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Breach of conditions of service by employer is breach of fundamental right in purview of fundamental rights enforcement procedure rules


CITATION: (2020) LPELR-50358 (CA)
In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi

ON MONDAY, JULY 13, 2020
Suit No: CA/MK/112C/2012
Before Their Lordships:
2. SUNDAY TARNONGO                                                  -Appellant(s)
2. C.G.C NIGERIA LTD                                                       – Respondent(s)

This appeal is against the decision of the High Court of Justice, Benue State, sitting at Makurdi, Coram J.M. Ijohor, J., in a ruling delivered on February 8, 2012 in Suit No MHC/1283/2011.
The appellants, who were junior staff of the 2nd respondent, were alleged to have been planning to steal cables from 2nd respondent’s construction site at Otobi in Otukpo Local Government Area of Benue State. The 2nd respondent through one Mr. Owuna K. Ajayi reported the alleged plan to the 1st respondent who arrested the appellants and locked them up under alleged inhumane conditions between 10/7/2011 and 12/7/2011 when the 2nd respondent through its agents withdrew the matter without more. Upon resumption of duties, the appellants entitlements were deducted by the 2nd respondent for the period they were in detention. The appellants through their Counsel wrote to the 2nd respondent demanding for an apology for their detention and for payment of their entitlements. When the 2nd respondent did not respond, the appellants instituted this suit in the High Court .
The 2nd respondent filed a preliminary objection against the suit, which was upheld by the High Court upon which the appellants’ suit was struck out for having been originated by a defective process. Dissatisfied with the ruling of the High Court, the appellants appealed to the Court of Appeal.

Issues for determination

The Court determined the appeal on the following issues:


1. Whether the learned trial judge was right to have struck out the appellants’ application upon the grounds that it was contentious, highly controversial and defective.
2. Whether the mode of commencing the matter at the trial Court was offensive in law.

Appellants’ submissions
Arguing the issues, appellants submitted that the law is well settled that credible evidence which had not been controverted should be acted upon, relying on Lawson v Afani Continental Co. Ltd (2002) FWLR (PT 109) 1736 at 1740; (2001) LPELR-9155 (CA). It was posited that the learned trial Judge having perused the affidavit evidence of the parties failed to advert his mind to the fact that the respondents admitted in their counter affidavits the facts surrounding the arrest and detention complained about. Counsel postulated that the High Court ought to have acted on the averments of facts stated in the affidavits. See Olojede v. Olaleye (2010) ALL FWLR (PT. 551) 1503 at 1513. It was further submitted that assuming without conceding that there was controversy or contentions in the affidavit evidence of the parties, the proper procedure for the High Court to adopt would have been to call for oral evidence to resolve the controversies and not to have struck out the entire application.

Respondents’ submissions
For the 2nd Respondent it was submitted that the appellants’ application for the enforcement of their fundamental rights was contentious and the High Court was right to have dismissed the same. Counsel for 2nd respondent referred to the facts in issue therein which were in contention and required some explanations. It was argued that it was wrong for appellants to have combined contentious issues with non-contentious issues in an application for the enforcement of fundamental rights. The 2nd respondent argued that there was no issue relating to fundamental rights in the payment of employee’s wages or non-deduction of an employee’s wages, as contended by the appellants. The Court was urged to dismiss the appeal relying on Order IX Rule 1 (ii) of Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREPR).


The 2nd Respondent stated that the main grouse of applicants against the 2nd Respondent was that the appellants were reported to the police, which led to their arrest and detention. It was posited that a citizen who lodges a case with the police does not on that score without more become culpable.

See Fajemirokun v CBN (2009) 37 NSCQR 1 at 11; (2009) LPELR-1231 (SC) Bassey v Afia (2010) ALL FWLR (Pt 531) 1477 at 1500-1501; (2009) LPELR-3931 (CA). The Court was urged to hold that the averments in appellants’ affidavit did not prove the culpability of 2nd Respondent to ground an action under Fundamental Rights (Enforcement Procedure) Rules. It was further submitted that in order to succeed, the appellants must show that 2nd respondent participated actively in securing the arrest and detention of the appellants, which they failed to do.

Resolution of the issues
Resolving the issues, the Court began by stating that pursuant to Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, an applicant could seek to enforce his fundamental right by originating summons. Relying on Saude v. Abdullahi (1989) LPELR-3017 (SC), Abdullahi & Ors v. Nigerian Army & Ors (2019) LPELR-46925 (CA) and NPF & Ors v. Omotosho & Ors (2018) LPELR-45778(CA).


Going further, the Court stated the trite position of the law that in an application to enforce fundamental rights, the main claim ought to be enforcement of fundamental rights. That where the complaint that the fundamental right has been breached is merely an appendage or is ancillary to the main claim, then the action cannot take shelter under the Fundamental Rights (Enforcement Procedure) Rules. Citing Tukur v Government of Taraba State (1997) LPELR-3273(SC), (1997) NWLR (pt. 510) 549, Unilorin & Anor v. Oluwadare (2006) LPELR-3417(SC), Nwachukwu v. Nwachukwu & Anor (2018) LPELR-44696(SC); Emeka v. Okoroafor & Ors (2017) LPELR-41738(SC).
Applying the above to the instant case, the Court held that a determination of whether or not the 2nd respondent had actually deducted arbitrarily the entitlements of the appellants and whether such deductions were in breach of Article 18 of the Condition of Service of Junior Staff (2010) of the 2nd respondent were not matters that fall within the purview of fundamental rights enforcement. It was stated that, Conditions of Service govern the relationship between an employer and its employee, they are contractual by nature and that a complaint that there has been a breach of the conditions of service by an employer has to be proved by the employee who so asserts. Reliance was placed onFederal Mortgage Finance Ltd v Ekpo (2003) LPELR-5627 (CA), NITEL v Ugbe (2001) LPELR-5970 (CA) and Dekom v JSC, Plateau State (2010) LPELR-4031(CA). Therefore, an alleged breach of conditions of service by an employer is not a fundamental right falling within the scope of Chapter IV of the 1999 Constitution, as amended. Such claim must therefore be pursued separately.

After the above conclusion, the Court then considered whether the originating summons procedure elected by the appellants was ideal. In answering the foregoing question, the Court stated the settled position of the law that the originating summons procedure is one that admits of only affidavit evidence. It is therefore well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, the originating summons procedure ought not to be employed. That if facts are in dispute, the action must be brought by writ of summons, which would permit oral evidence. As to how to determine whether facts are in dispute, the Court stated that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. Citing on support the case of Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229; (2006) LPELR-2813 (SC) at page 19; (2006) 2 SC (Pt.1) 19. That rather it is the nature of the claim and the facts deposed in the affidavit in support that would reveal whether the proceedings could be described as hostile. See Alaibe v PDP& Ors (2020) LPELR-49597 (CA).
The Court then considered the nature of the appellants’ claim at the High Court where the appellants alleged that they were arrested and detained unlawfully in inhumane conditions. They also alleged that their entitlements were arbitrarily and wrongfully deducted in breach of their conditions of service. The Court held that even if the allegations regarding the unlawful arrest and detention could be resolved on affidavit evidence, the issue concerning arbitrary deductions contrary to the conditions of service could not be resolved without the benefit of oral evidence that has passed through the crucible of cross examination. Thus, affidavit evidence was insufficient to resolve the issues in contention. The Court thus held that the originating summons procedure was not appropriate in the circumstances of the case.

On the order of the High Court striking out the suit, the Court held that the position of the law is that where there is conflicting affidavit evidence, such as in an originating summons procedure, the trial Court should call for oral evidence to resolve such conflicts. CitingDaniel & Anor v. Ayala & Anor (2019) LPELR-49344 (SC) and Chairman National Population Commission v. Chairman, Ikere Local Govt & Ors (2001) LPELR-3166 (SC). The Court therefore held that the learned trial Judge ought to have called for oral evidence to resolve the conflicting affidavit evidence, rather than striking out the appellants’ suit.

The Court held that the appeal succeeded in part and ordered that the matter be remitted back to the Honourable Chief Judge of Benue State to be heard and determined on the merits by another Judge of the Benue State High Court, upon the parties filing pleadings.

Parties were served through their Counsel but were neither present nor represented.
Compiled by LawPavilion.


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