IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORTHARCOURT JUDICIAL DIVISION

HOLDEN AT OWERRI

 

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE S.H. DANJIDDA    

 

DATE: 23^rd January, 2018                                 

 

 SUIT NO: NICN/YEN/87/2016

BETWEEN

1. IHUA FRIDAY
2. OLU CHRIS IKULCHAN CLAIMANTS
3. M ELISON
4. LONGJOHN FURO
5. NZEKWE ANNE
6. AMAIBINYE TARIGHA JOSEPH and 91 other

Members of Staff of the Ignatius Ajuru, University

Of  Education,Rumuolumeni Portharcourt whose

Names are set out in Schedule A attached herewith.

AND

1. GOVERNOR OF RIVERS STATE OFNIGERIA
2. ATTORNEY- GENERAL OF RIVERS STATE OF DEFENDANTS

 NIGERIA

3. IGNATIUS AJURU UNIVERSITY OF EDUCATION

 

 

 

 

 

 

REPRESENTATION:

D.O Okoro Esq for the Claimants

Frank Onyiri Esq  Ag(DDCL) Rivers State Ministry of Justice for the 1^st and 2^nd Defendants.

Isa Seidu Esq for the 3^rd Defendant

                                                         RULING

This is a ruling in respect of a preliminary objection filed by the 3^rd Defendant against the Claimants’ suit. The preliminary objection was filed on the 10/10/2016 and it challenged the competence of this suit that this Hon. Court lacks the requisite jurisdiction to entertain same against the 3^rd defendant. The grounds of the objection are as follows:-

 

1. That the suit discloses no reasonable cause of action against the 3^rd Defendant.
2. That the claimants’ claims are not directed against the 3^rd Defendant but the 1^st Defendant who is already constitutionally represented by the 2^nd Defendant.
3. The National Industrial Court lacks jurisdiction to entertain the suit against the 3^rd Defendant.
4. It is necessary in the circumstances that this Hon. Court makes an order striking out the name of the 3^rd Defendant and or the suit against the 3^rdDefendant.

Upon its grounds of objection, the 3^rd Defendant formulated two issues for determination.

1. Whether the claimants’ claims as presently constituted discloses any cause of action and or/ reasonable cause of action against the applicant.
2. Whether in Law the claimants’ suit is maintainable against the 3^rd Defendant.

          In arguing the 2 issues together, counsel for the 3^rd Defendant submitted                  that a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It includes those things necessary to give a right of action and every fact which is material to be proved to entitle the plaintiff to succeed. He cited the case of Onyekwusi V. R.T.C.M.Z.C (2011) NWLR Pt 1227, 153

  Counsel further submitted that a cause of action is the bundle of facts which entitles an aggrieved individual to sustain an action and seek for available judicial remedies or redress. It consists of every fact that would be necessary for the plaintiff to prove if traversed, in order to Support his right to the Judgment of the court. Such facts or combination of facts which will give rise to a right to sue consist of 2 elements, viz,

1. the wrongful act of the Defendant which gives the plaintiff his cause of action.
2. the consequential damage arising from the wrongful act of the defendant.

Counsel referred to the case of AGF  V. Abubakar (2007) NWLR (Pt. 1041).

It is the submission of the 3^rd Defendant’s counsel that the jurisdiction of the court is linked to a cause of action and a court is enjoined to engage in a holistic review of same in order to determine whether the facts stated in the writ of summons or statement of claim are such that it could exercise jurisdiction over. When the claim does not disclose a cause of action, the court cannot properly assume jurisdiction to entertain the matter. It is a sine quo non for the commencement of action. Counsel relied on the case of  Madukolo V. Nkemdili (1962) 2 NSCC Pg 374.

It is the further submission of Counsel that a cause of action must be reasonable and in determining whether a suit discloses reasonable cause of action, the court will necessarily restrict itself to an examination of the writ of summons and statement of claim. He relied on 7up Bottling Co. V. Abiola & Sons (2001) NWLR (Pt 730) 469.

 

The 3^rd Defendant argued that it has painstakingly examined the affidavit in support of the Claimants’ Originating Summons and it is obvious that the facts therein do not disclose any cause of action against the 3^rd Defendant. That it is only in paragraph 12 of the affidavit in support that the 3^rd Defendant is mentioned and this is only aimed at explaining the action of the 1^st Defendant.

That throughout the entire affidavit in support of the originating summons there is no deposition stating the wrongful act of the 3^rd Defendant that can lead to a consequential damage to ground an action against the 3^rd Defendant for any relief sought by the claimants. Counsel relied on the case of Bessoy Ltd V. Honey Legon (Nig.) Ltd (2010) ALL FWLR Pt 503.Chevron Nig. Ltd V. Lone Star Drilling  (Nig). Ltd (2007) NWLR Pt 1059, 168.

