IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 10th January 2019   

               

SUIT NO. NICN/LA/683/2016

 

BETWEEN

 

OLATUNJI SALIU HAWAW

                                       

APPLICANT

 

AND

 

1.   DR. MRS. YEWANDE JINADU                       

2.   DIRECTOR, FEDERAL MEDICAL CENTRE

EBUTE METTA

3.   FEDERAL MEDICAL CENTRE EBUTE METTA 

    

RESPONDENTS

         

REPRESENTATION:

 

Mutiat Ololu-Balogun for the Claimant

Christopher Olugbenga Omolabi Esq. with Busola Oki [Ms.] for the 3rd Defendant.

1st and 2nd Defendants absent and unrepresented by Counsel.

 

JUDGMENT

 

1.   This action was commenced by Motion on Notice dated 21st October 2016 and filed on 7th November 2016. The Applicant claimed against the Respondents as follows:

 

a.   An order of certiorari bringing to this Honourable Court for the purpose of being quashed the proceedings of the Interview Panel or Committee however so called of the 3rd Defendant that sat on the 12th day of October 2016 at the Federal Medical Center Ebute Metta, Railway Compound Ebute Metta Lagos.

 

b.   A declaration that the refusal of the 1st Defendant to interview the Claimant only because she put on her hijab is discriminatory and a violation of section 42 of the Constitution of the Federal Republic of Nigeria 1999 [as amended].

 

c.   An order prohibiting the Defendants from further discriminating against the Applicant only because she wears or puts on her hijab.

 

d.   An order mandating the Defendants to conduct another interview and allow the Applicant to be interviewed by the interview Panel or Committee however so called and decide whether or not she is eligible for the job.

 

e.   The cost of this action jointly and severally against all the Defendants.

 

f.    And such further orders or other orders as this Honourable Court may deem fit to grant in the circumstances.

 

The application is supported with a statement, an affidavit setting out the facts relied on, copies of her curriculum vitae and qualifying certificates and a written address. There is no evidence of service of the process on the 1st Respondent. The 2nd and 3rd Respondents were served through one Sutton Bukola, Executive Officer, on 8th March 2017. On 15th March 2017, the 3rd Respondent entered conditional appearance and subsequently filed a notice of preliminary objection to the suit dated 15th May 2017 filed on 17th May 2017 seeking an order striking out the suit for want of jurisdiction on the grounds set out in the application. The notice of preliminary objection is supported with 15 paragraphs affidavit deposed to by Mr. Harrison H. Etim, Head of Administration of the 3rd Respondent and a written address. The 3rd Respondent also filed a counter affidavit and written address in opposition to the Applicant’s motion on notice for judicial review. The Applicant filed 5 paragraphs counter affidavit and a written address on 7th February 2018 in opposition to the notice of preliminary objection. Both applications were heard on 23rd November 2018 and the case was thereafter set down for judgment/ruling.

 

COURT’S DECISION

 

2.   I have considered the processes filed in this suit and submissions of learned Counsel for the parties. The facts of this case and issues arising therefrom are simple. The Applicant’s case is that she applied for employment with the 3rd Respondent on 10th October 2016. She was invited for interview on 12th October 2016 but was not interviewed at the instance of the 1st Respondent because she was wearing a hijab hence this application. There is no evidence in the file of service of the application on the 1st Respondent. As a result, the 1st Respondent was neither present nor represented by Counsel throughout the proceedings. The 3rd Respondent filed a counter affidavit and a written address wherein it averred that the Applicant ‘presented herself and conducted herself in a most unbecoming and unsatisfactory way on the day she claims she was asked to leave the interview premises’; and that it did not discriminate against the Applicant on any grounds whatsoever as there are people of all faiths and indeed some with no religion in its employment. The 3rd Respondent also averred that it is within the discretion of its Management to recruit potential employees on a regular basis. This case therefore turns on the provision of Order 3 rules 1[1][d] and 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 which provides thus:

 

“1. – [1] Civil proceedings in the Court may be commenced by –

….

[d] Application for Judicial Review;”

               

“4.    Actions that may be commenced by Application for Judicial Review include all matters necessitating application for an order or for a declaration or for mandamus, prohibition, certiorari or injunction, in such matters on which the Court has exclusive jurisdiction, as provided in section 254C[1] paragraphs [a]-[k] and [m] of the Constitution of the Federal Republic of Nigeria, 1999 [as amended] or by any Act or law in force in Nigeria.”

