IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 5TH MARCH 2021 SUIT NO.NICN/EN/43/2020
MR. CHUKWUNONSO DANIEL OGBE…………CLAIMANT
[Suing For Himself And On Behalf Of Nigerian Lawyers Who File And/Or Obtain Legal Documents From State Courts In Enugu State]
1. GOVERNMENT OF ENUGU STATE OF
2. THE CHIEF JUDGE OF ENUGU STATE - DEFENDANTS
3. ATTORNEY-GENERAL OF ENUGU
1. A.O. NWODE – FOR THE CLAIMANT.
2. A.D. ANI [SENIOR LEGAL OFFICER, MINISTRY OF JUSTICE, ENUGU STATE] – FOR THE DEFENDANTS.
ORGINATING SUMMONS commenced this suit on 26th October 2020. A lone question was set down for the Court in the originating summons:
Whether by a holistic interpretation of the provisions of article [sic] 15 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Vol. 1 Laws of the Federation of Nigeria 2004, and section 254C(1)(a)(d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Defendants, especially the 1st and 3rd Defendants are under a legal duty to make the working conditions of lawyers in the course of carrying out their professional services in Court premises of State Courts in Enugu State, especially with regard to the payment of fees for Court processes and other legal documents, to be equitable and satisfactory?
The claimants submitted the following reliefs for the Court to consider:
1. A DECLARATION that the failure, refusal and/or neglect of the 1st and 3rd Defendants to make provision for adequate functional POS machines and receipt booklets to be used by the Applicant and other lawyers in making payment for Court fees paid for legal documents and/or processes in the Magistrates Courts and Oath Section of the High Court of Enugu State, amounts to the violation of the right of the Applicant to work under equitable and satisfactory condition as a lawyer, as guaranteed under article [sic] 15 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9., Vol. 1 Laws of the Federation, 2004. [sic]
2. AN ORDER of the Honourable Court directing the 1st and 3rd Defendants to provide a minimum of three (3) functional POS machines for each Magisterial District of the Magistrates Court of Enugu State, and a minimum of two (2) functional POS machines for the Oath Section of the Enugu Judicial Division of the High Court of Enugu State, which POS machines are to be handed over to the 2nd Defendant forthwith for the use of the State Courts in Enugu State for the benefit of the Applicant and other lawyers who practice law in State Courts in Enugu State. [sic]
3. AN ORDER of the Honourable Court, directing and/or compelling the 1st and 3rd Defendants to make provision for adequate receipt booklets for the cash section of all the Magisterial Districts of the Magistrates Court of Enugu State, to be used in issuing receipts of the Applicants [sic] and other lawyers, effortlessly, for Court fees paid by the Applicant for filing and/or obtaining of legal documents and/or processes. [sic]
4. ANY OTHER ORDER or further order the Honourable Court may deem fit to make in the circumstances of this case. [sic]
In reaction, the defendants filed Memo of Appearance, counter affidavit and written address on 15th December 2020. The defendants also filed Notice of Preliminary Objection [NPO] the same day. The claimants replied to the NPO by a written address filed 29th December 2020. That is all about the processes filed. Both sides did not file Reply on Points of Law [RPL]. The next thing to do is summary of the proceedings before the Court.
The matter first came up before me on 18th January 2021 for mention and was adjourned to 2nd February 2021 after regularizing the defence processes. It came up as adjourned on 2nd February 2021 and the learned counsel to the claimant: A.O. NWODE adopted both the written address in support of the originating summons and the written address against the NPO, which he said, incorporated the RPL to the written address of the defence. The learned counsel to the defence: A.D. ANI, thereafter adopted the written address in support of the defendants’ counter affidavit and the written address in support of the NPO.
In adumbration, the learned counsel to the defence submitted that, for the reliefs sought to be granted, the claimant must show his locus and the injury suffered and cited AGF v. Abia State (2006) 7 SC Part 1 and; that, the claimant failed to serve pre-action notice. The learned state counsel urged the Court to dismiss the case and signed off. Thereafter, the case was adjourned to 8th March 2021 for judgment. But as the judgment was ready before the date, hearing notices were directed sent to the learned counsel to the parties. I move to summary of the case made by the claimant and the defence made by the defendants in their affidavits.
SUMMARY OF THE CASES MADE BY THE PARTIES
A: Case Made By the Claimants
The major complaints of the claimant is that, because, the autonomy of the Enugu State’s Judiciary is not allowed, in spite of the judgment of the Federal High Court [FHC] to that effect [Exhibit A], the 2nd defendant is handicapped in providing enough POS for payments for filing processes and receipt booklets for such payments. The deponent said, as a result, lawyers, who are to make direct online payments in the banks, encounter a lot of epileptic network problems, shabby treatments and; absence of receipts booklets, which often take days to be issued, for payments as little as N90.00. The deponent said, he, as a lawyer and other lawyers are suffering a lot in the course of practising their profession in the Courts.
Erudite CHUKWUNONSO DANIEL OGBE franked the written address in support of the originating summons. I will not bother to set down the issue raised because; it is at variance with the question set down in the originating summons for the determination of the Court. I rather go to the arguments canvassed. The learned counsel argued that, evidence in fundamental rights actions are by affidavits and cited Atakpa v. Ebetor (2015) 3 NWLR (Pt. 1447) 549 CA. The learned counsel referred to Exhibit A, which he said, mandated the 1st defendant to give the Enugu State Judiciary financial autonomy, which he submitted has been ignored by the 1st and 3rd defendants thus, leading to the problems at hand. The learned counsel argued that, this neglect, burdens the 1st and 3rd defendants with the responsibilities of providing necessary facilities in the workplace of the Enugu State Judiciary and; that, the failure to provide vital facilities to aid lawyers in paying the necessary fees in the course of working as a lawyer violated Article 15 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act [ACHPRA]. The learned counsel argued that, it is degrading to deny lawyers the use of POS that are routinely made available for use to lay customers in other private businesses, in spite of the letter written for same to be provided.
The learned counsel argued that, it is clear that, the lawyers have not been able to work in satisfactory working environment as a result of these denials. The learned counsel opined that, the Enugu State Judiciary is the workplace of the claimant. The learned counsel referred to paragraphs 6, 7, 48 and 50 of the affidavit in support. The learned counsel submitted that, it is a sad development that lawyers are subjected to degrading treatment and frustration in the course of their work. The learned counsel ended by urging the Court to grant the prayers of the claimant and signed off. I move to the defence.
B: Defendants’ Defence
Under this sub-heading, I shall deal with the NPO first. The grounds of the defendants’ NPO’s are that: the claimant lacks locus to bring this action on behalf of lawyers in Enugu State, pursuant to breach of fundamental rights and; that, the Court lacks jurisdiction because, there is no employment relationship between the parties. Further grounds are that, there is also no reasonable cause of action and; that, the claimant failed to issue the defendants with pre-action notices. The NPO prayed the Court to strike out or dismiss the suit. Affidavit in support was filed, deposing to facts along the grounds enumerated above.
