By Mofoluwawo Oluwapelumi
Mojolaoluwa.
![image](/2021/03/sjk.jpg")
In a country as diverse ethno-socially, culturally, and
religiously as Nigeria, we most often do not appreciate the extents
and implications of our differences until it is time to gain some
benefit or lose out on some opportunities. In the interesting case
of Njoku Fidelia Ada & 3 Others v Attorney General of Abia State
and 2 Ors (NICN/0W/45/2018), the Claimants who were public servants
in Abia State and rightfully so, received a rude shock when their
employment was suddenly terminated in 2011 on the sole grounds that
they were non indigenes of Abia State. This case assumes importance
because it is one of the many instances which underline and restate
the delicateness of the ‘One Nigeria’ message and how the actions
and inactions of state subjects can challenge that fundamental
ideology. Thankfully, the court came to the rescue in this
instance, shedding light on key grey areas; thus saving the
day.
![image](/2021/01/payne-alex.jpg")
The Claimants in this case, suing on behalf of themselves and
the Abia State Disengaged Non-Indigene Workers, 460 persons in all,
were variously employed into the service of the Abia State
Government and were working as such. However, on the
25th of August, 2011, a circular issued by 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, mandated them all, alongside many others, to return to
their various states of origin to be absorbed into their State’s
Public Service. Due to the disapproving reactions of the affected
States, some affected officers were exempt from this exercise while
the Claimants were not as lucky. They were thus officially
disengaged from the services of Abia State. Initially, a class
action with over 4000 applicants was filed before the Federal High
Court, Enugu State for the enforcement of their fundamental human
rights under section 42 of the Nigerian Constitution (1999 as
amended). The court declined jurisdiction and struck out the suit.
Before 13/12/2013 and allegedly due to public outcry, the
Defendants issued a publication directing the Claimants to reapply
for reabsorption, an exercise which went to no effect till date.
Allegedly also, by a letter dated 14/7/2014, the Defendants stated
that the reinstatement process of these Claimants was ongoing but
by 2018 when this suit was filed, the Defendants had neither
reinstated, reabsorbed the Claimants nor paid their salaries to
date. The Claimants therefore brought an action by way of
originating summons for the interpretation of certain
constitutional provisions. The issues for determination as brought
forward by the Claimants at the National Industrial Court, Owerri
division were as follows:
- 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? - Whether the Defendants are not bound by the provisions of the
Constitution of the FRN 1999 particularly its Section 42? - Whether the purported disengagement of the Claimants is in
compliance with the Abia State Government Public Service
Rules?
Per the Claimants’ disengagement from the Public Service of the
Abia State Government, the only reason given by their employer
(Abia State) was that they were non-indigenes of
the State of Abia. Meanwhile, the Constitution of the Federal
Republic of Nigeria clearly provides in section 42 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 made subject; or
(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.
The Claimants relied on this provision, as well as Section 2 of
the African Charter on Human Rights as ratified in Nigeria (albeit
their failure to specifically and properly plead the latter denied
the court of its rightful application). The crux of the arguments
in support of their issues was that disengagement on the grounds of
being a non-indigene was unconstitutional; that executive and
administrative orders(such as the circular) inconsistent with the
provisions of the constitution must bow to the constitution, and
that the their employment being statutory in nature, could only be
terminated in accordance with the provisions of the Public Service
Rules of Abia State and by no other means. Not having complied with
all applicable laws and regulations therefore, their disengagement
was null and void, and they were entitled to an order of
reinstatement.
The defendants in their defense, argued that the Nigerian
Constitution recognizes the autonomy of federating States to make
their own laws and policies; that the policy did not leave the
Claimants in the lurch rather it transferred them for reabsorption
into their respective States’ Public service upon disengagement as
such there was no civil wrong for the court to redress. they also
argued that granting the Claimants’ reliefs will negate the
principle of separation of powers, as the judiciary cannot direct
the executive on how to conduct its affairs and vice versa. Inter
alia, they relied on subsection 3 of section 42 of the Constitution
which states:
(3)Nothing in subsection (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
member of the Nigeria Police Forces or to an office in the service
of a body, corporate established directly by any law in force in
Nigeria.
They concluded that the suit was baseless as the Claimants had
not proved their case before the court.
In arriving at its decision, the court opined that the word
‘non-indigene’ is not recognized by the Nigerian constitution.
While the term indigenes has been used to
delineate persons tracing their patrilocal ancestry through a
particular area of Nigeria, and non-indigenes to
delineate persons resident outside their area of patrilocal
ancestry; the court held that:
“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.”
The court further held that the use of the word
‘non-indigene’ on any public document made by any
government or authority is unconstitutional, violating section 42
of the Constitution in so far as it discriminates against persons
of certain ethnic groups or place of origin, precluding them from
gainful employment in public service. This was the groundbreaking
declaration of the Honourable Justice Ibrahim Suleiman Galadima. By
this declaration, the circular of disengagement was rendered
unconstitutional as it offended the provisions of S42 of the
Constitution.
