervising Minister of the 3rd Defendant all this litigation would have been avoided. 

 

47.       In virtually all establishments be it public service or private workplace, insubordination or disobedience is never taken lightly. The Courts also have taken a stand to frown at any act of insubordination. In Alhaji Ibrahim Abdullahi v. The Military Administrator & Ors. (2009) LPELR-27(SC), the Appellant had rebuffed his lawful retirement. He sought positive protection from the Court. In dismissing his appeal, Ogbuagu, JSC said “the appellant was lucky that he was not dismissed for insubordination to lawful authority”.

 

48.       In Chinedu Oguejiofor v. Access Bank Plc (2020) LPELR-49583(CA) Tobi, J.C.A  citing University of Calabar vs. Essien (1996) 10 NWLR (Pt.477) 225 & Tellat Sule v. Nigerian Cotton Board (1985) 6 S.C. 62; (1985) 2 NWLR (Pt. 5) 17 at 38 had held that “disobedience of an employer's lawful order and/or insubordination by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the employee concerned”. 

 

49.       Earlier Andrew Otutu Obaseki, JSC of blessed memory had pointed out emphatically in Tellat Sule v. Nigerian Cotton Board (1985) 6 S.C. 62; (1985) 2 NWLR (Pt. 5) 17 that-

 

"When a servant grows too big to obey his master, the honourable course open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law book no disobedience of lawful order from any servant, high or low, big or small. Such conduct normally and usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishment”. 

 

50.       In his contribution to the Judgment in Tellat’s case, Chukwudifu Oputa, J.S.C. in no mistaken terms asserted thus –

 

"I cannot conceive any "Terms and Conditions of Service", be it the civil service conditions or the Boards, that will legalise disobedience to lawful order and instruction or tolerate insubordination..."

 

51.       Maybe. Just maybe if the Claimant had exercised some discretion and obeyed his posting to the Zaria branch of the 3rd Defendant the time, emotions and resources invested in this unproductive venture for almost 3 decades would have been avoided. Again, unfortunately, it is late in the day and the deed is done. Discretion is said to be the better part of valour. I say no more!

 

6.         Conclusion

52.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety.

 

53.       I make no order as to cost.

 

54.       Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge