Chibuzor Ogbonna v Government Of Abia State Anor
| Judge | Hon. Justice O. Y. Anuwe |
| Judgment Date | 15 July 2016 |
| Respondent | Government Of Abia State Anor |
| Appellant | Chibuzor Ogbonna |
| Docket Number | NICN/OW/58/2015 |
| Counsel | <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"">Okey |
| Court | National Industrial Court (Nigeria) |
On the 15th
day of April 2016 when this matter came up for hearing of a preliminary
objection filed by the Defendants herein, challenging the jurisdiction of this
court, Counsel for the Claimant applied and urged the Court to consider the Preliminary
Objection of the Defendants during the final judgment of the Court in order to
accommodate a defence available to
the Claimant. In other words, the court should proceed to trial and then
consider the Defendants’ Preliminary Objection alongside the facts of the case
its final decision.
Counsel on both
sides raised arguments, and subsequently, this court granted them leave to file
addresses as regards the point being raised by Counsel as to whether the court
can defer the hearing of a preliminary objection challenging its jurisdiction
where one has been raised.
Parties complied
accordingly and filed addresses.
According to
Counsel for the Claimant, this application was sequel to an earlier Ruling/Judgment
of this Court delivered on 21st January 2016 in Suit No. NICN/OW/108/2014
in the case of BARR.
the Claimant/Respondent to the Preliminary Objection on the ground that at that
stage of the ruling on the
Preliminary Objection (i.e before taking evidence), the Court was concerned
with the competence or the suit and not the liability of the Defendants/Applicants. The defence was that the
Defendants/Applicants acted outside the colour of their offices in prematurely
retiring the Claimant/Respondent from the Civil Service of Abia State and in
violation of the Abia State Public Service Rules and the terms of his
employment. According to
Counsel, the instant case has a similar
defence; hence the application of Counsel for the Claimant/Respondent. To Counsel for the Claimant, the Defendants/Applicants’
prayer that the Court should consider the Preliminary
Objection first, has the implication of the Court ignoring or shutting out the
Claimant/Respondent from the defence available to him.
Counsel raised the following issues for determination:
(a) Whether this Court has discretion on the stage at which to
consider a Preliminary Objection and in relation to the
peculiar facts and circumstances of the case.
(b) Whether this Court has the mandate to do substantial justice
but not technical justice.
(c) Whether the Defendants/Applicants will suffer any miscarriage of justice
or will be prejudiced
if their Preliminary Objection is considered
during the final judgment of this
Court.
In arguing the first issue, Counsel for the Claimant submitted that every court of law is imbued with inherent powers and
discretion in the conduct of matters before it and
as guided by the principles of justice and fairness. In other words, the Court
has the powers and discretion to regulate its proceedings unless otherwise
expressly stated in the Law or Rules guiding the proceedings of the Court or where there is a binding case law
on the issue.
Counsel relied on the case of ALIYU vs. ALMU (2013) LPELR-21857 (CA) where
"discretion" was defined
as " ... the Judge's assessment of what is fair and just to
do in a particular case". He referred also to the
authorities of NGWU vs. ONOH (2006) All FWLR (Pt. 303) 303 at 375; IWUJI vs. FEDERAL
(2002) FWLR (Pt. 122) 188. Counsel cited the case of ONOVO
& ORS vs. MBA & ORS (2014) LPELR-23035, where the
Supreme Court defined "discretion" as "equitable decision of
what is just and proper under the circumstances or liberty or
privilege to decide and act in
accordance with what is fair and equitable under the peculiar case guided by
the principle of law".
It is the
submission of Counsel that in exercising such discretion, the courts are
enjoined to do so judicially and judiciously.
According to him, "Judicially" according to the Supreme Court per
Adekeye JSC in UBN PLC vs. ASTRA
exercised in official capacity in a manner which appears to be just and proper
under a given situation". He also cited the Black Law Dictionary 8th edition’s definition of "judicious"
as being "Well-considered; discreet;
wisely circumspect".
