EFCC v. OLOWONIHI (2020)

EFCC v. OLOWONIHI

(2020)LCN/14549(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 25, 2020

CA/A/163/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)

And

AYO PETER OLOWONIHI RESPONDENT(S)

RATIO

WHETHER OR NOT A JUDGEMENT DELIVERED OUTSIDE 90 DAYS IS VOIDABLE

A Judgment delivered outside 90 days is voidable on one condition which is that, doing so occasioned a miscarriage of Justice. The burden is therefore on the party alleging such a constitutional breach to show that a miscarriage of Justice occurred due to the non-compliance with the 90 days rule. The parties in this Appeal admit the Judgment was delivered outside 90 days by about 14 days allegedly occasioned by the postponement of the presidential election. It is trite that the constitution does not say that failure to deliver a Judgment within 90 days should be explained, there is only one condition that the Judgment can be set aside or voided, the one and only condition is when it is established that it occasioned a miscarriage of Justice. PER NIMPAR, J.C.A.

THE EXPRESSION “MISCARRIAGE OF JUSTICE”

Miscarriage of Justice can be presented in different facets; the list is not exhaustive and it varies from case to case. A simple way to pick a miscarriage of Justice is when a decision is against the evidence before the Court. The apex Court in the case of OKE & ANOR V MIMIKO & ORS (2013) LPELR-21368 (SC) enumerated different circumstances a Court would hold that as miscarriage of Justice, it said:
“On what amounts to miscarriage of Justice, this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi JSC in Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306 treated it thus:- “Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”. In Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270 at 290 – 291 this Court said:”…miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not Justice according to law”. The two definitions above say it as it is and in simple term would mean that when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardizing the equal right of the other party then a miscarriage has occurred.” Per PETER-ODILI, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT WHERE THERE IS AN APPEAL ON SOME POINTS ONLY, THE APPEAL STANDS OR FALLS ON THOSE POINTS APPEALED AGAINST ONLY WHILE THE OTHER POINTS NOT APPEALED AGAINST REMAIN UNCHALLANGED

The settled position of law is that held in the case of NNADIKE & ANOR V NWACHUKWU (2019) LPELR-48131(SC) thus:
“… It is settled that where there is an appeal on some points only, the appeal stands or falls on those points appealed against only while the other points not appealed against remain unchallenged – see Michael V. State (2008) 13 NWLR (Pt. 1104) 361. In this case, the Respondent, as Appellant at the Court of Appeal, focused on the decision of the trial Court in the second part of its Judgment which stands rejected therefore, no orders can be made thereon.” Per AUGIE , J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the National Industrial Court of Nigeria sitting in Abuja and delivered on the 26th February, 2019, Coram: Hon. JUSTICE SANUSI KADO wherein the Court below entered Judgment in favour of the Respondent. The Appellant aggrieved by the said decision filed a Notice of Appeal setting out 4 Grounds of Appeal.

Facts relevant to this Appeal are amenable to brief summary. The Respondent, an employee and a Management staff of the Appellant was accused by the Acting Chairman of the Appellant for being responsible for adverse publications against the Appellant, some tendered as Exhibits CW1-GI6, CW1-HI1-4, CW1-J1-5 and CW1-K1-4. Despite Respondent’s denial, his computer and telephones were seized and he was made to write a statement. Thereafter, the Acting Chairman redeployed him from heading the Training Institute and placed in the Acting Chairman’s office without any designation or desk. Respondent was subsequently queried and suspended for 2 years without pay and on recall; the Respondent was later demoted and made to write a letter of apology

and was requested to forfeit his outstanding salaries. The letter was signed by the secretary of the Commission on the orders of the Acting Chairman. The initial allegation against the Respondent was labeled offence against discipline but was demoted on the offence of Breach of confidence. The Respondent was proceeded against on the provisions of the Staff Hand Book which was not made by the Commission as required by law but the Chairman of the Appellant. With issues joined by the pleadings, the matter proceeded to trial with the Respondent as sole witness for the claimant while the Appellant called 4 witnesses. Parties filed and adopted written address and after due consideration, Judgment was partly entered for the Respondent. It is against that decision that the Appeal was filed.

I have considered the Notice of Appeal, the Record of Appeal and the Briefs of Learned Counsel for the parties, I am of the view that adopting the issues donated by the Appellant would enable the Court determine all the areas of complaint as presented by the Appellant and thus effectively resolving all the issues. I therefore adopt the issues donated by the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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APPELLANT’S SUBMISSIONS:
The Appellant’s Brief was settled by I. AUDU Esq., dated 16th March, 2020 and filed on the same day. The brief distilled 4 issues for determination as follows:
1. Whether the judgment delivered on 26th February, 2019 when the Learned trial Judge has lost his recollections of the facts in issue is not a nullity, having been delivered outside the ninety(90) days allowed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. Whether the learned judge did not err in law when it held that the Chairman of the defendant (now Appellant) and the defendant are two separate legal entities and that the defendant’s staff Regulations Handbook 2007 is invalid on the ground that it was approved by the Chairman of the defendant and not by the defendant.
3. Whether the learned trial judge did not err in law when it held that the defendant (now Appellant) breached the claimant’s (now Respondent) right to fair hearing.
4. Whether the learned trial Judge, having nullified the Appellant’s Staff Regulation, was right in re-instating the Respondent to his former rank of Detective

Commander on grade 17, a rank created by the Appellant’s Staff Regulation.

The Respondent’s Brief settled by FRANCIS MOSES NWORAH, Esq. is dated 14th April, 2020 filed on the 15th April, 2020 and deemed 16th July, 2020. It formulated 3 issues for determination as follows:
1. Whether the Judgment delivered on 26th February, 2020 was delivered outside the ninety (90) days period prescribed by Section 294(1) of the Constitution of Nigeria 1999 as amended. Distilled from Ground 1.
2. Whether the trial Judge was right in nullifying the Economic and Financial Crime Commission Staff Regulation Handbook, 2007 as being invalidly made? Distilled from Grounds 2 and 4.
3. Whether the trial Judge was right when he held that the Respondent was not giving fair hearing in the disciplinary proceedings instituted by the Appellant against him. Distilled from Ground 3.

The Respondent alongside their Brief of argument filed a Preliminary Objection.

The Respondent in their Preliminary Objection contended that the Notice of Appeal filed by the Appellant on 25th day of February 2020 is incompetent and urge this Court to dismiss the appeal in that:

No Competent Record of Appeal is filed before the Court of Appeal.
2. Grounds 1, 2, 3 and 4 complained of both errors of law and misdirection thus making the grounds incompetent.
3. Grounds 2 and 4 of the Notice of Appeal are incompetent in that issues II and IV were formulated from one ground- ground 4.

The first ground of the Respondent preliminary Objection is that no competent Record of Appeal is filed before the Court of Appeal.

They argued that this Court on 19th February granted the Appellant Leave to Appeal against the decision of the trial Court dated 26th February, 2019. In compliance with the said Order, the Appellant promptly filed its Notice of Appeal on 25th February, 2020 and the Record of Appeal was allegedly transmitted to the Court of Appeal on 9th April, 2019. The record transmitted was made and certified on 9th April, 2019 over ten Months before the Appellant was granted leave to Appeal. That this renders the record incompetent, it is clear from the Record of Appeal that the record was compiled before the Notice of Appeal was filed and not after it was filed thus contravening the provisions of

Order 8 Rule 1 of the Court of Appeal Rules, 2016 without a deeming order of the Court. The Respondent submitted that the above provision provides that record of Appeal is to be compiled and transmitted to the Court of Appeal within sixty days after the filing of the Notice of Appeal and not before the filing of the Notice of Appeal.

They argued that this appeal is incompetent without a proper Record of Appeal. Referred to Order 8 Rule 1 of the Court of Appeal Rules 2016 which provides:
“The registrar of the Court below shall within sixty days after the filing of a Notice of Appeal compile and transmit the Record of Appeal to the Court.”

The Respondent argued that the Notice of Appeal was filed on 25th February, 2020 after the leave to file same was obtained on 19th February, 2020 but the record was purportedly compiled and certified on 9th April, 2019 ten Months before the filing of the Notice of Appeal. This made this Appeal to be incompetent. They cited the case of IBRAHIM V IBRAHIM (2011) LPELR-9074(CA) per Mbaba JCA.

Also that Order 8 Rule 18 of the Court of Appeal Rules further provides that where there is contravention of

Order 8 Rule 1, the Appeal should be dismissed. Referred to the following authorities: EDARIESE V. NIGER CONSTRUCTION (NIG) LTD & ORS (2017) LPELR-42644(CA) Ekpe JCA; OLODO & ORS V. IBURUKU & ORS (2011) LPELR-3644(CA) per Eko JCA and NWORA & ORS V NWABUEZE & ORS LPELR-46803(SC) per Galumje JSC.

The second ground of their Preliminary Objection is that grounds 1, 2, 3 and 4 complained of both Error of Law and Misdirection thus making the grounds incompetent.

The Respondent argued that a ground of appeal cannot complain of both error of law and misdirection at the same time. They referred to Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 which provides:
“Where a ground of Appeal alleges misdirection or error in Law, the particulars and the nature of the misdirection or error shall be clearly stated.”

The Respondent’s Counsel further argued that Grounds 1, 2, 3 and 4 of the Appellant/Respondent’s grounds clearly complained of both errors of law and misdirection of facts and in the particulars, there is no delineation of which particulars related to error of law and which one related to misdirection of

facts thus making the grounds incompetent. That Ground 1 on its own is vague and its particulars contained both error of law and misdirection mixed together. Grounds 2, 3 and 4 are couched with both errors and misdirection’s embedded in the grounds and their particulars also contained both error of law and misdirection mixed together. He referred to pages 835-841 of the Record of Appeal to contend that this rendered the grounds incompetent under Order 7 Rule 2 (2). The Learned Counsel in support of his argument cited the following Authorities: NWADIKE & ORS V IBEKWE & ORS (1987) LPELR-2087(SC), per NNAEMEKA- AGU, JSC; AGUNDO V GBERBO & ANOR (1999) LPELR-6644 (CA),PER MANGAJI, JCA and OYEBADEJO V. OLANIYI & ORS (2000) LPELR-6926(CA), per Onalaja, J.C.A.

The third ground of the Respondent’s Preliminary Objection is that grounds 2 and 4 of the Notice of Appeal are incompetent because issues II and IV of Appellant’s brief of argument were formulated from one ground that is Ground 4.

The Respondent argued that two issues cannot be formulated from one ground. That it is apparent from the Appellant’s brief of

argument, that issues II and IV of the brief were formulated from ground 4 and submitted that is proliferation of issues. That it is trite one issue must not come out from more than one ground. If it does then all the issues will be struck out. Therefore issues I and IV will automatically be struck out. He cited the following authorities NTOL CLEMENT ASHAGBA & ORS. V. MR. MICHAEL MONN & ANOR. (2011) LPELR-9122(CA); DR. A NWANKWO & ORS VS. UMARU YAR’ADUA & ORS (2010) 12 NWLR (Pt 1209) 518, PER ONNOGHEN JSC.

The preliminary objection was withdrawn at the hearing of the appeal and even though some of the grounds of the objection particularly, the formulation of two issues from a single ground of appeal offends the rules, having been withdrawn, it shall not be considered and the appeal shall be determined on the merit.

APPELLANT’S SUBMISSIONS
ISSUE ONE
Whether the Judgment delivered on 26th February, 2019 when the Learned trial Judge has lost his recollections of the facts in issue is not a nullity, having been delivered outside the ninety(90) days allowed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The Appellant on issue one submitted that the judgment was delivered on the 26th February, 2019 when the trial Judge had lost his recollections of the facts in issue, making it a nullity, having been delivered outside the 90 days allowed by the Constitution. The Appellant submitted that the proceedings were concluded on the 15th day of November, 2018 when the parties adopted their final written addresses, that from the day the proceedings were concluded on the 15th November, 2018 to when the trial Judge delivered his Judgment on the 26th February, 2019 the 90 days allowed by the Constitution has elapsed, He cited Section 294 (1) of the Constitution 1999.

The Appellant further contended that even though Subsection 5 of the 294 provided that the decision of the Court shall not be set aside or treated as nullity on this ground of non-compliance unless the Court exercising jurisdiction by way of Appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice, they submitted that the delay by the trial Judge to deliver Judgment within its time limit prescribed by the Constitution when the facts in

issue were fresh in his memory led to muddling up issues in his Judgment which occasioned a miscarriage of Justice. Learned Counsel submitted that the case for the Respondent at the lower Court was that the Appellant’s Staff Regulation Handbook 2007 under which the Respondent was tried and punished was not valid because the circulated copies were not properly made and unsigned, and the same trial Court held also that it is not mandatory for all members of the Commission to sign the Staff Regulations & Handbook for it to be valid. The Appellant contended that the trial Court ought to have given the Judgment in favour of the Appellant.

Furthermore, the Appellant submitted further that the trial Court held that the Chairman of the Appellant and the Appellant are two distinct legal entities, when in law only the Appellant that is a legal entity and not its chairman, that the holding by the trial Judge that the Appellant’s Staff Handbook was invalid because it was approved by the Chairman and not the Appellant is the product of lack of recollection of the facts in issue. He argued that there is no way that the Appellant who is a non-natural

person can approve its Staff Regulation & Handbook. He submitted further that the trial Judge held that the Appellant’s Staff Regulation under which the Respondent was tried and punished was invalid, yet he re-instated the Respondent to his former rank of Detective Commander on grade level 17, a rank created by the Appellant’s Staff Handbook. He cited OGUNDELE V FASU (1999) LPELR-2329 per AYOOLA JSC (SC); GAYUS V FRN (2017) LPELR-43023 (CA) per ABIRIYI JCA.

The Appellant urge the Court to determine and resolve issue 1 in favour of the Appellant.

ISSUE TWO
Whether the learned judge did not err in law when held that the Chairman of the defendant (now Appellant) and the defendant are two separate legal entities and that the defendant’s staff Regulations Handbook 2007 is invalid on the ground that it was approved by the Chairman of the defendant and not by the defendant.

The Appellant submitted that the learned Trial Judge was wrong in holding that the chairman of the Appellant and the Appellant are two separate legal entities and that the Staff Regulation Handbook 2007 is invalid on the ground that it was approved by the

Chairman of the defendant and not by the Board of the defendant (Appellant). The Appellant contended that the Staff Handbook was made pursuit to Section 9 of the Appellant Establishment Act, 2004 which authorized the Appellant to make its own Staff Regulations providing for conditions of service for its Staffs, appointment, promotion and disciplinary control of its staff. That Sub-Section 9 (2) of the Act provides that the Staff Regulations shall not have effect until its approved by the Appellant, and when approved the regulation may not be published in the gazette but the Appellant shall caused it to be brought to the notice of all affected persons from time to time. That evidence was led at the lower Court that the handbook was approved by the Appellant but the trial Judge held that it was approved by the Chairman.

The Appellant further submitted that the Office of the Chairman of the Appellant was created under Section 2(1) of the EFCC (Establishment) Act and vested powers on the Chairman, the Chairman is a natural person not a legal entity while the Appellant is the legal entity. It submitted that the Appellant can act through the Chairman and

indeed acted through it in approving the Staff Regulations Handbook. They urge the Court to hold that the Staff Regulation Handbook is valid.

The Appellant argued that the Staff Regulation Handbook which came into effect 2007 was approved by the Appellant and the Respondent as a Staff of the Appellant has also been conducting his duties in line with the Handbook and also enjoyed some benefits which include creation of his Rank by Section 17 of the Handbook and that the Respondent was also an active member of the disciplinary committee of the commission all in line with the provision of the Appellant’s Staff Handbook. It argued that the Respondent went back to contend otherwise when the law caught up with him. The Appellant referred to Section 168(1) of the Evidence Act 2011 to contend that the presumption of regularity inures in favour of the Appellant. Appellant urge the Court to resolve issue 2 in favour of the appellant.

ISSUE THREE
In arguing issue 3, the Appellant submitted that the learned trial Judge erred in law when he held that the defendant breached the claimant’s fundamental right to fair hearing. The Appellant contended

that the Respondent in its paragraph 36,37,38,39 and 51 of his statement on oath averred that no allegation of breach of confidence was levied against him by the Appellant and he was not invited during the trial by the Senior Staff Appointments, Promotion and Disciplinary Committee and this omission amounted to a breach of his right to fair hearing. The Appellant further argued that the Respondent was queried for breaching Article 36(b) (iii) of the Staff Regulation Handbook and referred to pages 334-335 of the Record of Appeal, the Appellant’s Counsel further referred to Part VIII Article 36(b) (iii) of the Regulations (Exhibit CW1X1-122). He further submitted that the Respondent was given opportunity to respond to the query.

He further referred to Part VIII Article 37(h) of the Handbook which provides that the Disciplinary Committee can dispense with the physical appearance of the defaulting Staff who has responded to a query or made representations to the Committee investigating the allegations.

Furthermore that Part VIII(37)(K) provided that Appeals against the decision of the Senior Staff Disciplinary Committee shall lie to the Board of

the Commission to review the decision and referred to the case of NJC & ORS V SENLONG & ORS(2010) LPELR-4582(CA).

The Counsel argued further that the Law is trite that it is not in all cases that a party indicted of wrong doing must appear before an administrative panel of inquiry, the Administrative panel of inquiry can dispense with the appearance of the party if on the evidence before the Tribunal, the Tribunal is of the opinion that the matter can be adequately dealt with without the appearance of the party. He cited the case of OBONGANWAN MARY NTEWO V UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR (2013) LPELR-20332 (CA).

The Appellant submitted that in paragraph 54 of the Respondent’s statement on oath at the lower Court, the Respondent averred that the Chairman of the Appellant was the Accuser, Investigator and Judge because in the course of investigation he ordered his removal as the Commandant of the Defendant’s Academy, therefore his right to fair hearing has been breached. The Appellant argued that by the evidence before the trial Court they have established that the query issued to the Respondent was by the

Commission through Director of Organizational Support and not by the acting Chairman of the Appellant, the acting Chairman neither takes part in investigative activities nor in the prosecution and rendering of a legal advice. Furthermore, it was also established that transfers/posting or redeployment of Staff is a normal and routine administrate decisions in the service and every staff of the Appellant is subject to transfers, posting or redeployment at anytime. That the Respondent’s redeployment from the Appellant’s Academy where he was the commandant was done in ordinary course of transfers, posting and redeployment of Staff.

The Appellant went further to argue that evidence was led to show that the Chairman of the Appellant is not a member of the Senior Staff Appointment, Promotion and Disciplinary Committee, they referred to Paragraph 27,28,38,42 and 43 of the statement on oath of DW2 at pages 383-388 of the Record of Appeal. The Appellant contended that the evidence was not challenged or controverted. That the law is trite that evidence not controverted or challenged ought to be relied upon by the Court, cited AMAYO V ERINMWINGBOVO (2006)

LPELR-458 (SC). The Appellant submitted that the argument of the Respondent that his right to fair hearing cannot hold water and therefore the trial Judge was in error when he held that the Appellant breached the Respondent’s right to fair hearing. They urge the Court to resolve issue 3 in their favour.

ISSUE FOUR
In arguing issue 4, the Appellant submitted that the learned trial Judge was in error when he reinstated the Respondent to his former rank of Detective Commander on Grade 17, a rank created by the Appellant’s Staff Regulation Handbook and Respondent was also promoted in accordance with the Staff Regulation Handbook. The Learned Counsel argued that the trial Court was wrong to have reinstated the Respondent back to his former rank when the Staff Regulation Handbook has been declared invalid by the trial Judge. The law is trite that a Court cannot approbate and reprobate, cited FRN V IWEKA (2011) LPELR-9350 (SC) and NWACHUKWU V EKPIKEN (2014) LPELR-24263(CA).

The Appellant urge us to determine and resolve all 4 issues in its favour and set aside the holding of the lower Court re-instating the Respondent back to his former

rank of Detective Commander on Grade level 17.

RESPONDENT’S SUBMISSIONS:
ISSUE ONE
Whether the Judgment delivered on 26th February, 2020 was a nullity delivered outside the ninety (90) days period prescribed by Section 294(1) of the Constitution of Nigeria 1999 as amended. Distilled from Ground 1.

In arguing issue 1, the Learned Counsel to the Respondent submitted that the Appellant by Ground one of the Notice of Appeal contended that the learned trial Judge erred in law when it delivered Judgment on 26th February, 2019 after he lost re-collection of facts in issue and muddled up issues. The Respondent submits that this contention is not only vague but misconceived. The case of the Respondent at the trial was based purely on documentary evidence and the Appellant failed to show which part of the Judgment of the trial Court where re-collection of facts were lost and those issues of facts muddled up.

The Respondent further argued that it is not correct to say that the Judgment was delivered outside the prescribed ninety days provided in Section 294(1) of the Constitution because the Appellant added the 22 days for Christmas

vacation period and four days public holidays, that when removed it will bring the Judgment within the time prescribed. The final addresses were taken on 15th November, 2018 and the case was originally adjourned to 22nd February, 2019 for Judgment but the postponement of the National Assembly and Presidential election from 16th February, to 23rd February 2019 necessitated the postponement of the date for Judgment to 26th February 2019.

That there are 103 days between 15th November, 2018 and 26th February, 2019 However, if the 26 days Christmas recess and public holiday are subtracted from the days, 77 days will be left therefore the judgment is still within the ninety days provided for in the Constitution.

The Learned Counsel submitted that the ninety days referred to in Section 294(1) of the Constitution would not include public holidays or Court vacation or recess which are work free and that Order 58 Rule 4 of the National Industrial Court Rules, 2017 excludes public holidays, Easter recess and Christmas recess as part of the days of the sitting of the Court, he cited BAMISILE V ADOLLO & ORS (1989) LPELR-20112(CA); NNEJI V. CHUKWU (1988) 3

N.W.L.R. (PART 81) 184 and ITAYE & ORS V. EKAIDERE & ORS (1978) LPELR-1558(SC).

Furthermore the Respondent submitted that, assuming but not conceding that the ninety days does not cover the period of vacation and public holiday, the mere fact that a Judgment was not delivered within the ninety days prescribed will not render the Judgment a nullity except where the Appellant has been able to establish a miscarriage of justice for non-compliance which the Appellant has not done in this case. The Counsel relied on Section 294(5) of the Constitution.

The Respondent argued that the two cases cited by the Appellant in its brief of argument did not support its case (OGUNDELE V FASU (1999) LPELR-2329(CA) and GAYUS V FRN (2017) LPELR-43023(CA), the burden is on the Appellant to prove that it has suffered a miscarriage of Justice by the contravention. This burden the Appellant has failed to discharge. Also the case of ONUH & ANOR V OGBE (2019) LPELR-48733(CA) (2019) LPELR-48361(CA) held that a violation of the conditions precedent stipulated in Section 294(1) of the Constitution is to be remedied under the provisions of

Section 294(5)-(6) of the Constitution and the Appellant has not shown how the violation of the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered has occasioned a miscarriage of Justice. He cited the case of ATUNGWU & ANOR V OCHEKWU (2013) LPELR-20935(SC) and AIMS FOOD LTD V FADEYI (2020) LPELR-49521(CA).

The Learned Counsel submitted that the Appellant has not shown from the Record of Appeal or from the Judgment of the trial Court that the delay in delivering the Ruling in question, affected the Lower Court’s perception, appreciation and assessment or evaluation of the documentary evidence before it. Furthermore, the Appellant alleged in paragraphs 4.6, pages 7 and 8 of its brief of argument that the trial Judge muddled up issues in his Judgment which resulted in miscarriage of Justice. There is no reference to the portion of the Judgment where issues were muddled up and that was an attempt to mislead the Court that the trial Judge’s declaration that the EFCC staff regulation handbook was invalid because it was not signed amounted to a miscarriage of Justice.

In proffering further arguments, the Counsel submitted

that the Appellant wrongly contended that the decision of the trial Judge that the Chairman of the Appellant and the Appellant are two legal entities amounted to a miscarriage because, to the Appellant, the Chairman of the Appellant is not a legal entity. Yet the Appellant contradicted itself that the trial Judge ought to have held that the Appellant can act through its Chairman who it had claimed is not a legal entity. They submitted that the Appellant has not established or proved of any miscarriage of Justice. The issues complained of are even matters of law and not of facts that would justify the allegation of lack of vivid recollection. Learned counsel referred to AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR-22885(SC).
Respondent urge the Court to find against the Appellant.

