IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 12th October 2018
SUIT NO: NICN/ABJ/136/2018
Between:
Ambassador Mohammed Dauda – Claimant/Respondent
And
1. The Director General, National
Intelligence Agency Defendants/Applicants
2. National Intelligence Agency (NIA)
Representation:
Kanu Agabi (SAN), with him, Peter Eriwode, Wonuola Omonuwa and Cassandra Okeke-Oraeki for the Claimant/Respondent
Wale Adesokan (SAN), with him, Henry O. Chichi, Ngozi P. Dimkpa and K. T. Braids for the Defendants/Applicants
RULING
In an Originating Summons filed on 11th May 2018, the Claimant instituted this action against the Defendants seeking determination of the following questions:
1. Whether the procedure adopted by the Defendants in the process leading to the purported dismissal of the Claimant is in compliance with Articles 8 (1) and (2) of the National Securities Agency Act (CAPS. 278) 1986?
2. Whether in view of the extant provisions of Article 8 (1) and (2) of the National Securities Agency Act (CAPS. 278) 1986, retired Directors of the National Intelligence Agency are competent to sit as members in the Senior Staff Disciplinary Committee (SSDC) and if not, whether the failure of the Defendants to set up a competent Senior Staff Disciplinary Committee (SSDC) to look into the allegations levied against the Claimant constitutes a violation of his Constitutional right to fair hearing.
3. Whether the purported letter of dismissal of the Claimant issued by the Defendants on the 6th day of March, 2018 is not unlawful, null and void and of no effect whatsoever.
4. In the circumstance of affirmative answers to questions 1-3 above, whether the Claimant is not entitled to be reinstated as Director of the 2nd Defendant.
Upon the determination of the above questions, the Claimant sought for the following reliefs against the Defendants jointly and severally:
1. A Declaration that the procedure adopted by the Defendants in the process leading to the purported dismissal of the Claimant falls short of the provisions of Articles 8 (1) and (2) of the National Securities Agency Act (Cap. 278) 1986 and is null and void.
2. A Declaration that by virtue of the provisions of Articles 8 (1) and (2) of the National Securities Agency Act (Cap. 278 LFN) 1986, retired Directors and former members of the National Intelligence Agency are not competent to sit as members in the Senior Staff Disciplinary Committee (SSDC).
3. A Declaration that the failure of the Defendants to set up a competent Senior Staff Disciplinary Committee (SSDC) to look into the allegations levied against the Claimant is a violation of the Claimant’s Constitutional right to fair hearing.
4. A Declaration that the purported letter of dismissal of the Claimant issued by the Defendants on the 6th day of March 2018 is unlawful, null and void and of no effect whatsoever.
5. An Order reinstating the Claimant as a Director and the acting Director General of the 2nd Defendant.
6. An Order for the payment of the Claimant’s salaries and entitlements from the period of his unlawful dismissal to the point of his reinstatement.
The Originating summons was supported by an affidavit and a written address. Upon service of the summons on the Defendants, a conditional appearance was entered for them followed by a counter affidavit and a written address in opposition to the originating summons. On 25th June 2018, the Defendants filed a motion on notice wherein they challenged the competence of the suit and the jurisdiction of this court. The Defendants’ motion was heard the same day the Originating Summons was taken and the ruling was reserved to be delivered today as with the judgment on the originating summons. Since the Defendants’ motion touches on the jurisdiction of this court to determine the Claimant’s suit, it is proper that the motion be considered and determined first before going into the Originating summons, if need be.
The Defendants’ motion was brought under Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999, Order 3 Rules 2, 3, and 4 and Orders 17 and 18 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. The motion prays for the following alternative orders:
1. An order striking out the suit in its entirety for lack of jurisdiction, or
2. An order dismissing the action for being an abuse of the process of the Honourable Court, or
3. An order striking out the name of the 1st Defendant from the suit.
The grounds upon which the motion is premised are as follows:
i. The jurisdiction of the Honourable Court was not validly and competently activated, owing to failure to comply with a condition precedent to the commencement of the action.
ii. By virtue of Section 8(4) of Instrument No. NIA 1 made pursuant to Section 6 of the National Security Agencies Act, 1986, an officer who is dissatisfied with the decision of the Senior Staff Disciplinary Committee of the 2nd Defendant ought to first appeal against the decision to the National Security Agencies Appeal Committee (NSAAC) established under Section 7 of the Instrument No. NSA 2.
iii By his own showing, the Claimant had activated the aforesaid appeal as per Exhibit KGA3 attached to the Originating Summons, but failed to await the hearing and determination of the appeal by the NSAAC before commencing this action.
iv The right of the Claimant to challenge the decision of the 2nd Defendant has accordingly not crystallized, having regard to the Claimant’s failure to comply with the condition precedent of completing the appeal process.
v. The Court is incompetent to entertain this suit because the action was not initiated by due process of law.
vi. The proper mode of commencement of the action should have been by way of an Application for Judicial Review rather than a declaratory action by Originating Summons simpliciter.
vii. Within a month of filing his appeal, i.e. on or about April 3, 2018, and while the aforesaid appeal was (and is) being considered by the NSAAC, the Claimant issued Notice of Intention to Commence this action.
viii. By filing this suit on or about May 11, 2018, during the pendency of the appeal to the NSAAC, the Claimant had thereby initiated two parallel proceedings for the ventilation of same grievance, an action which amounts to a gross abuse of the process of this Honourable Court.
ix. Actions allegedly carried out by the 1st Defendant were done as agent of disclosed principals, i.e. the President and Commander-In-Chief of the Armed Forces of Nigeria and the National Intelligence Agency the 2nd Defendant.
x. The 1st Defendant, being not a juristic person, cannot be sued.
In support of the motion is the affidavit of Ismail Yusuf, the Director of Administration of the 2nd Defendant. The deponent stated that the 2nd Defendant was created in Section 2 (b) of the National Security Agencies Act, 1986 for the protection, promotion and enhancement of Nigeria’s security, national interest, economic and government’s policy objectives outside Nigeria. The 2nd Defendant is a specialized agency whose activities are conducted in secrecy and most of its documents classified. As such, the court ought to be most reluctant to interfere in its affairs. It was further deposed that the 1st Defendant acted in relation to the subject matter of this suit as a servant and agent of the 2nd Defendant and the President of the Federal Republic of Nigeria. The Claimant was at all times material to this action an ambassador and, consequently, a diplomat who remains in and out of the Agency’s Service and bound by the Agency’s Oath of Secrecy.
It was averred further that the Claimant was dismissed by the President and Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria (Mr. President) acting upon the recommendation of the Special Management Staff Disciplinary Committee (SMSDC) of the 2nd Defendant, whose report was unanimously upheld by the Senior Management Committee (SMC) of the 2nd Defendant. By two letters of March 5, 2018, Mr. President approved the 2nd Defendant’s recommendation of the dismissal of the Claimant and the same was communicated to the Claimant on March 6, 2018. By the provisions of Section 8 (4) of Instrument No. NIA l, made in exercise of powers conferred on Mr. President by Section 6 of the National Security Agencies Act 1986, appeals against the decisions of the SMSDC concerning Senior Staff of the Agency on Grade Levels 08 and above shall lie with the National Security Agencies Appeal Committee (NSAAC) established under Section 7 of the Instrument No. NSA 2. The Claimant appealed to the NSAAC by letter delivered on March 12, 2018 but the Notice of Appeal to the NSAAC was not served on the Defendants. This action was commenced by the Claimant without waiting or allowing the NSAAC sufficient and reasonable time to decide the alleged appeal filed by him. This suit was filed less than two months of the filing of the purported appeal. In actual fact, the Claimant abandoned the appeal proceedings within 22 days by writing the letter dated Apri13, 2018 wherein he gave notice of intention to sue the Agency to challenge his dismissal.
The deponent went further to aver that by a letter dated May 10, 2018, the NSAAC, in furtherance of the exercise of its jurisdiction to hear and determine the appeal, requested the Defendants’ comments on the Claimant’s appeal. The 2nd Defendant replied the letter of the NSAAC on June 1, 2018 and was waiting for the next steps as may be determined by the NSAAC. The appeal process activated by the Claimant remained pending. By Section 3 (1) of Instrument No. NIA 1, the 1st Defendant is appointed by the President and Commander-In-Chief of the Armed Force of Nigeria. Instrument No. NIA 1, which provided for the office of the 1st Defendant, also provided for the offices of two Deputy Directors-General of the 2nd Defendant and such number of Directors as may be determined by the President, Commander-In-Chief of the Armed Forces. By virtue of Section 4 (2) and (4) of Instrument No. NIA 1, the appointment and removal of the 1st Defendant, Deputy Directors-General and the Directors of the 2nd Defendant and the assignment of responsibilities and their deployment are done upon the approval of Mr. President.
The decision of the SMSDC and the SMC recommending the Claimant’s dismissal were taken by Committees of the 2nd Defendant and were approved by Mr. President. The 1st Defendant acted to the knowledge of the Claimant as agent and servant of the 2nd Defendant and Mr. President. The implementation of any decision of this Court in respect to the position of the Claimant resides exclusively with Mr. President. No application has been made by the Claimant to quash the recommendation of the SMSDC or the recommendation of the SMC to the President for the dismissal of the Claimant. Also, no application has been made to quash Mr. President’s approval of the recommendation for the Claimant’s dismissal from service.
In the written address in support of the motion, Learned Senior Advocate for the Defendants submitted 5 issues for determination. They are:
1. Whether this Honourable Court’s jurisdiction has been duly activated having regard to the failure of the Claimant to exhaust domestic remedies available to him before commencing the action.
2. Whether the commencement of this action by the Claimant amount to a gross abuse of the process of this Honourable Court having regard to the pendency of an appeal against his dismissal before the National Security Agencies Appeal Committee (NSAAC).
3. Whether Originating Summons for declaratory reliefs as in this case is an appropriate mode for the commencement of these proceedings in the circumstances of this case.
4. Whether the 1st Defendant who is the Director-General of the 2nd Defendant has been properly joined in this action.
5. Whether this Honourable Court can determine this action, which seeks to challenge the approval of the Claimant’s dismissal from the service of the 2nd Defendant by the President and Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria, even though the President has not been joined as a party to the action.
The submissions made by learned senior counsel on these issues are as follows:
ISSUE 1:
In the first issue, it was submitted that the law is trite that until remedies available in the domestic forum have been exhausted, any resort to court action would be premature. On this point, these cases were referred to: PROFESSOR GREG. I. ANYANWU vs. UNIVERSITY OF JOS (2014) LPELR – 22556 (CA); SAMUEL ALABI vs. BILAWU OYEWUMI (2015) LPELR-24271(CA); ROTIMI WILLIAMS AKINTOKUN vs. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2014) 13 NWLR (Pt. 1423) 1 at 9. It was further submitted that by the Claimant’s averments in paragraph 18 of his affidavit in Support of the Originating Summons, the Claimant has shown he ought to appeal to the National Security Agencies Appeal Committee (NSAAC) if dissatisfied with the decision for his dismissal. This averment of the Claimant is in line with Section 8 (4) of Instrument No. NIA 1 which provides that appeals against the decisions of the Senior Staff Disciplinary Committee concerning Senior Staff of the Agency on Grade levels 08 and above shall lie with the National Security Agencies Appeal Committee (NSAAC) established under Section 7 of the Instrument No. NSA 2.