Counsel cited the
case of ERONINI vs. IHEUKO (1989) 2 NWLR
(Pt. 101) 46 at 60- 61, where the Supreme Court had this to say in relation
to the phrase “judicial and
judicious" in relation to the exercise of the Court's judicial discretion as
follows:
"Acting judicially imports a
consideration of the interest of both sides and weighing them in order to arrive
at a just and fair decision. Judicious
means:
(a)
proceeding from or showing
sound judgment;
(b) having or exercising sound judgment
(c) marked by discretion, wisdom and good sense ".
He proceeded to
submit that in the instant case, the Court is faced with the two options of
either giving its Ruling/Judgment on the Preliminary Objection before taking
evidence thereby shutting the Claimant/Respondent from a defence available to
him. Alternatively, it is for the Court to rule on the Preliminary Objection
during the final judgment and after taking evidence thereby considering all the defences available to the
Claimant/Respondent. Thus, the necessary
consideration in the light of the foregoing premises is for the Court to now determine in the light of the peculiar facts and
circumstances of the instant case what is fair and just. In doing so, the Court
will be guided by what the parties will gain or lose if either option is
adopted. If the first option is adopted (i.e ruling on the Preliminary
Objection before taking evidence) the Defendants/Applicants will lose nothing, but the Claimant/Respondent will
lose or be denied a defence available to him which invariably leads to denial
of justice and fair hearing in view of the disposition of this Court in the
earlier cited case of BARR. OKECHUKWU UDENSI KANU vs. GOVERNMENT OF ABIA
(i.e taking evidence and considering the Preliminary Objection during the final
judgment) the Defendants/Applicants will still lose nothing, while the
Claimant/Respondent would have been given an opportunity of being heard on that
particular line of defence. Counsel therefore submitted that the latter
approach will meet the justice of the instant case pursuant to the "just" and "fair" guidelines.
It is Counsel’s further submission that another guide to this Honourable Court is as to the weight of the defence
of the Claimant/Respondent that may be shut out and its likely impact on the
instant case. The second Relief sought by the Claimant/Respondent in his
Amended Claim is:
"2. A
employment by prematurely retiring him
is ultra vires, unlawful, null and
void and of no effect whatsoever"
According to
Counsel, this relief is weighty enough because
if the Court finds that the Defendants/Applicants
had no power to enact the said Circular, it means that that action is a nullity
ab initio, This is because you
can't place something on nothing and expect it to stand; it will fall pursuant
to the decision in UAC vs. MCFOY. Thus, if the action of the
Defendants/Applicants is a nullity ab
initio, it means that the
Preliminary Objection has no legs to stand on. And in a case or ultra
vires act, it is not susceptible to any
statute of limitation such as the Public Officers (Protection) Act/Law being an
illegality, nullity, void and non-existent act.
Counsel cited the case of UNIVERSITY OF IBADAN vs. GOVERNMENT OF KWARA STATE & ORS (2012)
Appellant for overriding public interest. It was in 2009 (i.e 18 years after) that the Appellant filed the suit against
the revocation. The Respondents raised a Preliminary Objection to the suit
contending that it was statute barred. The lower Court upheld the objection. On
appeal, the Court of Appeal held that the revocation was a complete nullity as
the Respondents had no power to revoke a land belonging to the Federal
Government or any of its agencies such as the Appellant; hence the suit was not
caught up by the Limitation Law of Kwara State. According to the Court of
Appeal, the revocation was tainted with illegality and inconsistent with
Section 49( I) or the Land Use Act and therefore incapable of being protected
by the Public Officers (Protection) Law of Kwara State. The Court or Appeal
pursuant to numerous decided authorities held that the Public Officers
(Protection) Act and the Limitation Law of Kwara State will not protect the
Respondents, having acted beyond their powers and in utmost bad faith.
Also in an earlier case of ISIAK MOYOSORE vs.
Mbaba JCA admonished thus:
"But while trying to ensure that a free channel remains for genuine complaints to be raised against unnecessary or hopeless/frivolous litigations,
meant to stress the limits of the Court’s powers, care must be taken by the Court
(which also is expected to be
vigilant to guard its jurisdiction jealously) to refuse any ploy by the defendant to shortchange the
plaintiff and deny him access to redress on frivolous challenge of jurisdiction.
Thus, the Defendant's penchant for throwing the punch of lack of jurisdiction, should not be allowed to provide
a cover or bunker for him to hide away
from...
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