ISSUE TWO
Whether the trial Judge was right in nullifying the Economic and Financial Crime Commission Staff Regulation Handbook, 2007 as being invalidly made? Distilled from Grounds 2 and 4.

The Learned Counsel to the Respondent in arguing this issue submitted that Appellant contended that the EFCC Staff Regulation Handbook Exhibit CW1-X1-112 was approved

by the Chairman of the Appellant and that the fact that it was approved by the Chairman made it valid because the Chairman was acting on behalf of the Commission. Appellant also erroneously assumed that the Respondent’s case at the trial was that the Handbook was invalid because it was not signed and that the finding that members of the Appellant’s Commission need not sign the Handbook should have made the Handbook valid. The Counsel argued that this assumption is not only erroneous but misleading. That the case of the Respondent at the lower Court is that the EFCC Staff Regulation Handbook Exhibit CW1-X1-112 was not approved by the Board of the Commission as required by Section 9 of the EFCC Establishment Act. The Chairman had no powers to singlehandedly approve the Handbook. At any rate, the trial Judge found that there was no evidence of approval of the Handbook either by the Chairman or by the Commission and referred toRule 160103 Chapter 16 Section 1 of the Public Service Rules, 2008.

The Respondent argued that both Section 9(1)(b) of the EFCC (Establishment) Act and Rule 160103, Chapter 16 Section 1 of the Public Service Rules, 2008

use the word “shall” in stating that until the regulation is made, it is the provision of the Public Service Rules that shall apply. That language of the provisions is mandatory because of the use of the word “shall”. He cited TABIK INVESTMENT LTD. & ANOR V. GUARANTY TRUST BANK PLC (2011) 17 NWLR, (Pt. 1276) 240 (SC).

The Respondent submitted that evidence adduced by the Respondent at the trial Court particularly paragraph 42 of the written statement on oath at pages 293-294 of the record of Appeal is to the effect that the “Economic and Financial Crimes Commission Staff Regulation Handbook” is yet to be approved by the Commission as required by Section 9(1) of the Act. Accordingly, the applicable regulation, therefore, is the Public Service Rules, 2008.

Also, the Respondent at the trial Court challenged the Appellant to produce the votes of proceedings/minutes of meeting of the Commission and the date where the regulation (Exhibit CW1-X1-112) was ever approved as required by law. The Respondent did not mince words that Exhibit CW1-X1-112 was an “unapproved” conditions of service as the Appellant

who claimed that the regulation was approved by the Commission refused and/or failed to produce any such document approving the regulation which would have proved to the contrary and that left the trial Judge with no alternative than to invoke the presumption under Section 167(d) of the Evidence Act that evidence which is available but not produced is presumed to be against the party who failed to produce.

The Respondent argued that DW2, the Witness of the Appellant, Mr. Femi Gbarufu did not produce any evidence to show the Minutes of Meeting, the Votes and Proceedings and the date when the Commission approved the Regulation. Instead in an attempt to cover up, contradicted himself; when in one breath, he said the Staff Regulation was approved by the Commission in 2007, in another breath, he said the Staff Regulation was approved by the Chairman of the Commission – contrary to the requirement of Section 9 of the EFCC (Establishment) Act. Learned counsel referred to paragraphs 7 and 34 of the witness statement on oath at pages 383 and 386 of the record of Appeal, where the material contradictions which made the evidence of the Appellant unreliable is found,

he cited the case of KAYILI V YILBUK & ORS (2015) LPELR-24323(SC) and ZAKIRAI V MUHAMMAD & ORS (2017) LPELR-42349(SC).

The learned Counsel contended further that the question to resolve is between the Commission and the Chairman, who has the power under Section 9 of the EFCC (Establishment) Act to approve the Regulation. He argued that Section 9 is so clear and plain and it states that “The Commission may, subject to the provisions of this Act, make staff regulations…. ‘ The section did not say that the Chairman may make such regulations. The power to make regulations is akin to law making and is subject to the jurisdiction of the Courts. Furthermore, the Respondent argued that the pleading that the EFCC Staff Regulation (Exhibit CW1-X1-112) was not approved is a negative assertion. The burden of proving that it was approved is on the Appellant who is asserting positively that the Regulation was approved. Relied on ELEMO V OMOLADE (1968) NMLR 359, TORNO INTERNAZIONALE NIG LTD & ANOR V FSB INT’L BANK PLC (2013) LPELR-22616(CA), IMONIKHE V UNITY BANK PLC (2011) 5 SCNJ, 73 at 79 and

ABUBAKAR L. ABDULLAHI & ANOR V. HON.YAHAYA SADAUKI & ORS (2008) LPELR-3557(CA).

That the Respondent tendered an unsigned and unapproved copy which DW2 produced from EFCC custody to put the matter beyond doubt. From the EFCC Staff Regulation (Exhibit CW1-X1-112), there are no signatures and date on the document and no indication of its approval. The document was produced from the custody of the Appellant and assuming the burden was on the Respondent to prove non-approval of the Regulation, he duly proved it by causing the CTC of the unapproved and unsigned copy or draft of the regulation to be produced from custody by DW2, that proved it even beyond reasonable doubt. That the unsigned and unapproved certified true copy of the EFCC Staff Regulation produced from custody by DW2 is further evidence that the Regulation was not approved by the Commission or anyone. The Learned Counsel submitted that a document which is not signed does not have any efficacy in law. They relied on the following authorises: OMEGA BANK (NIG) PLC V O.B.C LTD (2005) 8 NWLR (Pt.928) 547; ENEBONG & ANOR V EDEM & ORS (2016) LPELR-41190(CA); RAJI V UNIVERSITY OF ILORIN & ORS (2018) LPELR-44692(SC);

UZOKWELU V PDP & ORS (2018) LPELR-43767(CA) and ALHAJI UMAR ALIYU TECHNICAL V FBN & ANOR (2018) LPELR-44663(CA).

