Jackson Gaius Obaseki & Anr. V. Gift Tobin Orukwo (2007)
LawGlobal-Hub Lead Judgment Report
SAULAWA, J.C.A.
This is an appeal against the decision of the Federal High Court, Port Harcourt Judicial Division holden at Port Harcourt in suit No. FHC/PH/CS/554/2002, dated the 21st day of July, 2004, coram R.O. Nwodo, J. As it would appear from the record of appeal, on 23/9/2002, the respondent had filed a motion on notice in the trial court seeking the following reliefs:
(a) A declaration to the effect that by virtue of the decision of the High Court of Rivers State in suit No. PHC/270M/95 which notified {sic} the basis and/or grounds for which the applicant was summarily dismissed from the employment of Nigeria National Petroleum Corporation and/or Port Harcourt Refining Company Limited the applicant should be reinstated in the said employment by the respondent.
(b) An order of mandamus directing the respondents either by themselves their successors-in-title or agents to immediately reinstate the applicant as a staff of Nigerian National Petroleum Corporation and/or Port Harcourt Refining Company Limited and pay to him all his entitlements therein.
It’s instructive that after according an ample consideration to the oral and written submissions of the learned counsel to both parties, the learned trial Judge delivered judgment to the following effect:
In conclusion, I enter judgment for the plaintiff.
I hold that applicant having shown a legal right in the certiorari order quashing the decision that formed his dismissal and this order subsists. I hereby declare as prayed in relief 1:
By virtue of applicant having shown the existence of a legal right, and having demanded his reinstatement following the order quashing the decision that formed his dismissal and the respondent having refused to perform that duty relief 2 succeeds in part.
Exercising my discretion and under consequential omnibus prayer it is imperative to make this order. I hereby order mandamus should issue directing the respondent either by themselves, their successors in title or agents to ensure compliance to decision of court in exhibit C and based on that decision i.e. the order of certiorari therein to direct compliance in accordance with the process of law, I therefore so order.
Not unnaturally, being dissatisfied with the above decision of the trial court, the appellants filed this appeal on 15/12/04 upon five grounds of appeal.
It’s rather instructive that parties have filed and exchanged their respective briefs of argument, which they accordingly adopted on 26/02/07 when this appeal came up for hearing. The appellants have formulated four issues for determination in the brief thereof thus:
“3.1.1. Whether the trial Judge erred in issuing an order of mandamus on the appellants who were not the original parties sued by the respondent at the State High Court in suit No. PHC/270M/95 against whom the order of certiorari was issued.
3.1.2. Whether the trial court was justified in exercising jurisdiction where the respondent failed to serve the motion on notice for commencement of the action as required by section 13 of NNPC Act, Cap. 320, (LFN), 1990?
3.1.3. Assuming that the State High Court order of certiorari granted the respondent was right to apply for reinstatement in 1997 whether the respondent’s suit for reinstatement in 2002 was statute-barred by virtue of section 12(1) or NNPC Act, 1990?
3.1.4. Assuming that the appellants were the employers whether the trial Judge erred in issuing an order of mandamus for reinstatement of the respondent which relief the respondent as applicant at the State High Court did not seek and was not granted by the State High Court in suit No. PHC/270/95 and whether an employee can be imposed on an unwilling employer where the employment has no statutory flavour?
On the other hand, the respondent has formulated a total of five issues in the brief thereof, to wit:
“3.0.1. Whether it is proper for the appellants to raise in their brief of argument as shown in issues 1, 2, 3 and 4 which were not raised, argued or determined by the trial court.
3.0.2. Whether the trial Judge erred in issuing an order of mandamus on the appellants who were not the original parties sued by the respondent at the State High Court in suit No. PHC/270/95 against whom the order of certiorari was issued.
3.0.3. Whether the trial court was justified in exercising jurisdiction where the respondent failed to serve the motion on notice for commencement of action as required by section 13 of NNPC Act, Cap. 320, (LFN), 1990?
3.0.4. Assuming that the State High Court order of certiorari granted the respondent the right to apply for reinstatement in 1997 whether the respondent’s suit for reinstatement in 2002 was statute-barred by virtue of section 12(1) of NNPC Act, 1990.
3.0.5. Assuming that the appellants were the employers whether the trial Judge erred in issuing an order of mandamus for reinstatement of the respondent which relief the respondent as applicant at the State High Court did not seek and was not granted by the State High Court in suit No. PHC/270M/95 and
3.0.6. Whether an employee can be imposed on an unwilling employer where the employment has no statutory flavour.”
In addition to the brief alluded to above, the appellants have also filed a reply brief on 08/5/06, but which was deemed properly filed on 01/6/06. I have deemed it pertinent to allude to the fact that, with the exception of issue No. 3.0.1. thereof, the respondent has virtually adopted all the four issues raised in the appellants’ brief.
On Issue No.1.
It was submitted that the four respondents sued by the present respondent were i) NNPC; ii) Port Harcourt Refining Company Ltd; iii) V.C. Valua and iv) Mr. Ogali as 1st, 2nd, 3rd and 4th respondents respectively.
That, the State High Court did not order for the order the reinstatement of the respondent on the ground that no such relief was sought in the said suit. That, the present appellants were not parties in the said suit. That, the respondent’s claim was not predicated on any existing contract between him and the appellants. See NNPC v. AIC Ltd. (2003) 2 NWLR (Pt. 805) 560 at 564. It’s thus argued that it would be wrong to make an order of mandamus on the appellants on the simple ground that they were not original parties to the suit No. PHC/270M/95 in question. See Lawal v. PGP (Nig.) Ltd. (2001) 17 NWLR (Pt. 742) 393 at 399; Babalola v. Aladejana (2001) 12 NWLR (Pt. 728) 597 at 604. The court is thus urged to answer issue No.1 in the affirmative.
On Issue No.2.
It was the contention of the appellants that the motion on notice in suit No. FHC/PH/CS/554/2002 filed by the respondent in the court below was not served on the appellants. That, section 13 of the Nigerian National Petroleum Corporation (NNPC) Act, Cap. 320, Laws of the Federation of Nigeria, 1990, has made it mandatory that summonses or notices and all other court processes shall be delivered to the Chairman or the Managing Director of NNPC or sent by registered post thereto. It was thus argued that any form of service contrary to the provisions of section 13 of the NNPC Act (supra) is irredeemably bad. See NNPC v. Okwor (1998) 7 NWLR (Pt. 559) 637 at 640; NNPC v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598 at 605; and Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 at 83, respectively. The court is thus urged to answer issue No.1 in the negative and declare the said proceedings null and void and of no effect.
On issue No.3, it was submitted inter alia, that the action giving rise to the instant appeal was commenced on 23/12/2002. That, the said action was predicated on an earlier suit – PHC/270M/95 filed by the respondent in 1995. That, the judgment of the State High Court was declaratory and thus did not contain any order which may be enforced against the appellants. See Okoya v. Santili (1990) 2 NWLR (Pt. 172) 250 at 253. It was contended that since June 1997 when the declaratory judgment was made, the respondent failed to seek relief for reinstatement until in November, 2002 when the motion on notice was filed with leave of the lower court. That, by virtue of Order 47 rule 4(1) of the Federal High Court (Civil Procedure) Rules, 2000, the respondent shouldn’t have been given leave to file application on the ground of undue delay for over five years. That, by virtue of section 12(1) NNPC Act (supra) the respondent was required to have commenced the suit in question within 12 months after the cause of action arose (in 1997). That, the 12 months limitation period in question starts to run from the date the cause of action accrues. See Eboigbe v. NNPC (t 994) 5 NWLR (Pt. 347) 649 at 652-655. That, failure to comply with the provisions of section 12(1) NNPC Act (supra) by the respondent presupposes that the trial court should not have exercised jurisdiction thereupon and that the proper order to make is that of dismissal. See Umukoro v. NPA (1997) 4 NWLR (Pt. 502) 656; Onumalobi v. NNPC (1999) 12 NWLR (Pt. 632) 628 at 630, respectively. The court is thus urged upon to answer issue No.3 in the affirmative.
On issue No.4, the appellants have contended, inter alia, that the learned trial Judge erred in issuing the order of mandamus for reinstatement of the respondent which relief was neither sought by the respondent nor granted by the State High Court in suit No. PHC/270M/95 in question. That, in the instant case, the respondent’s employment did not enjoy statutory flavour. See Evans Bros. (Nig.) Pub. Ltd. v. Falaiye. (2003) 13 NWLR (Pt. 838) 564; Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589 at 601. The court is urged on this issue to hold that the learned trial Judge erred in ordering the reinstatement of the respondent. The appellants conclusively urged on the court to accordingly allow the appeal, set aside the judgment of the trial court and dismiss the suit.
On the other hand, the argument of the respondent on issue No. 1 thereof is, inter alia, to the effect that the 1st, 2nd, 3rd and 4th issues as formulated in the appellants’ brief were never raised or argued in the court below. That, the issues of (i) the propriety of the appellants being sued; (ii) the nature of service of court processes; (iii) whether the action before the trial court in 2002 was statute-barred; and (iv) the propriety of granting the order of mandamus, were never raised in the trial court. It is therefore the contention of the learned counsel to the respondent that, the entire appeal is incompetent and a fortiori unarguable, on the ground that it does not form the basis of the decision in the judgment appealed against. See Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt.349) 131, (1994) 6 SCNJ 192.
The respondent’s issue No.2 is the same as the appellants’ issue No. 1.
It’s contended that it’s not tenable in law for the appellants to contend that they were not parties in suit No. PHC/270M/95. That, although both suits (Nos. PHC/270M/95 and FHC/PH/CS/554/2002) relate to the same transaction, the subject matters thereof differ. That, suit No. PHC/270M/95 pertains to a claim for an order of certiorari, which in law can lie against a judicial or quasi-judicial body. On the other hand, suit No. FHC/PH/CS/554/2002 concerns a claim for mandamus, which in law can lie against a person or statutory body that has a public duty to perform.
It was also argued that suit No. FHC/PH/CS/554/2002 was instituted when the appellants were still in active service as the Group Managing Director and Managing Director, respectively, of NNPC and PHRC. That, they were both sued in their official capacities and not as private individual; as such the action was enforceable against them and their successors-in-title.
That, the appellants retired in 2003. They were claimed to be the “alter ego of NNPC and PHRC’ as such they were parties to the contract of employment between the respondent and NNPC and PHRC. The Court is thus urged to discountenance the submission of the appellants in this regard, for being misconceived and a misrepresentation of the true position of the law and facts of the suit.
The respondent’s issue No.3 is the same as the appellants’ issue No.2.
It was submitted that suit No. FHC/PH/CS/554/2002 was duly commenced at the trial court and that the appellants were served with the necessary court processes as required by section 13 of the NNPC Act (supra). That, the appellants actively participated and were ably represented by their counsel in the lower court. They never complained about service. That, even if service of processes was not carried out in accordance with section 13 of the NNPC Act (supra), it would have been a mere irregularity which can not vitiate a concluded proceeding. See Odu’a Invest. Co. Ltd. v. Talabi (1997) 7 SC 653; (1997) 10 NWLR (Pt. 523) 1.
The respondent’s issue No.4 is akin to the appellants’ issue No.3. It’s contended that the appellants have not officially [in writing] confirmed their refusal to reinstate the respondent. Thus, the respondent can not be said to have breached the provisions of Order 47 rule 4 of the Federal High Court (Civil Procedure) Rules, 2000. That, the cause of action accrued in November 2002 and not in 1997 when the appellants verbally informed the respondent that they would not reinstate him.
The respondent’s issue No.5 is exactly the same as issue No.4 of the respondent. It was argued, inter alia, that the appellants failed to show the nature of the respondent’s employment; whether he was a junior staff, senior staff, management staff etc. That, they also failed to show which category of staff enjoys statutory flavour, in their employment. The court is urged to discountenance the appellants’ submission thereupon. See Ogbu v. Wokoma (2005) 14 (Pt.944) 118, (2005) 7 SC (Pt. 11) 123 at 136; Shitta-Bey v. The Federal Service Commission (1981) 1 SC 40.
It was finally submitted that the appeal is incompetent and ought to thus be dismissed.
As alluded to above, the appellants have filed a reply brief in response to the issues raised in the respondent’s brief. On issue No. 1 raised in the respondent’s brief, the appellants denied that issues 1, 2, 3 and 4 thereof were not raised at the lower court. That, issue No.1 of the appellants involves a principle of fundamental human rights, to the effect that a party cannot be punished without being heard as enshrined in section 36 of the 1999 Constitution. It was also submitted that the appellants were not sued or heard at the State High Court; thus could not be issued with an order of mandamus.
That, this is a point of law which could be raised on appeal.
On issues 2 and 3, it was contended that these are issues of mandatory statutory provisions that require strict compliance without discretion. They involve the respondent’s breach thereof which deprived the trial court of its jurisdiction. That, issue of jurisdiction can be raised at any time or stage of the proceeding. That, it’s trite that a case which is conducted without jurisdiction will amount to nullity no matter how well conducted or decided. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Dongtoe v. Civil Service Court.
Plateau State (2001) 9 NWLR (Pt. 717) 132 at 137; Odu’a Invest. v. Talabi (1997) 10 NWLR (Pt. 523) 1 SC 7; Begha v. Tiza (2000) 4 NWLR (Pt. 652) 193 at 198; ITT (Nig.) Ltd. v. Okpon (1989) 2 NWLR (Pt. 103) 337.
On issue No.4, it was contended that it is misleading to assert that the said issue was not raised, argued or determined at the lower court. See Nteogwuile v. Otuo (2001) 6 SC 200 at 216, (2001) 16 NWLR (Pt. 738) 58; Mbani v. Bosi (1999) 8 NWLR (Pt. 614) 318 at 325; Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt.349) 131, (1994) 65 SCNJ 192, respectively. The court is thus urged to answer the respondent’s issue No.1 in the affirmative.
On respondent’s issue No.2, it’s contended, and the court urged to so hold, that the trial court cannot give a judgment against a person who will be affected by its decision if he is not made a party or has no opportunity of defending the suit. See Lawal v. PGP (Nig.) Ltd. (supra); Babatola v. Aladejana (supra). The court is urged to accordingly answer respondent’s issue No.2 in the affirmative.
On respondent’s issue No.3, it was contended, and the court so urged to hold, that the failure to serve the appellants with court processes/contrary to section 13 of the NNPC Act is irredeemably bad and thus deprives the trial court the jurisdiction to hear the suit. See NNPC v. Okwor (1998) 7 NWLR (Pt. 559) 637, 640 at 649; Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 83.
On respondent’s issue No.4, the court is urged to hold that by virtue of section 12(1) of the NNPC Act, the respondent was required to have commenced the suit in question within 12 months after the cause of action [arose] in June 1997. That a limitation period starts to run from the accrual date of cause of action. Thus, the court is urged to answer issue No.4 in the affirmative.
On respondent’s issue No.5, it was contended that the trial court has no power to grant an order of mandamus; as the respondent did not ask the State High Court for reinstatement as a relief. See Olurotimi v. Ige (supra).
That, conditions of service which give statutory flavour to a contract cannot be a matter of inference; they must be expressly set out by statute. See Idoniboye-Obu v. NNPC (supra). The court is urged to answer the first part of issue No.5 in the affirmative, and the second part thereof in the negative. The court is urged to accordingly discountenance the respondent’s submissions and uphold the appellants’ submissions in the brief thereof.
I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel in the respective briefs thereof, as well as the entire record of proceedings of the trial court. As alluded to above, with the exception of issue No. 1 thereof, the respondent has in the brief thereof adopted all the four issues formulated by the appellants in their brief. Hence, for the purpose of determining this appeal, I have deemed it most appropriate to adopt the five issues raised by the respondent in the brief thereof.
On issue No. 1:
Issue No.1 raises the question as to whether the appellants’ issues 1, 2, 3 and 4, which were not raised, argued or determined in the trial court were properly raised in the appellants’ brief. I have outlined above the argument of the learned counsel to the respondent on issue NO.1 and the response thereto by the appellants in their reply brief. I am unable to agree wit. the submission of the learned counsel to the respondent that the appellants’ issues 1, 2, 3 and 4 have not been properly raised. It’s evident that issue No.1 of the appellants raises the question of breach of fundamental right to fair hearing as cherishingly provided under section 36 of the 1999 Constitution. Thus, by implication, it raises a point of law. Secondly, both issues 2 and 3 raise questions of jurisdiction.
It’s trite that an issue of jurisdiction is very fundamental. It can be raised at any time and stage of a proceeding; be it in the trial court, Court of Appeal, or even the Supreme Court. This is obviously so because, a decision or judgment delivered by a court without jurisdiction is a nullity and thus void. See Timitimi v. Amabebe (1953) 14 WACA 379; Mustapha v. Gov. of Lagos State (1987) NWLR (Pt.58) 539; Tukur v. Gongola State (1989) 4 NWLR (Pt. 117) 592; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 506; 619, respectively.
Thirdly, its rather obvious from the record of appeal (at pages 45, 46, 52 and 53) that the issue was canvassed by counsel and accordingly determined by the trial court (at pages 68, 70, 75 and 75). In the light of the above postulations, I uphold the submission of the appellants in the reply brief thereof that issue No.1 ought to be and its hereby answered in the affirmative.
On issue No.2:
This issue raises the question of whether the learned trial Judge erred in issuing the order of mandamus upon the appellants who were not the original parties sued by the respondent at the High Court in suit No. PHC/270M/95. The thrust of the respondent’s argument on this issue is that the two appellants as the Group Managing Director of NNPC and Managing Director of PHRC, respectively, they were alter ego of the two companies.
Thus, according to the respondent –
“It will not be out of place to state that they were parties to the contract of employment between the respondent and NNPC and PHRC.”
Contrariwise, the contention of the appellants is that-
“the court can not give a judgment against a person who will be affected by its decision if such a person is not made a party or has no opportunity of defending the suit.”
I think, I cannot agree more with that contention. In the instant case, having failed to join the two appellants in the State High Court case No. PHC/270M/95, it would be injudicious to say the least, for the trial court to have passed the order of mandamus against the appellants. See Lawal v. PGP (Nig.) Ltd. (supra) at 399; Oghene & Sons Ltd. v. Amoruwa (1986) 3 NWLR (Pt. 32) 856; and Babatola v. Aladejana (supra) at 604. My answer to issue No.2 is most undoubtedly in the affirmative.
On issue No.3:
This issue raises the question of whether the trial court was justified in exercising jurisdiction where the respondent failed to serve the motion on notice for commencement of action as required by section 13 of NNPC Act (supra).l think the answer to that pertinent question is not far fetched. The provisions of section 13 of the NNPC Act (supra) are to the effect thus –
- The notice referred to in S.12(2) of this Act and any summons, notices or other document required or authorized to be served upon the Corporation under the provisions of the Act or any other enactment or Law may be served by delivering same to the Chairman of the Managing Director of the Corporation, or sending it by registered post addressed to the Managing Director at the principal office of the corporation.
It’s indeed an elementary principle of law that any noncompliance or defect that goes to the competence or jurisdiction of a court is fatal. It thus renders the entire proceedings a nullity, no matter how articulatively it was conducted and determined. The defect, as it were, is extrinsic to the adjudication process. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
However, where the defect in question does not necessarily affect the competence or jurisdiction of the court, it amounts to a mere irregularity which court may ex debito Justitiae set aside. See Odua Investment Co. Ltd. v. Talabi (supra) (1997) 10 NWLR (Pt. 523) 1 at 21 – 22 paragraphs E – A.
It’s pertinent that the appellants have cited and relied on the cases of NNPC v. Okwor (supra) and Amadi v. NNPC (supra) and urged upon us to hold that the failure to serve the motion on notice thereon in accordance with section 13 of the NNPC Act (supra) denied the trial court the jurisdiction to hear the suit in question. In NNPC v. Okwor (supra) in particular, the respondent’s filed their statement of claim on 14/7/95 against the appellants. The appellant filed on 14/7/95, a memorandum of conditional appearance. Later on 13/11/95, the appellants filed a notice of preliminary objection which was predicated on the grounds inter alia, that-
“4. The court lacks jurisdiction as the condition precedent to the issuance of the writ was not complied with.”
It’s instructive that the trial court overruled the preliminary objection.
However, the ruling of the trial court was set aside on appeal to this court on the ground, inter alia, thus-
“By virtue of the section 13 of the Nigerian National Petroleum Corporation Act, Cap. 320, Laws of the Federation of Nigeria a writ of summons for service on the corporation can only be served by delivering the same to the Chairman or Managing Director of the Corporation; or sending it by registered post addressed to the Managing Director at the principle office of the Corporation. Any other form of service is bad irredeemably and therefore vitiated, as the words of the statute must be strictly complied with.”
However, the case of NNPC v. Okwor (supra) is easily distinguishable from the instant case. In the above case, its obvious that the appellants did not take any step after the service of the writ and statement of claim thereupon, other than the filing of the conditional memorandum of appearance and the notice of preliminary objection in question. In the instant case, however, the appellants had willingly submitted to the jurisdiction of the trial court by participating in the trial from the beginning to the end thereof. In the instant case, therefore, the appellants having entered an unconditional appearance and filed pleading, they are deemed to have waived their right to object and cannot now seek to set same aside because of this defect alone. See Sken Consult (Nig.) Ltd. v. Uke.v (1981) 1 SC 6; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195; Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680; and Odu’a Inv. Ltd. v. Talabi (supra) at 51 paragraphs G – H. My answer to issue No.3 is thus in the affirmative.
On issue No.4:
This issue raises the question as to whether the respondent’s suit No. [FHC/PH/CS/554/2002] for reinstatement in consequence of the State High Court order of certiorari granted in 1997, was not statute-barred. In my considered view, the answer to that vexed issue may not be farfetched.
It is not in doubt that from the 13/6/97, when the order of certiorari was granted by the State High Court, and 23/12/2002, when the application was filed in the trial Federal High Court, for an order of mandamus, a period of five years and six months had elapsed. The provisions of section 12(1) & (2) of the NNPC Act (supra) required the respondent to commence the subsequent suit for an order of mandmnus within 12 months after the granting of the order of certiorori on 13/6/97 by the High Court in question. That, for reasons best known thereto, the respondent failed to do. It is a trite general principle of law that a limitation period for the filing of an action in court starts to run [its course] right from the date the cause of action accrues. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 346) 649 at 664 – 665 paragraphs D – B; Solomon v. African Steamship Co. (1928) 9 NLR 99; Egbe v. Adefarasin (No.1) (1985) 1 NWLR (Pt. 3) 549; Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379, respectively.
It’s pertinent to reiterate for the avoidance of doubt that, the provisions of subsections (1) & (2) of section 12 of the NNPC Act (supra) have imposed a limitation of time upon subsisting rights of action. Thus, they are most unequivocally, statutory provisions that have the same effect as a statute of limitation. See Eboigbe v. NNPC (supra) 649. Thus, having an ample regard upon the above postulations, my answer to issue No.4 is most undoubtedly in the affirmative. And I so hold.
On issue No.5:
This issue raises the question of whether the respondent’s suit for reinstatement in 2002 was statute-barred by vil1ue of section 12(1) of NNPC Act, 1990. It’s pertinent that the respondent’s suit No. PHC/270M/95 was filed on 22/11/95. The State High Court delivered judgment on 13/6/97. It’s not doubtful that the declaratory order made by the State High Court on the said 13/6/97 did not contain any order which may be enforced against the appellants.
It is a well settled principle of law that declaratory judgments or orders [as against executory judgments or orders] simply proclaim or declare the existence of a legal relationship and do not thus contain orders which can be enforced against the defendant. SeeTukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 592; Okoya v. Santili (1990) 2 NWLR (Pt. 131) 721 at 196 & 213.
The basis inherent in the practice of the courts in granting declaratory judgments or orders, rather than injunctions or other coercive reliefs, is that, where the defendant is a responsible authority, it is assumed inconceivable that a declaratory order would not result in the plaintiff obtaining his rights.
See Okoya v. Santili (supra) at 198 paragraphs E – F; Williams v. Majekodunmi (1962) 1 All NLR 413 at 430, 2 SCNLR 30 and Webster v. Southwork London Borough Council (1983) QBD 698 respectively.
However, the above postulations notwithstanding, I think it’s undoubtedly trite that a declaratory judgment or order can be [and usually is] the ground of subsequent proceedings in respect of the enforcement of the violation of the right so declared therein. See Okoya v. Santili (supra) at 199 paragraph D; 224, paragraph G.
Nonetheless, having due regard upon the fact that the appellants were not parties to the original suit [PHC/270M/95] which resulted in the declaratory judgment in question, it was injudicious, to say the least, for the trial Federal High Court to have ordered that mandamus be issued against the appellants to the effect that they should –
” … ensure compliance to (sic) decision of court in exhibit C and based on that decision i.e. the order of certiorari therein to direct compliance in accordance with the process of law, I therefore so order.”
What’s more, its rather obvious from the above, that the order of the State High Court in suit No. PHC/270M/95 was declaratory [rather than executory]. However, in view of the fact that the respondent had neither sought, nor did the State High Court grant thereto, a relief to the effect that he be reinstated, the learned trial Judge was indeed in error in making the order for the reinstatement thereof. It’s a trite principle that a court does not make an order in vain or grant [a relief] that has not been asked for. This principle is predicated on the belief, rightly in my view, that a court is not a Father Christmas or an inglorious charitable institution. See Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 2271; Metal Construction (WA.) Ltd. v. Aboderin (1998) 8 NWLR (Pt. 563) 538 at 541, NNPC v. AIC Ltd. (supra) at 587 paragraphs B – C, respectively. The second leg of the issue No. 5 raises the question as to whether the court can impose an employee on an unwilling employer, especially where the nature of the employment is devoid of a statutory flavour. The respondent has cited and indeed relied upon Ogbu v. Wokoma (supra) in support of the preposition that the appellants’ failure to show whether or not the respondent’s employment enjoyed statutory flavour is fatal to their case.
Ironically however, the claim in Wokoma’s case (supra) had to do with ownership of a house (at] 85 Ikwerre Road, Port Harcourt). It has nothing whatsoever, to do with a contract of employment talkless of dealing with the vexed issue of termination of an employment with statutory flavour, as in the instant case. The relevance, if any, of Wokoma’s case (supra) to the present issue has to do with the trite general principle that he who claims, must prove.
It’s trite that the question of restoring an employee, whose appointment has been terminated, to his post does not normally apply to cases of employments that are devoid of statutory flavour. The wisdom or rationale inherent in that principle is predicated upon the fact that no employee [or servant] can be imposed by the court on an unwilling employer [or master], even where it’s so apparent that the latter’s motive for getting rid of the former is wrongful, unjustifiable, or repulsively baseless. See Evans Bros (Nig.) Pub. Ltd. v. Falaiye (2003) 13 NWLR (Pt. 838) at 571.
In the instant case, the Board of the NNPC, which was not joined as a party in the instant case, is endowed by the provisions of section 4(1) of the NNPC Act (supra) with the power to-
” … appoint such persons as members of staff of the corporation as it considers necessary and may approve conditions of service including provision for the payment of pensions.”
It’s so obvious in the present case that the respondent’s contract of employment did not fall within the ambit of employments with statutory flavour and thus can not, in my view, be imposed on the unwilling employer thereof. Thus, in the light of the above painstaking postulations, my answer to issue No.5 is most undoubtedly in the affirmative. And I so hold.
Hence, in the light of the above painstaking postulations, and vis-a-vis the circumstances surrounding the appeal as a whole, I have come to the inevitable conclusion that this appeal is most undoubtedly meritorious.
Without any further hesitation, the appeal is hereby allowed by me.
Consequently,(i) the judgment of the trial Federal High Court, Port Harcourt Judicial Division, dated 21/7/2004, is hereby set aside; (ii) The respondent’s suit No. PHC/PH/CS/554/2002 is hereby dismissed.
I make no order as to costs.
Other Citations: (2007)LCN/2348(CA)
