Judgment for Judicial Officers; Issues Arising from the Judgment in Chief Sebastian Hons V National Assembly & 2 Ors

By Akintayo Balogun Esq.

On Friday, the 15th of July 2022, the National Industrial Court, Coram Hon. Justice Osatohanmwen Obaseki-Osaghae, sitting in Abuja, delivered a judgment in the suit between CHIEF SEBASTIAN HONS V NATIONAL ASSEMBLY & 2 ORS   with Suit No. NICABJ/142/2022. The Court had ordered the National Assembly, the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), and the Attorney General of the Federation (AGF) to urgently initiate measures to ensure upward review of the salaries and allowances of judicial officers in the country.  The court had held that the stagnation of the salaries and allowances of the nation’s judicial officers since 2008 when they were last increased is not only embarrassing but an injustice, deliberately done to judicial officers, who work daily to ensure justice for all.

Furthermore, the judgment went further to state the exact amount that Justices from the Chief Justice of Nigeria, down to all judges of the various High Courts should be paid. The Chief Justice is to receive a monthly payment of Ten Million Naira (10,000,000.00), other Justices of the Supreme Court and the President of the Court of Appeal are to receive a monthly payment of Nine Million Naira (9,000,000.00), while other Justices of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judges of the High Courts of States and Federal Capital Territory, President of the National Industrial Court, Grand Kadis of Sharia Courts of Appeal and President of Customary Courts are to receive a monthly payment of Eight Million Naira (8,000,000.00). Judges of the Federal High Court, High Court of States, National Industrial Court, High Court of the FCT, Sharia Courts of Appeal, and Customary Court of Appeal are to receive a monthly payment of Seven Million Naira (7,000,000.00).

His lordship further made an order of mandatory injunction, compelling the National Assembly, the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC) and the Attorney General of the Federation (AGF), and the National Judicial Commission to forthwith put in place or activate legal and administrative machinery to commence the payment to the salaries she had earlier ordered.

We must concede that there was a major problem on the ground that necessitated the institution of the suit against the National Assembly and other Defendants. It is incredible, preposterous, wicked, and unheard of those judicial officers last has a review of their salaries and allowances 14 years ago, within which period, the Federal Government has increased the minimum wage twice, the value of the naira which was N117.74 to USD1 as at then is now N650 to USD. Meanwhile, members of the National Assembly that ought to have the say in the determination of the remuneration of these judicial officers, have been living in extreme luxury since the commencement of this political dispensation despite seating less than a total of 150 days in a calendar year. Nigerian legislators are recorded to be one of the highest paid in the world. It was alleged at some points that former Senate President David Mark earns higher than former President Barrack Obama, yet they never deemed it fit to review the salaries and allowances of these judicial officers who sit Mondays to Fridays, from September to July, spending more time and days sitting to hear cases, studying files, conducting series of researches on pending suits, writing judgments that must be ready within 3 months after the adoption of addresses with targets to meet as given from National Judicial Council. The legislators don’t do as much as 30% of the time and energy these judicial officers put into their work, yet their earnings are as far apart as the east is from the west.

The judgment is therefore a very welcomed development for the judiciary and the judicial officers so they can fully concentrate on their jobs and be able to dispense justice accurately, fairly, and reasonably.

Upon the delivery of this judgment, several issues arose as to the propriety or otherwise of the judgment. These issues include:

1. Whether the honourable Justice of the National Industrial Court can be a judge in a matter in which he has an interest.

• Whether the Claimant, Chief Sebastine Hon, who sued in his personal, capacity has the locus standi to institute this action on behalf of the judicial officers in Nigeria.

• Whether the National Industrial Court has the jurisdiction to determine the suit between a non-employee of an organization and the organization.

On the Judge being judged in his cause

The judge who delivered the judgment is a judicial officer whose interest is being pursued in the said suit and a beneficiary of the judgment delivered. In order words, the judge has used the instrumentality of the law to literally increase his salary from less than 1 Million Naira to 7 Million Naira. This is a suit that the judge himself could also be the Claimant or one of his fellow judges or justices.   

It is an equitable principle of the courts of law, tribunals, and other administrative bodies saddled with the core mandate of deciding the fates of other persons and acting fairly, responsibly, and impartially. But how do you explain or how do you decide an action fairly when you know you have an interest in the said suit and your decision in the suit can either make you or mar you? As inherited in our jurisprudence, the widely accepted twin principles of natural justice are: “no man must be a judge in his own cause” (expressed as Nemo judex in causa sua) and “hear both sides before judging” (expressed as audi alterem pattem).

Nemo Judex In Causa Sua is popularly known as the rule against bias. It is the minimal requirement of natural justice that the authority-giving decision must be composed of impartial persons, acting fairly, without prejudice and bias. According to the ‘Lectric Law Library’s Lexicon, “Any mental condition that would prevent a judge or juror from being fair and impartial is called bias. A particular influential power that sways the judgment; is the inclination or propensity of the mind towards a particular object. It may be ground for disqualification of the judge or juror in question.” It is also defined as, “A predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination; a prejudice”

The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed but may be remitted for a valid re-hearing. You cannot be a judge in your own course.

By delivering this judgment in a matter that involves judicial officers which directly concerns him, we respectfully submit that the judge erred severely in hearing and determining this matter. It affects him one way or the other. He is an interested party and would benefit comprehensively from the outcome of the judgment.

With utmost respect to the honourable justice of the National Industrial Court, he ought to have declined jurisdiction to hear the suit as the same was literally in his favour. The unfortunate truth about the suit is that there is no other judge or a justice of any other hierarchy of the courts in Nigeria that has the spotless locus to determine this suit as they all have an interest in the matter. My humble submission is that this action ought to have been settled administratively at all costs.

While delivering the said judgment, the judge stated that since judicial officers, like ministers and legislators, are not unionized and have no union to fight their cause, the only way to effect an increase in their salaries is by constant review of Certain Political, Public and Judicial Office Holders (salaries and allowances, etc) Act as it applies to them (judicial officers). It is our respectful submission that this increment ought to be achieved by no other means other than administratively, no matter what it would have cost the judiciary.

On the locus to institute the action

One of the questions bugging my mind heavily is whether Chief Sebastian Hons had the locus and was a proper Claimant to institute this suit on behalf of the judicial officers. The word Locus Standi is a Latin word that means “place to stand”. Locus Standi means the right to bring an action or to be heard in a given forum. It could also be defined as the right to have a dispute submitted to the court by the plaintiff for the protection of his legal rights or interest heard on the merits. Locus standi deals with the right or competence of a person to institute proceedings in a court of law for redress or assertion of a right enforceable in law.

A locus classicus on the principle of locus standi was well explained in the celebrated case of ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112, wherein Fatai-Williams CJN, (as he then was) in delivering the lead judgment had this to say;

“The term “locus standi” denotes the legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or title to sue.”

Obaseki JSC at pages 174 and 178 also in the same decision had this to say :

“Locus Standi or Standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court, not on the issues he wishes to have adjudicated. It is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.”

The proximate relationship between the claimant and the subject matter of his action captures the whole essence of locus standi or legal standing to institute legal action in a court of law. In BEWAJI V. OBASANJO [2008] 9 NWLR (Pt. 1093) 540 @ 573, 576, the Court of Appeal (per Omoleye. JCA) in interpreting section 6 (6) (b) of the 1999 Constitution held that:

“Section 6(6)(b) of the 1999 Constitution does not confer locus standi on persons. Under it, the courts have the power to adjudicate on a justiciable issue touching on the rights and obligations of a person who brings the complaint to court. The complainant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. The interpretation of section 6(6)(b) of the 1999 Constitution is that a person who files a suit in court must be a proper person, natural or legal and the action must relate to him specifically and exceptionally without prejudice to a person being rightly in a representative capacity.”

The question therefore is, what gives Chief Sebastian Hons the locus standi to institute the instant suit on behalf of the judicial officers in Nigeria? How does the suit affect his person, his interest, his profession, or his pending cases? How do the payments of remunerations and allowances affect the learned silk? Would he be paid a quota from the salaries to be paid to the judicial officers? Does this suit not even place him in a vantage position where he could be easily favoured by the judicial officers having pursued an action in their interest? On what ground did he even institute this action at the National Industrial Court and not at the Federal High Court or any other court? Has he assumed the position of an employer-employee status by instituting this suit on behalf of the judicial officers? In the case of ISHAQ V BELLO & ORS (2008) LPELR-4337 (CA), The Court of Appeal stated thus:

“It is important to note from the outset that the capacity for a party to institute an action in court is very paramount and indeed the fountain-head as it were. This is so because if a party cannot institute an action in court, he is said to be a busy body and the logical consequence is that the Court will not have jurisdiction to listen to him”.

The learned silk had submitted in his affidavit in support of the originating processes that as a concerned legal practitioner in Nigeria, who has practiced in all the levels of courts in Nigeria, he knows that poor pay for judicial officers is seriously affecting the quality of judgments and rulings those officers are delivering and the discharge of other functions associated with their office.

With utmost respect to the learned silk, these grounds in his affidavit are not enough to confer locus on him. He had no locus whatsoever to institute the suit under review. The court had held in the case of Adesanya v. President of Nigeria (1981) 2 NCLR 358 that the courts in Nigeria have been strict on the application of this rule. The court will thus, not ordinarily entertain an action that is brought on behalf of another person, irrespective of the social status of the person. We submit further that this is not a public interest suit as it concerns judicial officers whose interest could be represented by the National Judicial Council, the Attorney General of the Federation, or the judicial officers themselves.

A public interest case would ordinarily be decided by the Federal High Court and not by the National Industrial Court. This suit was determined by the National Industrial Court, which brings this suit under the employee-employer’s relationship. The Claimant was not an employee of any of the Defendants. On what grounds then was this suit instituted and prosecuted to the point of judgment by the learned silk?

With all due respect to the learned silk, his interest and desire to seek justice for judicial officers is laudable, admirable, and worth emulating. However, he had no locus standi whatsoever to institute the suit against the Defendants or to even institute the same at the National Industrial Court.

On the powers of the National Industrial Court to determine the suit

The jurisdiction of the National Industrial Court is copiously and unambiguously provided for in section 254C(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The court has exclusive jurisdiction on issues relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith, Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any enactment, unfair labour practice or international best practices in labour, employment and industrial relations matters, disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

Considering this enormous jurisdiction conferred on the National Industrial Court, it is safe to say the court has jurisdiction to determine the suit since it covers issues such as matters arising from the workplace, the conditions of service, including health, safety, the welfare of labour, disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee. These issues listed above form the basis for the suit and confer jurisdiction on the National Industrial Court.

However, a curious point to raise is this. Can anyone who is not an employee or employer of labour come before the National Industrial Court to institute an action in the interest of employees of other organizations? Does the National Industrial Court envisage the institution of an action in its court by a private individual, whose interest is not directly affected, to independently raise issues relating to the conditions of service, health, safety, the welfare of labour, disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of employees of organizations he is not affiliated to? I do not think so.

The law is well settled beyond any controversy that the jurisdiction of a court is activated by the presence of proper parties among other factors. Where the proper parties are not before the court, the court will not be competent to adjudicate on the matter before it, for a court to assume jurisdiction, parties must be properly constituted. See AMADI Vs. FRN [2008] 12 SC (Pt.III) 55; (2008) LPELR-441 (SC) Pg. 12-13, Paras. D – C and OKONTA Vs. PHILIPS & ORS [2010] 18 NWLR (Pt.1225) 320 SC; (2010) LPELR-1373 (SC) ps. 5, paras. C-D, where the Supreme Court held that “…it is only when proper parties are before the Court which makes the Court competent to adjudicate on the suit.”

Furthermore, see the case of AWONIYI vs. REGISTRAR OF AMORC (2000) 10 NWLR (PT. 76) 522 AT 533 where the Supreme Court per Mohammed, JSC held as follows: “It is trite that parties to whom complaints are made must be made parties to such an action, it is an elementary procedure that in prosecuting civil claim all parties necessary for the invocation of judicial powers of the Court must come before it so as to give the Court the jurisdiction to grant the relief sought.”  

The National Industrial Court lost its jurisdiction with a person who has no direct interest in the subject matter comes to court and sues as a claimant. It is on record of the court’s proceedings, that the National Judicial Council, which was added as a Defendant in the suit, agreed on intoto with the prayers of the Claimant and urged the court to grant the reliefs sought by the Claimant. With all due respect to the National Judicial Council, the Council in the first place should have been the body championing the interest of the judicial officers through every possible means available to it, rather than lying low and quickly aligning itself with the position of the Claimant when the opportunity arose. Aside from all other obstacles as discussed in the preceding paragraphs of this article, the National Judicial Council as the Claimant in this suit would have conferred undoubted jurisdiction on the National Industrial Court, safe for the fact that the suit will still be decided by a judicial officer who would be an interested party in the suit.

In conclusion

The judicial officer’s salaries and allowances were miserably below a reasonable standard. The last increment was done as far back as 2008. This was very unfair and inhumane to the parties concerned. However, we respectfully submit that the method by which the increment has been achieved, vide the judgment under review, was not absolutely correct. The judge who sat to determine the matter with the utmost respect to him is an interested party in the suit and as such ought to have recused himself and/or declined jurisdiction. The administrative machinery set in place for reviewing salaries of judicial officers should have been continuously pursued until there is a listening ear.  

We however hope to see a greater bench in Nigeria, free of political influence, free from frustration at job places, and free of inconsistent sittings and excuses. We hope to see a judiciary that would stand up to the occasion in conducting regular sittings, better management of their health issues, and delivery of unbiased and dispassionate judgments. For the records, the judgment of the National Industrial Court stands and the same remains the position of the law and in full force until same is set aside. We hope to see all the Defendants comply immediately with the judgment of the court.

We wish the judicial officers in Nigeria more success through their stay on the bench.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and based in Abuja, FCT. A prolific writer, public affairs analyst and commentator on national issues.

akinson6@gmail.com.