 

The provisions of section 254C [1] of the Constitution of the Federal Republic of Nigeria, 1999 [as amended] [“the Constitution”] relevant to this application are paragraphs [d] and [g]. For clarity it is reproduced below:

 

“254C -[1] Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

 

[d]    relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;”

 

[g]    relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;”

 

3.   The 3rd Respondent raised a preliminary objection to the suit urging the Court to strike it out for want of jurisdiction. There are three grounds in support of the objection namely:

 

a.   There is no employment relationship between the Applicant and the Defendants/Respondents.

 

b.   The orders sought by the Applicant are not orders that may be made or granted against the Defendants/Respondents as they are neither judicial nor quasi-judicial bodies nor were they exercising any form of authority whether of a judicial or quasi-judicial nature and which was in excess of their statutory or other powers, moreover the action sought to be restrained had been concluded before the filing of this action.

 

c.   The jurisdiction to enquire into alleged breaches of Fundamental Human Rights including the claim of the Claimant/Applicant is vested in the Federal High Court or the High Court of the State where the alleged infringement occurred by virtue of the Fundamental Rights [Enforcement Procedure] Rules 2009 to the exclusion of any other Court in relation to the enforcement of the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.

 

The preliminary objection is supported with 15 paragraphs affidavit sworn to by Mr. Harrison H. Etim, Head of Administration of the 3rd Respondent and a written address. Learned Counsel argued the three grounds. Preliminarily, he posited that the question of jurisdiction of this Court has been settled in the case of Madukolu v. Nkemdilim [1962] 2 SCNLR 341 at 438. He conceded that the Court is properly composed but argued that the process by which the action was initiated is fundamentally incorrect and the subject matter is not within the jurisdictional competence of the Court. It was submitted that the provisions of Chapter IV of the 1999 Constitution are rights of a special nature the enforcement of which the relevant authorities have made provision for. Arguing ground one, learned Counsel submitted that the jurisdiction of this Court cannot be invoked except in relation to a master/servant relationship and referred to Order 1 of the Rules of this Court and section 254C of the Constitution. He explained that there is no relationship of master/servant between the Applicant and the 3rd Respondent and that the case put forward by the Applicant is that she was discriminated against on the ground of her religious views; but presented no evidence of what constitutes the discrimination. It was submitted that in the absence of any clear evidence, the Applicant is merely stating her belief that the reason she was asked to leave the interview venue is due to her dressing; which presumption falls flat on its face when the Applicant further states that her dressing was clearly manifest in her application papers which was submitted to the Defendants. If this is so, he argued, then the Defendants if they intended to discriminate based on her dressing would certainly not have invited her to the interview. It was therefore argued that the Applicant is asking this Court to presume into the minds of the Defendants something that is not conclusively manifest in the alleged action of asking the Applicant to leave the interview venue.

 