On the contention of the Appellant under its issue 4 that the trial Judge having nullified the Appellant’s Staff Regulation (Exhibit CW1-X1-112), was wrong to reinstate the Respondent to his former rank of Detective Commander because the rank was created by the said Staff Regulations. Respondent submitted that this argument is misplaced because Section 8(3) of the EFCC (Establishment) Act empowers the Commission to appoint such other staff or second officers from Government security or law enforcement agencies or such other private or public service as it may deem necessary to assist the Commission in the performance of its functions under this Act.

In addition they cited Section 8(4) of the Act which provides that the staff of the Commission appointed under Subsection (3) of this Section, shall be appointed upon such terms and conditions as the Commission may, after consultation with the Federal Civil Service Commission determine. The terms and conditions of appointment of a public servant are usually determined by the contract

entered into by the parties which is even independent of any Handbook or condition of service. The fact that there is no regulation in place does not mean that the contract entered into between the Appellant and the Respondent is not binding. They relied on the following cases FAKUADE V O.A.U.TH (1993) 5 NWLR, PT. 291, 47; BOARD OF MANAGEMENT OF FEDERAL MEDICAL CENTRE MAKURDI V KWEMBE (2015) LPELR-40486(CA) and OLANIYAN & ORS V UNILAG & ANOR (1985) LPELR-2565 (SC).

The Learned Counsel further submitted that the Respondent tendered and relied on Exhibit CW1-B1-B3, his letter of appointment dated 4th April, 2005 and Exhibit CW1-F appointing him to the position of Detective Commander on Grade Level 17 with effect from 9th March, 2012. That is what constitutes a binding contract between the parties and even takes precedence over any other Regulation or the Handbook. That by Section 9, the Public Service Rules applies where there is any lacuna and therefore the argument that the trial Judge cannot approbate and reprobate does not arise.

ISSUE THREE
Whether the trial Judge was right when he held that the Respondent was not giving fair hearing

in the disciplinary proceedings instituted by the Appellant against him Distilled from Ground 3.

On issue 3, the Respondent submitted that the case of the Respondent at the trial is that on Thursday 19th November, 2015, the Respondent was summoned by the acting Chairman of the Appellant, Mr Ibrahim Magu to his office where he was accused of being responsible for online publications in Exhibits CW1-G1-6, CW1-H1-4, CW1-I-4, CW1-J1-5 and CW1-K1-4. That despite Respondent’s explanations exculpating himself, on the directive of the same acting Chairman, Mr. Ibrahim Magu, the Respondent was taken to the Statement Room and was asked to write a ten page statement under caution like a suspect. Thereafter, on the orders of the acting Chairman, Respondent’s official table top computer was taken away and his official car and two personal phones MTN (08033485511) and GLO (08055066583) were confiscated till date despite a Search Report exculpating the Respondent.

Also that the acting Chairman further redeployed the Respondent from his office as the Commandant of the Training Institute of the Appellant and posted him to the office of the Acting Chairman

without any portfolio or schedule of duty; which was a form of demotion, that all these acts and humiliations were meted to him before he was queried. He was queried by the Director Organisation Support on 22nd December, 2015 for “Offence against Discipline” (Exhibits CW1-P1-2) and suspended indefinitely on 29th December, 2015 by the Acting Chairman acting through the Director Organisation Support- Exhibits CW1-S. He was suspended, without pay. There is also a letter signed on behalf of the acting Chairman dated 15th November 2017 purportedly reinstating the Respondent with a demotion and request that the Respondent should write a letter of apology and forfeit his 2years emoluments (Exhibits CW1-U). The Counsel argued that the hurry to punish the Respondent was such that he was later found guilty of the offence of “Breach of Confidence” and not “Offence Against Discipline” which he was queried for. He was earlier accused and queried for “Offence Against Discipline”. His response to the query was in respect of offence against discipline and not breach of confidence which he was later found guilty of and this makes

the entire process all strange.

In continuation of arguments learned Counsel for the Respondent submitted that it is glaring that the Acting Chairman Mr. Ibrahim Magu was the accuser, the initiator of the discipline, the author of the suspension and also the Judge who pronounced the Judgment and meted out punishment.

The Counsel argued that the Commission had no say in the disciplinary action and the Respondent was not given the opportunity to appear before any panel for him to defend himself. The Respondent submitted that the whole disciplinary procedure is bereft of fair hearing and contrary to the safeguard and procedure provided under the Public Service Rules, 2008 meant to ensure that the requirement of Section 36 of the Constitution is met. Furthermore, that the trial Judge in annulling the EFCC Staff Regulation Handbook (Exhibit CW1-X1-112), held that the applicable regulation for the determination of the disciplinary case against the Respondent is in accordance the Public Service Rules, 2008 see pages 823-824 of the record of Appeal and there is no Appeal against this aspect of the decision by the Appellant; it is therefore not open to the

Appellant to argue contrary to this position in their brief.

In response to issue 3 dealing with fair hearing, the Learned Counsel argued that it was based on the EFCC Staff Regulation which ought to be completely discountenanced, he cited NNADIKE & ANOR V NWACHUKWU (2019) LPELR-48131(SC). Respondent submitted that by the provisions of the Public Service Rules, 2008 Rule 160501 under Chapter 16 Section 4 it vests the powers to disciplinary staff of Parastatals or Extra Ministerial Departments or Agencies on the Boards/Councils and not on Chief Executives of those parastatals as erroneously assumed in this case, by the Acting Chairman of the Appellant. And that Rule 030102 vests the powers to discipline public officers on the Federal Civil Service Commission. Learned counsel submitted that Permanent Secretaries and Heads of Extra Ministerial Agencies do not have the power and cannot exercise disciplinary powers over officers on Grade Level 13 and above. In this case, the Respondent is an officer on Grade Level 17 and a management staff of the Appellant; therefore the Acting Chairman by the combined effect of Rules 160501 and 160502 does not have

disciplinary powers over any staff.

The Learned Counsel submitted that there is no evidence that the Respondent was tried and disciplined by the Commission which means that every action taken against the Respondent by the Acting Chairman were ultra vires and failed the test of fair hearing. The Appellant did not appeal this finding of the trial judge and is therefore bound by it and cannot canvass any argument to the contrary, referred to LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE v. CHIEF GANI FAWEHINMI (1985) LPELR-1776(SC) or (1985) NWLR (Pt.7) 300.