Counsel for the Defendants submitted further that in paragraph 19 of the affidavit in support of the originating summons, the Claimant’s justification for abandoning the appeal is that his letter did not get any response. This assertion of the Claimant has been shown in paragraphs 14 and 15 of the affidavit in support of the motion to be false. In addition, the period between when the Claimant decided to resort to litigation was insufficient and unrealistic length of time within which he ought to have expected the NSAAC to have completed its assignment. Exhausting the domestic forum for ventilating the Claimant’s grievances is a condition precedent to the activation of the jurisdiction of this court. Since the condition precedent had not been fulfilled, this action ought to be struck out for being incompetent.
ISSUE 2:
On issue 2, it was submitted that the appeal initiated by the Claimant is still pending. Filing an appeal at the NSAAC and commencing this action amounts to an attempt to pursue a remedy in two proceedings at the same time. It amounts to a gross abuse by the process of this Honourable Court. Counsel urged the court to dismiss this action for being an abuse of court process. These cases were cited in support of the arguments: SARAKI vs. KOTOYE (1992) NWLR (Pt. 24) 156; OWONIKOKO vs. AROWOSAIYE (1997) 10NWLR (Pt. 523) 1076; YUSUF vs. AKINDIPE (2000) 8 NWLR (Pt. 669) 376; DOUNBRAYE vs. PREYOR (2014) LPELR -22286 (CA); BANK PHB vs. OKEGE (2014) LPELR 22659.
ISSUE 3:
On this issue, learned Senior Advocate submitted that the questions for determination in the Originating Summons and the reliefs sought by the Claimant relate to the proceedings of a quasi-judicial body. The process for nullifying or setting aside the proceedings and or decision of such quasi-judicial body is by the prerogative writ of judicial review. This court will have jurisdiction to entertain the Claimant’s suit only if the suit was instituted by way of Judicial Review vide an application to quash the proceedings of the Disciplinary Committee. The jurisdiction of this court under Section 254 of the 1999 Constitution, can only be exercised if the matter is properly brought before it. This Court has no jurisdiction to grant the declaratory reliefs sought by the Claimant in his Originating Summons in a matter which a statutorily constituted Disciplinary Committee had already adjudicated upon. Citing ARGOSAM FINANCE CO. LTD vs. OXBY (1964)1 All ER 791, learned senior counsel argued that the Court will not exercise such discretion where the declaration sought is already a decision of statutory body or Tribunal. The Institution of the present suit by the Claimant by way of Originating Summons has therefore impaired the competence and jurisdiction of this Court to determine the action. EGBUNIKE vs. MUONWEOKWU (1961)1 SC NLR 9 and EGUAMWENSE vs. AMAGHIZEMWEN (1993)9 NWLR (PT. 315) 1 were referred to.
It was also submitted that the institution of this action by an Originating Summons amounts to a rehearing of the case all over again. Counsel stated further that where the Disciplinary Committee has exercised its statutory function, then the validity of its action can only be challenged by an appeal or a review or by invoking the supervisory jurisdiction of the Court to quash it or set it aside. It cannot be challenged by an action for a declaration. The Claimants ought not to have instituted a declaratory action. The institution of the present suit seeking declaratory reliefs is inappropriate. Learned SAN stated that this action is not an action only for the interpretation envisaged by Order 3 Rule 2 (2) (a) and 3 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017, but an action which ought to have been commenced by an Application for Judicial Review. Having commenced the action by way of Originating Summons rather than Judicial Review, the action has not been initiated by due process of law. It is consequently incompetent and should be struck out.
ISSUE 4:
On this issue, it was canvassed that the 1st Defendant has been wrongly joined in this suit and its name ought to be struck out from the action. In the first leg of this contention, it was argued that going by the depositions in paragraphs 4, 17, 20, 21, 22 and 23 of the affidavit in support of the motion and the provisions of Sections 3 (1) 4 (2) and (4), 7 (2) and 9 of Instrument No. NIA 1, the 1st Defendant is a mere servant or agent of a disclosed principal, the 2nd Defendant and the President. The 2nd Defendant having been joined to this action, there is no legal basis for adding the 1st Defendant. Counsel referred to the case of UWAH vs. AKPABIO (2014) 7 NWLR (Pt.1407) 472 and urged the court to strike out the name of the 1st Defendant from the suit.
On the second leg of the issue, it was submitted that as a general rule, only natural persons, or juristic persons are competent to sue and be sued before any law court. The cases of UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) LPELR-40161 (CA); SHELL PETROLEUM DEVELOPMENT COMPANY vs. DANIEL PESSU (2014) LPELR-23325 (CA); ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA vs. EKE-SPIFF (2009) LPELR-3152, IPBC NIGERIA LIMITED vs. IBPC UK LIMITED (2014) LPELR -23086 (CA) were referred to. It was submitted that where wrong parties are joined in an action, their names are liable to be struck out, citing OGBEBOR vs. INEC (2018) 6 NWLR (Pt. 1614) SC. Counsel went on to say that the 1st Defendant is neither a natural person nor a creation of statute and thus not a juristic Person. Counsel then urged the court to strike out the name of the 1st Defendant from the action.