4.   On ground two, it was argued that this Court has no power to grant an order directing the Defendants not to do something that has already been done. It was also argued that to employ someone is a duty only the 3rd Defendant can effectively discharge and it is therefore not one for which the Honourable Court can grant an injunction or mandamus to compel the Defendants to do in the circumstances. He explained that the Courts are enjoined not to make a contract for the parties and that a Court cannot force an employee on the employer and vice versa. It was explained that the Defendants are neither judicial officers nor were they exercising judicial authority or power nor were they sitting as a tribunal to exercise judicial power or authority in any way, shape, manner or form and accordingly the Court lacks jurisdiction to issue the writ of certiorari against them. He submitted that the writ of certiorari cannot be used to quash legislative or executive acts; and in determining whether or not an action is a judicial act, it is the action taken that is to be considered and referred to Nwaoboshi v. Mil. Gov. Delta State [2003] 11 NWLR [pt.831] 305 and Steel Bell [Nig.] Ltd. v. Govt. Cross River State [1996] 3 NWLR [pt.438] 571. On ground three, it was submitted that the jurisdiction to enquire into alleged breaches of fundamental human rights is vested in the Federal High Court or the High Court of the State where the alleged infringement occurred by virtue of the Fundamental Rights [Enforcement procedure] Rules 2009 to the exclusion of any Court. He contended that a person alleging breach of her rights is required to follow strictly the provisions of the Rules as non-compliance with the Rules renders the action incompetent and referred to W.A.E.C v. Akinkunmi [2008] 9 NWLR [pt.1091] 151 at 154-157. It was further argued that even by the most liberal construction of the facts underlying the complaint of the Applicant, the best any one can say is that it is a pre-employment incident and is analogous to pre-election matters jurisdiction of which rests in the Federal or State High Court notwithstanding the exclusive nature of jurisdiction in election matters vested in the Election Tribunals. It was therefore submitted that the Applicant cannot invoke the jurisdiction of this Court except in line with the provisions of the Fundamental Rights [Enforcement procedure] Rules 2009 in so far as her main complaint is alleged infringement of her fundamental human right against discrimination on religious grounds. In response to the preliminary objection, the Applicant filed 5 paragraphs counter affidavit and a written address and raised one issue for determination to wit, whether the Defendants’ notice of preliminary objection has any merit. It was argued that employment rights are sui generis and we have pre-employment and post-employment rights; and a prospective employee’s pre-employment rights will be violated when an applicant is treated differently or discriminated against as a result of her sex, ethnic background or religious beliefs and referred to sections 42[1][a] and [b] and 254C[1][a], [d], [f] and [g] of the Constitution. Learned Counsel submitted that a community reading of these sections guarantees the pre-employment rights of the Applicant and urged the Court to dismiss paragraphs 5.1 to 5.12 of the 3rd Defendant’s written address. It was contended that the argument of learned Counsel that the Defendants are neither judicial nor quasi-judicial bodies is tantamount to asking the Court to decide on substantive issues at the interlocutory stage. It was submitted that by virtue of section 254C of the Constitution this Court has unfettered jurisdiction to hear fundamental rights violations relating to labour and employment matters and urged the Court to dismiss the preliminary objection.

 

5.   I agree with the submission of learned Counsel for the Applicant that by virtue of section 254C[1][d] and [g] of the Constitution, this Court is imbued with power to adjudicate on pre-employment matters. Section 254C[1][d] provides that the National Industrial Court shall have and exercise exclusive jurisdiction on matters relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine. While paragraph [g] confers power on this Court to adjudicate on matters relating to or connected with any dispute arising from discrimination or sexual harassment at work place. Black’s Law Dictionary, 10th Edition by Bryan A. Garner page 1479 defines the word ‘related’ as “connected in some way; having relationship to or with something else”. On the other hand, ‘connected’ is defined in The New Webster’s Comprehensive Dictionary of the English Language, Deluxe Edition at page 207 as “joined together, linked, related, related by birth or marriage, coherent, employed in some capacity or otherwise associated”. The word ‘connected’ has been given judicial interpretation. See the cases of The Shell Petroleum Development Company of Nigeria Limited v. Abel Isaiah & 2Ors. [2001] LPELR-3205[SC] at page 24 and The Shell Petroleum Development Company of Nigeria Limited v. Sirpi-Alusteel Construction Limited [2007] LPELR-8096[CA] at page 16. The question is are the facts giving rise to this action connected in some way with ‘employment’ and ‘labour’? Did the incident of alleged discrimination occur at the work place? The answer to these questions is a resounding yes. It is a settled rule of interpretation of statutes that the plain and unambiguous words used in a legislation must be given their natural and grammatical meaning. A corollary to this is that the meaning and intention of the legislation must be gathered from the plain and unambiguous expressions used therein. In other words, the Court should not defeat the plain meaning of a statute by introduction of its own words because that will amount to judicial legislation which the law frowns against. See Independent National Electoral Commission v. Action Congress & Anor. [2007] LPELR-9028[CA] at 17-18 and Alhaji Amusa Olatubosun v. The President and Members of Oluyole Local Govt. Olode/Omiyale Grade ‘C’ Customary Court, Ibadan & Anor. [2010] LPELR-4753[CA] at page 15. The argument of learned Counsel for the 3rd Respondent that the jurisdiction of this Court cannot be invoked except in relation to a master/servant relationship is misconceived. Pursuant to section 254C[1][d] and [g] of the Constitution the existence of an employer and employee relationship between the Applicant and the 3rd Respondent is not a condition precedent to assumption of jurisdiction by this Court. Also, contrary to submission of learned Counsel for the 3rd Respondent, whether there is evidence of discrimination or not can only be determined after hearing parties on the substantive issue. The Court cannot consider evidence on determination of a preliminary objection. The objection is on the facts not the evidence. Learned Counsel’s arguments on ground two of his preliminary objection that this Court has no power to grant an order directing the Defendants not to do something that has already been done; and that to employ someone is a duty only the 3rd Defendant can effectively discharge are matters that relate to and touch on the substantive suit. They are not questions that can be decided on a preliminary objection. See Chief Great Ovedje Ogboru v. President Court of Appeal & Anor. [2005] LPELR-5467[CA] at page 11. These are arguments that can be canvassed in opposition to the main application. The next issue is that the Applicant did not comply with the Fundamental Rights [Enforcement procedure] Rules 2009. It should be noted that by virtue of section 254D [1] of the Constitution, the National Industrial Court has the powers of a High Court for the purpose of exercising the jurisdiction conferred on it by the Constitution. Secondly, the Fundamental Rights [Enforcement procedure] Rules 2009 does not apply to proceedings in this Court relating to section 254C[1][d] and [g] of the Constitution. The National Industrial Court of Nigeria [Civil Procedure] Rules 2017, made pursuant to section 254F [1] of the Constitution regulates proceedings in the Court in the exercise of its civil jurisdiction. This is so because the express mention of a thing means the exclusion of other matters. Section 254F [1] of the Constitution provides that “for the purpose of exercising its criminal jurisdiction, the provisions of the Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure Code or Evidence Act shall apply”. See Godwin C. Azubuike & Anor. v. Government of Enugu State & Anor. [2013] LPELR-20381[CA] at page 38. It is my considered view and I so hold that this Court can adjudicate on alleged breach of fundamental rights of the Applicant in so far as it is connected with employment or labour notwithstanding the provisions of the Fundamental Rights [Enforcement procedure] Rules 2009. Secondly, there is no requirement of leave to apply to this Court for enforcement of the Applicant’s fundamental rights in an application pursuant to section 254C [1][d] and [g] of the Constitution. Accordingly, the preliminary objection lacks merit and it is hereby dismissed.