On the proper Disciplinary procedure to be followed under the Public Service Rules and to satisfy the principle of natural Justice, Respondent referred to FEDERAL CIVIL SERVICE COMMISSION & ORS V. LAOYE (1989) 2 NWLR (PT. 106) 652 and FEDERAL CIVIL SERVICE COMMISSION & ORS V. LAOYE (1989) 2 NWLR (Pt. 106) 652.

The Respondent submitted that it is long settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance before such disciplinary action can be said to be proper or justified. Citing

P. IDERIMA V. RIVERS STATE CIVILSERVICE COMMISSION (2005) LPELR-1420(SC) or (2005) 16 NWLR (Pt.951)378.Furthermore, the Respondent was queried and purportedly tried for “Offence against Discipline” (Exhibits CW1-P1-2) but was found guilty of another offence described as “Breach of Confidence”, a gross violation of his right to fair hearing under Section 36 of the Constitution. There was no notice of allegation of “Breach of Confidence” served on the Respondent talk less of being afforded the opportunity to respond to the allegation. They cited the case of MR. ISA A. SAIBU v. KWARA STATE POLYTECHNIC, ILORIN (2008) LPELR-4524(CA).
On the consequence of a breach of the rules of natural justice as provided in Section 36 of the 1999 Constitution, they relied on PATRICK ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544(SC).

On the Appellant’s reliance on the case of NJC & ORS V. SENLONG & ORS (2010) LPELR-4582(CA), the Learned Counsel argued that Appellant’s reliance on the authority is not only erroneous but a complete misunderstanding of the case put forward by the Respondent at the trial.

The Respondent submitted further that, assuming but not conceding that the EFCC Staff Regulation and Handbook applied, the case of NJC & ORS V SENLONG & ORS(supra) cited by the Appellant is not applicable. Not only are the facts distinguishable from this case, the Court did not do away with the requirement of a person charged of misconduct from appearing before the Disciplinary Panel as that issue did not arise for determination in that case.

Furthermore, that the same fate befalls the case of NTEWO V UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR (2013) LPELR-20332(CA). The Respondent argued that this case does not apply to the facts of this case because in that case, the Appellant was given the opportunity to appear before the Investigative Committee and the Special Disciplinary Committee set up by the Respondent and she presented her case before the Committees.

They submitted that there was a total failure of justice in the trial of the Respondent by the acting Chairman of the Appellant because he was not given fair hearing. His purported suspension and reinstatement through a demotion and forfeiture of 2 years salary is therefore invalid,

null and void. Furthermore, there was no ground of Appeal on the issues of interpretation given by the trial Judge at pages 828-829 of the Record of Appeal. The Appellant cannot therefore contend or argue that it complied with the requirement of fair hearing.

Again the Counsel submitted that the Respondent had no business with the Senior Staff Appointment Promotion and Disciplinary Committee which purportedly reviewed his case as stated in Exhibit CW1-U because the Committee did not have the power to try him. Even if he was subject to that Committee, which they strongly contend otherwise, he was not given fair hearing and the ultimate Judge, the Acting Chairman was the accuser as one of the online publications was also against the Respondent. The Respondent was not at any time invited by the Committee to appear before finding him guilty contrary to Section 36 of the 1999 Constitution, as amended. Relied on E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) LPELR-1420(SC) or (2005) 16 NWLR (Pt.951) 378.

Learned Counsel also submitted that the procedure adopted and the attitude of the Acting Chairman portrayed a dangerous dimension that the

Respondent held his employment at the pleasure of the Acting Chairman. This impression is completely misleading. The Respondent’s employment is not a common law master/servant employment but he is an employee with statutory flavour vide his letter of employment Exhibits CW1-A1-A3 and Sections 7 and 8 of the EFCC Act. Therefore He did not hold his employment at the pleasure of the acting Chairman and ought not to be humiliated. They relied on the following authorities:HART VS. MILITARY GOVERNOR OF RIVERS STATE (1976) N.S.C.C. (VOL. 10) 222; U.B.N (NIG.) LTD VS. OGBOH (1995) 2 NWLR (PT. 360) 647 AT 669 and N.B.T.E. VS. ANYANWU (2005) (PT.256) 1266 at 1284 and BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 6 SCNJ 295.

The Respondent also submitted that the indefinite suspension of the Respondent for over two years is, to use the language of the Court in SUNDAY EMEJE v. NATIONAL INSTITUTE FOR PHARMACEUTICAL RESEARCH AND DEVELOPMENT (2010) LPELR-8986(CA) was “a terrible thing”. It is also contrary to the provisions of the Public Service Rules and also a breach of his right to fair hearing within a reasonable time.

Finally they submitted

that the trial Court was right when it held that the procedure adopted by the Appellant in disciplining the Respondent was in breach of the Respondent’s right to fair hearing. They urge this Court to dismiss this Appeal with substantial cost against Appellant and uphold the decision of the trial Court.

RESOLUTION OF THE APPEAL:
I shall start by resolving issue one which is challenging the validity of the Judgment appealed against, the contention is that it was delivered beyond the 90 days constitutionally provided for delivery of Judgments. Section 294(1) of the 1999 Constitution explicitly provides thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with the duty authenticated copies of the decision within seven days of the delivery thereof.”
The language of the said provision is straight forward and does not require any special aid in its interpretation. The Court in issue here is one recognized by the 1999 Constitution which established the

National Industrial Court by Section 254C and therefore it falls under the Courts mentioned by Section 294(1) of the 1999 Constitution (as Amended). There is however, a proviso at Subsection 5 of the section and it says:
“294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
It is trite that Section 294(1) is not read in isolation but always in conjunction with Subsection 5 reproduced above. The law is now firmly settled that failure per se by a trial Court to deliver its decision within ninety days of conclusion of evidence and addresses of counsel would not render an otherwise competent decision or Judgment invalid. SeeOBODO V. OLOMU (1987) 3 NWLR (PT. 59) 111; OJOKOLOBO V. ALAMU (1987) 3 NWLR (PT. 61) 377; ESEIGBE V. AGHOLOR (1990) 7 NWLR (PT. 161) 234; VERITAS INSURANCE CO. LTD. V. CITI TRUST INVESTMENT LTD. (1993) 3 NWLR (PT. 281) 349;