ISSUE 5:
With regard to issue 5, citing the cases of MAJELOGBE vs. SOLARIN (2015) LPELR -25588 (CA); OBIOZOR vs. NNAMUA (2014) LPELR – 23041 (CA), learned senior counsel for the Defendants submitted that the court cannot make an order against a person or an entity who is not a party before it. It was further submitted that by Sections 3 (1) and (4), 4 (2) and 7 (2) of Instrument No. NIA 1, the 1st Defendant, the Deputy Directors-General and the Directors all owe their appointments and removals to the pleasure of Mr. President. If the Claimant succeeds in this case, the acts of Mr. President, who has not been joined in this action, will be required to give effect to the Court’s pronouncement. Having regard to the failure to join Mr. President to the action, learned senior counsel urged the court to hold that in the unlikely event that the relief sought by the Claimant is granted, it will be incapable of being implemented.
The Defendants counsel urged the court, in conclusion, to strike out or dismiss the suit for the reasons given in the address.
In opposing the Defendants’ motion, the Claimant filed a counter affidavit deposed to by him. The Claimant averred therein that upon receipt of the letter dismissing him from the Agency, he complied with all conditions precedent to exercising his right to seek legal redress before this Court by appealing to the National Security Agency Appeal Committee in accordance with the law. He knows that he is not under any legal obligation to serve any notice of Appeal on the Defendants. It is not true that adequate time was not given to the Appeal Committee. His Appeal was lodged at the office of the National Security Adviser on the 12th March 2018 and he waited for a period of two months from that date without any response before initiating this action on the 11th May, 2018. Under the limitation law, he has a duty to approach this Court within a period of three months and failure to so do will deny him access to this Court. The Claimant also stated that the period of over two months is sufficient for the National Security Agency Appeal Committee to have considered his appeal or at least contact him if they had the intention to do so. This is besides the fact that the National Security Agencies Act 1986 did not specify the period an Appellant may await the outcome of his appeal before seeking redress in Court.
The letter dated the 3rd April, 2018 was addressed to the Defendants and not the National Security Agency Appeal Committee. The letter did not prevent the Appeal Committee from considering his appeal. He did not abandon his appeal. The letter received by the Defendants on the 11th May after this action was filed is not a bar to his right of action in this Court. He was not served with any response indicating that his appeal is being considered till date. It was further deposed by the Claimant that the 1st and 2nd Defendants are not mere appointees or agents of the President. They are created by the National Security Agencies Act 1986 with capacity to sue and be sued. The Claimant went further to say that the decision taken by the SMSDC and the SMC to dismiss him was done without due process of law. The recommendation of the SMSDC and the SMC is illegal and same never existed in law to warrant an application to be made to quash it.
In the written address in support of the counter affidavit, learned Counsel for the Claimant, Peter Eriwode Esq., adopted the 5 issues formulated in the written address in support of the Defendants’ motion. His arguments on the issues are as follows:
ISSUE 1:
In issue 1, it was submitted that the Claimant exhausted domestic remedies prescribed by law and duly activated the jurisdiction of this Court. Section 8 (4) of Instrument No. NIA 1 required that appeal against the decision of the Senior Staff Disciplinary Committee shall lie with the National Security Agencies Appeal Committee (NSAAC). All that the Claimant needed to do was to lodge an appeal to the NSAAC which he did but received no response from the committee or the Defendants till date. There is no obligation on the Claimant to wait for a specific period or wait indefinitely. The Claimant waited for a period of two months before filing this action. Counsel for the Claimant argued that a period of two months is adequate time within which the appeal should have been determined if there was any intention to do so. Counsel further submitted that in the light of the Public Officers Protection Act which limited 3 months within which actions must be commenced against public officers, the Claimant acted reasonably and exhausted the domestic options available to him when he commenced this action.
ISSUE 2:
On the 2nd issue, counsel for the Claimant submitted that the Claimant did not abuse the process of this Court in anyway besides the fact that the Defendants have not shown or supplied particulars of the abuse. The arguments of the Defendants counsel that the filing of an appeal at NSAAC and commencing this action amounts to a desperate attempt to pursue two proceedings at the same time contradicts their earlier argument to the effect that proceedings of the Appeal committee is a condition precedent in one breath and in another breath that no NSAAC committee is required because appeal ought to lie to the office of the President. Having submitted that the dismissal of the Claimant was not based on Article 8 of the Act and that appeal does not lie to the NSAAC, the Defendants are estopped from contending that the Claimant instituted double proceedings at the same time.
ISSUE 3:
On issue 3, it was submitted that originating summons is the appropriate mode of commencing this action and not by way of an application for judicial review. It was submitted that the decision of the Disciplinary Committee is not qualified for a review because court can only review a decision of a competent body and not that of an incompetent and illegal body.
Counsel further argued that the Claimant’s action is not seeking for a review of any decision but interpretation of statutory provisions, particularly Article 8 (1) and (2) of the National Securities Act 1986, to determine whether in the face of the clear provisions of the statute, the Defendants can appoint unqualified persons to sit in its disciplinary committee. The appropriate procedure is by way of originating summons and not judicial review. It was also submitted that once an action is predicated on interpretation of legal questions, the mode of commencement is by originating summons. Counsel cited AEROMARITIME NIGERIA LTD vs. LAGOS STATE INTERNAL REVENUE BOARD (2001) LPELR-CA/L/312/97; UNILAG vs. AIGORO (1991) 3 NWLR (Pt. 179) 376; Director, SSS vs. AGBAKOBA (1999) 3 NWLR (Pt. 595) 425. It was concluded that the procedure adopted by the Claimant is appropriate.