Erudite KOSISOCHUKWU L. NWIDE [LEGAL OFFICER, MINISTRY OF JUSTICE, ENUGU STATE] franked the supporting written address. The learned counsel submitted three issues for the determination of the NPO:
i. Whether the Applicant/Respondent has a cause of action against the Respondents. [sic]
ii. Whether the Applicant/Respondent has the locus standi to institute this suit. [sic]
iii. Whether this Honourable court [sic] has jurisdiction to entertain this suit generally having regards to the provisions of Section 254C-(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 7 of the National Industrial Court Act, 2006 and Section 11(2) of the State Proceedings Law of Enugu State, 2004 [sic]
On issue 1, the learned counsel first defined cause of action and submitted that, courts only look at the originating processes to determine cause of action. The learned counsel cited 7Up Bottling Co. Ltd v. Abiola (2001) 29 WRN 98 at 116. The learned counsel argued that, to have cause of action, the originating process must set out the rights of the claimant, the obligation of the defendant and how they were infringed or how the defendant failed to perform his obligation and cited Rinco Construction Co. Ltd v. Veepee Industries Limited (2005) 9 MJSC 197 at 204. The learned counsel submitted that, the right to work under equitable and satisfactory conditions protected by Article 15 of the ACHPRA is one that could only exist where there is employment relationship. The learned counsel submitted that, the affidavit in support has failed to establish any cause of action. The learned counsel thereafter urged the Court to resolve this issue in favour of the defendants; and moved to issue 2.
Under issue 2, which is on locus, the learned counsel was of the view that locus is a condition precedent to instituting action and cited Nworika v. Ononeze-Madu & Ors (2019) LPELR-46521 (SC). The learned counsel further submitted that, a general injury suffered by all alike in the society is non-litigable and cited Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 75 and; that, since the claimant is not an employee of the judiciary, Article 15 of the ACHPRA is not applicable. The learned counsel further submitted that, in public interest litigation, the claimant must establish personal injury above those of all others. The learned counsel argued that, fundamental rights are personal rights, which could not be fought jointly and cited Okechukwu v. Etukokwu (1998) 8 NWLR (Pt. 562) at 511. The learned counsel argued that, the operative words in section 34 of the 1999 Constitution and Article 15 of the ACHPRA begin with “every individual” therefore, signifying personal actions. The learned counsel submitted that, as a result, the claimant has no locus to institute this action, as presently constituted. The learned counsel thereafter moved to issue 3.
Under issue 3, the learned counsel argued that, the jurisdiction of the NICN, as conferred by section 254C-(1) is tied to employment relationship and; that, the claimant, not being an employee or worker, as defined by section 91 of the Labour Act, cannot come under the canopy of the NICN’s vires. The learned counsel also argued that, section 11(2) of the State Proceedings Law of Enugu State [SPLES] mandates any intending claimant to serve pre-action notice on government and its functionaries, with grace of three months, before instituting the action. The learned counsel argued that, the claimant herein failed to issue and serve the pre-action notice and cited Utek v. Official Liquidator (2009) ALL FWLR (Pt. 475) 1774 at 1791 on the effect of failure to serve pre-action notice. The learned counsel finally urged the Court to resolve this issue against the claimant and signed off by urging the Court to strike out or dismiss the matter. That settles the written address in support of the NPO. I move to the counter affidavit and its written address.
The deponent to the counter affidavit denied the focal paragraphs of the counter affidavit and stated that, the government opened several accounts in many banks in the country to which these court fees could be paid, in order to make the payments easy for all members of the public and; that, direct payment to the bank is to ensure accountability, but did not say anything about the accusation on financial autonomy for the judiciary and the non-availability of receipts.
Learned KOSISOCHUKWU L. NWIDE franked the written address in support. The learned counsel has no business formulating issues in originating summons – see NJC & Ors v. Aladejana (2014) LPELR-24134 (CA) 30, B-D. So, I discountenance the issue formulated. The learned counsel defined the words “equitable” and “satisfactory” which are the principal words in Article 15 of the ACHPRA and submitted that, the defendants satisfied the requirements when they made several banks accessible to the public in which these fees could be paid to government. The learned counsel argued further that, Article 15 of the ACHPRA, being on labour rights, only applies where there are employment relationships and; that, even if there are employment relationships, the failure to provide POS cannot amount to denial of fair and satisfactory working environment, when several banks had been made available to pay these fees. The learned counsel opined that, an inconvenience that is not cruel and barbaric could not constitute inhuman and degrading treatment. The learned counsel argued that, being that the running of a State is more complex than that of a private business, higher accountability is required, which made for the payment of these fees in banks. Thus, ended the address. I move to the written address of the claimants against the NPO.
C: Claimants’ Address Against the NPO
On the argument that employment relationship must exist to enjoy the benefits of Article 15 of the ACHPRA, the learned counsel submitted that, contrary to this opinion, the Article made it clear that, “every citizen shall have the right to work under equitable and satisfactory condition” and did not say every employee/worker under an employer. The learned counsel submitted that, thus, every person who practices a profession is captured as entitled to equitable and satisfactory working condition. The learned counsel also argued that, section 254C-(1)(d) of the 1999 Constitution makes fundamental right provisions of the 1999 Constitution applicable to all employments, inclusive of self-employment, of which the claimant belongs.
The learned counsel argued that, the lumping up of reactions to the paragraphs of the affidavit in support under a general denial is evasive and constitutes admission. The learned counsel referred to Ugwuanyi v. NICON Insurance Plc (2013) 2-3 SC (Pt. V) 56. Thereafter, the learned counsel took on the issue of locus. The learned counsel replied the defence that, locus could not be a bar to fundamental right actions and; that, a citizen not directly affected by an infringement could lawfully bring action on behalf of those affected by such infringement. The learned counsel cited Ogbe v. Okonkwo (2018) 3 CAR 93-Enugu Division and Okafor v. Lagos State Government & Anor (2016) LPELR-41066 (CA) and submitted that, Okechukwu v. Etukokwu cited by the learned counsel to the defendants is no longer the current position of law on locus in fundamental right actions, particularly because, it was decided before the Fundamental Rights (Enforcement Procedure) Rules 2009 [FREP Rules] and the NICN Rules. The learned counsel also argued that, more than one person could bring fundamental right action and cited Maitagaran v. Dankoli CA/KN/289/2019 [WITHOUT GIVING THE DATE OF DELIVERY OF THE UNREPORTED DECISION]
The learned counsel cited KLM Royal Dutch Airlines v. Taher (2014) 3 NWLR (Pt. 1393) 137 CA to argue that, fundamental right actions could be brought through either the FREP Rules or the rules of the particular court, but subsequently, in what looks like a summersault, argued that, the NICN’s President’s power to enact rules pursuant to section 254C-(1)(d) of the 1999 Constitution for the enforcement of fundamental rights is secondary to the FREP Rules made by the Hon. the Chief Justice of Nigeria; and; that, the FREP Rules must govern the special breeds of fundamental rights to be adjudicated by the NICN – see p. 5-6 of the address. The learned counsel submitted further that, section 254C-(1)(d) of the 1999 Constitution is deemed to be part of Chapter IV of the 1999 Constitution; and as such, locus standi cannot defeat the enforcement of any of the rights therein conferred. The learned counsel also submitted, the ACHPRA is also deemed part of the 1999 Constitution because, the FREP Rules recognised it. The learned counsel submitted that, as a result, locus standi would not apply to adjudication of these provisions at the NICN. There ended reply to the issue of locus and the learned counsel moved to issue of pre-action notice.
The learned counsel cited Olatunji v. Hammed (2010) ALL FWLR (Pt. 540) 1365 CA and argued that, section 11(2) of the SPLES is inferior to the provisions of the 1999 Constitution; and ipso facto, section 254C-(1)(d) of the 1999 Constitution, which forms part of Chapter IV of the 1999 Constitution; and must therefore, be enforced in the same way. The learned counsel ended his argument on this note and urged the Court to give the claimant victory on that point; and subsequently, finally urged the Court to throw away the NPO.