 

6.   This leads me to a consideration of the substantive application. Judicial review is defined in Black’s Law Dictionary, 10th Edition by Bryan A. Garner page 976 as “A court’s power to review the actions of other branches or levels of government; esp., the court’s power to invalidate legislative and executive actions as being unconstitutional.” See also Blue-Chip Communications Company v. Nigerian Communications Commission [2008] LPELR-3882[CA] at page 58. Judicial review is founded on a fundamental principle that powers can be validly exercised only within their true limits. It is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. The Court in an application for judicial review is concerned only with the question whether the act or order under challenge should be allowed to stand or not. The Court is concerned with the legality and not the merits of the decision or acts of the public authority. See Stephen Amadi & 2Ors. v. Elder Ned Acho & 5Ors. [2005] 12 NWLR [pt.939] 386 at 402, Nelson Uzoukwu Nwankwo v. Customary Court Ndiawa, Arondizuogu & Ors. [2009] LPELR-4589[CA] at pages 21-22 and Nigeria Association of General Practice Pharmacist Employers v. Pharmacists Council of Nigeria & 2Ors. [2013] LPELR-21834[CA] at pages 81-82. Certiorari and prohibition are prerogative writs. While prohibition is aimed at preventing or restraining the continuation of the illegal or unconstitutional act, certiorari requires the record or order of the inferior tribunal or administrative body to be sent to the Court to have its legality inquired into, and, if necessary, to have the order quashed. Certiorari and prohibition will lie against the actions of a body or person, whether in the exercise of an administrative, judicial or quasi-judicial function, having a legal authority to determine questions affecting the rights of subjects whenever the duty implies that that body or person should act fairly, and the body or person fails to so act. The dichotomy that used to exist in the applicability of certiorari and prohibition to actions of a body or person exercising an administrative, judicial or quasi-judicial function who breaches the duty to act fairly has been abolished. See The Attorney-General of Lagos State v. Eko Hotels Limited & Anor. [2006] 18 NWLR [pt.1011] 378 at 423 and Nigeria Association of General Practice Pharmacist Employers v. Pharmacists Council of Nigeria & 2Ors. [supra] at pages 84-85. Notwithstanding this, the law is that the prerogative writs of certiorari and prohibition apply only against acts and decisions of bodies or persons exercising administrative or judicial and quasi-judicial authority affecting the rights of people, which makes it mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that capacity. They do not lie against executive or legislative acts, or mere administrative acts, because such acts are not performed or expected to be performed in accordance with the rules of fair hearing. See Nigeria Association of General Practice Pharmacist Employers v. Pharmacists Council of Nigeria & 2Ors. [supra] at page 85.