ISSUE 4:
On issue 4, it was submitted that the 1st Defendant is a person known to Law as his office enjoys statutory flavour. The creation of his office is not a mere administrative duty of the President but an office created pursuant to Section 3 (1) of the National Security Agency Act 1986. Counsel referred to ENGINEER EMMANUEL CHUKWUEMEKA OKEKE vs. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781(CA); THE REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA vs. NIGERIAN AIRSPACE MANAGEMENT AGENCY (2014) LER-SC.149/2006.
ISSUE 5:
On issue 5, it was submitted that the President is not a proper or necessary party in the suit. The action is challenging the composition of the Disciplinary Committee that determined the charges against the Claimant. The decision of that illegal committee prompted the subsequent approval of the President for the removal of the Claimant. The committee was set up by the 1st Defendant. The presence of the president is not required in this suit as the Defendants are not aides or political appointees of the President. The Defendants are a creation of statute with legal capacity to sue and be sued and as such, the President need not be joined in an action challenging the composition of the committee set up by the Defendants or the outcome of that committee.
It was also submitted that assuming the president is a necessary party, the matter does become incompetent as a result of the non-joinder of the President. Counsel cited EBAK vs. EBEY (2013) LPELR-21947(CA); AZUBUIKE vs. PDP (2014) LPELR-22258 (SC). Counsel concluded that this action can be determined without the President of the Federal Republic of Nigeria being joined as a party.
In concluding the address, counsel for the Claimant urged this court to dismiss the Defendants’ application.
The Defendants filed a further affidavit in support of their motion. The further affidavit was deposed to by Ismail Yusuf. The averments in paragraphs 2, 3, 6, 7, 8, 9 and 11 of the further affidavit are conclusions and arguments. They offend Section 115 (2) of the Evidence Act 2011. These paragraphs as accordingly struck out. What remains of the further affidavit are paragraphs 4, 5 and 10 where it was deposed that the Claimant’s decision to approach this Court was taken on or before April 3, 2018, the date on which he issued his pre-action notice. The period was less than a month after his dismissal of March 6, 2018. By April 3, 2018, the Claimant had set in motion the process leading to the commencement of this action vide his pre-action notice while at the same time he said he was waiting on the NSAAC for two months. The Claimant thus maintained two parallel proceedings on the same redress at the same time. It was also stated that there was no alteration on the NSAAC letter marked Exhibit IY4.
I have read the reply on points of law filed by the Defendants’ counsel. It is observed that the submissions made therein are basically of facts. The address is also almost a repetition of the arguments already canvassed in the written address in support of the motion. I will therefore not bother to make a summary out of it. I may make reference to relevant portions of the reply in the course of the ruling if necessary.
COURT:
From the grounds of the Defendants motion, the facts in support as deposed in the affidavit and the issues argued in the written address in support of the motion, these are the reasons given by the Defendants for seeking to have the Claimant’s suit struck out or dismissed:
i. Failure of the Claimant to exhaust domestic remedies available to him before commencing the action,
ii. The suit is an abuse of the process of this Court in view of the pending appeal against the dismissal before the National Security Agencies Appeal Committee (NSAAC),
iii. The suit ought to be commenced by way of Judicial Review instead of Originating Summons.
iv. The 1st Defendant is not a juristic person, and
v. Failure to join the President of the Federal Republic of Nigeria in the suit.
The issues formulated and argued in the written addresses of the learned counsels for the parties were along these grounds of objection. In this ruling, I will consider these grounds of objection one after the other as identified above.
FAILURE TO EXHAUST INTERNAL REMEDY:
In grounds i, ii, iii and iv of the ground of the Defendants motion, it was contended by the Defendants that the jurisdiction of the Court had not been validly activated because the Claimant failed to comply with a condition precedent to the commencement of this action. It was deposed in the affidavit in support of the motion that by Section 8 (4) of Instrument No. NIA l, appeals against the decisions of the SMSDC concerning Senior Staff of the Agency on Grade Levels 08 and above lie with the National Security Agencies Appeal Committee (NSAAC). Although the Claimant appealed to the NSAAC by letter delivered on March 12, 2018 but he commenced this action without waiting or allowing the NSAAC sufficient and reasonable time to decide the appeal filed by him. The Claimant abandoned the appeal but the appeal process activated by the Claimant remained pending. It was on the basis of these facts the learned senior counsel for the Defendants submitted that the Claimant had not exhausted the domestic forum for ventilating his grievances as such, the condition precedent to the activation of the jurisdiction of this court has not been met. For this reason, it was also argued, this action ought to be struck out for being incompetent.
In response to this ground of the objection, the Claimant deposed in his counter affidavit that he lodged an appeal at the office of the National Security Adviser on the 12th March 2018 and he waited for a period of two months from the that date without any response before initiating this action on the 11th May, 2018. He did not abandon his appeal but he was not served with any response indicating that his appeal is being considered till date. Learned counsel for the Claimant submitted in the written address in support of the counter affidavit that the Claimant acted reasonably and exhausted the domestic options available to him when he commenced this action.
Section 8 (4) of Instrument No. NIA 1 provides as follows:
"Appeals against the decisions of the Senior Staff Disciplinary Committee concerning Senior Staff of the Agency on Grade levels 08 and above shall lie with the National Security Agencies Appeal Committee (NSAAC) established under section 7 of the Instrument No. NSA 2.”
This provision is clear and unambiguous. It simply means that appeals against the decision of SSDC is to the NSAAC. In effect, it is only an appeal against the decision of the SSDC that lies to the NSAAC. It thus implies that an officer who does not want to appeal to the NSAAC is not prevented from approaching the court. Furthermore, contrary to the arguments of learned senior counsel for the Defendants, there is nothing in the provision which require that an officer who is dissatisfied with the decision of the SSDC must first appeal to NSAAC before instituting a suit in the appropriate and competent court.
