By Anya C. Anya

The National Industrial Court Owerri has declare the transfer of Non indigent workers who were working in the Abia State civil service back to their respective state of origin as illegal and unconstitutional. The court also awarded damages in favour of the affected workers as sought by then.

In a several page judgment delivered on 14th Oct 2020 as obtained by AFNEWS, the presiding Judge Justice Galadima declare the action of Abia State Government in disengaging the staff and transferring them back to their respective state of origin as void.

The Abia state Government took what was considered by many as wrong decision by disengaging over 400 civil servant working in the state and directed them to report back to their respective state of origin while arrangement should be made there to accommodate them.

The workers who felt wrongly treated had approach the National Industrial Court Owerri by way of an originating summons on 13/11/2018 wherein they seek answers to and for reliefs deriving from the following questions:

a. Whether having regard to the provision of Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 the action of the Defendants purporting to transfer the services of the Claimants from Abia State Civil Service by circular dated August 25, 2011 does not amount to discrimination and therefore unconstitutional?

b. Whether the Defendants are not bound by the provisions of the 1999 Constitution particularly section_ 42?

c. Whether the purported disengagement of the Claimants from the service of the Defendants is in compliance with the Abia State Government Public Service Rules?

The disengage workers also were seeking for the following reliefs:

i. A declaration that by virtue of the provisions of Section 42 of the Constitution of the Federal Republic of Nigeria 1999 the Defendants cannot capriciously transfer these Claimants from the Abia State Civil Service in the manner done on the basis that they are non-indigenes of Abia State.

ii. A declaration that the purported disengagement of these Claimants from the Public Service of the Defendants on the basis that they are non-indigenes of Abia State is a violation of Section 42 of the CFRN 1999 and therefore unconstitutional.

iii. A declaration that the disengagement of these Claimants is against the Public Service Rules and is thus illegal, null and void.

iv. A declaration that the administrative/executive directives/orders contained in a circular titled “backloading on transfer of non-indigenes in the Abia State Public Service to their various States of origin” dated August 25, 2011 (except those in tertiary institutions) and which was acted upon by the Government of Abia State with effect from 1/10/2011, is in violation of Section 42 of the 1999 Constitution and thus unconstitutional.

v. A declaration that any executive or administrative order or law made by these Defendants in transferring out these Claimants without their consents on the basis of not being indigenes of Abia State, is unlawful, null and void.

vi. An order directing the Defendants to reinstate these Claimants to their status as Civil Servants without prejudice to their entitlements and promotions which might have accrued to them during the period of their disengagement.

vii. A declaration that the Claimants are still in the employment of these Defendants;

viii. An order compelling these Defendants to pay these Claimants all their outstanding salary arrears and other emoluments which the Defendants illegally stopped. ix. The sum of N3,000,000.00 only representing the cost of this suit. x. And for such further order(s).

2. In support of the originating summons is an affidavit of 28 paragraphs duly deposed to by Unogu Jude Ugochukwu (the 2nd Claimant here) and 6 accompanying exhibits lettered A to F as well as a written address by their Counsel.

3. The Defendants jointly entered a conditional appearance out of time by a memorandum filed on 4/2/2019. They filed a preliminary objection praying the Court to dismiss the said application on grounds that it is statute barred and supported same with an affidavit of 8 paragraphs and a brief of arguments. They equally filed a counter affidavit of 20 paragraphs duly deposed to by one Obinna Obasi in opposition to the Claimants’ originating claims accompanied by 6 Exhibits lettered A, A1, B, B1, B2 and B3 respectively.

4. In reaction to this, the Claimants again filed a further affidavit on 10/3/2020 accompanied by two other exhibits lettered by them as AA and AB.

5. On that same 10/3/2020, the Defendants again filed another application by motion on notice for an order striking out this suit on the ground that the suit ought not to have been commenced by originating summons but by a general writ of complaint pursuant to Order 3 rule 2 (2) (b) of the rules of this Court.

6. On 19/3/2020, Mrs. Duru P.N via her Counsel, M.O. Uzoma, sought for leave to be joined as a co-claimant to this suit and same was duly considered and granted by this Court on the 24/7/2020 the same day these Claimants adopted their originating summons and the various applications in this cause even though the Defendants were absent in Court. The Defendants’ processes are deemed adopted in their absence.

Investigation by AFNEWS revealed that these Claimants were variously employed into and served in the Public Service of the State of Abia. However, by a circular emanating from the office of the Head of Service in Umuahia titled “Backloading On Transfer Of Non-Indigenes In The Abia State Public Service To Their States Of Origin” dated 25/8/2011, these Claimants along with many others, were directed to return back to their various States of origin for absorption into their respective States’ Public/Civil Service. Giving the strong demonstrations by some States over this, some affected officers were exempted from the exercise, but these Claimants were unfortunately not so lucky.

They were thus issued with various letters of disengagements by the State of Abia. Initially, a class action with over 4,000 applicants, was filed before the Federal High Court in Enugu State for enforcement of their fundamental human rights under Section 42 of the Constitution which declined jurisdiction in 2012 thereby striking out their suit. Before 13/12/2013 and allegedly due to the public outcry, these Defendants issued a publication directing these Claimants to reapply for reabsorption which has unfortunately yielded nothing to date. Allegedly, by a letter dated 14/7/2014, these Defendants stated that the reinstatement of these Claimants was an ongoing process.

Unfortunately, by 2018 when they filed this suit, these Defendants still refused to have these Claimants reinstated or to have their salaries paid them to date.

The Burning questions is

a. Whether having regards to Section 42 of the Constitution of the FRN 1999 the circular dated 25/8/2011 does not amount to discrimination and therefore unconstitutional?

b. Whether the Defendants are not bound by the provisions of the Constitution of the FRN 1999 particularly its Section 42?

c. Whether the purported disengagement of these Claimants is in compliance with the Abia State Government Public Service Rules?

Justice Galadima while delivering the judgement said ” I have satisfactorily gone through all the processes filed by affidavits, exhibits tendered as well as arguments made for and against this originating summons by the parties’ Counsel”

” The 1st issue for determination is straightforward and it requires no judicial brainstorming. It is unquestionable that the Constitution of the Federal Republic of Nigeria as encapsulated in the 1999 document, is supreme to all persons and authorities in Nigeria as well as over any legislation’s which are in force in the country. It is the Supreme Grundnorm before which other legislation’s, persons or authority must kowtow. As such, its provisions cannot be infringed, violated or varied by any inferior law of the land. By virtue of the provision of Section 1 (3), the doctrine of Supremacy of the Constitution demands that if any law is inconsistent with its provisions, the Constitution shall prevail and the other law shall to the extent of such inconsistency, be void ab initio. See the case of FIRST BANK OF NIGERIA PLC V. T.S.A INDUSTRIES LIMITED (2010) LPELR – 1283 (SC). It thus goes without saying that the Defendants are indeed bound by the provisions of the Constitution particularly its Section 42 which grants all citizens the right of freedom from discrimination. The obvious fact is that the Defendants are in a social contract with its citizens and they are expected to ensure that all regulations or policies made do not infract any provisions of the Constitution not excluding Section 42. This is seen under Section 15 (2) and 17 (3) (a) of the CFRN 1999 which are although non-justiciable provisions. I therefore adopt the remainder of the Claimants Counsel’s submissions in resolving this first issue in their favour.”

” Again, Section 42 of the Constitution provides thus:

1. A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person:

a. Be subjected either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions, or political opinions are not subjected to.

b. Be accorded either expressly by, or in the practical application of any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions, or political opinions.

2. No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

3. Nothing in sub-section (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria”.

” Giving its plain and literal meaning, Section 42 interprets to the effect that no citizen of Nigeria shall be subjected to any disabilities or restrictions to which citizens of such area or community are not subjected to; and no citizen of Nigeria can be given any privilege or advantage that is not accorded to citizens of Nigeria of other communities or areas; no citizen shall be subjected to any disability merely by reason of the circumstances of his birth; but in spite of these provisions, nothing shall invalidate any law merely because it imposes a restriction to the appointment of certain persons to an office in the State, the armed forces, Police Force, or any other body corporate established by any law in force in Nigeria.”

” This language echoes similar guarantees enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights. Unfortunately, there are still extant policies that deny Nigerians equal access to employment and educational opportunities solely because they belong to a community whose origins are said to lie in some other parts of Nigeria. These still stand in open violation of these guarantees. International human rights law prohibits discrimination on many grounds, including race, ethnicity and religion. Article 2 of the ICCPR requires state parties to “respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2 of the African Charter on Human and Peoples’ Rights states that the rights guaranteed by the Charter’s other provisions must be respected “without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. These instruments have been ratified by Nigeria and where appropriately pleaded by a Claimant, could have been applicable pursuant to Section 254 C (1) (f), (h) and (2) of the 3rd alteration Act to the 1999 Constitution. The Claimants here have not specifically pleaded for the application of these provisions in this suit and so mere reference to these provisions in their final written address does not suffice for this Court to apply them therefore.”

“There is no denying that these surviving Claimants are all citizens of this Country bound by the Constitution of the Federal Republic of Nigeria. Some of them may have been born in the State of Abia, married to a spouse from that State, lived all their lives there and thus gained sufficient reasons to be deemed indigenes of the State or simply relocated from another State in order to achieve their dreams of a better life. It is clear that the word “non-indigenes” of a State is not employed by the Constitution to differentiate between a person who is and is not from any particular State, Local Government or Community. In fact, that word is not recognized in the lexicon of the Nigerian Constitution. However, the most commonly associated definition of the terms “indigene” and “non-indigene” is that an indigene is a person tracing patriotically ancestry through a particular area of Nigeria (i.e. Local Government, State, or traditional political domain). A non-indigene becomes anyone resident outside his or her area of patriotically ancestry. In its also very common usage of the term, non-indigenes are further subdivided into strangers and settlers. Giving this country’s extraordinary cultural diversity, it is quite clear that certain divisions are held and maintained by its peoples so as to differentiate between persons not belonging to ethnic groups recognized within a politically recognized territory of a State as opposed to those who belong there. This is demeaning, I must state, and it is this differentiation that the Constitution abhors, and which is the basis for making all acts done by any authority which seem discriminatory, unconstitutional.”

” In its purely legal sense therefore, this Court finds that the use of the word “non-indigene” on any public document made by any Government or authority is indeed unconstitutional and violates the provisions of Section 42 of the Constitution as far as it portends to discriminate against certain persons not recognized or who do not belong to certain ethnic groups or place of origin within the State concerned, from being gainfully employed in that State or in its public service, and I so declare.”

” As such, the mere fact that Exhibit B which is dated 25/8/2011 and was tendered by these Claimants is titled “BACKLOADING ON TRANSFER OF NON-INDIGENES IN THE ABIA STATE PUBLIC SERVICE TO THEIR STATES OF ORIGIN” alone makes the entire document unconstitutional as it offends the provisions of Section 42 CFRN 1999, I further declare. The practical effect of that document is that it disengaged these Claimants from continuing to serve as Public Servants within the State of Abia merely because they do not originate from Abia State. The learned Counsel for the Defendants had argued that by sub-section 3 of Section 42, the Defendants could carry out the executive act of transfer of these Claimants from Abia to their respective States of origin.”

“With all due respect to the learned Defendants’ Counsel, that sub-section merely states that it does not invalidate any extant law which requires the appointments of certain persons from a particular State or because of their sex, age, political opinions, etc to certain positions within the State or the federal service or the armed forces, or police force. The sub-section does not provide for any State Government or Authority a blanket power to disengage any person from its public service by mere reason of the fact that such persons belong to another State of origin, sex, or hold certain religious or political opinions or beliefs. It is equally untrue that the excesses of the Executive arm of Government cannot be checked by the other two arms – the Legislature and the Judiciary. The whole essence of the doctrine of separation of powers is to allow for checks and balances in governance as enshrined in Sections 4, 5 and 6 of our Constitution in order for a democratic and civil system to endure. It is recognized that these separate bodies (although the same ‘Governing’ authority), must operate independently yet control the excesses of the other arm. I do not see how the Claimants’ access to this Court for civil redress negates and truncates the Executive’s powers recognizable under the principle and doctrine of separation of powers. The Defendants Counsel’s submissions and arguments on this are unpopular and unconvincing and they are therefore rejected.”

” The next issue to consider is whether the Claimants are entitled to the reliefs sought. There is a total of 9 reliefs sought for in the originating summons. They are indeed central to the success of their claims in this action. I believe the Claimants are entitled to all the reliefs as sought. There is absolutely no reason to deny them of any of them. Therefore, reliefs I to IX are hereby granted as sought, and I so hold.So, for the avoidance of any doubts, these Claimants’ action succeeds, and the entire reliefs sought are hereby granted. Judgment is accordingly entered.” He concluded