ISSUE

Whether a party seeking reinstatement by his former employer on the grounds of having been dismissed unfairly, should be allowed to avail himself of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979?

FACTS

The appellant had been in the respondent's employ and was dismissed on the alleged grounds of insubordination, disloyalty and gross misconduct. The appellant claimed that his dismissal was constitutionally unfair in as much as he had not been given a fair hearing prior to his dismissal and he sought reinstatement as a result thereof. The appellant (plaintiff then) brought an application before the High Court in accordance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The trial court ordered his reinstatement. The defendant (respondent) appealed to the Court of Appeal.

The Court of Appeal, however, held that the appellant's principal claim was one of reinstatement and as the right to employment was not one of the fundamental constitutional rights protected by Section 42 of the 1979 Constitution and, the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 should not have been invoked. The fundamental right to a fair hearing was not the principal claim, but ancillary to the claim for reinstatement. Thus, the court found, that the appellant (respondent in that appeal) had not been properly brought before the court. The employer's appeal was accordingly upheld, and the striking out of the employee's case ordered.

It was against that decision by the Court of Appeal that the appellant (plaintiff in the trial court, respondent in the Court of Appeal) now appealed to the Supreme Court.

The appeal was dismissed.

HELD (Unanimously dismissing the appeal)

1.      On the procedure followed by the appellant

The claims in this instance were partly for breach of a fundamental right (the right to a fair hearing) and partly for wrongful dismissal. However, the principal claim was wrongful termination of employment and as such the claim should have been instituted by a Writ of Summons. Kutigi, JSC, at page 76.

2.      On whether the special jurisdiction conferred on the High Court by Section 42 of the Constitution, 1979, was applicable in this case

The appellant sought a declaration that his dismissal had been in breach of employment regulations. As such, his principal claim was not to enforce a fundamental right under Section 33(1) of the Constitution. Thus, it was not the appellant's attempted enforcement of a fundamental right that formed the substantive claim intended by Section 42 of the Constitution, 1979. Ogweugbu, JSC, at page 84.

For the appellant: M.A.O Okulaja

For the respondent: Not represented

The following cases were referred to in this judgment:

Nigeria

Adeyemi & others v Opeyori (1976) 9-10 SC 31

Federal Minister or Internal Affairs & others v Shugaba Abdulrahman Darman (1982) 3 NCLR 915

Izenkwe v Nnadozie 14 WACA 361

Madukolu & others v Nkemdilim (1962) 1 All NLR 587

Tukur v Government of Gongola State (1989) 4 NWLR (Part 117) 517

Tukur v Government of Taraba State & others (1997) 6 NWLR (Part 510) 549

The following statutes were referred to in this judgment:

Nigeria

Constitution of the Federal Republic of Nigeria 1979 Cap. 62 Chapter IV: Ss 33(1); 42; 230(q); 230(r); 230(s)

Fundamental Rights (Enforcement Procedure) Rules Cap. 62 Laws of the Federation 1990

The following rules were referred to in this judgment:

Nigeria

Borno State High Court (Civil Procedure) Rules 1979: Order 2

Fundamental Rights (Enforcement Procedure) Rules 1979: Order 1 rule 2

The following Decrees were referred to in this judgment:

Constitution (Suspension and Modification) Decree No 107 of 1993 Second Schedule

Kutigi, JSC (Delivered The Leading Judgment):- Proceedings in this case were commenced in the Maiduguri High Court by the applicant/appellant when he filed in that court a motion ex parte for leave to apply for an order enforcing or securing his fundamental rights alleged to have been infringed pursuant to the Fundamental Rights (Enforcement Procedure) Rules, 1979. Upon the grant of leave to apply, the appellant filed his motion on notice which sets out in full a statement of the orders prayed for as well as the grounds for the application as follows:-

"(1)    A declaration that both the suspension letter and termination of appointment letters references BRTV/ PER/ 170/ S/ Vol. 1/ 99 of 12 December 1985 and BRTV/ PER/ 170/ S/ Vol. 1/ 102 of 20 January, 1986 respectively are illegal, unconstitutional, and thereby repugnant to rules of natural justice.

(2)     Declaration that the purported termination of the applicant's appointment by the respondent from the Borno Radio Television Corporation Maiduguri is mala fide, void and unconstitutional.

(3)     A declaration that by reason of the respondent's failure to call upon the applicant to defend himself before the issuance of letters of suspension and termination of appointment constitutes a violation of the applicant's fundamental right to fair hearing and therefore unconstitutional.

(4)     A declaration that by failure of the respondent to call upon the applicant to defend himself, the respondent dealt with the applicant's case with bias.

(5)     A declaration that the applicant be reinstated to his job under the respondent with payment of all his salaries and entitlements since the purported termination of the applicant's appointment.

Grounds (1) The applicant is a Nigerian Citizen, resident in Maiduguri, Borno State.

(2) The applicant is a Senior Staff on Grade 09 and a pensionable appointment under the respondent at all material times to this action.

(3) The applicant cannot be deprived of his fundamental right without due process of law by a tribunal or body of competent authority before such body can terminate the appointment of the applicant.

(4) The purported termination of appointment of the applicant from the services of the respondent by the respondent on 20 January, 1986 without calling upon the applicant to make his representations against the allegations levied (sic) against the applicant is a gross violation of the applicant's right to fair hearing guaranteed to him under Section 33 of the Constitution of the Federal Republic of Nigeria 1979 as modified.

(5)     And take notice that on the hearing of this motion the said applicant will use the affidavit of leave for motion ex parte and the exhibits therein referred."

The application was supported by an affidavit and a further affidavit. On being served with the motion on notice, the respondent filed a notice of preliminary objection contending that the action was not properly commenced before the court. That being an action for wrongful dismissal, the applicant/appellant should have complied with the provisions of Order 2 of the Borno State High Court (Civil Procedure) Rules, 1979. That the action did not fall within the provisions of Chapter IV of the Constitution as it was not a fundamental right for any person to be employed or to retain his employment. Also that the reliefs sought were declaratory and not for the enforcement or securing the enforcement of any fundamental right enshrined in the Constitution. The preliminary objection was argued and in a reserved ruling the learned trial Judge overruled the objection when he concluded his ruling thus:-

"In the light of the foregoing, it is hereby concluded that the objections raised in the notice filed, lack any substance, therefore it is struck-out with costs assessed at N200."

Thereafter the respondent filed a 12 paragraph counter-affidavit with six annexures opposing the applicant/appellant's application for the enforcement of his fundamental rights above. At the hearing Counsel on both sides addressed the court relying solely on affidavit evidence and some decided cases. In a reserved judgment/ruling, the learned trial Judge granted the application. The letters of suspension and termination of appointment of the applicant/appellant by the respondent were declared illegal, unconstitutional, null and void. The applicant/appellant was ordered to be reinstated to his job by the respondent/corporation with full payment of his salaries and other entitlements from the time of his suspension from work.

The respondent/corporation was dissatisfied with the decision of the trial High Court and it appealed to the Court of Appeal. Three issues were submitted for resolution in that court as follows:-

"1.     Whether from the nature of the respondent's claim and considering the provisions of Section 42 of the Constitution of the Federal Republic of Nigeria, 1979, the learned trial Judge was right in entertaining the action initiated under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

2.      Whether from the circumstance of the action considering the contents of the affidavits and counter-affidavit, the learned trial Judge was right in resolving the issues joined without calling for oral testimony.

3.      Whether the question, whether as some of the allegations against the respondent being in the nature of a crime they should have been reported to the law enforcement agencies for necessary action, was part of the case for the respondent to warrant the learned trial Judge's pronouncement on it in his ruling."

Clearly it appears to me that the most important issue before the Court of Appeal was Issue (1) above, because once that issue succeeded there was no need to have gone into the other two issues. I will therefore concentrate on the said issue in my treatment of the appeal.

The matter came before the Court of Appeal held in Jos (Coram Mukhtar, Adio and Okezie, JJCA). In the lead judgment delivered by Adio, JCA (of blessed memory) and concurred by other Justices, the learned Justice of the Court of Appeal said of Issue (1) amongst others as follows:-

"When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979, a condition precedent to the exercise of the court's jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereof should be the main and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the applicant's claim as presented, be the principal or fundamental claim, and not an accessory claim. (See The Federal Minister or Internal Affairs & others v Shugaba Abdulrahman Darman (1982) 3 NCLR 915). . . In this case, the alleged breach of fundamental right of fair hearing under Section 33 of the Constitution of the Federal Republic of Nigeria, 1979, flows from the alleged suspension and termination of the appointment of the respondent. The termination of the appointment of the respondent was, having regard to all the circumstances in this case, including the reliefs claimed, the grounds for claiming the reliefs, the facts deposed to in the affidavit and further affidavit of the respondent, and most of the findings made by the learned trial Judge, the main claim or the fundamental issue is this case. It was the cause of action."

