Non-Indigene? Fall Out Please. The Notable Decision In Njoku Fidelia Ada & 3 Ors V AG Abia State & 2 Ors

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 25^th 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:

1. 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?
2. Whether the Defendants are not bound by the provisions of the Constitution of the FRN 1999 particularly its Section 42?
3. 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:

42. (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:

1. 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.
2. 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.

1. 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.
2. 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.
3. 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.

1. 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