That ends all the addressees in the case, since the claimant did not file RPL to the address of the defence nor did the defence file RPL in reaction to the written address of the claimant against the NPO. I am now left with the major duty in judgment writing, which is giving my decision. I take note that this is, to my knowledge, a novel case in this Court. I also take note that, it is a suit commenced via originating summons and; that, affidavits constitute both the pleadings and evidence of the parties to the suit. I have therefore carefully noted the rules of law relating to resolving conflicts in affidavits. I have also carefully read the FREP Rules and taken note of the special nature of fundamental right actions. I equally consulted most of the important authorities cited, while I have equally carefully digested all the relevant processes filed before the Court on this case. I have also, in obedience to law and tradition, done careful further research on pertinent authorities that might assist me to pull off a reasoned decision. Off to my decision I go. My decision shall be divided into two parts. Part A shall deal with the NPO while Part B shall deal with the substantive suit.
Part A: Decision On The NPO
I would take the issue of pre-action notice first. And in deciding this issue, I quote from my previous decision on section 11(2) of the SPLES in Suit No. NICN/EN/IM/2018 – Anyafulude v. Government of Enugu State of Nigeria & 3 Ors [Ruling delivered 14th October 2019], 11-13:
“I therefore hold that the requirement of issuing and serving pre-action notices apply to actions for judicial review, just like all other actions. I am of the firm conviction that actions commenced via judicial review are not exempted from issuance and service of pre-action notices, where the parties sued are entitled to receive pre-action notices. This takes me to the question whether the parties, are entitled to pre-action notices in this case. Before then, let me observe that, section 11(2) of the SPLES is both subject matter and party based. We have just dealt with the subject matter aspect and now intend to examine the party aspect of it. On this, I cite Eze v. Okechukwu & Ors (2002) LPELR-1194 (SC) 19-20, D-A, where the Supreme Court opined on the definition of a public officer, for the purposes of section 11(2) of the State Proceedings Law, Cap. 131, Laws of Anambra State, 1986, which is impari materia with section 11(2) of the SPLES thus:
‘Under the State Proceedings Law, Cap. 131, Laws of Anambra State, 1986, ‘public officer’ is defined to mean an officer engaged in the service of the State in a civil capacity…
The definition of a public service in s. 227(1) of the 1979 Constitution which was then applicable was very wide…The definition was essentially for the purposes of the Code of Conduct. [Underlines supplied for emphasis]’
The position remains the same under the 1999 Constitution – see section 318. I think this authority throws sufficient light on who is public officer for the purposes of section 11(2) of the SPL. The ‘State’ as employed in section 11(2)(a) must be construed to mean the executive arm of government, which is the embodiment of the powers of a state. From thence, the public officer envisaged in the subsequent subsection 11(2)(b) must logically have its umbilical cord tied to the State, i.e. the executive arm of government. Thus, this law sets out to protect the executive arm of government in its day-to-day responsibility of carrying out its duty of implementation of a mass of legislations and policies of the state; and by necessary implication, the civil servants who actually implement these laws and policies. In doing these, as naturally expected, they step on toes and constantly incur lawsuits, and need some breathing space whereby complaints of citizens against them could be reviewed with dispassionate calm; and where necessary, the complaints are settled amicably; and where unnecessary, they allow them to snowball into full-fledged suits/cases. This is the rationale for pre-action notices before these officers could be sued.
To serve in ‘civil capacity’ as used in relation to section 11(2) of the SPL simply means in the capacities of civil servants or as civil servants. While civil servants are public officers, not all public officers, are civil servants. Public officers who serve in the core ministries of the civil services of a state are those referred to as civil servants, to distinguish them from other public officers, while those who serve in other organs of government like the judiciary and the legislature and extra-ministerial departments/parastatals or other statutorily created public institutions are not civil servants, but public officers. Arising from the above, I am of the considered and firm opinion that section 11(2)(b) of the SPL does not apply to all the defendants on record to give them the benefits of being served with pre-action notices for proper commencement of this action. Only the 1st and 2nd respondents/applicants could enjoy the benefits of section 11(2)(a)&(b) of the SPL. There is no arguing it, the 1st respondent/applicant is another term for the State, when its executive powers are being stressed, while the 2nd respondent/applicant is the Chief Law Officer of the State and represents the State in all proceedings. The 2nd respondent/applicant, though not a civil servant but public officer, is part and parcel of the executive and takes benefit of entitlement to pre-action notice by virtue of subsection (2)(a) of section 11 of the SPL, which it personifies. The 3rd and 4th respondents/applicants are definitely not entitled to pre-action notices, being part and parcel of the judicial arm of government. Both are not civil servants but purely public officers.”
Following this authority, I find no difficulty in holding that; the 1st and 3rd defendants are entitled to pre-action notices before this action could be lawfully instituted against them, while the 2nd is not so entitled. They must be struck out of the suit; and are accordingly struck out. I found that Exhibit C of the originating affidavit, is not a pre-action notice, since it gave only 14 days grace instead of the three months prescribed by section 11(2) of the SPLES.
Since the 2nd defendant is not entitled to pre-action notice, what then is the effect of removal of the 1st and 3rd defendants from this suit? That is the real question to answer now. In my view, their removal is fatal to the action. It would be observed in all the paragraphs of the affidavit in support of the originating summons that, just a single allegation is not made against the 2nd defendant. All the allegations are against the 1st and 3rd defendants. In fact, the claimant even exculpated the 2nd defendant from any blame and advocated that; he was a victim of the lawlessness of the 1st defendant and 3rd defendants. The claimant also clearly declared in the supporting affidavit that, the 2nd defendant is not in a position and has no wherewithal to carry out the reliefs claimed in this suit. It is clear therefore, that, the 1st and 3rd defendants are actually the proper and necessary parties before this Court, while the 2nd is merely a nominal or at best, a desirable party.
So, it is clear that if the reliefs were granted against the 2nd defendant alone, by leaving him as the sole defendant, after the removal of the 1st and 3rd, any order of the Court would be knowingly made in vain, as the 2nd defendant would lack the vires to carry it out. I therefore cite my previous decision in Suit No. NICN/EN/14/2018 – Egbu v. Federal Civil Service Commission & 2 Ors (Judgment delivered 17th December 2020] 19, on when to strike out a whole suit for want of necessary party, even though, a nominal party remains:
“…where there is no proper and necessary party standing before the Court, and the effect would be to grant the reliefs in vain or to engage in wild goose chase, whereby the orders of the court would amount to nullity – Makinde & Ors v. Akinwale & Ors (1995) LPELR-1828 (SC) 10, C-D – by reason of breaching the rules of fair hearing, the court has no option than to strike out the entire suit – see Umeh & Anor v. Okwu & Ors (2014) LPELR-24063 (CA) 32, B-E, where the Court of Appeal admirably clarified the law on the effect of non-joinder of proper and necessary party:
‘For a court to be competent and have jurisdiction over a matter proper parties must be identified… The question of proper parties is a very important issue which will affect the jurisdiction of the Court. Where proper parties are not before the Court, the Court lacks jurisdiction… Failure to join APGA as a party, the trial Court is deprived of the jurisdiction to determine the matter.”
Arising from the above, once the 1st and 3rd defendants are removed from this case, the action becomes an empty shell. The 2nd defendant only becomes relevant when the major reliefs against the 1st and 3rd are secured and he is to carry out the consequential relief. In view of the above, the case, as it is, when pre-action notices were not issued on the 1st and 3rd defendants, who are the necessary defendants in this suit, is incompetent and liable to be struck out for want of jurisdiction in failing to comply with the condition precedent of serving pre-action notices on the 1st and 3rd defendants. The suit is accordingly struck out. I take note of the arguments of the learned counsel to the claimant that pre-action notice is not applicable to fundamental rights actions. My view is that the instant case is not a fundamental right action. I would come to the justification of my view on this point anon.