It is the contention of the 3^rd Defendant that the claimants cannot acquire a right under a repealed legislation and seek to enforce it. That Exhibit C which derives its sources from a repealed legislation cannot give rise to a cause of action against the 3^rd Defendant. Counsel cited the case of Obeta  & Anor V. Okpe (1996)NWLR Pt 473 Pg 401.  Uwaifo V. A.G. Bendel State & Ors (1982) 7 SC Pg 124.

It is also the contention of the 3^rd Defendant that the claimants have failed to place before this court the Rivers State University of Education Law of 2009 which the claimants sought the court to construe some sections of the said law. Counsel referred to the  case of  Habib Nig. Bank Ltd V. Gift Uniqu Nig. Ltd (2004)12 CLRN   Pg. 62.

It is the further contention of the 3rd Defendant that in the event the court decides  otherwise, in the alternative the 3^rd Defendant ought not to have been sued in this case because of the presence of the 2^nd Defendant ie Attorney General of Rivers State. Counsel relied on section 195 of the 1999 constitution as amended and the cases of Ray Emeana V. Imo State Govt. 3Ors (2013)38 NLLR (Pt 117) Pg 275, Nig. Engineering Works Ltd V. Denaph Limited(2001) NWLR Pt 746, 752, A.G Adamawa V A.G.F. (2006), MJSC 34-35,A.G Anambra V. AGF (2007) All FWLR (Pt 379) 1218.

 Counsel finally urged the court to grant his application.

In response to the preliminary objection, the claimants’ counsel filed a written address on the 15/11/2017 but dated 13/11/2017.Counsel adopted the issues for determination formulated by the 3^rdDefendant.

 Counsel argued that the claimants’ claims disclose a reasonable cause of action against the 3^rdDefendant and that the action is maintainable against it^.  Counsel submitted that in order to ascertain a cause of action, the immediate materials a court is enjoined to look at are the originating processes and in the instant case, it is the affidavit in support of the originating summons and the relief  sought. Counsel referred the court to the case of Emeka V. Chuba- Ikpeazu (2017) NWLR (Pt 1589) 345.     

 

Counsel referred to reliefs 1,2,5 and 6 of the originating summons and the depositions at paragraphs 6,7,8,9,10,12,13,14,15 and 16 of the affidavit in support of the originating summons which  relate to and affect the 3^rd Defendant thereby  disclosing a reasonable cause of action.

To the counsel, a claimant will have a cause of action when his originating processes reveal that there has been an infraction or trespass to his rights and obligations.

Counsel further submitted that Exhibit C does not derive its source from a      Repealed law as contended by the learned counsel for the 3^rd Defendant. He referred   to section 1(1) of the Rivers State University of Education Law 2009 and Lagos State Bulk Purchase Corporation V. Purification Techniques Nig. Ltd (2013) NWLR Pt. 1352, 82.

Counsel also referred to the 3^rd  Schedule to the Rivers State University of Education Law No.8 of 2009 which provides for saving provision.                                         It is the submission of counsel that the 3^rd schedule to the Rivers State University of Education Law 2009 is also part and parcel of the said law. He referred to the case of Saraki V. F.R.N (2016) NWLR  (Pt 1500) 531.

 On the contention of the 3^rd Defendant that the Rivers State University of Education Law 2009 is not attached to the claimants’ affidavit in support of the originating summons, counsel referred the court to section 122(2) of the Evidence Act 2011 which says that a court of law can take Judicial notice of all laws or enactments. He also cited the cases of Lafia Local Govt V. The Executive Governor of Nasarawa State (2012) NWLR  Pt 1328, 94, JUKOK International Ltd V. Diamond Bank Plc (2016) NLWR  Pt 1507, 58.

On the contention of the 3^rd Defendant that its name shall be struck out  from  the suit since the Attorney General is sued, counsel argued that section 195 of  the 1999 constitution as amended established the office of the Attorney General of each State and stipulated the qualification of any person who can be so appointed without  more but did not oust the jurisdiction of the court  to adjudicate on a matter where a statutory body established  by law with perpetual succession and common seal and can sue and be sued in its corporate name is a party.  Counsel  referred the court to the cases of A.G. Anambra V. AGF (Supra) and A.G. Kano State V. AGF (2006) NWLR Pt 1029, 164.

Counsel finally urged the court to hold that the claimants’ suit as presently constituted discloses a reasonable cause of action against the 3^rd Defendant and that the suit in law is maintainable against the 3^rdDefendant being a statutory body and that the preliminary objection be dismissed.

