IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 21ST MAY, 2019 SUIT NO: NICN/CA/06/2018
DENNIS ONEN UTUM …………… CLAIMANT/RESPONDENT
1. CROSS RIVER STATE
TECHNOLOGY AND MANAGEMET ………………… DEFENDANT/APPLICANT
2. CROSS RIVER STATE GOVERNMENT
3. THE GOVERNOR CROSS RIVER STATE
4. ATTORNEY-GENERAL AND COMMISSIONER DEFENDANTS/RESPONDENTS
FOR JUSTICE CROSS RIVER STATE
5. COMMISSIONER FOR EDUCATION
D.D. UJONG Esq. for Claimant/Respondent
ANIAH A. IKWEN Esq. for the 1st Defendant/Applicant
OKOI ETENG Esq. for the 2nd to 5th Defendants
R U L I N G
This suit was instituted vide a Complaint dated and filed on the 6th of February 2018.
The reliefs sought by the Claimant are as follows:
1. A DECLARATION that the purported summary dismissal of theClaimant from his employment with the 1st Defendant was in breach of the relevant provisions of the Cross River State Institute of Technology and Management Law 2012, the Institute of Technology and Management , Ugep Cross River State Handbook, the Cross River State Public Service Rules, 2004 and the Claimant’s Constitutional right to fair hearing guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore unconstitutional, unlawful, illegal, wrongful, null and void.
2. AN ORDER setting aside the letter with reference REG/DIS/ADM/UDO/01 dated 4th August, 2017 issued by Oshin, Anthony A., Registrar of the 1st Defendant purporting to summarily dismiss the Claimant from the services of the 1st Defendant for being in breach of the Claimant’s constitutionally guaranteed right to fair hearing, wrongful, illegal, null and void.
3. AN ORDER directing the 1st Defendant to forthwith reinstate and restore the Claimant to his position of Assistant Chief Clerical Officer in her employ, taking into consideration all promotions and advancements due to him.
4. AN ORDER mandating the defendants to forthwith pay the Claimant all his salaries, allowances, and other prerequisites of his office from the month of August, 2017 when he was wrongfully removed from his employment to date.
5. AN ORDER directing the 1st defendant to forthwith remit to Stanbic IBTC Pension Managers all arrears of the Claimant’s pension deductions and contributions already made on his salary by the 1st defendant but not yet remitted to the pension fund administrators.
6. N1,750,000.00 (One Million, Seven Hundred and Fifty Thousand Naira) special damages being cost of litigation of this suit paid by the Claimant to his legal practitioner.
By an Application brought by way of Notice of Preliminary Objection dated and filed on the 8th of November 2018, the 1stDefendant/Applicant pray the Court for:
AN ORDER of this Honourable Court striking out this suit as the Honourable Court lacks jurisdiction to entertain same.
GROUNDS FOR THE APPLICATION
1. The Claimant’s suit is premature as he has not followed due process in instituting the extant suit against the 1stDefendant/Applicant
2. The Claimant failed to exhaust internal remedies open to him before suing in contravention of Section 23(4) of the Cross River State Institute of Technology and Management Law, 2012 as this suit is grossly incompetent.
In support of the Application is a 9-paragraph affidavit deposed to by one Obeten O. Obetena legal officer of the 1st Defendant. The Applicant also filed a written address in compliance with the rules of this Honourable Court.
1STDEFENDANT/APPLICANT’S WRITTEN ADDRESS IN SUPPORT OFAPPLICATION
In Applicant’s written address in support of the Application, Learned Counsel on behalf of Applicant formulated a sole issue for determination, to wit:
Whether the non-exhaustion of all internal remedies open to the Claimant before commencing this suit renders same incompetent thereby robbing the Court of jurisdiction.
The Learned Counsel to the 1stDefendant/Applicant submitted that the Claimant instituted this suit without first ensuring the observance of the internal remedies expressly provided for in Section 23(4) of the Cross River State Institute of Technology and Management Law, 2012. This omission according to the Learned Counselamounts to failure to adhere to due process and consequently robs this Court of the jurisdiction to entertain the matter. He referred the Court to MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
Learned Counsel to the Applicant urged the Court to grant the Application and strike out the suit for lack of jurisdiction.
CLAIMANT/RESPONDENT’S RESPONSE TO APPLICANT’S MOTION.
On receipt of 1st Defendant/Applicant’s Application, Claimant filed his response on points of law on the 19thof November 2018.
Learned Counsel to the Claimant/Respondent raised a sole issue for determination, to wit:
Whether this suit is incompetent and robs this Honourable Court of jurisdiction to hear and determine same
Learned Counsel to the Claimant/Respondent submitted that the provision of Section 23(4) of the Cross River State Institute of Technology and Management Law, 2012of which the Applicants is relying on is not mandatory. He submitted that the said law expressly uses the word ‘may’ thereby leaving it within the discretion of the aggrieved person to take steps towards exhaustion of the internal remedy or otherwise. That the Claimant was not under any legal obligation to exhaust the remedial procedure.