Ordinarily, having struck out the suit, that ought to be the end of the matter, but I shall proceed to examine the other issues because, this is originating summons, whereby evidence is by affidavits and it is the injunction of the Supreme Court that, in situations like this, the trial court must endeavour to also give its opinion on the substantive suit for the benefit of the appellate courts, in case, its decision on the NPO is overturned – see Dapianlong & Ors v. Dariye & Anor (2007) LPELR-928 (SC) 47, A-B and Nigeria Gas Company Limited v. Gasland Company Limited (2015) LPELR-42242 (CA) 7-11, F-E.
The next issue I would examine is that of locus, which has several interconnected issues. There is the argument of the learned counsel to the claimant that, the alleged breaches are breaches of the fundamental right provisions of the 1999 Constitution and; that, the FREP Rules govern the prosecution of this case. The defence has argued that, no fundamental right issue is involved and; that, the proper procedure has not been followed in bringing this action, as class actions or public interest litigations could not be fought via fundamental rights actions or the RREP Rules, which prohibit joint actions. The defence also opined that, in public interest litigation, the claimant must show the injury he suffered above all members of the society to succeed. First, it must be made clear that, the defence did not complain about the lack of consent or authority from the other lawyers allegedly represented, to claimant to bring this action. That settles that, and I need not inquire into what has been conceded.
Now, to the main issues connected with lack of locus: the need for a claimant in public interest litigation to show special injury above other members of the society and; that, joint actions could not be brought under FREP Rules or that, FREP Rules are applicable in this Court, I must say, both learned counsel are, with respect, mistaken in their views. In saying this, first, I cite my previous decision on the applicable rules to fundamental rights actions in this Court. In Comrade Kingsley Edeh & 2 Ors v. Government of Enugu State & 10 Ors [delivered December 9, 2020] 30-31, this Court held and, I quote with approval:
“Be that as it may, it should be understood that, the causes of action herein are governed by section 254C-(1)(a), (b), (d)&(vi) of the 1999 Constitution [as altered], which gives this Court exclusive civil jurisdiction. Therefore, the jurisdiction of this Court, as granted by the section 254C of the 1999 Constitution [as altered], is, with the utmost respect, not subject to the FREP Rules, as prescribed by the Hon. The Chief Justice of Nigeria, but to the NICN Rules, even where issues arising from the fundamental rights provisions of Chapter IV of the 1999 Constitution are directly involved because, the provisions of section 254C-(1)(d), granting this Court’s civil jurisdiction on issues arising from the fundamental rights in Chapter IV of the Constitution, are specially granted in that section and; are only exercisable under the rules made by the President of this Court, pursuant to section 254E-(1) of the 1999 Constitution [as altered], unlike the other superior courts of records in Nigeria, liable to the general provisions of the FREP Rules made by the Hon. The Chief Justice of Nigeria, pursuant to section 46(3) of the 1999 Constitution. And in line with the foregoing, Order 3, Rule (2)(2) of the NICN Rules makes provisions for commencement of suits relating to interpretation and application of fundamental rights.
It would be observed that, section 46(3) of the 1999 Constitution, which gives the Hon. The Chief Justice of Nigeria powers to make the FREP Rules, actually excludes the NICN, capturing only the High Court. In essence, the jurisdiction of the NICN to enforce or apply the provisions of Chapter IV of the 1999 Constitution [as altered] is specially conferred by section 254C-(1)(d) of the 1999 Constitution and; could only therefore, be exercised under the rules specially made for the Court by virtue of section 254E-(1) of the 1999 Constitution [as altered]. This is so, because of the nuances connected with the interpretation and application of fundamental rights provisions of the 1999 Constitution in labour, industrial and employment relations. In deciding any issue in this Court, be it related to fundamental rights, as contained in Chapter IV of the Constitution, the Court must always have in mind, ILO’s conventions, treaties, standards and protocols, the need to eschew unfair labour practices, and the need, to propagate international best practices in labour and employment relations, in order to bring the nation in tune with the comity of nations on matters of labour, industrial and employment relations, which only this Court is empowered to do – see section 254C-(1)(f)-(h) & (2) of the 1999 Constitution [as altered]. So, the objection on ground that this Court has no jurisdiction over fundamental rights issues is wrong and is accordingly dismissed.”
The above is the law on the status of the FREP Rules on enforcement of fundamental right actions in the NICN as they relate to its jurisdiction. I also viewed with disagreement the argument of the learned counsel to the claimant that this suit was properly commenced via Order 3, Rule 2 of the NICN Rules. I agree that is the provision dealing with commencement of fundamental right actions in the NICN, but it would appear that the claimant’s counsel did not quite appreciate the nuances of the provisions of Order 3, Rule 2 of the NICN Rules or decided to close his eyes to those aspects not in his favour. Order 3, Rule 2(a)&(b) of the NICN Rules becomes relevant here, and it says, if the fundamental right action deals with only construction, it must be commenced by originating summons, but if with both interpretation and application, it must be by pleadings. The learned counsel to the claimant has argued that, the suit is about interpretation alone. I do not, with respect, think he appreciates what is meant by application, otherwise, he would not have argued thus.
To know whether a suit is about interpretation alone or about both interpretation and application, the reliefs must be resorted to for the answer. Wherever there are reliefs asking that the court makes an order compelling something to be done or somebody to do something, that is what is called ‘application’, whereas, if the only relief claimed asked for mere interpretation or declaration of the purport of the statutory provisions, without calling for its application or enforcement to breach of particular rights, then, that is what is called ‘interpretation or construction’ simpliciter. Of the three orders or reliefs sought, Nos. 2 and 3 are asking that the Court direct the 1st and 3rd defendants to do specific things, based on the interpretation or declaration sought in relief 1. It is therefore standing logic on its head to argue that the suit is about interpretation alone, but a resolution of this is dependent on whether I agree, the suit is about infringement of fundamental rights provisions of the 1999 Constitution.
I do not agree with the learned counsel to the claimants that infringements of fundamental rights provisions of the 1999 Constitution are involved in this case. Surprisingly, the learned counsel who alleged infringement of fundamental rights, failed to cite the particular fundamental rights allegedly infracted and the section in Chapter IV of the 1999 Constitution that granted that right. In fact, in originating summons, which calls mainly for construction of statutory and documentary provisions, the particular sections of the statute allegedly infringed must be made focal in the questions framed for the decision of the courts. No mention of any of the provisions of the 1999 Constitution, which deals with fundamental rights, was made in the sole question framed for determination in this case. Nonetheless, since it is the duty of courts to unearth the particular laws pertinent to the pleadings of a party, I have combed through the whole of Chapter IV of the 1999 Constitution; and could not find any provisions relevant to the injuries alleged here. I have looked at sections 34 and 42 of the 1999 Constitution, which appear to have shadowy relations to the pleadings/evidence of the claimant, and I could not agree that the dignity of lawyers were lowered or that, there was any inhuman treatment or discrimination involved in the allegations in issue. All members of the society were subjected to the same treatment and the method of banking transaction [direct payment to banks] is not alien, but its popularity is judicially noted, to be receding.