 

COURTS’ DECISION

 The 3^rd Defendant formulated 2 issues for determination which were adopted by the claimants’ counsel and I intend to take the issues serially.

 

Issues No.1

It was the contention of the 3^rd Defendant that the claimants’ claims did not disclose any cause of action against the 3^rd Defendant.

 A cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the claimant or plaintiff a substantive right to make the claim against the relief or remedy being sought. That the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. See Bello V. Attorney General Oyo State (1986) NWLR (Pt 45) 828.

In Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR  (Pt 102), 122. It was concisely stated that a cause of action is any act on the part of the defendant which gives to the plaintiff his cause of complaint.

As can be seen from the definition of cause of action, the proposition resolves in to two crucial factors thus:-  the defendants wrongful act and the consequential damage to the plaintiff. These two factors must coexist to constitute a cause of action before the court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the plaintiff’s case. See Eseigbe V. Agholor (1990) NWLR (Pt. 161), 234.

It needs to be stated here that the contention of the 3^rd Defendant that the claimants have no reasonable cause of action against it will be determined by examining the averments made in the Claimants’ affidavit in support of the originating summons. It has nothing to do with the nature of the Defendants’ defence. This court will only confine itself to the averments in the affidavit in support of the originating summons to assess whether there is a reasonable cause of action or not.

I need to examine here the facts averred by the claimants in their affidavit in support of the originating summons. The relevant facts averred are at paragraphs 5,6,7,8,9,10,12,13,14 and 15 of the said affidavit which read as follows:

 

5-      The 3^rd Defendant is a statutory Institution set up by law in 2009 as Rivers State University of Education and its solely owned, funded and established by the Rivers State Government. It is a successor to the Rivers State University of Education Porthacourt which was established in 1981. In 2010 the Rivers State University of Education was renamed Ignitus Ajuru University of Education by the Rivers State Government.

6-      The claimants are members of staff of the 3^rd Defendant having been employed with the approval of the governing council of the 3^rd Defendant at various times just like every other staff of the 3^rd Defendant.

 

7-      Copies of the appointment letters and or regularization of appointment letters of the claimants are respectively attached and collectively marked as (Exhibit ‘A’).

8-      The claimants’ appointments were duly confirmed by the 3^rd Defendant at various times whereupon letters of confirmation of appointment were issued to the claimants. Copies of the said letters are attached herewith and collectively marked as Exhibit ‘B’.

9-      The claimants who are Senior Staff of the 3^rd Defendant are teachers in the 3^rd Defendant’s Sea Shell Model Primary School, Portharcourt and Demonstration Secondary School, Ndele respectively.

10-     Pursuant to the setting up the Rivers State College of Education, the governing council passed the regulation governing the condition of service of Senior Staff (the claimants inclusive). A copy of the said regulation, which is the operative regulations governing the condition of service of Senior Staff of the 3^rd Defendant is attached hereto and marked as Exhibit ‘C’.

12-    At all material times, the salaries of the claimants were paid by the Government of Rivers State through the 3^rd Defendant until sometime on or about15/2/2016 when the 1^st Defendant directed the stoppage of the payment of claimants’ salaries with effect from the end of February 2016.  A photocopy of the Tide Newspaper publication of 19/2/2016 capturing the said directive is attached and marked as Exhibit ‘E’

13-    All entreaties to the 3^rd Defendant individually and through our Association, Senior Staff Association of Nigeria Universities (SSANU) for the payment of our salaries have so far fallen on deaf ears.

14-    Apart from the claimants all other members of staff of the 3^rd Defendant have been paid their salaries for February 2016, March 2016 and April 2016.             

15-    At our instance, our solicitors wrote a letter to the 1^st Defendant and copied the 3^rd Defendant amongst others, demanding for the payment of our salaries with effect from the end of February, 2016. A copy of the said letter dated 15/4/2016 is attached hereto and marked as Exhibit ‘F’

 The above averments clearly show that the claimants are employees of the 3^rdDefendant and their employments were confirmed by the 3^rd Defendant. From the averments also, the salaries of the claimants were paid by the 1^st Defendant through the 3^rd Defendant until when the salaries were stopped. There were also entreaties to the 3^rd Defendant and a solicitor’s letter copied to it for the payment of the claimants’ salaries which fell on deaf ears.

 

Following from the above, this Court is of the opinion that these averments clearly entitle the claimants to hearing on merit of their case and I do not agree with the learned counsel for the 3^rd Defendant that there is no valid cause of action, I believe there is. I do not also agree with the 3^rd Defendant that its name was only mentioned once in the claimants’ affidavit. Whether the action will succeed or fail is quite a different matter. We are not yet there. See Chevron Nigeria Limited V. Lonestar  Drilling Nigeria Limited (2007) LPER 842 (SC ).

