June 9, 2023

Court Declares that Foreign Posting has Security of Tenure

Pre-action notice can be excused in urgent matters
Justice Nelson Ogbuanya of the National Industrial Court (NIC), Port Harcourt, has declared that foreign posting has security of tenure.

The judge also declared that pre-action notice could be excused in urgent matters.

He made the decision while ruling in a suit filed by Mrs. Miebi Aguma and Hon, Igochukwu Aguma (1st and 2nd claimants, respectively) against the Nigerian Maritime Administration and Safety Agency (NIMASA) and the Attorney General of the Federation (AGF).

The claimants had on February 21, 2020 filed the action, praying the court to determine whether by the provisions of Regulation 5(2) and 26(2) to (4) of the Nigerian Foreign Service Regulations (NFSR), the recall of Mrs. Aguma (wife of the 2nd claimant) from NIMASA, London Representative Office was not unlawful.

The claimants also prayed the court to set aside the recall notice, declaring it unlawful and ultra vires.

In addition, the claimants asked the court for an order, restoring the 1st claimant back to her office in London to complete her duty tour, among other prayers.

But the first defendant through its counsel filed a notice of preliminary objection, challenging the jurisdiction of the court to determine the matter, the competence of the suit without service of mandatory pre-action notice on the 1st defendant, the competence of an interim injunction granted to the claimants by the court, as well as the locus standi of the 2nd claimant in the suit.

Ruling on the pre-action notice, Justice Ogbuanya held: “To my mind, any suit that satisfies the requirement of grant of interim injunction, as in the instant suit, is such that can take advantage of the window of the exception for compulsory service of pre-action notice.

“In other words, urgency suits constitute exception to service of pre-action notice on the defendant. On that note, it is my considered view that the case of the claimants is such that qualifies within the purview of the exception to service of pre-action notice before instituting of the Suit.

“In the circumstance, I resolve this issue in favour of the claimants in line with the authority of International Tobacco’s Case (supra). Accordingly, I hold that this suit is competently instituted without the necessity of service of pre-action notice on the 1st defendant. I so hold.”

The court also declared that the interim injunction granted in favour of the claimant was validly made and held that the 2nd claimant has legal right to litigate the employment claims of his wife, having altered his position and that of his family as a result of the posting.

The court as well resolved the jurisdictional issues raised by the defendants against them.

“On the whole, this preliminary objection fails in its entirety, and is hereby dismissed. I so hold,” the judge declared.

On the substantive originating summons, the court held: “I find merit in the originating summons, and hereby grant the reliefs sought in the following terms: The letter of recall issued to the 1st claimant by the 1st defendant, recalling her from her four-year duty tour posting at the NIMASA Representative Office London without a duly established infraction inimical against the service on her part, in line with Regulation 5(2) of the Foreign Service Regulations made pursuant to the Federal Public Service Rules 2008 Edition, is hereby declared null and void.

“The said recall notice, having not been issued in compliance with the extant rules, same is hereby set aside. In consequence, the 1st claimant is hereby restored back to her office at NIMASA representative office, London to complete her unexhausted four-year duty tour, until she is duly recalled back in line with the provisions of the extant rules guiding Foreign Service Postings.

“Accordingly, all outstanding entitlements accruing to the 1st claimant shall be paid forthwith. Parties shall bear their respective cost. Judgment is entered accordingly.”

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