This policy might be, at worst, inhumane or onerous, but definitely, not inhuman. There is a world of difference between ‘inhuman’ and ‘inhumane’ treatments/acts/policies. Chapter IV of the 1999 Constitution used the word “inhuman” as distinct from ‘inhumane’; as such, the right covered therein must be limited to inhuman acts or treatments/policies; and could not logically be extended to inhumane treatments or actions, as breach of fundamental rights. They might inhibit right to easy access to justice, but this right is not one of the fundamental rights in Nigeria. That is why the learned counsel to the claimant has only been able to cite Articles 15 and 26 of the ACHPRA. The infringement complained of might infringe other employment/work related rights, as covered by the provisions of section 254C-(1) of the 1999 Constitution [as altered] and Articles 15 and 26 of the ACHPRA, but definitely not the fundamental rights provisions of the 1999 Constitution. And I so hold. It might be onerous, but definitely not inhuman or degrading. So, Order 3, Rule 2(2)(b) of the NICN Rules, does not catch the suit, which is not even on fundamental rights infringement; and I so hold. Since all other matters, calling for construction or interpretation of statutory and documentary provisions, where there are no substantial dispute of facts could be brought via originating summons, this matter, calling for community construction of Articles 15 and 26 of the ACHPRA and section 254C-(1)(a) of the 1999 Constitution, was genuinely brought via originating summons; and I so hold – see Order 3, Rule 3 of the NICN Rules. Let me now go to the issue of locus proper.
The attack on locus is based on the fact that fundamental right actions could not be brought jointly. I think that has been fully answered by the authority of Maitagaran v. Dankoli in Suit No. CA.KN/289/2019 [delivered October 27, 2020] and cited by the learned counsel to the claimant without the proper citation details. This decision, being a latter decision of the Court of Appeal as against its earlier decision in Okechukwu v. Etukokwu [supra] cited by the defence, takes precedence and constitutes the law – see Adejugbe & Ors v. Aduloju & Ors (2015) LPELR-24916 (CA) 14-18, D-B. I now come to the argument that the claimant has no locus because, he failed to establish the injury he suffered over and above those of the general public to sustain a public interest litigation. Let me say first, the Supreme Court has extended the frontiers of locus in Abrham Adesanya v. President, RFN (1981) LPELR-147 (SC) 31-32, D-C and 34, A-D. Accordingly, where a citizen or mere resident of Nigeria is of the view that there is constitutional infraction, he can bring an action and would have full locus. The action herein is squarely based on infraction of the rights conferred under section 254C-(1)(a) of the 1999 Constitution and Article 15 of the ACHPRA, which has constitutional flavour by virtue of sections 17(2)(c), (e)&(3)(b) and 254C-(1)(f), (h)&(2) of the 1999 Constitution, which make Article 15 of the ACHPRA justiciable, and gives this Court jurisdiction to enforce international best practices in employment and labour relations and; also, to enforce international labour standards and treaties on employment, labour and industrial relations. So, the issues in this case revolved heavily around constitutional provisions and the claimant has unhindered right to bring this action.
In further answer, I refer to my previous unreported decision in Suit Nos. CONSOLIDATED NICN/EN/CS/25-52/2013-NICN/EN/CS/228-285/2013 – Amu Felix & 90 Ors v. Nigeria Railway Corporation & 1 Or [delivered February 25, 2019] p. 21-22, where it was held, amongst others, class action could be brought by a single claimant for himself and on behalf of others, on employment or work related matters, provided the same facts and issues account for the suit; and usually where declaratory and injunctive reliefs, rather than monetary reliefs, are claimed:
“Another thing I observed is that, these matters could be conveniently brought as class action. At https://www.califonialaborlawattorney.com [What is an Employment Class Action Lawsuit?] [sic], I found the following passage useful:
‘Employee rights violations at work often affect more than just one individual. For example, if your employer fails to pay you rightful overtime wages, other employees are probably facing the same injustice. In some cases, thousands employees may all be the victims of the same workplace rights violations. In these instances, an employment class lawsuit can benefit all victims at once, by consolidating dozens of individual claims into one case…However, a successful class action claim usually results in a court ruling that forces the company in question to end the discriminatory and/or other illegal practices as well as compensate the victims.’ [Underline supplied for emphasis]
The Internet source goes further to list the requirements that must be met. These requirements are that:
‘1. The class is so big that filing individual claims would be impractical, 2. Each individual claim in the employment class action lawsuit must be similar, 3. The individual types of lawsuits as well as the defenses to these claims must be similar, and 4. The class representative must protect the interest of everyone in the class.’
It was additionally specified in the Internet source [supra] that the case must meet two of these three further requirements:
‘1. Your employer broke the law. This means the courts can fix the problem through an official injunction, rather than just ordering compensations for victims. 2. The legal issues that affect the whole class must have greater importance than individual issues. 3. An employment class action lawsuit must be the best way to resolve the conflict. This typically means that it saves times, as well as prevents inconsistent judgments.’ [Underline supplied for emphasis]
Employment class action is a form of representative action. From the excerpts above, it would be observed that the present actions meet virtually all the specifications listed above to qualify for employment class action. Thus, the a [sic] single suit ought to have been filed with a single of the claimants acting for all, in representative capacity, which is what the claimant had actually unwittingly done by putting forward the claim and evidence of only one of the parties as a test case for the whole lot. The claims of the 91 employees/retirees are the same…”
It would be observed that the instant suit meets all the trappings of class action/public interest litigation, as specified in the persuasive authorities abovein quoted. The terms ‘public interest litigation’ and ‘class action’ mean the same thing – see Vinodh Jaichand in “Public Interest Litigation Strategies for Advancing Human Rights in Domestic Systems of Law” at www.sur.conectas.org [accessed 11:22am February 28, 2021], where the learned author said:
“Public interest litigation’ has been defined as ‘a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” [Underline for emphasis]
This action is definitely a class action/public interest litigation for and behalf of legal practitioners on work-related complaints. The above persuasive authorities therefore shows that, the position of the learned counsel to the defence that, for a class action to be brought, the litigant must show that he sustained injury far above all others in the community, cannot be right. It must not be forgotten that, this Court is under sacred mandate to enshrine international best practices in the industrial relations jurisprudence of this nation while adjudicating employment, labour and industrial relations disputes. This suit, for one, is not a single person’s suit, but a class action on work-related issues and; therefore, not amenable to the stricture of showing the special injury suffered by the claimant. That is the norm and evidence of international best practices in employment/industrial relations in comity with the world civilized nations.