After citing Tukur v Gongola State (1989) 4 NWLR (Part 117) 517 and Madukolu & others v Nkemdilim (1962) 1 All NLR 587, the learned Justice continued:-

"It is not in doubt that a High Court in a State has jurisdiction under Section 42 of the Constitution of the Federal Republic of Nigeria, 1979, to entertain an application for enforcement of fundamental rights. However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot, as has been pointed out above, be properly exercised as it will be incompetent by reason of the foregoing feature of the case . . . The respondent's application was not properly brought before the court. The answer to the question raised under the first issue is in the negative. . .

The High Court has jurisdiction to entertain an action challenging the suspension or termination of the appointment of an employee by his employer. The present appeal has succeeded because a wrong or inappropriate procedure was used in initiating the proceedings. After the disposal of this appeal it is up to the respondent on the advice of his legal advisers to pursue whatever remedy, if any, that is available to him. The proper order that the lower court should have made in the present circumstances was one striking out the respondent's application. The appeal is allowed. The ruling of the learned trial Judge and the order awarding salary and entitlements to the respondent from the time of his suspension, and the order reinstating the respondent to his job in the appellant's establishment are hereby set aside. In their place, an order striking out the respondent's aforesaid application is substituted.

There is no order as to costs."

The applicant/appellant was dissatisfied with the above decision and filed his notice of appeal to this Court.

At the hearing of the appeal, the appellant who had filed a brief was represented by Counsel. The respondent neither filed a brief nor was it represented by anyone. Appellant's Counsel adopted his brief and made oral submissions in addition.

In the appellant's brief, two issues were submitted for determination in the appeal. They read:-

"(1)    Whether the Court of Appeal was right in holding that it was not part of the appellant's case that as some of the allegations made by the respondent against the appellant being in the nature of crime they ought to have been reported to the law enforcement agencies for necessary action.

(2)     Whether, having regard to the facts of this case, the action is one that ought to have been commenced under the Fundamental Rights (Enforcement Procedure) Rules 1979."

There is no doubt that Issue (1) above arose out of the consideration of respondent's (then appellant) Issue (3) above by the Court of Appeal. I have stated earlier on that the Court of Appeal needed not to have considered Issue (3) just like Issue (2) which it rightly in my view did not also consider. Issue (1) which was the principal issue having succeeded, and having regard to the nature of the order which that court finally made - striking out the suit before the trial High Court, there was no need to consider both Issues (2) and (3). In the same vein I do not intend to entertain Issue (1). I will go straight to Issue (2) which to me is the main and decisive issue in the appeal as it was in the court below.

Summarily stated, the applicant/appellant contended that being an established and pensionable staff of Borno Radio and Television Corporation, a statutory corporation, and since the letter of termination of his appointment with the respondent/corporation accused him of insubordination, disloyalty and gross misconduct, he (the appellant) was entitled to be heard before his appointment could have been lawfully terminated, and that such failure on the part of the respondent constituted a breach of his/appellant's fundamental right to fair hearing. When the court drew attention of appellant's Counsel to the recent decision of this Court in the case of Tukur v Taraba State (1997) 6 NWLR (Part 510) 549, he said he was aware of the decision, but added that the facts are distinguishable and that in the instant appeal the main or principal claim was the appellant's enforcement of his fundamental right to fair hearing. The court was asked to allow the appeal.

I think learned Counsel is right when he said the facts of this case are quite distinguishable from the facts in Tukur's case above. But I say straight away that there are similarities and that the principle involved is the same in both cases. In Tukur, the claims were partly chieftaincy and partly fundamental right. And this Court held that the main or principal claim, being a chieftaincy claim which ought to have been initiated by a Writ of Summons and heard on pleadings and not on affidavit evidence, all the claims, principal and accessory or subsidiary, which flowed from it ought to have been struck out as incompetent. The claims were therefore struck out. In this appeal the claims are partly for wrongful dismissal or termination of appointment and partly for breach of fundamental right. But here as in Tukur, the principal claim being wrongful termination of appointment which ought to have been commenced by a Writ of Summons, which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. That was what the Court of Appeal did in this case. I believe they were right.