In interpreting subsection 3 of section 42 as relied upon by the
defendants, the court held that the subsection does not confer
blanket powers on any state government or authority to disengage
any person from its public service by mere the fact/reason of such
persons belonging to another State of origin, sex, or holding
certain religious or political opinions or beliefs. The court
further held, that checking the excesses of the executive arm and
indeed the safeguard of checks and balances in governance by one
arm to another, is the whole essence of the doctrine of separation
of powers (sections 4, 5, 6-CFRN), as such the defendants’
arguments were rejected.
Observing that (1) some of the Claimants were reabsorbed by
their States of origin, (2) the Abia State government had made a
publicized attempt at recalling the Claimants in a subsequent
circular – however unconcluded, (3) the government had attempted an
amicable settlement with the Claimants in the course of the law
suit; the court commended the Abia State’s government’s attempts at
correcting a grave error and mending the fabric of national unity.
The court then resolved issue 2 in favour of the Claimants. Without
further ado, the court finally held that for an employment with
statutory flavor, the Claimants’ disengagement was not in
accordance with laid down statutory procedures and thus ultra vires
and void. The court therefore granted all the reliefs sought by the
Claimants namely:
- 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. - 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.
- 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. - 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. - 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.
- The sum of N3,000,000.00 only representing the cost of this
suit.
By implication, this decision reinforces the supremacy of the
constitution, a big win for a nascent democracy as ours, in such a
heterogeneous society as we find ourselves. One must be careful
however, not to assume that a decision as this now mandates State
Governments to employ all and sundry into its public service
notwithstanding their origin. On the contrary, this decision merely
safeguards extant employments from being determined merely on the
ground of the employee being a ‘non indigene’. There will always be
arguments such as that of the availability of equally qualified
indigenes to be employed into the public service of their states,
maintaining the autonomy of state governments to conduct their own
affairs including how and who they recruit into their service,
amongst others.
And perhaps, now compelled to determine statutory employments as
provided by enabling laws, States will now only need to come under
the appropriate grounds for dismissal as opposed to the playing the
non-indigene card. What is more, they would probably now foreclose
non indigenes from initial employment to prevent this kind of
situation in the future. This ongoing practice in Nigeria, however
prejudicial and contrary to the spirit of section 42, CFRN, has not
been addressed by this decision. Nonetheless, it is a big win for
Njoku Fidelia Ada and others, big win for non-indigenes already in
State public service, and a restatement of the powers of the court
to grant redress, as well as interpret the law.
Written by Mofoluwawo Oluwapelumi Mojolaoluwa.
Houseoflivingstones@gmail.com
By Mofoluwawo Oluwapelumi
Mojolaoluwa.
In a country as diverse ethno-socially, culturally, and
religiously as Nigeria, we most often do not appreciate the extents
and implications of our differences until it is time to gain some
benefit or lose out on some opportunities. In the interesting case
of Njoku Fidelia Ada & 3 Others v Attorney General of Abia State
and 2 Ors (NICN/0W/45/2018), the Claimants who were public servants
in Abia State and rightfully so, received a rude shock when their
employment was suddenly terminated in 2011 on the sole grounds that
they were non indigenes of Abia State. This case assumes importance
because it is one of the many instances which underline and restate
the delicateness of the ‘One Nigeria’ message and how the actions
and inactions of state subjects can challenge that fundamental
ideology. Thankfully, the court came to the rescue in this
instance, shedding light on key grey areas; thus saving the
day.
The Claimants in this case, suing on behalf of themselves and
the Abia State Disengaged Non-Indigene Workers, 460 persons in all,
were variously employed into the service of the Abia State
Government and were working as such. However, on the
25th of August, 2011, a circular issued by 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, mandated them all, alongside many others, to return to
their various states of origin to be absorbed into their State’s
Public Service. Due to the disapproving reactions of the affected
States, some affected officers were exempt from this exercise while
the Claimants were not as lucky. They were thus officially
disengaged from the services of Abia State. Initially, a class
action with over 4000 applicants was filed before the Federal High
Court, Enugu State for the enforcement of their fundamental human
rights under section 42 of the Nigerian Constitution (1999 as
amended). The court declined jurisdiction and struck out the suit.
Before 13/12/2013 and allegedly due to public outcry, the
Defendants issued a publication directing the Claimants to reapply
for reabsorption, an exercise which went to no effect till date.
Allegedly also, by a letter dated 14/7/2014, the Defendants stated
that the reinstatement process of these Claimants was ongoing but
by 2018 when this suit was filed, the Defendants had neither
reinstated, reabsorbed the Claimants nor paid their salaries to
date. The Claimants therefore brought an action by way of
originating summons for the interpretation of certain
constitutional provisions. The issues for determination as brought
forward by the Claimants at the National Industrial Court, Owerri
division were as follows:
- 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? - Whether the Defendants are not bound by the provisions of the
Constitution of the FRN 1999 particularly its Section 42? - Whether the purported disengagement of the Claimants is in
compliance with the Abia State Government Public Service
Rules?
Per the Claimants’ disengagement from the Public Service of the
Abia State Government, the only reason given by their employer
(Abia State) was that they were non-indigenes of
the State of Abia. Meanwhile, the Constitution of the Federal
Republic of Nigeria clearly provides in section 42 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 made subject; or
(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.
The Claimants relied on this provision, as well as Section 2 of
the African Charter on Human Rights as ratified in Nigeria (albeit
their failure to specifically and properly plead the latter denied
the court of its rightful application). The crux of the arguments
in support of their issues was that disengagement on the grounds of
being a non-indigene was unconstitutional; that executive and
administrative orders(such as the circular) inconsistent with the
provisions of the constitution must bow to the constitution, and
that the their employment being statutory in nature, could only be
terminated in accordance with the provisions of the Public Service
Rules of Abia State and by no other means. Not having complied with
all applicable laws and regulations therefore, their disengagement
was null and void, and they were entitled to an order of
reinstatement.
The defendants in their defense, argued that the Nigerian
Constitution recognizes the autonomy of federating States to make
their own laws and policies; that the policy did not leave the
Claimants in the lurch rather it transferred them for reabsorption
into their respective States’ Public service upon disengagement as
such there was no civil wrong for the court to redress. they also
argued that granting the Claimants’ reliefs will negate the
principle of separation of powers, as the judiciary cannot direct
the executive on how to conduct its affairs and vice versa. Inter
alia, they relied on subsection 3 of section 42 of the Constitution
which states:
(3)Nothing in subsection (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
member of the Nigeria Police Forces or to an office in the service
of a body, corporate established directly by any law in force in
Nigeria.
They concluded that the suit was baseless as the Claimants had
not proved their case before the court.
In arriving at its decision, the court opined that the word
‘non-indigene’ is not recognized by the Nigerian constitution.
While the term indigenes has been used to
delineate persons tracing their patrilocal ancestry through a
particular area of Nigeria, and non-indigenes to
delineate persons resident outside their area of patrilocal
ancestry; the court held that:
“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.”
The court further held that the use of the word
‘non-indigene’ on any public document made by any
government or authority is unconstitutional, violating section 42
of the Constitution in so far as it discriminates against persons
of certain ethnic groups or place of origin, precluding them from
gainful employment in public service. This was the groundbreaking
declaration of the Honourable Justice Ibrahim Suleiman Galadima. By
this declaration, the circular of disengagement was rendered
unconstitutional as it offended the provisions of S42 of the
Constitution.
In interpreting subsection 3 of section 42 as relied upon by the
defendants, the court held that the subsection does not confer
blanket powers on any state government or authority to disengage
any person from its public service by mere the fact/reason of such
persons belonging to another State of origin, sex, or holding
certain religious or political opinions or beliefs. The court
further held, that checking the excesses of the executive arm and
indeed the safeguard of checks and balances in governance by one
arm to another, is the whole essence of the doctrine of separation
of powers (sections 4, 5, 6-CFRN), as such the defendants’
arguments were rejected.
Observing that (1) some of the Claimants were reabsorbed by
their States of origin, (2) the Abia State government had made a
publicized attempt at recalling the Claimants in a subsequent
circular – however unconcluded, (3) the government had attempted an
amicable settlement with the Claimants in the course of the law
suit; the court commended the Abia State’s government’s attempts at
correcting a grave error and mending the fabric of national unity.
The court then resolved issue 2 in favour of the Claimants. Without
further ado, the court finally held that for an employment with
statutory flavor, the Claimants’ disengagement was not in
accordance with laid down statutory procedures and thus ultra vires
and void. The court therefore granted all the reliefs sought by the
Claimants namely:
- 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. - 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.
- 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. - 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. - 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.
- The sum of N3,000,000.00 only representing the cost of this
suit.
By implication, this decision reinforces the supremacy of the
constitution, a big win for a nascent democracy as ours, in such a
heterogeneous society as we find ourselves. One must be careful
however, not to assume that a decision as this now mandates State
Governments to employ all and sundry into its public service
notwithstanding their origin. On the contrary, this decision merely
safeguards extant employments from being determined merely on the
ground of the employee being a ‘non indigene’. There will always be
arguments such as that of the availability of equally qualified
indigenes to be employed into the public service of their states,
maintaining the autonomy of state governments to conduct their own
affairs including how and who they recruit into their service,
amongst others.
And perhaps, now compelled to determine statutory employments as
provided by enabling laws, States will now only need to come under
the appropriate grounds for dismissal as opposed to the playing the
non-indigene card. What is more, they would probably now foreclose
non indigenes from initial employment to prevent this kind of
situation in the future. This ongoing practice in Nigeria, however
prejudicial and contrary to the spirit of section 42, CFRN, has not
been addressed by this decision. Nonetheless, it is a big win for
Njoku Fidelia Ada and others, big win for non-indigenes already in
State public service, and a restatement of the powers of the court
to grant redress, as well as interpret the law.
Written by Mofoluwawo Oluwapelumi Mojolaoluwa.
Houseoflivingstones@gmail.com