Now, from the facts of this application, I did find that in compliance with the provision of Section 8 (4) of Instrument No. NIA 1, the Claimant did appeal to the NSAAC against the decision of the SSDC and his dismissal from service in a letter dated 12th March 2018 addressed to the National Security Adviser and Chairman, NSAAC. The Claimant filed this suit on 11th May 2018, which was a period of 2 months from the date of his appeal. The contention of the Defendants in this ground of their objection is that the Claimant did not exhaust the internal remedy, having appealed, before instituting this suit.
There is no dispute that the Claimant filed an appeal to the NSAAC on 12th March 2018. What has happened to his appeal within the period before he instituted this action? The Defendants who contended that the Claimant did not pursue his appeal to conclusion did not tell this court that the NSAAC was at any time constituted after the Claimant’s appeal was received to hear the appeal. The Defendants did not also show that the NSAAC, at any time, commenced proceedings into the Claimant’s appeal. The letter dated 10th May 2018 referred to in paragraph 14 of the Defendants’ affidavit in support of the motion, Exhibit IY4, is not evidence of commencement of proceedings into the Claimant’s appeal. The letter, from the office of the National Security Adviser to the 1st Defendant, requested thus in its paragraph 1: “please confirm the grade level of the officer and forward your comments on the petition and letter of dismissal to assist the NSA in deciding on the desirability of convening a NSAAC meeting”. It is clear from this letter that as at 10th May 2018, the NSA has not decided to constitute the NSAAC to hear the Claimant’s appeal 2 months after he appealed. The Defendants’ response to the NSA’s letter is Exhibit IY5 referred to in paragraph 15 of the Defendants’ affidavit. It is dated 11th June 2018. As at the date of the letter, the NSAAC has not been constituted. In fact, in paragraph 10 of the letter, the Defendants challenged the competence of the NSAAC to review the Claimant’s dismissal. After the Defendants’ response to the NSA, it was not shown to this court that the NSAAC was constituted thereafter to hear the Claimant’s appeal.
It is obvious that no proceeding was commenced by the NSAAC on the appeal filed by the Claimant up till this moment as to give the Defendants ground to say the appeal is pending. The Claimant appealed but the authority which was to convene the NSAAC sat on it without any step being taken to constitute the NSAAC to hear and determine the appeal. Two months after the Claimant’s notice of appeal, no step or proceeding was taken on the appeal. By this ground of the motion, the Defendants expected the Claimant to wait forever for his appeal to be heard. The Claimant, having waited for 2 months without any step being taken to hear his appeal, came to seek redress in this court but the Defendants were quick to assert that the Claimant’s appeal is pending and that he has not exhausted internal remedy. What else do they want the Claimant to do? Constitute the NSAAC by himself? Resign to fate and wait in perpetuity?
In my view, the Claimant had done what he was expected to do when he decided to appeal against the decision of the SSDC. He filed an appeal to the NSAAC. The Claimant had no role to play in the failure of his appeal to be heard or determined up till when he filed this suit. The fact that no step was at any time taken in the appeal means the appeal lodged by the Claimant never saw the day light. By lodging an appeal to the NSAAC, the Claimant has exhausted his remedy under Section 8 (4) of Instrument NIA 1. The failure of the NSAAC to attend to his appeal cannot be a reason to prevent the Claimant from seeking redress in alternative forum, the court. Therefore, this suit filed by the Claimant is competent.
ABUSE OF COURT PROCESS:
Another ground of the Defendants’ objection to the jurisdiction of this court to entertain this matter is that the Claimant’s suit is an abuse of the process of this Court. In his submissions, learned senior counsel for the Defendants submitted that the appeal initiated by the Claimant before the National Security Agencies Appeal Committee (NSAAC) is still pending when the Claimant filed this action. According to learned senior counsel, filing an appeal at the NSAAC and commencing this action amounts to instituting two proceedings at the same time and it amounts to a gross abuse by the process of this court. From the submissions of learned senior counsel, it appears to me he has placed the NSAAC in the same judicial pedestal as this court. He has, by his submissions, elevated the NSAAC to the status of a court of record or the appeal before the NSAAC as a judicial proceeding such that he could say that the proceeding before this court is an abuse of court process in view of the purported appeal pending before the NSAAC. Let me say, with utmost respect to learned Senior Counsel, that I find this view quite unacceptable.
From the authorities defining what an abuse of court process entails, it occurs when there is multiplicity of actions on the same subject matter between the same parties or instituting different actions between same parties simultaneously in different courts or in the improper use of the judicial process. See OPEKUN vs. SADIQ (2003) FWLR (Pt. 150) 1654 at 1661, A.R.C V. J.D.P CONSTRUCTION NIG. LTD (2003) FWLR (PT. 153) 251 AT 270. The NSAAC is set up under Instrument No. NIA 2 to hear appeals arising from decisions of Senior Staff Disciplinary Committee. The NSAAC is not a court but an administrative body. Therefore, the appeal allegedly pending before the NSAAC is not before a court neither is the appeal a judicial proceeding. The NSAAC cannot be equated to a court neither can the appeal said to be pending before the NSAAC amount to judicial proceedings as to render this suit an abuse of court process.