 

7.   In an application for certiorari and prohibition, the Applicant bears the burden of proffering sufficient facts to justify the making of the order. In other words, the Applicant must set forth sufficient materials which show that the Respondents acted unfairly or in excess of their power. See Professor Folarin Shyllon & Anor. v. University of Ibadan [2006] LPELR-7721[CA] at pages 18-19. What are the facts presented by the Applicant which justify the making of the orders sought? I have earlier in this judgment summarized the facts of this case. At the risk of repetition, I will highlight the relevant facts. The Applicant’s case is that on 10th October 2016 she applied for employment as a Medical Radiographer with the 3rd Respondent and was directed to submit her application and curriculum vitae at the office of the 2nd Respondent. On 11th October 2016, she received a phone call at 4.20pm from one Bosun, a staff of the 3rd Respondent inviting her for an interview on 12th October 2016 at 9.00am. She was at the 3rd Respondent’s office on 12th October 2016 and while she was waiting with others to be interviewed the 1st Respondent walked up to her and asked if she came for the interview, and upon her affirmation the 1st Respondent told her that she would not be allowed to take part in the interview because she was putting on a Hijab and subsequently directed her Secretary to send her out. The 3rd Respondent did not specifically deny these averments. The relevant paragraphs of the counter affidavit are paragraphs 5, 6 and 7 which are reproduced here:

 

“5. That the Claimant/Applicant herein presented herself and conducted herself in a most unbecoming and unsatisfactory way on the day she claims she was asked to leave the interview premises.”

 

“6. That in my several years of administration where I have been privileged to serve in various National Institutions across the Country, I have never seen or witnessed what the Claimant/Applicant and the unruly group of persons she brought to the 3rd Defendant/Respondent’s premises did on the day with an intent to overrun the peaceful administration of the 3rd Defendant/Respondent over a grossly mistaken view of why she was asked to leave the premises.”

 

“7. That the 3rd Defendant/Respondent and its former Medical Director, the 1st Defendant/Respondent did not and could not and indeed had no reason to discriminate against the Claimant/Applicant on any grounds whatsoever as there are people of all faiths and indeed some with no religion whatsoever in the 3rd Defendant/Respondent’s employment.”

 

Clearly, the 3rd Respondent did not answer the Applicant’s allegation. Paragraphs 5 and 6 of the counter-affidavit did not give reasons for disqualifying the Applicant from the interview. It merely related events that may have taken place after the Applicant was asked to leave the interview venue. This is an evasive traverse. It has been held that denial must be specific or else it amounts to an admission. See University of Benin v. Kraus Thompson Organization Ltd. & Anor. [2007] LPELR-8685[CA] at page 23. In Zenith Bank Plc v. Chief Godwin Omenaka & Anor. [2016] LPELR-40327[CA] at page 31, Georgewill, J.C.A., held:

 

“The law is well settled that specific allegation of facts contained in an affidavit must be specifically denied as general or bare or banal traverse or denial leaves such allegations of facts as deemed admitted and thus requiring no further proof.”

 

Earlier, in Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu Dangiri & 6Ors. [2014] LPELR-24020[SC] at page 86, the Supreme Court posited that:

 

“The law is that essential allegations in a pleading or affidavit, which are not specifically traversed are deemed admitted by the adverse party. In the face of specific and detailed allegations of fact, a denial of those facts must be specific.”

 