Learned Counsel also submitted that the Rector did not comply with the provision of Section 23 of the Cross River State Institute of Technology and Management Law,2012 before dismissing the Claimant. The Claimant was therefore not under any duty to exhaust the internal remedies in the said law.
Having gone through the Application and Learned Counsel argument for the grant of the Application, this Court has distilled a sole issue for the just determination of this Application, to wit:
Whether given the circumstances, there is merit in this Application.
The Applicant herein seeks an Order of this Honourable Court to strike out this Suit for lack of jurisdiction to entertain the matter. The grounds upon which this order is sought are that the Claimant’s suit is premature as he has not followed due process in instituting the extant suit and that the Claimant failed to exhaust the internal remedies provided for in Section 23 of Cross River State Institute of Technology and Management Law2012 before suing.The saidSection 23(4) of the Cross River State Institute of Technology and Management Law 2012 provides that:
Any person aggrieved by the Rector’s decision under subsection (3) of this section may within a period of 21 days from the date of the letter communicating the decision to him, address a petition to the council to reconsider his case and the council’s decision thereon shall be final.”
It is under the aforementioned provision that the Defendants/Applicants bring its preliminary objection challenging the jurisdiction of this Court to entertain this matter.
It is trite that a Court is competent when;
1. It is properly constituted;
2. Subject matter is within the Court’s jurisdiction and;
3. Suit is initiated by due process.
SeeMADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
InEGUAMWENSE V. AMAGHIZENWEN (1993) 9 NWLR (pt. 315) 1 at 25Belgore JSC (as he then was) observed:
Where a statute prescribes a legal line of action for the determination of an issue, be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all internal remedies in that law before going to Court.
On the face of the Section 23 of the Cross River State Institute of Technology and Management Law 2012, one may conclude that the law is indeed an internal remedyavailable to an aggrieved party to appeal a decision that is against him; that the provision is a condition precedent before resorting to the Court.At this juncture, it is necessary however, to point out that Section 23 of the Cross River State Institute of Technology and Management Law 2012stipulates a period of twenty one (21) days within which an aggrieved party is to make a petition before the council for review of its decision.
From the Court’s record, the Claimant received a letter on the 9th of August 2017 dismissing him from the service of the 1st Defendant. The Claimant then wrote a letter titled “DISMISSAL FROM THE SERVICES OF THE INSTITUTE: ABSENCE FROM WORK WITHOUT NOTICE. A PASSIONATE APPEAL FOR REVIEW AND RECISION OF DECISION.” The said letter is dated 8th of September, 2017 and addressed to the registrar of the 1st Defendant appealing for a review and rescission of his dismissal. However, by my calculation, this falls outside the 21 days stipulated by the Law.The law is already settled that in interpretation of statute, the Court must first examine the ordinary literal meaning. If the words are clear and unambiguous, then the literal interpretation must be given, it is only where there is doubt or ambiguity that recourse is made to other canons of interpretation. See BAKARE V. NRC (2007) 17 NWLR (pt. 1064) 639. In this light, the said Section 23 of the Cross River State Institute of Technology and Management Law 2012 provides that the Claimant may appeal the decision within 21 days. The use of the word ‘may’ in the context in which it is used and the use of 21 days in the context in which it is used makes it not to be a mandatory directive but a passive and permissible directive which the Claimant may resort to or may not resort to. In the event that the Claimant wants to resort to same, he must do it within 21 days. Therefore failure to appeal the decision within 21 days can only shut the door against the Claimant at the level of the Cross River State Institute of Technology and Management but cannot rob the Claimant of his right to approach this Court and ventilate his grievances, and I so hold.
The Court construes this to mean that upon the expiration of the twenty one (21) days stipulated by the law, the Claimant loses his right to appeal to the council for review and rescission of its decision.By extension, the rector’s decision becomes the final decision at that level. This however, does not and cannot close the doors of the Court against the Claimant. He has a cause of action and therefore has the right to sue and be heard. What is more, any domestic law that abrogates the right of a Claimant to approach the Court is to that very extent null, void and of no effect whatsoever. The point here is that the Claimant, having failed to appeal the decision of the Rector within the 21 days stipulated only lost the right to appeal at the school level but not at the Court level, and I so hold.
Flowing from the above, I hereby hold that this Court has the jurisdiction to entertain this matter,the 21 days period for his appeal at the institution having since elapsed.
This application is hereby dismissed.
Ruling entered accordingly.
HON. JUSTICE M.N. ESOWE