In any case, since section 254C-(1)(a), (f)-(h)&(2) of the 1999 Constitution has brought a radical rethink of industrial relations laws and practice in Nigeria, thereby making both the law and practice sui generis, by enjoining the Court to observe and enforce international labour standards and also to enthrone international best practices, with its rules of Court and sections 13-15 and 19 National Industrial Court Act [NICA], pricing access to justice and substantive justice over technicality, its decisions must kowtow to these sacred constitutional mandates with the implication that, in times of conflicts between these sacred constitutional mandates, be they in relation to hitherto substantive or adjectival laws, the new legal regime must take precedence; manifesting a change in the hitherto position of law, bowing to the superior injunctions of international best practices, as manifested in various international treaties to which Nigeria is signatory. Thus, any contrary previous court decisions must give-in because; the laws under which they were decided have shifted goal posts by dint of the Third Alteration Act. The Court of Appeal, the Apex national Court on industrial relations disputes, appreciated this and stated the law correctly in its most recent pertinent decision in [Unreported decision of the Lagos Division in Suit No. CA/L/1091/2016 – Sahara Energy Resources Limited v. Oyebola, delivered 3rd December 2020], wherein it opined:
“While the doctrine of stare decisis or binding precedent enjoins the courts to follow the decisions of superior courts, it has to be remembered that what the earlier decisions established is only a principle, not a rule…It is in this wise that it becomes necessary to interrogate whether, in the light of the Third Alteration to the 1999 Constitution, wherein the National Industrial Court was fully structured into the Nigerian Judiciary as a superior court of record and a new labour jurisprudence emanated; the principles established in the cases prior to the said Third Alteration…still remains the regnant law in the diacritical circumstances, or whether indeed a new legal regime that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations…The proper attitude of the court when confronted with innovation introduced by way of an amendment to an existing law or a new statute…in this case the Third Alteration to the 1999 Constitution…was enunciated in Bank of England v. Vagliano Brothers (1891) A.C. 107 at 144-145…as follows:
‘I think the proper course in the first instance is to examine the language of the statute and ask what is the natural meaning, uninfluenced by any consideration derived from the previous state of the law, and not to start by enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view”
Where the context of any case after the enactment of the NICA and the Third Alteration Act, suggests a shift in the law, effect must be given to the new position, more especially because of the supremacy of the 1999 Constitution over all other laws and judicial precedents. In line with international best practices in employment and industrial relations dispute, which this Court is mandated to enshrine in Nigeria, and which has recognised the right of workers to bring a representative class action, by which a single individual could represent multitude to fight work-related infractions, this class action brought by the claimant, is lawful and cognizable before this Court notwithstanding the position of any previous practice, procedure and precedents of courts that would have disallowed it; and I so hold. Arising from the foregoing, I hold that the claimant has locus to bring this class action.
I will now go to the issue of section 254C-(1) of the 1999 Constitution and section 7 of the NICA cited as taking away substantive jurisdiction of the Court because, as posited by the learned counsel to the defence, these provisions do not cover the facts of this case; and as such, ousts the jurisdiction of this Court. After that, I will know if there is reasonable cause of action.
The objection is centred on the accusation that, without employment relations, this Court cannot adjudicate this matter and; the claimant is of the view that, so far the facts have to do with the conditions of work, this Court has the vires. Looking at the facts of this case, it looks superficially clear that the claimant and those he represents, being lawyers practising in the courts of Enugu State, are ostensibly not in the employment of the Enugu State Judiciary in the same manner that the judges, court registrars, bailiffs and other direct employees of the court, are. Granted that is the ostensible deduction, the close-scrutiny deduction, which shall be discussed readily, yields quite a different answer. And in adjudication, the function of a court of law is to do a careful and painstaking examination of statutory provisions to give them life by bringing out their true purports.
The question is: does the ostensible appearance end the matter? I think not. To get to the root of the matter, we must examine the nature of the relationship of counsel to courts. I found useful excerpts from the erudite work of E.W. Timberlake, Jr. in “The Lawyer as an Officer of the Court”, Virginia Law Review, Feb., 1925, Vol. 11, No. 4 (Feb., 1925), 263-277 at https://www.jstor.org/stable/106417 [accessed February 27, 2021 at 15:01pm], wherein the learned author stated:
“The lawyer is both theoretically and actually an officer of the court. This has been recognized in principle throughout the history of the profession.
The principle that the lawyer is an officer of the court does not mean, of course, that a lawyer is a public official exercising a public trust. It does mean, however, in a very important sense, that he is a quasi-officer of the State upon whom rests in part the responsibility for the administration of justice…‘an attorney at law is a sworn officer of the court to aid in the administration of justice…The significance of the lawyer’s oath is that it stamps the lawyer as an officer of the State, with rights, powers and duties as important as those of the Judges themselves. A lawyer is not the servant of his client. He is not the servant of the Court. He is an officer of the Court, with all the rights and responsibilities which the character of the office gives and impose.’
Another important result of the principle that a lawyer is an officer of the court is that the power of admitting applicants to the practice of law is judicial in its nature, and hence vested in the courts.” – see pp. 263, 266-270.
It is manifest from the above, beyond disputation, that a counsel is not a mere customer to courts, but a co-officer with the judge in a court of law. From the above, it is apropos; courtrooms are the workplaces of lawyers, as much as they are of judges. There cannot be dispute about that – see “Lawyer and Attorney Careers and Job Information – Career Profiles” at www.careerprofiles.info [accessed March 4, 2021 at 05:23am]. If the courtroom is the workplace of lawyers, is it not correct to say they must have some work-related rights against the State/court that appoint them as officers along with the judges? I think this is axiomatic. Lawyers have duties to the State/court and right of audience in courts, as officers of courts and; to actuate this right of audience and perform their official duties to the State and for which they were appointed, they must first file processes upon which their rights and duties to argue cases depend. From the fact that lawyers, who appear in courts have duties assigned them by the State, much more than to their clients and; the fact that the courtrooms are their workplace, it is indubitable that lawyers have some sort of quasi-employment/work relationship with the State via the courts.
The only thing lacking to complete the employment cycle is absence of salaries. This must be so, if lawyers have work-related duties imposed on them by the State via the judicature and who also grants them their rights to practice law [employment], in Nigeria via enrolment at the Supreme Court, and provide the places of their work [the courtrooms] and exercise some measure of direct control over how they exercise their trade in courts by way of disrobement [dismissal], but falls short only on payment of salaries then, the relationship cannot be compared with what obtains between any other profession and the State, say the medical and the accountancy professions; which it goes beyond. It must be something more than mere statutory regulatory roles played by the State over professions, but definitely closer to employment relationship and therefore, clearly quasi-employment relationship. This must be so if lawyers appearing in courts are co-officers with judges who are in full paid appointment/work with the State. The one side of a coin cannot be legal tender while the other side of the same coin is not. Such proposition would be utterly preposterous.
The common law position, as enunciated above, and which Nigeria borrowed, is partly encapsulated in sections 2(1), 5(1)&(3), 7(1), 10(1), 13 and 14(1) of the Legal Practitioners Act, which amongst numerous State controls, permit a person, after being called to the Bar, to practice as a lawyer only upon being registered [enrolled] on the Roll of Barristers and Solicitors kept by the Supreme Court of Nigeria and gives the Supreme Court powers to disrobe [dismiss] and to restore back his name to the Roll as disciplinary measures for work-related or professional misconducts. There is no other professional in Nigeria, who is not in direct employment of the State, on which the State/Judiciary exercises such direct supervisory control. Efobi and Ofaghor emphasized this when they stated in, “The Rules of Professional Conducts for Legal Practitioners 2007” that, lawyers owe tripartite duty: duty to his client, to the court and the State – at www.uk.practicallaw.thomsonreuters.com [accessed March 3, 2021 at 07:43am]. It would be observed of the tripartite duty of lawyer, he owes two to the State/court and, only one to his client! And one of the most basic insignia of employment relationship is whether the work is subject to direct control and supervision of an authority as in possession of the power to punish, promote and give instructions. The Supreme Court has power to disrobe a lawyer thus, taking away his job and is also saddled with the power to confer him with the rank of Senior Advocate of Nigeria and license him as Notary Public thus, making such lawyer conferred with the rank, a senior lawyer, with some rights and privileges.
