Basil Egbuonu Vs Borno Radio Televison Corporation (1997)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, JSC.

Proceedings in this case were commenced in the Maiduguri High Court by the applicant/appellant when he filed in that court a motion ex parte for leave to apply for an order enforcing or securing his fundamental rights alleged to have been infringed pursuant to the Fundamental Rights (Enforcement Procedure) Rules, 1979. Upon the grant of leave to apply, the appellant filed his motion on notice which sets out in full a statement of the order prayed for as well as the grounds for the application as follows:-

‘(1)    A declaration that both the suspension letter and termination of appointment letters references BRTY/PER/170/S/VOL. 1/99 of 12th December, 1985 and BRTY/PER/170/S/VOL. 1/102 of 20th January, 1986 respectively are illegal, unconstitutional, and thereby repugnant to rules of natural justice.

(2)    Declaration that the purported termination of the applicants appointment by the respondent from the Borno Radio Television Corporation Maiduguri is mala fide, void and unconstitutional.

(3)   A declaration that by reason of the respondents failure to call upon the applicant to defend himself before the issuance of letters of suspension and termination of appointment constitutes a violation of the applicants fundamental right to fair hearing and therefore unconstitutional.

(4)  A declaration that by failure of the respondent to call upon the applicant to defend himself, the respondent dealt with the applicants case with bias.

(5)  A declaration that the applicant be reinstated to his job under the respondent with payment of all his salaries and entitlements since the purported termination of the applicants appointment.

Grounds

(1)          The applicant is a Nigerian Citizen, resident in Maiduguri, Borno State.

(2)       The applicant is a Senior Staff on Grade 09 and a pensionable appointment under the respondent at all material times to this action.

(3)         The applicant cannot be deprived of his fundamental right without due process of law by a tribunal or body of competent authority before such body can terminate the appointment of the applicant.

(4)         The purported termination of appointment of the applicant from the services of the respondent by the respondent on 20th January, 1986 without calling upon the applicant to make his representations against the allegations levied (sic) against the applicant is a gross violation of the applicants right to fair hearing guaranteed to him under section 33 of the Constitution of the Federal Republic of Nigeria 1979 as modified.

(5)         And take notice that on the hearing of this motion the said applicant will use the affidavit of leave for motion Ex parte and the exhibits therein referred’

The application was supported by an affidavit and a further affidavit. On being served with the motion on notice, the respondent filed a Notice of Preliminary Objection contending that the action was not properly commenced before the court. That being an action for wrongful dismissal, the applicant/appellant should have complied with the provisions of Order 2 of the Borno State High Court (Civil Procedure) Rules, 1979. That the action did not fall within the provisions of Chapter IV of the Constitution as it was not a fundamental right for any person to be employed or to retain his employment. Also that the reliefs sought were declaration and not for the enforcement or securing the enforcement of any fundamental right enshrined in the Constitution. The preliminary objection was argued and in a reserved ruling the learned trial Judge overruled the objection when he concluded his ruling thus:-