In the light of the above therefore, I find that issue No.1 fails and I am satisfied that there is a reasonable cause of action against the 3^rd Defendant.

3^rd Defendant’s issue No.2 raises the contention that the claimants’ suit is not                  maintainable against the 3^rd Defendant.

The 3^rd Defendant rightly submitted that a person cannot acquire a right under a repealed legislation and seek to enforce same after the legislation that gave him the right has been repealed. Its settled that once a statute is repealed, it has completely ceased to exist and it can no longer be basis for commencement of action or proceedings in a court. See Enabofo and Anor  V. Umoren (2010) LPELR – 4547 CA.

In Emelogu V. State (1998) LPELR – 1126 ( SC ) it was held that when an Act is repealed, any delegated legislation under it falls to the ground unless it is expressly preserved and it can be preserved either in the substituted legislation or by reference to the interpretation Act.

It was the contention of the 3^rd Defendant that Exhibit C which is the regulation governing staff condition of service derived its source from the 1^st schedule of Rivers State College of Education Law 1981which was repealed or amended hence the action must fail against the 3^rd Defendant.

I wish to observe here that although the Rivers State College of Education   Law of 1981 was repealed by section 27 of the Rivers State University of Education Law No.8 of 2009 but the entire assets, rights, obligations, liabilities and properties of the Rivers State College of Education were transferred to the Rivers University of Education.

I have gone through the provisions of section 1(1) of the Rivers State University of Education Law No.8 of 2009, paragraphs1 (3-6) and paragraphs 2(4) of the 3^rd schedule of the said law, I am of the opinion that Rivers State University of Education established under the 2009 Law is a successor to the Rivers State College of Education established under 1981 Law. I also agree with the learned counsel for the claimants that there are also saving  provisions  under the 2009 Law which validate all that was done by and in the name of the erstwhile Rivers State College of  Education.

It is also clear from the said provisions that all the assets, rights, obligations, liabilities, agreements and regulations governing staff condition of service under the Rivers State College of Education were taken over by the 3^rd Defendant and deemed to have been entered in to by the 3^rd Defendant.

In the circumstances, I find the contention of the 3^rd Defendant that Exhibit ‘C’ derives its source from a repealed law as discountenanced.           .

I wish to also find against the contention of the 3^rd Defendant that because the Rivers State University of Education Law No.8 of 2009 was not attached to the claimants’ affidavit then the claimants’ action must fail. I wish to state that it is well settled that facts which the court must take judicial notice need not be proved.

Section 122(2) Evidence Act 2011 enjoins the court to take judicial notice               of among others all laws or enactments and any subsidiary legislation                          made there under having the force of law now or in force or hereafter                      to be in force in any part of Nigeria.

In Oluwadare Famubu  V. Adekunle (1988)  NWLR (pt 79) 723, CA. it was held that the trial court was entitled to have taken judicial notice of the customary law of Ondo State and subsidiary legislation there under.

In Haruna V. University of Agric Makurdi (2005) NWLR pt. 912, 233, it was held that the court shall take judicial notice of Decree 48 of 1992 which governed the condition of service of the appellant.

On the contention of the 3^rd Defendant that its name shall be struck out as such it ought not to have been sued because of the presence of the 2^nd Defendant as a party, I have earlier on said upon examination of the averments in the affidavit in support of the claimants’ originating summons that there are depositions that are directed at the 3^rd Defendant in respect of the dispute in this case. I think the 3^rd Defendant ought to be joined in this suit as the employer of the claimants and being a body corporate with common seal and can sue and be sue as provided by section 1(2) of the Rivers State University of Education Law No.8 of 2009. I therefore find the 3^rd Defendant’s contention on this point untenable. The cases of AG Anambra StateV AGF (supra) and AG Kano State V AGF (supra) are apposite.                                          

I believe that the paragraph referred to by the 3^rd Defendant in the case of Ray Emeana V. Imo State Government (Supra) was quoted out of context. The argument of the 3^rd Defendant cannot stand going by the decisions of the Supreme Court in A.G.Anambra State case and A.G. Kano State case (Supra).

In the circumstance, all the two issues raised by the 3^rd Defendant are resolved against it. The notice of Preliminary is hereby over ruled and it is accordingly dismissed.

 

Ruling is entered accordingly. I make no order as to cost.

 

 

……………………………………

HON. JUSTICE S.H. DANJIDDA

JUDGE