While it is clear that the sort of control exercised by the court, especially the Supreme Court, is analogous to that between employer and employee, it is closer to employment relations than to the relationship between independent contractor and his hirer, who absolutely has no control whatsoever about how his assignment is carried out. The courts exercise a lot of direct control over lawyers and how they do their works through the rules of court and other common law traditions embedded in case laws thus, clearly implying some sort of quasi-employment relationship between both. The relationship of lawyers to the State/court is that of employment/appointment devoid of salaries, which the State enjoins the clients to pay. The venue [courts], facilities and access to advocacy are entirely monopolized by the State, making the State to be the provider of the working environment in which lawyers carry out advocacy and the judges adjudicate in unison. Thus, lawyers working relationships with the courts is unique, carrying with it features of employment devoid of salaries. Thus, lawyers are employed by the State at large, without direct payment of salaries, but the wages, the State shift to their clients, who activate the lawyers to officiate at their instances in the temple of justice in conjunction with the judges on ad hoc basis. That the lawyers, when admitted to practice, are given the title, ‘Barristers and Solicitors of the Supreme Court of Nigeria’ is signification of their working/employment relationship with the State, as officers of the courts.
By reason of their quasi-employment status with the State, they must be entitled to easy access to the adjudicatory duties of the courts, of which they are co-officers with the judges. And easy access means, unhindered access to all things that would grant them access to the ultimate duties they are burdened with, as officers of courts, without undue hindrance. There is no responsibility without corresponding rights in favour of the side bearing the responsibility and corresponding duties from the other side to the first side. Section 254C-(1)(a) of the 1999 Constitution says this Court has absolute jurisdiction on all civil causes that have to do with matters:
“Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith…”
From the above, it is clear that the complaints of the claimant herein are on facts connected with and incidental to easy access to perform his professional functions and duties in courts in Enugu State. The complaints are about matters arising from workplace and conditions of service and environment of work. The itemization is somewhat disjunctive. It is not in doubt too, that, counsel who appear in courts are engaged in labour and industrial relations by rendering statutory services to the courts and paid services to their clients and; as such, have labour/industrial relationship with the courts and their clients. While a counsel is not an agent of his client, he is an [officer] of the court – see NNPC & Anor v. Trinity Insurance (2002) LPELR-7142 (CA) 4-7, F and B.E. Orisakwe & Sons Limited & Anor v. Afribank PLC (2012) LPELR-20094 (CA) 54, C-D.
From a close perusal of the largely disjunctive provisions of section 254C-(1)(a) of the 1999 Constitution, it is clear that, the jurisdiction of this Court does not stop at employer-employee relationships, as the learned defence counsel wants us to believe, but goes beyond that, to any labour and industrial relations, matters arising from workplace and conditions of service. The courtrooms are counsel’s workplace. Any complaint about failure to provide adequate and necessary facilities that would ensure easy access to courts and lack of good working conditions/environment must come to this Court. Where, as in this instance, the workplace, conditions of work and working environment are entirely provided by the State as a monopoly, the State must be suable, if it does not meet the standards requisite for access to carrying out the works, especially where the State itself places duties on the professionals in issue; and captured squarely in the expansive coverage of section 254C-1(a) of the 1999 Constitution. This situation is different from a situation where the workplace is entirely the property of a sole self-employed person, who does not employ another in carrying out his profession.
To show to the learned counsel to the defence the futility of his arguments, this Court has jurisdiction over trade union matters and; not all trade unions are for those in the employment of government. There are a lot of trade unions that are for private trades, yet these trade unions for private trades, can bring government to courts on issues connected with alleged infringement of their conditions/environment of service. For example, in Suit No. NICN/EN/22/2019 – Edeh & Ors v. Government of Enugu State & Ors [delivered December 9, 2020], which was centred on government’s breach of right of a trade union of private workers, to exercise union rights; this Court assumed jurisdiction. A trade union of private workers can lawfully challenge any policy of the State that infringes on their conditions of service and environment of work or on their labour rights. It all depends on the facts of the case and the breach or injury at stake.
The courts have quasi-employment relationship with counsel, in that, the courts admit them to practice law and through the courts, they pay their practising fees yearly and; they have duties to the courts and must therefore, have rights too, to complain about difficult working environment or harsh conditions of service in the courts, which is their workplace, by institution of civil action; and where that is the case, it is the NICN that has exclusive civil jurisdiction and no other court in Nigeria; and I so hold. Therefore, I hold that the complaints in this suit fall squarely within the jurisdiction of this Court. To that extent, that aspect of the objection is without legal basis; and is accordingly liable to be dismissed and is accordingly dismissed.
With this dismissal, I come to the issue of absence of reasonable cause of action. This part of the objection is interwoven with the others already treated and with a return of dismissal verdicts against those preceding grounds of objection; this ground is liable to suffer the same fate as its predecessors. It is accordingly dismissed too. There is reasonable cause of action. I move to the issue of section 91 of the Labour Act raised as excluding the claimant from the definition of worker in the Labour Act, thus divesting this Court of jurisdiction. The definition of worker in the Labour Act is for the purposes of the Act alone and does not exclude other types of workers, which other statutes provide for, nor does it cover the breadth of workers and employees covered by section 254C-(1)(a) of the 1999 Constitution [as altered]. It simply means the definition is not exhaustive. Section 91(a), (b)&(f) of the Labour Act shows that, other persons than covered by the Labour Act are also workers/employees, but covered by other laws or statutes. In discussing worker in relation to the instant suit, sections 17(2)(c), (e)&(3)(b) and 254C-(1)(a), (f), (h)&(2) together with Articles 15&26 of the ACHPRA and sections 2(1), 5(1)&(3), 7(1), 10(1), 13 and 14(1) of the Legal Practitioners Act and, the common law traditions on the relationship between the State and lawyers, come into play because, they in combination, give rise to wider breadth of meaning of worker than as covered under section 91 of the Labour Act.
The objection to the jurisdiction of the Court based on section 91 of the Labour Act is accordingly dismissed. I have cleared all the objections on the way of the jurisdiction of the Court. The case must therefore proceed to decision on its merit. There I go.
B: Decision on the Merit
The first observation I would like to make with regard to this aspect of the case is that, the defence did not react to the accusation that receipts were not made available when necessary fees had been paid to authenticate the payments and facilitate their works in courts. This is an admission of failure on the part of government, the defendants, in this respect. I see this as a serious breach of the duty the State owes to counsel as officers of courts, whose probity would be at stake, when they pay fees on behalf of their clients and are not able to tender the receipts to their clients, apart from affecting their professional duties in courts when they are not able to attach receipts or their photocopies to their processes to authenticate payments; and evidence of payment is germane to the courts giving countenance to processes filed in courts. I find that there is breach of the duty of government, to ensure easy access to the courts by counsel as court officers and their clients as litigants, who retained their services to access justice.
I found that this neglect on the parts of the 1st and 3rd defendants produces very difficult, unreasonable, frustrating and tiresome working environment contrary to Articles 15&26 of the ACHPRA, which mandates every member state to ensure equitable and satisfactory working environment. Article 26 of the ACHPRA is enshrinement of the provisions of sections 17(2)(c), (e)&(3)(b) of the fundamental objectives and directive principles of state policies of the 1999 Constitution and; therefore, made them justiciable – see Olafisoye v. FRN (2004) LPELR-2553 (SC) 67-72, C-D and AG Ondo State v. AGF & Ors (2002) LPELR-623 (SC) 46, C-D, 51-53, D-A, 137, A-D. How can citizens obtain labour and industrial relations justice when the court system is deliberately made inefficient and access to justice is made deliberately difficult and frustrating? This is inhumane, contrary to section 17(2)(c) of the 1999 Constitution. Justice is central to the enjoyment of all rights granted by law, especially labour and industrial relations rights. When Article 26 of the ACHPRA is read in conjunction with section 254C(1)(f) of the 1999 Constitution and section 17(2)(c), (e)&(3)(b) of the 1999 Constitution, it becomes undoubted that, the provisions of section 17(2)(c), (e)&(3)(b) of the 1999 Constitution have become justiciable by the enforcement regime provided for them in the provisions of Articles 15&26 of the ACHPRA, which command positively that signatory States provide equitable and satisfactory conditions of work and independence of the judiciary; especially in view of the uncontroverted accusation that, lack of financial independence of the court against the judgment of the FHC is responsible for these laxities; and section 254C-(1)(f) of the 1999 Constitution, which gives this Court the vires to eschew all unfair labour practices and entrench international best practices in employment, labour and industrial relations practices in Nigeria – see Olafisoye v. FRN [supra] and AG Ondo State v. AGF & Ors [supra] on how provisions of Chapter II of the 1999 Constitution could become justiciable.
