The Presiding Judge, Lokoja Judicial Division of the National Industrial Court, Hon. Justice Oyebiola Oyewumi has struck out the case filed by Kogi State Polytechnic lecturer, Zainab Abraham on allegation of unlawful termination of employment against the Kogi State Government and 3 others for being incompetent.
Justice Oyewumi held that Zainab could not have invoked the jurisdiction of the Court under the Fundamental Right Enforcement Procedure Rules since her action was mainly to achieve a different purpose and not for the enforcement of her fundamental rights, that the proper mode should have been by General Form of Complaint as provided in the National Industrial Court (Civil Procedure) Rules.
The Court ruled that Zainab’s allegation that she was not invited before any panel or indicted before the stoppage of her salary and the allegation of purported dismissal are all allegations of facts that must be tested under the fire of cross-examination, and its improper for her to have commenced the action by way of Originating Motion, especially in the case where facts are contentious.
From facts, the claimant- Zainab Abraham had submitted that she joined the service of Kogi State Polytechnic, Lokoja as an assistant lecturer and was later promoted to Lecturer. She continued that she remained in the service after the screening exercise set up by the Kogi State in 2016 with her salary paid till the end of April 2017. In May 2017, her monthly salary was stopped for no reason and after series of demands, she was informed in 2019 that the said stoppage may be an act of dismissal.
She continued that the respondent violated her fundamental rights and means of livelihood by refusing to pay her salaries from April 2017 till date.
In defence, the defendants- Kogi State Government and 3 others averred that the applicant was still on probation when her appointment was terminated in April 2017, and the respondents are not under obligation to inform the applicant the reason for terminating her appointment.
They also contended that Zainab’s employment with the Kogi State Polytechnic is not a fundamental right that can be found in Chapter IV of the Constitution as the terms of employment are normally set out in the contract document between the employer and the employee and the said alleged violation cannot be a subject of fundamental right action under the FREP Rules as the right to employment is not a fundamental right, urged the Court to dismiss the claim.
In opposition, the claimant averred that the only body(s) clothed with statutory powers to dismiss and stop her salary is the governing council, through due process and submitted that since the applicant was denied fair hearing and equally not tried for any wrongdoing before her dismissal, such decision is absurd.
Counsel maintained that the respondents infringed her client’s right to livelihood and breached her fundamental right to salary, money; and moveable property worked for and earned which the Court has the jurisdiction to entertain the suit, and urged the Court to grant the reliefs sought.
In a well-considered judgment, the presiding Judge, Justice Oyebiola Oyewumi affirmed that the Court is imbued with the jurisdiction to entertain actions on fundamental rights as contained in Chapter IV of the Constitution as they relate to employment matters that the issue is nonetheless with the mode Zainab sought to invoke that jurisdiction of the Court.
The Court stated that Zainab’s alleged breach of fundamental right as seen from all the processes filed is only but a means to achieve the end of reinstatement and restoration of salary which shows that her main grouse is with her dismissal from employment.
Justice Oyewumi held that Zainab’s matter cannot be adjudicated having commenced through the fundamental right enforcement procedure Rules as any attempt to prove the liability of the Respondents through the Originating Motion procedure, where Affidavit and Counter Affidavits evince subsistence of substantial disputes must be resisted by the Court.
“There is no way the issue of the alleged breach would be considered without considering the issue of the stoppage of her salary and purported dismissal by the Respondents.
There is no gain saying that the real cause of action is unlawful termination as seen in paragraphs of her affidavits where she alleged that the procedure in the Scheme of Service of the Polytechnic were not followed. The alleged breach of her fundamental rights is so inextricably linked to the alleged unlawful stoppage of salary and unlawful purported dismissal.”