The appeal therefore fails and it is hereby dismissed. The decision of the Court of Appeal striking out the applicant/appellant's application before the Maiduguri High Court is hereby confirmed. There will be no order as to costs, the respondent having played no part in the appeal proceedings whatsoever.

Uwais, CJN:- I have had the advantage of reading in draft the judgment read by my learned brother Kutigi, JSC. I entirely agree with it.

The procedure for instituting an action based on the infringement of a fundamental right under the Constitution is prescribed by Fundamental Rights (Enforcement Procedure) Rules Cap. 62 of the Laws of the Federation, 1990. An action for wrongful dismissal from employment cannot be brought under the Rules since it belongs to a different class of action from actions on contravention or threatened contravention of a fundamental right. The Bornu State High Court (Civil Procedure) Rules, 1979 provides, in Order 2 thereof, that such action must be commenced by a Writ of Summons.

In this case, the appellant's main claim, which is based on wrongful dismissal from employment is founded on contract. For him to enforce the claim he was bound to take out a Writ of Summons against the respondent. This he failed to do. The Court of Appeal was, therefore, right to strike out the case on the authority of the decisions of this court in Alhaji Umaru Abba Tukur v Government of Gongola State, (1989) 4 NWLR (Part 117) 517 at page 548 and Alhaji Umaru Abba Tukur v The Government of Taraba State, & others (1997) 6 NWLR (Part 510) 549.

It would appear that where a set of facts or cause of action give rise to multiple causes of action including a breach or threatened contravention of a fundamental right under the Constitution, the party so affected, as plaintiff, would have to bring two different actions at the same time. One of such actions by a Writ of Summons according to the provisions of the High Court (Civil Procedure) Rules and the other by a motion ex parte in accordance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules Cap. 62. If this is done in the same High Court it would perhaps be possible to have the cases consolidated. However, it seems that this may not be possible if the case based on fundamental rights is instituted in the Federal High Court since that court lacks the jurisdiction to hear some categories of the cases that could be initiated by a Writ of Summons - (See Section 230 of the 1979 Constitution Cap. 62, as amended by the Second Schedule to the Constitution (Suspension and modification) Decree No 107 of 1993).

Section 230 subsection (q), (r) and (s) of the Constitution, as amended, provides as follows:-

"230. (1)     Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion to (sic of) any other court in civil causes and matters arising from - . . .

(q)     the administration or the management and control of the Federal Government or any of its agencies;

(r)      subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and

(s)     any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this section shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity."

It is for the foregoing reasons and the fuller reasons contained in the leading judgment of my learned brother Kutigi, JSC that I too hereby dismiss this appeal with no order as to costs. I uphold the decision of the Court of Appeal which confirmed the decision of the High Court striking out the case.

Ogundare, JSC:- I agree entirely with the judgment just delivered by my learned brother, Kutigi JSC.

Having regard to the claims of the appellant set out in the judgment of my learned brother and the affidavit evidence adduced at the trial, there can be no doubt that his main complaint was against the termination of his appointment with the respondent (which he regarded as wrongful) and his sole relief was his reinstatement. All these are not matters for the procedure provided for in Section 42 of the 1979 Constitution. Appellant's action should have been commenced by a Writ of Summons as provided for in the High Court Rules of Borno State. The action having been thus commenced wrongly, it was rightly struck out by the court below - (see Tukur v Taraba State (1997) 6 NWLR 549). I affirm that decision and dismiss this appeal.

The respondent being absent at the hearing and not having filed a brief, I too, make no order as to costs.

Ogwuegbu, JSC:- had the advantage of a preview of the judgment just delivered by my learned brother Kutigi, JSC and I entirely agree with it.

This appeal is against the judgment of the Court of Appeal Jos Division which reversed an order of the High Court of Borno State re-instating the appellant to his job. The appellant who was an employee of the respondent was terminated by the latter. He challenged his termination in the proceedings he instituted in the High Court of Borno State, Maiduguri Judicial Division pursuant to Order 1, rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979. He filed an application ex-parte in the said High Court seeking leave for an order enforcing his fundamental rights which he alleged, was infringed by the respondent.