The implication, therefore, is that paragraphs 4 and 5 of the Applicant’s affidavit in support of the application is uncontroverted and I accept it as correct. The critical question is in the light of this unchallenged fact has the Applicant established a case of discrimination at the work place? I think so. Discrimination is defined in Black’s Law Dictionary, 10th Edition, page 566 as “differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.” It seems to me that upon being shortlisted and invited for interview, and presenting herself for interview, the Applicant was entitled to be interviewed; whether she gets the job or not is a different kettle of fish. It accordingly becomes discriminatory when the Applicant waited with others invited for the interview but for no plausible reason, except for her dressing which is in accord with her religious belief and practice, she was denied the opportunity to be interviewed and asked to leave the venue of the interview. Her Radiographers Registration certificate bears her photograph with the Hijab and it was within the 3rd Respondent’s rights not to invite her for the interview. Having invited her for the interview, the 3rd Respondent could not without sufficient cause shown exclude her from the interview. For this reason, the argument of learned Counsel for the 3rd Respondent in paragraph 3.17 of the written address that if the Respondents “intended to discriminate based on her dressing [they] would certainly not have invited her to the interview in the first place” is self-defeating. The onus is on the 3rd Respondent to satisfactorily explain why the Applicant was not interviewed in spite of the fact that she submitted her credentials, was shortlisted, invited for interview and presented herself for the interview. See Discrimination in Employment by Tucker & George, page D264 paragraph D9.005. This burden it did not discharge. The inescapable conclusion is that the 1st Respondent found the Applicant’s dressing unacceptable; and the Applicant maintained that her dressing is consistent with her religious belief and she has been dressing that way all through her training.

 

8.   Sections 38[1] and 42[1] of the Constitution provide safeguards against discrimination on grounds of religious beliefs and practices. For ease of understanding, the sections are reproduced. Section 38[1] provides:

 

“Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom [either alone or in community with others, and in public or in private] to manifest and propagate his religion or belief in worship, teaching, practice and observance.”

 

 Section 42[1][a] provides thus:

 

“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –

 

[a]    be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject;”

 

Undoubtedly, the 3rd Respondent has by its action infringed on the Applicant’s fundamental rights enshrined in the above sections of the Constitution. These rights are not cosmetic but are the pivot of existence of citizens. See Miss Yetunde Zainab Tolani v. Kwara State Judicial Service Commission & 3Ors. [2009] LPELR-8375[CA] at pages 52-53 and Nursing and Midwifery Council of Nigeria v. Esther Bose Adesina [2016] LPELR-40610[CA] at page 21. In the latter case, Ogakwu, J.C.A., had this to say:

 

“The right to freedom of religion is one of the fundamental rights enshrined in Chapter IV of the 1999 Constitution. Fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights have been described as the minimum living standard for civilized humanity. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself… A fundamental right is more significant that the rights under other statutes or laws as it goes to the root of the day to day existence of the citizen and corporate living of citizens. Essien vs. Inyang [2011] LPELR [4125] 1 at 24. The Courts are under a duty as provided by the Constitution to see that executive and administrative actions are in conformity with the fundamental rights of persons. See Obayiuwa v. Minister of FCT [2009] LPELR [8202] 1 at 26.”

 

9.   Having so found, can the prerogative writs of certiorari and prohibition lie against the 3rd Respondent? I do not think so. Conducting interviews for prospective employees is the prerogative of the management of the 3rd Respondent and purely an administrative process which this Court cannot interfere with. It is settled law that the prerogative writs of certiorari and prohibition apply only against the acts and decisions of persons exercising administrative or judicial and quasi-judicial authority affecting the rights of people, which makes it mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that capacity. They do not lie against executive or legislative acts, or mere administrative acts, because such acts are not performed or expected to be performed in accordance with the rules of fair hearing. See Nigeria Association of General Practice Pharmacist Employers v. Pharmacists Council of Nigeria & 2Ors. [supra] at page 85. Secondly, this is a pre-employment case. It is trite law that the Court will not impose a willing employee on an unwilling employer and vice versa. See Olabode Adewunmi v. Nigerian Eagle Flour Mills [2014] LPELR-22557[CA] at page 22. This means that the Court cannot compel the 3rd Respondent to conduct a fresh interview for the Applicant. Thirdly, the 3rd Respondent is not under any statutory duty to recruit staff. That is to say, in conducting the interview, the 3rd Respondent was not carrying out any statutory duty requiring it to act fairly and cannot be said to have exceeded its powers. On the whole, while the facts of this case may be a ground for award of damages which has not been claimed, it certainly cannot be a ground for issuance of the prerogative writs of certiorari and prohibition. In the circumstances, the Applicant’s motion on notice dated 21st October 2016 and filed on 7th November 2016 succeeds in part. Reliefs one, three, four, five and six fail and are hereby dismissed. Relief two succeeds and it is granted. It is hereby declared that the refusal of the 3rd Respondent to interview the Applicant only because she put on her hijab is discriminatory and a violation of section 42 of the Constitution of the Federal Republic of Nigeria 1999 [as amended].         There shall be no order as to costs. Judgment is entered accordingly.

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

10/1/19