Let me also state, flowing from my view in issue 1 of this ruling, that the Claimant is not prevented by any rule of law from filing this action in this court despite his having appealed to the NSAAC. In view of Section 254C (1) of the 1999 Constitution (as amended), this is the court that has exclusive jurisdiction to entertain the Claimant’s complaint against his dismissal from employment. This jurisdiction of this court is not shared with any other court or administrative body like the NSAAC. Since the coming into effect of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010, labour or employment matters are to be instituted in this court. In my view, the fact that an appeal is pending before the NSAAC against the decision of the SSDC does not prevent this court from entertaining this suit.
Contrary to the arguments of learned senior counsel for the Defendants, I find and hold that this suit is not an abuse of court process.
ORIGINATING SUMMONS IS NOT THE APPROPRIATE MODE TO INITIATE THIS PROCEEDING:
With regards to this ground of objection, it is the view of counsel for the Defendants that the suit ought to have been initiated by judicial review and not by originating summons. Learned Senior Counsel for the Defendants submitted that the suit, having not been commenced by way of Judicial Review, is incompetent and should be struck out. In response, counsel for the Claimant submitted that the Claimant’s action is for interpretation of some provisions of the law to determine if the Disciplinary Committee acted in compliance with the provisions of the law. In that case, the appropriate procedure to initiate the case is originating summons and not by judicial review, the Claimant’s counsel further argued.
Both Originating Summons and Application for Judicial Review are modes of commencing actions in this court. But they have their different usages. The foremost process for commencing all actions in matters in which this court has jurisdiction under Section 254C (1) (a)-(k) and (m) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is by Complaint. See Order 3 Rule 2 NICN Rules 2017. However, in Civil proceedings for the interpretation of the constitution, enactments, agreements or any other instrument relating to matters in respect of which the Court has jurisdiction or any suit by person claiming to be interested under an enactment, constitution, agreement or any other written instrument arising from the subject matters over which the Court has jurisdiction may be commenced by originating summons. On the other hand, actions which may be commenced by Application for Judicial Review include all matters necessitating application for an order for a declaration or for mandamus, prohibition, certiorari or injunction in such matters in which this Court has exclusive jurisdiction. See Order 3 Rules 3, 4 and 16 of the NICN Rules 2017.
I have examined the Claimant’s case but I find that its object does not come within the purview of Judicial Review. The Claimant is not seeking a review of the decision of the SSDC. Therefore, the case is not one to be commenced by way of application for Judicial Review. I do not also think the case is appropriate to be heard under originating summons. From the facts of the Claimant’s case, the case is beyond mere interpretation of provisions of the NSA Act. The Claimant seeks some declaratory reliefs principally directed to pronouncing that his dismissal from the service of the 2nd Defendant is unlawful, null and void. The Claimant also seeks an order reinstating him to service. Since the questions in issue are not solely for the construction of a written law, this court needs to hear evidence to determine the claims of the Claimant.
I have also examined the affidavits of the parties to the originating summons and I find that there is likely to be substantial disputes of facts in this case. Rule 17 (1) of Order 3 provide thus:
“… where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by Complaint as provided for in rules 8 and 9 of this Order”.
Similarly, in NIGERIAN REINSURANCE CORPORATION vs. CUDJOE (2008) All FWLR (Pt. 414) 1532 at 1556 it was held as follows:
“Where it is obvious or evident from the state of the affidavit evidence that there will be an air of friction in the proceedings, then an originating summons is no longer appropriate. An originating summons is only applicable in such circumstances as where there is no dispute on questions of fact or likelihood of such dispute.”
Also in DAPIANLONG vs. DARIYE (2007) 4 S.C. (Pt. III) 18, it was held thus:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute”
Therefore, the action of the Claimant is not permitted to be instituted by way of originating summons. The originating summons procedure adopted by the Claimant in instituting his action is not appropriate in the circumstance.
Although I find that the suit was brought by an irregular process, the suit is not incompetent on that ground. The position of the courts in situations of this nature is not to strike out the suit but to proceed to either convert the suit to Complaint or order the parties to file pleadings. See Order 3 Rule 17 (2) of the NICN Rules 2017 which provides that a suit commenced by the wrong process shall not be struck out but the court is to order the suit to be converted to Complaint and the parties be directed to file and exchange pleadings. In OSUNBADE vs. OYEWUMI (2007) 18 NWLR (Pt. 368) 1004 AT 1015, the Supreme Court gave this same direction in these words-
“The proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons, is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”
See also NIGERIAN REINSURANCE CORPORATION vs. CUDJOE (supra) at 1556; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 AT 192. Therefore, this suit cannot be struck out on this account. This ground of the Defendants’ objection also fails.
1ST DEFENDANT IS NOT A JURISTIC PERSON:
In ground (x) of the grounds of the Defendants’ motion, it was mentioned that the 1st Defendant is not a juristic person and cannot be sued. Then in paragraph 17 of the affidavit in support of the motion, it was averred that the 1st Defendant is an appointment by the President of the Federal Republic of Nigeria. In his submission on this ground of the objection, learned SAN for the Defendants argued that the 1st Defendant has been wrongly joined in this suit and that it ought to be struck out from the action. In his own submissions, counsel for the Claimant submitted that the 1st Defendant is a person known to law as the office originated from and was created pursuant to Section 3 (1) of the National Security Agency Act 1989.
The 1st Defendant in this suit is the Director-General, National Intelligence Agency. I have examined the provisions of the National Security Agencies Act, 1986 wherein the 2nd Defendant was established, but there is no provision in the Act establishing the office of Director-General of NIA. Section 3 (1) of the Act referred to by counsel for the Claimant only granted power to the President to appoint principal officers of the Security Agencies established in the Act. The section did not establish or create the office of DG NIA. However, upon examining the provisions of Sections 3 (1), 4 (2), (4), 7 (2) and 9 of Instrument No. NIA 1, it is clear to me that the Director-General of NIA is a mere appointment by the President. The office is not created by statute. Also, the appointment of Director-General of NIA by the President pursuant to the NSA Act or Instrument No. NIA 1 cannot confer juristic personality on the office. In my view, the 1st Defendant is neither a natural person nor a creation of statute.
As a general rule, only natural persons and juristic or artificial persons, such as bodies corporate or bodies created by statute, are competent to sue and be sued before any law court. No action can be brought by or against any party who is not a natural person or persons accorded legal personality. See THE ADMINISTRATORS/ EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 31; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136; UNITED TIPPERS DRIVERS ASSOCIATION (AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) LPELR – 40161 (CA). Therefore, an action cannot be maintained against a Defendant who is not a legal person. Where it is clear that a Defendant or any party to a suit is not a legal person, the party must be struck out. I agree with the Defendants that the 1st Defendant is not a juristic person and thus not capable of being sued or made a party to this suit. Consequently, the 1st Defendant is hereby struck out from this suit.
NON-JOINDER OF THE PRESIDENT:
On this issue, the learned senior counsel for the Defendants have submitted that by virtue of Sections 3 (1) and (4), 4 (2) and 7 (2) of Instrument No. NIA 1, the 1st Defendant, the Deputy Directors-General and Directors in the 2nd Defendant owe their appointments and removals to the pleasure of the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. Learned counsel further submitted that should the Claimant succeed in the reliefs he sought in this case, implementation will be difficult in view of the fact that the President is not joined to this action. The arguments of learned Senior Advocate is to the effect that the President is a necessary party to this case and failure to join him will affect the implementation of the outcome of the case should the Claimant succeed. In his reaction to this point, counsel for the Claimant, Peter Eriwode Esq., submitted that the President is neither a proper nor necessary party in the suit. According to learned counsel, this action can be determined without the President of the Federal Republic of Nigeria being joined as a party.
Although the argument of the learned senior counsel for the Defendants is that failure to join Mr. President renders this suit incompetent, I do not think so. It is now settled law that no action shall be defeated by reason of misjoinder or non-joinder of parties. See ABIA STATE TRANSPORT CORPORATION vs. QUORUM CONSORTIUM LTD (2009) All FWLR (Pt. 474) 1444 where the Supreme Court held that non-joinder or misjoinder of parties will not defeat a claim nor lead to striking out of a claim. The apex court stated the principle more succinctly in AYORINDE vs. ONI (2000) 3 NWLR (PT. 649) 348 as follows:
“Where a necessary party to an action for one reason or the other was not joined, the non-joinder will not render the Judgment a nullity. Failure to join a necessary party in on action… does not affect the competence or jurisdiction of the court to entertain the matter before it… It is a correct position of law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend and a claim with cause of action against the defendants and the action has satisfied all pre-conditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity”.
Therefore, the non-joinder of Mr. President to this suit is not fatal to the proceeding nor does it render the action incompetent. See also AGBEKONI vs. KAREEM (2008) All FWLR (Pt. 406) 1970; MALU vs. S.G.C. NIG LTD (2003) FWLR (Pt. 165) 534.
That besides, it is important it be considered whether the President is even a necessary party to this case. The Claimant is challenging his dismissal from the service as a Director and Acting Director-General of the 2nd Defendant. See particularly reliefs 4 and 5 of the originating summons where he sought this court to declare that his dismissal is unlawful and an order to reinstate him as a Director and Acting Director-General of the 2nd Defendant. From the facts of the Claimant’s case, his main complaint is against the composition of the SSDC who recommended his dismissal from service. This SSDC was set up by the Defendants. The Claimant did not make any allegation against the President neither did he seek any relief against the president. The case of the Claimant is against the Defendants on account of actions which resulted to his dismissal. Similarly, the Claimant was in the service of the 2nd Defendant from which he was dismissed. The question whether or not the Claimant has been properly dismissed or whether he ought to be reinstated to the service of the 2nd Defendant can be adequately determined with the presence of the 2nd Defendant in the suit.
As submitted by counsels for the parties in their respective written submissions, a necessary party to a suit is someone whose presence before the court is necessary or would be necessary to enable the court to properly and effectually determine the matter before it or who will be directly affected by an order made or likely to be made or the person who would be bound or likely to be affected by the result of the decision. See IN RE-OMIDIJI (OLASENI vs. OLASENI) (2001) FWLR (Pt. 35) 735 at 747; DAAR COMMUNICATIONS (NIG.) LTD. vs. WASA DELMA NIG. LTD. (2012) 3 NWLR (Pt. 1287) 370; GREEN vs. GREEN (1987) 3 NWLR (Pt. 61) 480; OKOMU OIL PALM CO. LTD vs. ISERHIENRHIEN (2001) FWLR (Pt. 45) 670 at 690. From the facts, the President of the Federal Republic of Nigeria is not a necessary party to this case and need not be a party in the case before the case can be properly determined.
Having heard the Defendants’ motion and having considered all issues raised therein, save for the 3rd prayer in the motion which is granted, all other prayers are refused. While the 1st Defendant is struck out from this suit, I do not find any reason to warrant striking out or dismissal of the suit. However, an order is made converting the suit to one originated by a Complaint. Accordingly, the parties are ordered to file pleadings starting with the Claimant who will file a Statement of Facts together with the necessary accompanying processes. This must be done within 14 days from today. The Defendant too is given 14 days from date of service, to file its Defence processes.
No order as to cost.
Ruling is entered accordingly.