Justice Oyebiola Oyewumi has struck out a suit filed by Zainab Abraham alleging unlawful termination of employment.
Zainab who is a Kogi State Polytechnic lecturer filed the suit against the Kogi State Government and 3 others.
However, Justice Oyewumi of the National industrial court, Lokoja Division on Tuesday struck out the suit for being incompetent.
Background
Zainab informed the court that she commenced her employment at Kogi State Polytechnic, Lokoja, as an assistant lecturer.
She was subsequently promoted to the position of Lecturer and continued her service following the screening exercise conducted by Kogi State in 2016, with her salary being paid up until the conclusion of April 2017.
However, in May 2017, her monthly salary was abruptly halted without any apparent cause. Despite numerous inquiries, it wasn’t until 2019 that she was informed the stoppage might be indicative of a dismissal.
She further asserted that the respondent infringed upon her fundamental rights and jeopardized her means of livelihood by neglecting to disburse her salaries from April 2017 until the present.
In their defense, the defendants stated that the applicant was still within her probationary period when her appointment was terminated in April 2017. They argued that there was no obligation on their part to provide the applicant with the reasons for terminating her appointment.
They argued that Zainab’s employment with Kogi State Polytechnic does not constitute a fundamental right outlined in Chapter IV of the Constitution.
According to them, the terms of employment are typically stipulated in the contract document between the employer and the employee.
They asserted that the alleged violation cannot be the basis for a fundamental right action under the FREP Rules, as the right to employment is not considered a fundamental right. Consequently, they urged the court to dismiss the claim.
Contrarily, the claimant argued that the only entity vested with statutory authority to terminate her employment and withhold her salary is the governing council. She contended that the dismissal, lacking fair hearing and without an inquiry into any alleged wrongdoing, is inherently illogical.
Counsel asserted that the respondents violated her client’s right to livelihood and transgressed her fundamental rights related to salary, earnings, and possessions acquired through work. Maintaining that the court has jurisdiction over the case, counsel urged the court to approve the requested remedies.
The Presiding Judge, Lokoja Judicial Division of the National Industrial Court, Hon.
Court’s decision
In her judgement, Justice Oyewumi held that Zainab could not have invoked the jurisdiction of the Court under the Fundamental Right Enforcement Procedure Rules.
He said that is because 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.
The Judge 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.
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Consequently the judge 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.
The judge said “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.”
