Sea Trucks (Nigeria) Ltd. V. Panya Anigboro (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This is an appeal against the judgment of the Court of Appeal (Benin Division) wherein the appeal of the applicant (now respondent before us) was allowed and judgment was entered in his favour in terms of his prayers before the trial High Court which had earlier refused those prayers.

The respondent, as applicant, had in a motion filed on 26/2/87 in the High Court of the now defunct Bendel State in the Warri Judicial Division prayed the court pursuant to section 42(1) of the Constitution of the Federal Republic of Nigeria, 1979 and Order 1 rule 2 of Fundamental Rights (Enforcement Procedure) Rules, 1979, for leave to bring an application.

“for redress of the breach of the rights of assembly and association of the plaintiff/applicant when he was unlawfully and summarily dismissed from work by the defendants on the 28th of February, 1986 by locking him out and by notice at the gate of the defendants’ premises at Enerhen for his declaring to belong to a particular trade union NUPENG …..”

(Italic is mine for emphasis)

In the statement in support of the application the respondent sought the following reliefs from the court, to wit:

“2. Relief Sought

The plaintiff claims (a) that his purported summary dismissal from the said employment of Sea Truck Nigeria Limited (the defendant) on the 28th of February, 1986 is a breach of his fundamental rights under the Constitution of the Federal Republic of Nigeria 1979 when the defendant locked the plaintiff out of the premises of the defendant and thereby preventing the plaintiff from entering the premises and carrying out the duties of his employment for the defendant and when the defendant pasted the notice of the summary dismissal of the plaintiff written on the notice board at the gate of the premises of the defendant at Enerhen within the jurisdiction of this Honourable court on the ground that the plaintiff declared along with the other workers of the defendant for NUPENG (b) order of this Honourable court to reinstate the plaintiff to his said employment and benefits and entitlements as from the 28th of February, 1986; and/or in the alternative N20,000.00 compensation for the said breach of the fundamental rights of the plaintiff under the Constitution of the Federal Republic of Nigeria 1979”.

And the grounds for the relief were stated in paragraph 3 of the statement as follows:

“3. Ground on which reliefs are sought:

(a) The summary dismissal is a breach of the fundamental rights of the plaintiff to belong to an association of his own which is NUPENG -National Union of Petroleum and Natural Gas Workers – as entrenched in section 37 of the Constitution of the Federal Republic of Nigeria.

(b) The summary dismissal is a further breach of the fundamental right of the plaintiff to a fair hearing (or to be heard) before any punitive action can be taken against him under section 33(1) of the Constitution of the Federal Republic of Nigeria.

(c) The summary dismissal is contrary to the current Sea Trucks (Nig.) Ltd. Conditions of service as at the 28th February, 1986 as applied to a confirmed employee of the defendant in Articles 13 and 14 thereof.”

There was an affidavit filed in support of the application and in which the respondent deposed, inter alia, as follows:

“2. That the causes of action are for a declaration that a summary dismissal by the Sea Trucks (Nig.) Ltd. (the defendant) on the 28th February 1986 is unconstitutional; reinstatement to my employment as from 28th of February, 1986 and/or N20,000 compensation for the breach of my said fundamental rights under the Constitution of the Federal Republic of Nigeria.

3. That on the 28th of February, 1986 the defendant summarily dismissed my employment under the defendant without any reasonable cause by simply locking me along with other employees of the defendant out of the premises of the defendant and by a notice written at the notice board at the gate of the premises announcing that all workers of the company were sacked en mass and thereby prevented me to enter into the premises of the defendant to carry out my work and without any notice and without any query or granting me audience for any allegation against me.
4. That since that time the defendant had not allowed me to perform my duties nor earn my salaries, and other entitlements, increment, leave and leave bonus and medical treatment.
5. That I was employed by the defendant on the 15th of August, 1984 as Marine Engineering Assistant on probation.
6. That I was confirmed on the 15th of February, 1985, on satisfactory performance vide copy of the letter of confirmation of employment dated 8th May, 1985, reference No. STW/CA/9/12/85 annexed hereto and marked Exhibit A.
7. That I was granted my annual leave due on the 15th of August 1985 which was deferred till 23rd October, 1985 for 18 days with leave allowance (bonus) of N60.00 – vide copy of the leave certificate annexed hereto marked Exhibit B.
8. That since my employment with the defendant I had no query and had been performing very well and making steady progress.
9. That the defendant and its workers had been on disagreement as to which Trade Union the workers would belong. The defendant wanted its workers to belong to the Nigeria Union of Seamen and Water Transport Workers but the workers declared for the National Union of Petroleum and Natural Gas Workers (NUPENG) vide copies of the declaration dated November 1985 and the letter of the NUPENG dated 13th January, 1986 and the letter the defendant’s worker at Port Harcourt of 1/1/86 marked Exhibit C, C1 and C2 respectively annexed hereto.
10. That the defendant on the 27th of January, 1986 terminated the appointment of the leader of the workers in their declaration for the NUPENG namely Philip Agageche, John Odu, Williams Ogriyan and Ayo Pony for leading the workers to declare for the NUPENG.
11. That NUPENG protested and gave the defendant ultimatum to reinstate the 4 leaders but heretofore the defendant had not done so.
12. That on the 28th of February, 1986 when I reported for duties at the gate of the premises of the defendant I saw on a notice board thereat a written notice saying that all workers were sacked and they should report for their pay-off on the 4th of March, 1986; but I do not accept this action of the defendant.
13. That since the date the security men at the gate became hostile and drove me and others workers affected by the notice from the gate; and I thereupon ceased to go there.
14. That I was never given any notice of terminating or dismissal of any appointment as required by the conditions of service of the defendant.
15. That by the said condition of service I am entitled to one month’s salary in lieu of the notice.
16. That my basic salary was N270.00 a month as at 27th October, 1985 and I am due for increment in my salary.
17. That I had been without employment since 28th of February, 1986 though I am very much eager to continue with my work with the defendant.
18. That I am entitled to end of service benefit of one month salary every completed year of service payable to an employee who has served for a minimum continuous period of 5 years and wished to leave the company.
19. That I am young and hope to work for a longer period. I was born in 1958.
20. That the sudden dismissal of my appointment by the defendant brought untold hardship to me.
21. That I did nothing to disrupt the work of the defendant nor to cause any danger to the life and property of the defendant.

Exhibit A annexed to the affidavit reads thus:

“Mr. Anigboro Panya,

(Marine Eng. Assistant).

Dear Sir,

CONFIRMATION OF APPOINTMENT

We are pleased to confirm your appointment as Marine Engineer Assistant based in Warri Base with effect from 15th February, 1985.

With this your confirmation of appointment, either party is bound to give a month’s notice or a month’s salary in lieu of notice, before such appointment can be terminated. You are however, entitled to two weeks paid leave on completion of 12 months unbroken service, and all other terms and conditions remain unchanged.

This letter is to be signed by the employee and employer as evidence that these terms are understood, and agreed upon by both parties.”

There are other documentary exhibits annexed to the respondent’s affidavit but as these are not relevant to the issues posed in this appeal, I say no more on them.

Leave was granted as prayed. The respondent then put the defendants on notice, they are now appellants in this appeal and shall henceforth be referred to as appellants. On being served with motion papers, the appellants filed a counter affidavit sworn to by their senior security officer, Christopher Pibowei and had annexed to it a number of documentary exhibits.

Annexture 1 reads:

“The Chief Labour Officer,

Federal Ministry of Employment,

Labour and Productivity,

Benin-City,

Bendel State.

Mass withdrawal from the Nigeria Union of Seamen and Water Transport Workers by the Junior Workers a Niger Benue Transport Company (NBTC) and Sea Trucks Nigeria Limited, Warri.

I am directed to refer to your letter reference No. IB/288/1/291 of 15th January, 1986 and to inform you that the Junior Workers of Niger-Benue Transport Company Warri and Sea Trucks Nig. Ltd, Port-Harcourt cannot opt for National Union of Petroleum and Natural Gas Workers (NUPENG) because the economic activities of the Companies under reference are not oil prospecting (sic)

(Sgd.)

J.A. Banjo

for Permanent Secretary”

In the counter-affidavit, Pibowei deposed, inter-alia, as hereunder:

“4. Save that the plaintiff/applicant was never summarily dismissed on 28/2/86 paragraph 1,2,5,6,7,19,20,21 of the plaintiffs affidavit are hereby admitted and that was on 23/2/86 and not 28/2/86 that plaintiff lost his job.

5. The following paragraphs are however denied and same have been traversed seriatim by me hereunder to wit:- paragraphs 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,22,23,24,25,26, 27, 28, 29, 30, 31, 32 and 33.
6. In reply particularly to paragraphs 3, 4, 9, 10, 11, and 12 of the said affidavit, I depose hereto that the true facts of the matter is that:

a) The plaintiff and other workers of the defendants who were recognised and classified as members of the Nigeria Union of Seamen and Water Transport Workers and duly so recognised by the defendants …. of Petroleum and Natural Gas Workers (NUPENG) and accordingly resorted to lawless acts and agitation aimed at disrupting the business or work of the defendants herein.

(a) That I am advised by counsel S.AJ Emessiri Esq. and I verily believe same to be true that such action was contrary to Law and in breach of the Trade Union Amendment Decree 1978, schedule 1 and also Federal Military Government Notice No. 92 of 8th February, 1978.

(b) That the plaintiff and his group were told by the defendants that the Company merely acted as carriers of supplies to oil company without being in any way involved in oil exploration activities and as such they were not in position to recognise the plaintiffs chosen new Trade Union; the plaintiff and others refused to come to work.

c). That at no time was the plaintiff locked out.

d). That prior to that the defendants had received directives from the Permanent Secretary Federal Ministry of Employment, Labour and Productivity in a letter dated 5/2/85; reference No. ML.IB/1411 11/577 to the effect that:

“The Niger Benue Transport Company Warri and Sea Trucks Nigeria Ltd. Port-Harcourt and Warri cannot opt for National Union of Petroleum and Natural Gas Workers (NUPENG) because the economic activities of the companies under reference are not oil prospecting’ .

That a copy of the said letter is annexed hereto and marked Annexture “1”

e). That when the plaintiff and others refused to return to work at the invitation of the defendants but chose to be roaming about the premises of the defendants threatening workers and destroying property securing the gates of their yard from these marauders and by reporting to the Police for necessary protection in this regard.

f). That notice requiring the plaintiff and others to return to work were issued and photocopy of same are hereto annexed and marked annexture “2” and “2a” hereto (dated 22/2/86).

m). The defendants shall contend therefore, that the plaintiffs writ which was filed on or about 26/2/87 was statute barred having regard to Order 1 rule 3(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. That I am so advised by our solicitor S.A.J. Emessiri Esq., and I verily believe same to be true. And that this will be taken up as a preliminary objection at the trial of this action.

n). The defendant finally aver that as from the time of the illegal strike plaintiff has never bothered to show up at defendant’s offices in connection with his employment. He simply vacated his post.”

The appellants, following paragraph 6 (m) of the counter-affidavit filed a motion praying the trial court to dismiss respondent’s “matter or suit” on the ground that it was statute-barred. The motion was supported by an affidavit the purport of which was to show that respondent’s cause of action, if any, arose on 23/2/86 and not 28/2/86. The respondent replied with a counter-affidavit contending to the contrary. This motion was subsequently withdrawn and was struck out but was substituted by another similar motion filed on 3/6/87. This motion was argued and dismissed on 10/12/87.

The respondent’s motion came on for hearing. The learned trial Judge took evidence from both sides and heard learned counsel address him. In a reserved judgment given on 19/10/89, the learned Judge found that the respondent was summarily dismissed along with others on 23/2/86 and not on 28/2/86 and that in consequence respondent’s suit was statute-barred being outside the one year period allowed by the Fundamental Rights (Enforcement Procedure) Rules. He struck out the suit.

The learned trial Judge notwithstanding this conclusion also considered, in the alternative, other issues raised by both sides and found –

1. That the dispute between the parties is not a trade dispute for the National Industrial Court to resolve, the High Court has jurisdiction in the matter.
2. “On the peculiar facts of this case, I hold that the applicant has established his personal and private interest to sustain his standing in instigating this action,”
3. “On the facts of this case, I hold, that the applicant and other workers were locked out and summarily dismissed, because, he and his co-workers refused to accept the dictate of the respondent on which Trade Union they should join.”
4. That the powers of the High Court are wide enough to grant the respondent the reliefs sought by him.

Both parties were dissatisfied with the decision of the trial court and they each appealed to the Court of Appeal. The Court of Appeal upheld respondent’s appeal holding that his suit was not statute-barred. It dismissed appellants’ cross appeal and granted the reliefs sought by the respondent. The court, per Akpabio, JC.A., concluded:

“This appeal therefore, succeeds, and is hereby allowed. The decision of the learned trial Judge that the application of plaintiff under the Fundamental Rights (Enforcement Procedure) Rules, 1979, was statute-barred is hereby set aside.

The purported summary dismissal of the plaintiff 23/2/86 which was not put into any formal letter is hereby set aside. In its place the defendant is hereby ordered to reinstate the plaintiff forthwith into his former post, as a Marine Engineering Assistant and paid all his arrears of salaries, he should also be allowed to join any trade union of his choice without let or hindrance as guaranteed to him under S. 37 of the Constitution of Nigeria, 1979.”

The appellants have now, with leave of this court further appealed to this court upon 10 original and 2 additional grounds of appeal.

The respondent was not represented by counsel at the oral hearing of the appeal. Being satisfied that his counsel was served, we considered it that the appeal was argued on respondent’s brief. In that brief respondent raised a preliminary objection to the effect that-

“this Honourable court has no jurisdiction to entertain this appeal in view of the partial disobedience of the said order of the lower court.”

Respondent also raised two other objections in his brief. They run as follows:

“It is pertinent to note that the said notice did not contain prayer for the leave sought to file and argue grounds 3, 4 and 9 of the original grounds of appeal and to file additional grounds of appeal which were exhibited to the motion be deemed properly filed and served on the respondent and that failure to include such prayer is fatal to the competency of the grounds of appeal and the court should discountenance the grounds of appeal as incompetent. The respondent shall raise this issue as a preliminary issue at the hearing of this appeal.

Besides the said additional ground of appeal (Exhibit STNIV) was not dated nor signed by the appellant or its legal practitioner. It is my submission that failure to date and sign the said additional grounds of an appeal is fatal to the validity of the said document. This Honourable court shall at the hearing of this appeal be moved to discountenance the said grounds of appeal mentioned hereinabove as a preliminary issue.”

The objections raised by the respondent necessitated the appellant filing a reply brief. In that brief the appellant argued that –

“Quite apart from the absence in the records of any facts having a bearing to the respondent’s contention that the partial noncompliance with the order for stay of execution ousts this Honourable court’s jurisdiction, the contention is also hamstrung by the fact that it cannot come within any of the recognised instances where a court’ jurisdiction will be deemed ousted, in the case of A.-G., Anambra v.A.-G., Fed. (1993) 6 NWLR (Pt.302) 692. It was expressly stated that the jurisdiction of courts can only be ousted in the following instances:

(a) where for example the court is not properly constituted as regards the numbers and qualification of its members and a member is disqualified for one reason or another;

(b) where the subject-matter of the case is not within the jurisdiction of the court.

(c) and also when the case does not come to the court through the due process of law and conditions precedent to the exercise of the said jurisdiction have not been fulfilled.

The respondent’s submission at para.203 obviously not in alignment with the law as reiterated above must be rejected we so urge”,

I agree with the appellant’s submission above. I cannot see how partial or non-compliance with the order of courts as regards payment of a judgment debt robs an appellate court of jurisdiction to hear and determine the appeal before it. If the appellants failed to comply with the order of court as regards payment of the judgment debt, the respondent has his remedy which if he fails to take, he has himself to blame.

I have considered the appellant’s submission in respect of the other objections raised. I think those submissions are well founded. Respondent has not claimed that the documents were not subsequently filed by the appellants. I find the objections raised lacking in merit and I unhesitatingly dismiss them.

In the appellants’ brief of argument in this court filed pursuant to the Supreme Court Rules the following questions are formulated for determination, to

wit:

“i. Whether or not the jurisdiction of the Court of Appeal was affected by the validity or otherwise of grounds “b” and “c” of the notice of appeal to the court.

ii. Whether the provisions of the Trade Disputes (Amendments) Decree No. 47 1992, particularly the ouster clause, applies to the instant case.

iii Whether the plaintiff’s claim was instituted within 12 months from the time the cause of action arose prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 1979

iv. Whether in the circumstances of this case, respondent’s grievance against his summary dismissal by the appellant was or could be validly challenged by way of an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979

v Is a court entitled to proceed further and pronounce on the merits of a case having already held that it has no jurisdiction

vi. Whether the respondent is entitled to be re-instated into his former employment as the Court of Appeal has decreed

The questions as raised in the respondent’s brief are similar to those posed in the appellant’s brief. Question iv above which is similar to question (b) in the respondent’s brief, is rather fundamental as it touches on the competence of respondent’s suit. I shall, therefore, consider it first. If the question is resolved in the appellants’ favour, respondents’ case must then be struck out and there will be no need to proceed to the consideration of the other issues raised in the appeal. If the answer to the question is otherwise, there will be need to consider the other questions.

Question IV – Competence of respondent’s suit:

I have taken pains to set out earlier in this judgment the reliefs sought by the respondent, the grounds for such reliefs and the facts relied on in the affidavit in support. All these are relevant to the determination of this question.

Mr. Onigbanjo, for the appellants, both in his written brief and in oral argument, has submitted that the respondent’s claim is, in essence, for wrongful dismissal and should not, therefore, have proceeded under the Fundamental Rights (Enforcement Procedure) Rules but rather by way of an action under the High Court rules. He cited in support Egbuonu v. Soma Radio Television Corporation (1997) 12 NWLR (pt.531) 29. It is argued in the brief thus:

“……….. nowhere is it stated in the entire provision of Chapter IV of the 1979 Constitution of the Federation of Nigeria that any person is entitled to be employed in perpetuity ………….

It is also trite that our labour law recognises the right of an employer to terminate an employment for good or bad reasons or for none at all. The remedy available to an aggrieved party sounds in damages, see Obot v.CBN Ltd. (1993) 8 NWLR (pt.310) 140 and Ajayi v. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt.62) 577. Respondent’s claim, we submit is caught by this principle. The only remedy thus available for the respondent is a common law action for damages. The case of Shugaba v. Minister of Internal Affairs (1982) 3 NCLR 915 is only authority for the proposition that a common law action I claim can be joined together with a claim to enforce a fundamental human right and definitely not authority to the effect that Chapter (3) IV of the 1978 Constitution guarantees any right of employment in perpetuity or that rights not included in Chapter IV (supra) can be dexteriously included by the framing of an action to have the semblance of an action brought to enforce a constitutional right. The cases of BRTC v. Egbuonu (1991) 2 NWLR (pt.171) 81 and Peterside v. IMB (supra) are applicable to the facts of the instant case.

In conclusion, we submit that for an application to be validly and properly categorised as an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979, such application must seek to enforce or protect a right guaranteed by Chapter IV. Where no such constitutionally guaranteed right is the subject matter of any proceedings under the Fundamental Rights (Enforcement Procedure) Rules, such as in this case, the adjudicating court must not hesitate to halt the proceedings instantly for it is gravely defective. Your lordships are thus urged to hold that respondent’s claim is not founded on any right guaranteed by Chapter IV and is thus incompetent.”

The respondent, in his own brief, argued thus:

“The source of right to file the application before the trial court by the respondent was section 42 of the Constitution of the Federal Republic of Nigeria, 1979, which provides in sub-section (1) and (3) thus:

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

3. The Chief Justice of Nigeria may make Rules with respect to the practice and procedure of a High Court for the purposes of this section.’

The Fundamental Rights (Enforcement Procedure) Rules, 1979 was made in pursuance of the section 42(3) of the Constitution by the Chief Justice of Nigeria.

The power of determining the justicieability of cause of action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 is with the learned trial Judge who grants the leave to file the application. At the hearing of the application, the learned trial Judge has another opportunity to determine whether the applicant proves his case (i.e. violation of his alleged rights.) This application passed through these two stages of the hearing successfully. The Court of Appeal found that the appellant violated the said right under section 37 of the 1979 Constitution. In other words, the issue being argued is based on appeal against concurrent findings of facts whether the causes of action are based on the aberration of S.37 of the 1979 Constitution. There is no fresh argument proffered in the brief to validly challenge the concurrent findings of facts by the trial court and the lower court. Besides references to Peteside v. IMB (Nig.) Ltd. and BRTC v. Egbuonu in the brief do not show such valid challenge. The argument in the circumstance is academic.

I shall restate for purpose of emphasis the first relief in the statement in support of the application which the appellant reproduces in its brief. The clear complaint made in the relief is an allegation of the breach of the fundamental right to belong to a trade union under section 37 of the Constitution of the Federal Republic of Nigeria 1979. This is the requirement under section 42(1) of the said Constitution and Order 1 rule 2(1) of the said rules and upon satisfaction by the trial court leave was granted. The issue of jurisdiction to hear/try the case therefore becomes a non-issue in the circumstances. Besides the appellant did not challenge the leave when he was served the application of the respondent. Appellants’ preliminary application challenging the application for want of cause of action was dismissed by the trial court on the 10/12/87.

The second relief of reinstatement is ancillary to the substantive relief alleging violation of S.3 7 of the Constitution. The justicieability of the relief along with the substantive relief has been confirmed by the cases of Shugaba and Egbuonu referred to by the appellant in its brief. The appellant also confirms the procedure to join the second relief of reinstatement to a relief seeking to enforce a fundamental right. The respondent has not by his application and the reliefs sought therein claimed any right of employment. While the appellant agreed that it resisted the respondent to belong to a trade union he chose (NUPENG) it fails to appreciate the fact that the respondent can bring application under Fundamental Rights (Enforcement Procedure) Rules, 1979. I also refer to the case to Akande v. Araoye (supra) to emphasise the right to sue in the manner the respondent did.” and concluded that –

“the reliefs sought are justiciable under the Fundamental Rights (Enforcement Procedure) Rules, 1979 and S.37 and 42 of the Constitution of the Federal Republic of Nigeria, 1979”.

I have given careful consideration to the respective submissions of the parties. I think it is a wrong approach to the issue on hand to say that the power to determine the justicieability of a cause of action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 lies with the trial Judge and that once he has given leave to bring in an application, justicieability can no longer be questioned. I think the proper approach is to examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is the main plank, redress may besought through the Fundamental Rights (Enforcement Procedure) Rules, 1979. But where the alleged breach of fundamental right is incidental or ancillary to the main complaint, it is incompetent to proceed under the rules. So this court decided in Tukur v. Governor of Taraba State (1997) 6 NWLR (pt.510) 549 and in Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt.531) 29.

In Borno Radio Television Corporation v. Egbuonu (1991) 2 NWLR (Pt.171) 81 at p.90 Adio, J.C.A. (as he then was) observed:

“The competence of a court to exercise jurisdiction in relation to an action before it depends on certain conditions which Bairamian, J. (as he then was) set out in Madukolu & Orsv. Nkemdilim (1962) 2 SCNLR 341 at 348; (1962) 1 All NLR587 at P.595. His Lordship stated, inter alia, as follows:

‘Before discussing those portions of the record, I shall make some observation on jurisdiction and the competence of a court. Put briefly, a court is competent when:-

1. it is properly constituted as regard numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. the subject- matter of the case is with in jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case comes before the court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.’

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

I cited the above passage, with approval, in Turkur v. Government of Taraba State (supra) at page 577 of the report. That passage, in my respective view, represents the correct position of the law.

In Egbuonu v. Borno Radio Television Corporation (supra) Kutigi JSC at 40 C-E of the report had this to say:

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

Turning to the facts of the present case, there can be no difficulty in ascertaining the principal complaint of the respondent which is a claim for wrongful dismissal. The principal relief is for his reinstatement which the court below ordered. The alleged breaches of his fundamental rights flowed from this main complaint. In the circumstance, therefore, the proper procedure for him to seek redress is by a writ of summons in the High Court and by application under the Fundamental Rights (Enforcement Procedure) Rules. This is the decision of this court in Egbuonu v. Borno State Television Corporation (supra) which is similar to the case on hand. The two courts below are, with respect, clearly in error when they held that respondent’s action was properly brought under the Fundamental Rights (Enforcement Procedure) Rules. The proceedings in the High Court of Warri Judicial Division are incompetent and are, therefore, null and void.

Having held as above, it follows that I must hold that respondent’s suit in the trial High Court is incompetent and must be struck out. I answer question IV in the negative.

As the proceedings in the trial High Court are a nullity, those in the court below are equally a nullity. In view of this conclusion, it is unnecessary to determine questions I, III, V and VI which, as basis, presuppose the competence of these proceedings.

In view, also, of the conclusion I reach in this judgment that respondent’s claim is essentially for wrongful dismissal it follows that question II must be answered in the negative. Being not a trade dispute, the Trade Disputes (Amendment) Decree (now Act) No. 47 of 1992 would not apply. The issue raised by the appellants in their reply brief for this court to depart from its decision in Udah v. OHMB (1993) 7 NWLR (Pt.304) 139 no longer arises.

Finally, this appeal succeeds and it is hereby allowed. The judgment of the court below is set aside. That of the trial High Court striking out respondent’s action is restored though for a different reason. I award N10,000.00 costs of this appeal and N1,000.00 costs in the court below in favour of the appellants against the respondent. The cost of N100.00 award in favour of the appellants in the trial High Court shall stand.

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SC.120/1995