He claimed the following reliefs:-

"1.     A declaration that both the suspension letter and termination of appointment letters . . . respectively are illegal, unconstitutional, and thereby repugnant to rules of natural justice.

2.      Declaration that the purported termination of the applicant's appointment by the respondent from the Borno Radio Television Corporation Maiduguri is mala fide, void and unconstitutional.

3.      A declaration that by failure to call upon the applicant to defend himself before the issuance of letters of suspension and termination of appointment constitutes a violation of the applicant's fundamental rights of fair hearing and therefore unconstitutional.

4.      . . .

5.      . . ."

The learned trial Judge in his ruling on the application stated as follows:-

"Borno Radio Television Corporation is established by law, that makes it clear, that the Management Committee or whatever body which considered the report made against the applicant had in fact, been established, for this reason, it is incumbent on such body constitutionally before determining the civil rights of the applicant, he the applicant should have been accorded with fair hearing, for their failure to do so, their decision could not be allowed to stand in law. Their decision is unconstitutional and therefore void. Their decision apart from being repugnant to rules of Natural Justice, it is also unconstitutional and there (sic) void. . . as so declared above it is hereby finally ordered that the applicant be re-instated to his job under the respondent corporation with payments of all his salaries and entitlements since 20 January, 1986 . . ."

The court below reversed the above orders of the learned trial Judge.

The import of the special jurisdiction conferred on the High Court by Section 42 of the Constitution of the Federal Republic, 1979 was misunderstood by the learned appellant's Counsel when he brought the application in the High Court believing that the third relief would invest the court with the jurisdiction conferred by the said section. Section 42 of the Constitution of the Federal Republic of Nigeria, 1979 provides:-

"42     (1)     Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to the High Court in the State for redress.

(2)     .

(3)     .

(4)     ."

This special jurisdiction is made subject to the Constitution. The enforcement of the fundamental right under the Section must be a substantive claim in the application and in respect of the matters covered by Chapter 4 of the Constitution. In this case, the substantive relief sought by the appellant is a declaration that the termination of his contract of employment with the respondent was contrary to the provisions of the Staff Regulations. The cause of action was the breach of his contract of employment. It is not the enforcement of his fundamental right under Section 33(1) of the Constitution which provides for the right of a fair hearing. By bringing his application under Section 42 of the Constitution, the appellant is directly complaining that by his suspension and termination, his fundamental right under Section 33(1) of the Constitution was breached.

It is pertinent to emphasise that it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. (See Izenkwe v Nnadozie 14 WACA 361 at 363, Adeyemi & others v Opeyori (1976) 9-10 SC 31 at 51 and Tukur v Government of Gongola State (1989) All NLR 575 at 599). In this case the learned trial Judge did not look at the principal claim of the appellant before he assumed jurisdiction under Section 42 of the Constitution which covered the third relief. The court below was right when it held as follows:-

"The combined effect of the second and third conditions mentioned above is that when the main or principal claim in an application is not the enforcement of a fundamental right or the securing the enforcement of a fundamental right, the court has no jurisdiction to entertain it under the Fundamental Rights (Enforcement Procedure) Rules, 1979. That is the position in the case of the present application of the respondent. The respondent's application is not properly before the court."

In considering the appellant's third relief, namely, whether he was given a fair hearing before his appointment was terminated by the respondent, the main issue of breach of his contract of employment is bound to be raised. The third relief was clearly a subsidiary issue. A substantive claim for a breach of contract could have been founded on the denial of the right to a fair hearing as provided in Exhibit 'BEI' - (Staff Regulations) and Section 33(1) of the Constitution. I have therefore no hesitation in concluding that a wrong procedure was adopted in initiating the proceedings giving rise to this appeal and the second issue for determination is answered in the negative.

In the circumstance, I will also dismiss the appeal and make no order as to costs.

Iguh, JSC:- I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Kutigi, JSC and I agree entirely with the reasoning and conclusion therein reached.

The claims before the trial court together with the relevant facts of the case have been adequately set out in the leading judgment and no useful purpose will be served by my recounting them all over again. It suffices to state that the main claims before the trial court were those of wrongful termination of appointment and payment to the appellant of all his salaries and entitlements since the purported termination of his appointment. These are clearly indicated in Reliefs 1, 2, 3, and 5 of the appellant's claims.