Apart from the above, the provisions of Article 26 of the ACHPR treaty and that of section 254C-(1)(a) of the 1999 Constitution are atavistically justiciable on their own, Nigeria being signatory to the ACHPR treaty while section 254C-(1)(a) of the 1999 Constitution is self-executing; and this Court, having being empowered to inquire into the fairness or otherwise of labour and industrial practices; and where fund unfair, to remedy it as it deems fit in accordance with international best practices, as benchmarks for the remedies to be provided. Arising from the above, I find it pertinent to hold that the 1st and 3rd defendants have failed in their responsibilities with respect to the provisions of receipts, without any reasonable excuse for denying lawyers, who are joint-officers with judges, the efficient use of the courts, thereby debarring easy access to the courts and justice, contrary to the provisions of the relevant statutes as cited abovein. I cannot find any rationale for unavailability of mere receipts, in the courts, when the usual practice is that, these receipts are printed in bulk to carter for the problem of not being available for use and are replaced when there is noticeable diminution of the bulk quantities. There is no reasonable justification for the embarrassing situation of scarcity of receipts. It shows pure insensitivity to the sacred constitutional duty of ensuring easy access to justice; and the 1st and 3rd defendants must be held accountable. And I so hold. I say this, because the 2nd defendant was touted as a victim of the actions and inactions of the 1st and 3rd defendants.
I now move to the issue of payment in banks for court services. First, I observe that, that is the only aspect of the accusations to which the defendants responded and their explanation is that, it is to avoid fraud in public revenue that the 1st defendant insist on direct payments to banks and that this applies to all payments to government and to all members of the society alike. I do not find that the claimant, who did not file further and better affidavit, debunked this explanation for the policy. I think, the claimant has no answer to the defence that this method was adopted to safeguard public revenues. I do not find too, that, the claimant explained to my satisfaction, how the POS recommended would solve the problem because, as is evident from the affidavit in support of the originating summons, the problem of making payments at banks is mainly due to epileptic Internet services, which the claimant also indicated, is applicable to the only POS provided for use in one of the courts. What this simply mean is that, even if plenty POS were provided, that might not have solved the problem of epileptic Internet services; which is at the root cause of both the direct payment to banks and the use of the only POS provided so far; and the problems continue. And it has not been suggested to me that the 1st and 3rd defendants are in charge in Internet services. I do not see that the claimant gave other very viable alternatives and explained how they would solve the issue of safety of public revenues raised by the defence. So, I disagree with the claimant on this point and finds in favour of the defence that, the issue is unproved and therefore liable to be dismissed; and is accordingly dismissed.
I observed that, in the counter-affidavit of the defence, they failed to debunk the evidence that the 1st and 3rd defendants had not obeyed the judgment of the FHC [Exhibit A of the Affidavit in Support] nor did they deny the accusation that they starved the judiciary of funds, usurped its functions of running its affairs, and made it a dependent part of the executive. Without financial autonomy, there cannot be any autonomy. Any such touted autonomy, minus financial autonomy, is a mirage: money being the sinew of administrative autonomy, efficiency and independence of mind and actions. This is clearly an admission that the 1st and 3rd defendants are directly responsible for the absence of receipt booklets in the courts in Enugu State by starving the judiciary of the funds to perform its constitutional duties. This is a sad commentary on the practice of democracy in Nigeria, when the executive would decide to treat the judiciary with distain and the decisions of courts with ignominy, particularly where it affects the rights of another arm of government, forming the trinity called government, and which section 36(1) of the 1999 Constitution says must be “constituted in such a way to secure its independence and impartiality.”
It must be made known to all authorities that, section 36(1) of the 1999 Constitution together with Article 26 of the ACHPRA made justiciable the provisions of section 17(2)(e)&(3)(b) of the 1999 Constitution, which provides that: “the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.” From the foregoing, it follows that, the ignominious contempt with which the 1st and 3rd defendants have treated the independence of the Enugu State Judiciary and the judgment of the FHC in issue, directing it to give the Enugu State Judiciary financial autonomy, is a frightening attention to efforts at rendering the judiciary comatose in Enugu State, which cancerous effect is yielding the negative fruit of absence of mere receipt booklets to ensure accountability and easy access to courts in Enugu State.
A judiciary, which would have to depend on the executive for mere production of receipt booklets for its functions, and which the said executive failed to produce, cannot be said to be independent nor have any integrity in the true sense of the words. This is a direct infraction of section 17(2)(e) of the 1999 Constitution as made justiciable by Article 26 of the ACHPRA. Likewise, a judiciary in which the legal practitioners, who practice in the courts and litigants, who patronize its services, cannot obtain receipts for their payments, for days running, after making such payments or at all, could not be said to provide easy access to the courts, contrary to the obligation of Enugu State under section 17(2)(c), (e)&(3)(b) of the 1999 Constitution, made justiciable by Articles 15&26 of the ACHPRA – see sections 4(2)-(3)&(4)(b), 6(6)(c) of the 1999 Constitution, Items 34 and 60(a)&68 of the Second Schedule to the 1999 Constitution and; Olafisoye v. FRN [supra] and AG Ondo State v. AGF & Ors [supra]. A government that cannot issue mere receipts to confirm payments to it cannot be said to be keen on probity and accountability, which it touted as the reason for its direct banking payment policy for its services. This is a sad commentary!
May I also say that, by the provisions of section 254C-(1)(a)&(f) of the 1999 Constitution, which gives this Court jurisdiction over conditions of work and welfare of labour and jurisdiction to eradicate all unfair labour practices and to entrench international best practices in labour and industrial relations, construed along with Item 34 of the Second Schedule to the 1999 Constitution, which gives the National Assembly powers to legislate on labour relations and section 17(2)(c) of the 1999 Constitution, which says, “the actions of government shall be humane”, made the provision of section 17(2)(c), (e)&(b) of the 1999 Constitution justiciable and make the neglect or refusal of the Enugu State Government to make available to litigants in the course of accessing the courts and legal practitioners in the course of their work for days, mere receipts for payments duly made to enable them access the courts, amounts to both inhumane treatment and unfair labour practice; and inhibition of easy access to the courts, since these receipts are necessary for properly accessing the courts. I therefore doubly hold that the defendants lose on the issue of absence of receipts in the Enugu State Judiciary, while the claimant wins.
All issues have been fully discussed, as could be seen above. The Court must round up by making its final orders consonant with its findings and holdings hereinbefore.
Assuming the Court of Appeal overrules my decision striking out this suit, I refuse relief 2 because, it only relates to the issue of POS, which I have found not satisfactorily proved. I grant relief 1 only in respect to issue of non-availability of receipt booklets and refuse it in respect of POS machines, pursuant to my earlier findings and holdings hereinbefore. I grant relief 3 in its entirety. I would not grant cost because, the claimant lost the suit on technical ground, and it was struck out.
Judgment is accordingly entered.
HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA