THE Honourable Justice Oyebiola O. Oyewumi of the Abuja Division of the National Industrial Court has declared that Comrade Lawrence U. Amaechi, the President of the Nigeria Civil Service Union (NCSU), and 14 other National Officers of the union are in contempt of the court by their refusal to obey a valid order and Judgment of the NICN.
Justice Oyewumi made the declaration on Thursday, January 13, 2022 while delivering judgement in Suit No. NICN/ABJ/59/2020 between Comrade Yildet Dage Bigwan, claimant, and Comrade Lawrence U. Amaechi (JP) and 15 other defendants. Justice Oyewumi therefore ordered Comrade Amaechi and his colleagues in the NAC of NCSU to stop parading themselves as national leaders of the union.
Comrade Amaechi and the 14 National Officers of the union were elected at the January 25th -26th 2018 quadrennial delegates conference of the union. However, the NIC had in an interlocutory injunction, nullified the conference, an order which further stressed in the judgement in the suit instituted by two aggrieved members of the union, Comrade Benson Ekasa and Comrade Menele Nzidee against the union and its then leadership led by Comrade Kiri Mohammed Shuaib.
“Following the above decided authorities, the 1st -14th defendants herein cannot continue to stay in office after the nullification of the NDC which brought them in vide Exhibit B and B1. They cannot decide to treat the judgment of the Court and act in defiance of same by perpetuating themselves in office.
“As reasoned supra, an order of Court must be obeyed until set aside and failure to obey same is contempt of Court. Thus, the continuous stay of the 1st -14th defendants in office beyond the date of Exhibit B1 is in flagrant disobedience of a valid judgment of Court.
“Even though, the order in Exhibit N has been set aside, the 1st -14th defendants cannot by any stretch of imagination rely on that to treat the Court’s order in Exhibits B and B1 as regard the nullification of their elections as invalid.
“In essence, the 1st-14th defendants do not have the legal competence to still remain in offices as elected National Principal Officers of the 16th defendant after the nullification of NDC by the Court. Question 1 in the Amended Originating Summons is thus resolved against the defendants,” Justice Oyewumi held.
Genesis of Litigation
Comrade Bigwan commenced the lawsuit through an originating summons on 5th March, 2020 and a subsequent amended originating summons filed on 15th March 2021 praying the NIC to determine a set of four questions against the defendants, which included Comrade Amaechi, President of NCSU, all elected national officers of the union and the General Secretary as well as the Union itself.
The questions include: one, “whether by the provisions of Rule 7 (f) (VI) of the Constitution of the Nigeria Civil Service Union 2005 (as amended), Exhibit “A” the 1st – 14th Defendants have the legal competence, capacity and or vires to occupy the offices of elected Principal National Officers known as National Administrative Council of the 16th Defendant considering the Order/Judgment of National Industrial Court of Nigeria in Suit No. NICN/ABJ/31/2016 delivered on the 25th October, 2019 (Exhibits “B”, “B1” and N).”
Two, “whether by the provisions of Rule 10 of the Constitution of the 16th Defendant, the 1st–15th Defendants have any legal competence, capacity and vires to exercise the duties and powers of the National Administrative Council (NAC) of the 16th Defendant, for them to redeploy, query and suspend the Claimant and deny him his salary and earned allowances.”
Three, “whether given the provisions of Rule 19 of the Constitution of the 16th Defendant, the 15th Defendant [General Secretary, Comrade Yahaya I. Ndako], has competence, capacity and or vires to occupy and exercise that duties and powers of the General Secretary of the 16th Defendant, having regards to his being appointed on contract by the 1st–14th Defendants,” and four; “whether having regard to the peculiar circumstances of this suit as well as the conduct of the 1st-5th Defendants, the failure to abide by the Order/Judgment of the Court in suit No. NICN/ABJ/31/2016 delivered on 25th October, 2019 whether the Claimant is not to serve as deterrence in the Defendants’ future dealings and for damages suffered by the claimant.”
Comrade Bigwan therefore asked the court to, upon the determination of the questions raised, grant him the following reliefs: one, “a declaration that the letters of redeployment, query and suspension dated 18th November 2019, 22nd January, 2020 and 19th February, 2020 respectively issued by the 15th defendant [General Secretary] on behalf of the 1st-14th and 16th defendants [NCSU] are illegal, ultra vires, invalid, unlawful, unconstitutional, null and void and of no legal effect whatsoever.”
Two, an order “nullifying the purported redeployment, query and suspension of the claimant and restore the Claimant to his former status quo as State Secretary Adamawa State Council of the 16th Defendant.”
Three, an order “restraining the 1st-15th Defendants from constituting themselves and exercising the duties and powers of the National Administrative Council of the 16th Defendant.”
Four, an order “directing the 16th Defendant or anybody acting for her to pay the claimant the withheld salaries and allowances from the 1st day of December, 2019, when he reported to Oshogbo and the time of filing this originating Summon.”
Five, an order “directing the 16th Defendant or anybody acting for her to pay all the claimant’s outstanding salaries from March, 2020” and an order “compelling the 1st-15th Defendants to pay the claimant N5,000,000 (Five Million Naira) as General, Aggravated/Exemplary/Punitive Damages” as well as cost of the litigation.
The Arguments
Comrade Bigwan, through his counsel, Mr Marcelluous Eguvwe Oru, now a Senior Advocate of Nigeria (SAN), in proffering arguments on questions one and two, submitted that “by the contents of Exhibits B, B1 and N, the defendants have no power, authority and vires to redeploy the claimant on the 12th November, 2019.”
Arguing that the law is clear that the defendants have been restrained by an order of court which was further reinforced in a judgment of the NIC, the counsel stressed that “the redeployment, query and suspension of the claimant is [sic] illegal as one cannot put something on nothing.”
He also submitted that the appointment of the General Secretary, Comrade Ndako, by the NAC on contract appointment is equally illegal as the NAC is illegal. He further argued that since the power to suspend can only be exercised by person who has the power to act and such must be in accordance with the powers granted them by the constitution of the union, the General Secretary thus lacks the legal powers ab initio.
He also pointed out that the disobedience of the Court order by the defendants is contemptuous and that having disobeyed the Court order cannot be heard to take advantage of their wrongdoing. He also submitted that the filing of an appeal by the defendants does not give them the power to disobey the Court order as an appeal does not operate as stay of execution.
While noting the appointment of a public trustee to oversee the affairs of the NCSU, he also argued that assuming the defendants had the power to suspend the claimant, that the suspension by virtue of Rule 10(c)(v) and (vi) cannot exceed six months, but which in this case had exceeded 12 months. On the basis of these arguments, the claimant’s counsel submitted that Comrade Bigwan is entitled to the remedies sought since it has been shown that his redeployment, query and suspension are “illegal and ultra vires…”
In his argument, defendants counsel, Mr Chika Eze Esq., in response filed their counter-affidavit in opposition to the claimant’s amended originating summons on the 16th day of June 2021. In the counter affidavit deposed to by the General Secretary, Comrade Ndako, who is the 15th defendant, stated that the union is at liberty to contract any of its retired members.
He also stated that both the order and the judgment of the Court by Justice Sanusi Kado in Suit No. NICN/ABJ/31/2016 nullifying the NDC of the 16th defendant held on the 25th-26th of January, 2018 are subject of a pending appeal at the Court of Appeal, a situation which is known to all the parties in the suit.
While stating that the 1st to 15th defendants were not parties to the said judgment as there was nothing connecting the NDC duly held between those dates to the substantive suit as it was while the suit was pending that the claimant therein brought a motion for stoppage of the NDC which was already planned and fixed.
Comrade Ndako admitted that Comrade Bigwan was truly redeployed to the Borno State Council of the union from Adamawa State Council to manage the issue of the dwindling check off dues and that after he complained, he was transferred to Osun State with clear instructions on his letter that it was the Osun State Council that will pay him his transfer allowance. He said Comrade Bigwan though reported to Osun State and that the members of the Osun State Administrative Council of the union who are to welcome him to Osun State are not obligated to be stationed at the Secretariat to welcome him as they may have closed from work the day he arrived the state.
Comrade Ndako further averred in the affidavit that the claimant absconded from duty and abandoned his new post for reasons he stated in a letter and that he failed to act in good faith as a patriotic member of the union by absconding his duty post unlike other patriotic employees of the union who had also not received their transfer allowances but stayed in their duty posts.
He said the financial constraints of the union were the reason why the Osun State Council was asked to pay Comrade Bigwan his allowances and that the failure of the claimant to stay at his duty post caused the Osun Council tremendous loss.
He said Comrade Bigwan was issued query for absconding his duty post and to which he responded rudely and he was equally requested to appear before a disciplinary body, a request he said the claimant declined. As a result, the NAC of the Union duly investigated the complaints against the claimant and he was duly suspended vide a letter which indicated that the suspension will take effect on the day the NAC/NEC ratifies the suspension in line with Rule 31(b)(ii) of the Constitution of the 16th defendant.
According to Comrade Ndako, the order of the President of NIC appointing a public trustee for the NCSU had been appealed at the Court of Appeal and same order has been set aside by the appellate Court in a Ruling of the Court of Appeal.
Ndako further averred that the monthly salary of the claimant, which is N86,216.57, was stopped as a result of his suspension as anyone on suspension is not entitled to receive salary. He noted that further action would have been taken by the union on Comrade Bigwan’s employment status but since the matter would be subjudice because of the suit, those steps were not taken. He then asked the court to dismiss the suit as the claimant’s action is brought in bad faith and not in the interest of justice.
Key Decisions of the Court
Justice Oyewumi verdict literally annulled all the activities and actions in NCSU since the election of the current leadership in the January 25th-26th 2018 National Delegates Conference of the union.
Stating that after “a careful consideration of the amended Originating summons, the accompanying processes filed in this suit by the claimants, the counter affidavits of the defendants and the further and better affidavit filed on behalf of the claimant and the written address of parties file in this case,” Justice Oyewumi said she is “of the view that the sole issue, the determination of which will meet the justice of this suit is Whether or not the Claimant is entitled to the reliefs sought.” [Her emphasis]
She held that the case, from the totality of evidence before the court, apparently centres on dispute between the executives of the union which has set rules governing its activities with members and its staff. The decisions and conclusions, Justice Oyewumi held, were principally based on an earlier order and judgment of the NIC which nullified the National Delegates Conference of NCSU even though the order/judgement is still a subject of an appeal, and yet to be set aside.
“It is cardinal principle of our corpus juris that a judgment remains valid until it is set aside…Thus the said judgment is still valid until it is set aside by the appellate Court. This Court no doubt by Section 254C (1) (j)(iii) of the Constitution of the Federal Republic of Nigeria (1999) as amended has the exclusive jurisdiction on issues relating to the determination of any question as to interpretation and application of any award of judgment of the Court. Thus, I have a Constitutional duty to interpret the said Exhibit B and B1 which are still valid. It is in the light of this that this Court will interpret the said order and judgment together with Rule 7 of the Constitution of the 16th defendant as it affects the reliefs sought in this case,” Justice Oyewumi declared.
She went on to hold that on the basis of the earlier order/judgement by the NIC, the NCSU currently does not have a legally constituted national leadership and as a result, every action that had been taken by the current leadership remains illegal, null and void.
She avows: “It is apparent from the decisions of this Court per Kado J in Exhibits B and B1 that the National delegates Conference of the 16th defendant purportedly held on the 25th-26th day of January, 2018 was nullified. It is abundantly clear at pages 23 and 24 of Exhibit B1 the judgment of this Court for interpretation particularly at paragraph 46 that the National Delegates Conference of the 16th defendant was set aside. Hereunder reproduced is the said paragraph;
“46. It should be remembered that in the course of hearing of this suit, I made an order nullifying the National Delegates Conference of the 2nd Defendant that was purportedly held on the 25th and 26th day of January 2018, in defiance of a pending ruling on interlocutory injunction seeking to restrain the Defendants from conducting such conference which was slated to be delivered on 6/2/18. This means that as at today, there are no legally elected executives of the 2nd Defendants in the eyes of the law; since the recognized executive members of the 2nd Defendants have had their tenures expired.” [Her emphasis]
The import of the above proclamation by Justice Kado, Justice Oyewumi affirmed, “is that there are no legally elected executives of the 2nd defendant [in] that case and now the 16th defendant herein. I am mindful of the deposition of the claimant vide paragraph 4 of his further and better affidavit that the former President took steps to comply with ruling of this Court contained in Exhibit B by issuing a communiqué to set up a caretaker committee to oversee the affairs of the 16th defendant…I have perused the said exhibit YB and it is evident in it that 7 member committee was constituted as a caretaker committee to man the affairs of the 16th defendant.
“However, it is obvious in Exhibit B1 the final decision of the Court which was handed down after Exhibit YB that the position of the leadership of the 16th defendant has been declared vacant. It is equally so clear from Exhibit G that the appellate Court while setting aside the order in Exhibit N which appointed a Public Trustee for the 16th defendant did not make any order with respect to appointment of any person to oversee the affairs of the 16th defendant upon setting aside the appointment of the Public Trustee earlier appointed.
“There is therefore no doubt that the position as of now is that there is no body at the helms of affairs of the 16th defendant. That is, there is no legally recognized executive members of the 16th defendant who was also the 2nd defendant in Exhibit B1…
“It is thus clear from the above decision that a decision of a Court of competent jurisdiction whether rightly or wrongly decided is binding on the parties and all and sundry including their agents, cronies and allies, unless and until it is set aside on appeal. While it subsists the same must be obeyed. It is not open to disobedience by anybody even where he feels it was wrongly decided…
“As such, no one has the power to occupy any of the recognized executive position of the 16th defendant herein who was 2nd defendant in Exhibit B1 since the tenure of the former occupants has expired. Following the decision in the case of Obeya v. FBN Plc, supra, anyone who occupies the executive position of the 16th defendant/2nd defendant therein does so in contempt of a valid order of the Court.”
She also affirmed that the nullification of the National Delegates Conference not only affects every other business of the conference but also by extension affects the acts of officers who emerge from such election
Justice Oyewumi asserts: “The NDC no doubt has been nullified by this Court vide Exhibit B1 which is still valid and subsisting. The effect of the nullification of the NDC is that all its business including the election has been nullified. The nullification of the said NDC and by extension the election conducted therein no doubt affects the acts of any officer who emerges from such election.
“This is because where an election has been nullified, the rights, obligations and duties accruing from such election has been also nullified. The 1st-15th defendants who emerged from the NDC conference which has been set aside by the Court remains nullified until decided otherwise by the Court of Appeal.”
On the basis of the above assertions, Justice Oyewumi, after citing several authorities, declares: “Following the above decided authorities, the 1st-14th defendants herein cannot continue to stay in office after the nullification of the NDC which brought them in vide Exhibit B and B1. They cannot decide to treat the judgment of the Court and act in defiance of same by perpetuating themselves in office. As reasoned supra, an order of Court must be obeyed until set aside and failure to obey same is contempt of Court.
“Thus, the continuous stay of the 1st-14th defendants in office beyond the date of Exhibit B1 is in flagrant disobedience of a valid judgment of Court. Even though, the order in Exhibit N has been set aside, the 1st -14th defendants cannot by any stretch of imagination rely on that to treat the Court’s order in Exhibits B and B1 as regard the nullification of their elections as invalid. In essence, the 1st-14th defendants do not have the legal competence to still remain in offices as elected National Principal Officers of the 16th defendant after the nullification of NDC by the Court. Question 1 in the Amended Originating Summons is thus resolved against the defendants.”
Justice Oyewumi, also on the basis of the above conclusions, refused to grant Comrade Bigwan’s prayers for the payment of transfer allowance for reporting to Osun State Council of the union to which he was redeployed by the “illegal” leadership of Comrade Amaechi.
She held that “it should be noted that the redeployment of the claimant vide the letters of redeployment to Borno and Osun States vide Exhibit E and F respectively were validly challenged by the claimant and has been set aside by this Court.
“The purport of this is that the letter of redeployment to Osun State Exhibit F (also Exhibit C2 in the counter affidavit) and whatever it represents has been set aside. It is trite that an illegal contract is void and cannot be the foundation of any legal right. The said redeployment itself is illegal for being in defiance of the Court’s order and judgment and cannot be the basis of claimant’s claim to transfer allowance.
“It is well established that illegality renders a contract unenforceable no matter the obligations incurred by the parties in pursuance thereof… What the claimant seeks in this case is to benefit from an illegal transaction and which the Court frowns at… Thus the transfer allowance would not be granted by this Court.”
Monetary Awards
Justice Oyewumi also ordered the award of the payment of the salary arrears for December 2019, January and February 2020 in addition to his ceased salaries following his suspension which has been annulled, and should be paid up to date, that is, from the date of the illegal suspension to now. This also implies that Comrade Bigwan was never suspended in the eyes of the law.
Additionally, Justice Oyewumi awarded the sum of N500,000 in exemplary damages to Comrade Bigwan against the 1st to the 14th defendants (elected national officers). Similarly, she also awarded the sum of N200,000 as cost of action in this suit.
NLC, NCSU Secretariats Mute
When contacted last Thursday, January 13, 2022 via telephone shortly after the judgement, the General Secretary of NCSU, Comrade Bomoi Mohammed Ibraheem, neither picked his call nor responded to an inquiry sms sent to him.
Similarly, Comrade Emmanuel Ugboaja, General Secretary of Nigeria Labour Congress (NLC) also did not respond to an sms and a WhatsApp message sent to his mobile after he failed to pick his call last Thursday.
We’ve Not Seen Judgement
But Comrade Kabiru Inuwa, the Chairman of Chairmen of NCSU State Councils, otherwise known as Council of State, in response to National Record’s inquiry said: “Am sure the leadership of the union has secured the service of lawyers. In this regard, it’s within the purview of their advice that the union will act.
“Moreover, we didn’t see the ruling and cannot pre-empt the content. Listening to court pronouncement may not necessarily be comprehended by a listener but a professional who possess vast knowledge of the courts and the law.”