KALU V. IGWE (2002) 5 NWLR (PT. 761) 678 and ATUNGWU V. OCHEKWU (2013) 14 NWLR (PT. 1375) 605.
Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final address is in recognition of the fact that human memory is circumscribed by time and space and therefore loses its impressions or knowledge of persons, things, with the passage of time and such loss increases with time and pre-occupations, see IFEZUE V. MBADUGHA (1984) 5 SC 79.
A Judgment delivered outside 90 days is voidable on one condition which is that, doing so occasioned a miscarriage of Justice. The burden is therefore on the party alleging such a constitutional breach to show that a miscarriage of Justice occurred due to the non-compliance with the 90 days rule. The parties in this Appeal admit the Judgment was delivered outside 90 days by about 14 days allegedly occasioned by the postponement of the presidential election. It is trite that the constitution does not say that failure to deliver a Judgment within 90 days should be explained, there is only one condition that the Judgment can be set aside or voided, the one

and only condition is when it is established that it occasioned a miscarriage of Justice.
The Respondent’s Counsel made attempt to explain circumstances that made the Court exceed 90 days, he explained that it was due to the postponement of presidential election and the consequent public holidays declared by the Federal Government. There is no provision allowing such excuses under the constitution. Furthermore, Rules of Court cannot alter or over ride Constitutional provisions made in absolute terms by the use of the word “shall”. It is meant to comply by all Judges without excuse and therefore the computation of days given in Order 58 Rule 4 of the NICN Rules is inapplicable in this case.
Miscarriage of Justice can be presented in different facets; the list is not exhaustive and it varies from case to case. A simple way to pick a miscarriage of Justice is when a decision is against the evidence before the Court. The apex Court in the case of OKE & ANOR V MIMIKO & ORS (2013) LPELR-21368 (SC) enumerated different circumstances a Court would hold that as miscarriage of Justice, it said:
“On what amounts to miscarriage of

Justice, this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi JSC in Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306 treated it thus:- “Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”. In Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270 at 290 – 291 this Court said:”…miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not Justice according to law”. The two definitions above say it as it is and in simple term would mean that

when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardizing the equal right of the other party then a miscarriage has occurred.” Per PETER-ODILI, J.S.C
The non-compliance or failure to deliver Judgment within 90 days must be demonstrated or shown to have occasioned a miscarriage of Justice. For example, where the delay is such that the trial Court lost memory of the witnesses who testified and their demeanour, especially where the assessment or evaluation of evidence borders on the credibility of the witnesses, injustice would have been occasioned and the decision would be liable to be set aside. The Appellant in this Appeal contended and I reproduce the relevant portion thus:
“the trial Judge did not deliver judgment in the suit within 90 timeously, within ninety days prescribed by the Constitution, when the facts in issue were still fresh in his memory, led to

muddling up issues in his judgment which occasioned a miscarriage of justice to the Appellant. It is because the trial judge has lost recollection of the facts in issue occasioned by the delay in the delivery of the judgment, which delay has affected the mind of the Judge in the perception, appreciation and evaluation of evidence led before it, that led to the muddling up issues…”
The Appellant went on to list four instances to support the assertion that the trial Judge muddled up issues and it state thus:
i. The Appellant stated that the staff hand book was invalid because it was not signed but went on to hold that non signing of the copies circulated to staff cannot for that reason be invalid because it was not made according to law.
ii. That the trial judge held that the chairman and the Appellant are two different entities and only the Appellant is a legal entity. And that the staff handbook was invalid because it was the chairman that issued it was a result of failure to recall the evidence before him.
iii. That inspite of the finding that the staff handbook was invalid, the trial judge still returned the Respondent to his

rank which was created by the staff hand book.
iv. That if the judgment was delivered within 90 days, the trial judge would have remembered that the Appellant can act through the Chairman who is the accounting officer of the Appellant and would not have invalidated the staff hand book.
I have reviewed the 4 areas highlighted by the Appellant and all have a single thread running through the 4 items and which is that the finding of the Court below arose from loss of memory and all relate to the validity of the staff hand book. The staff hand book is a document and the power to make it provided for in the Act establishing the Appellant. Can loss of memory that strictly applies to the evidence of witnesses taken and who the Court is expected to observe their demeanor, to hear and appraise witnesses including how they respond to questions under cross examination also apply to interpretation of documents? From the Judgment of the trial Court and the argument of the Appellant, I find it difficult to relate the question of whether a staff handbook was validly made to the recollection of witnesses who testified before the Court. The question of validity is a

legal question decided purely by interpreting the Act creating the Appellant and has nothing to do with the witnesses who testified. The breach of a legal provision cannot be altered by arguments of counsel or a witness. The Appellant failed to name the witness whose evidence the trial Judge could not recall properly because all evidence was duly evaluated. I agree with the Respondent that the Appellant failed to specifically highlight the evidence muddled up or ignored. In AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPLER-22885(SC) the apex Court said that:
“In cases where the delay involves the Judgment of a trial Court which is to hear and appraise witnesses, I will readily agree that a delay of about 17 months after final addresses was so inordinate to affect the outcome of the proceedings. However, when it concerns an Appellate Court as in this case, I will be very slow to so declare because Appellate Courts’ functions are based on printed records only which involved the reading and appreciation of written briefs of argument and oral amplifications of such Briefs which are recorded by the justices. They cannot be said to have lost touch with the

contents of the printed reviews placed before them such that it would affect their perception and evaluation of the Appeal which is based on printed records only. I think that this section applies more to trial Courts than Appellate Courts.”
Interpreting the law is not done on the ipsi dixit of a witness but looking at the document in question against the statutory provision upon which it was purportedly made. In this case, the evidence on the validity of the staff handbook substantially revolved around documentary evidence and the trial Court, in the absence of evidence or facts to the contrary, did not lose track of the case as it relates to the staff handbook when it delivered its decision. The Court cannot be said to have lost touch with the contents of the printed staff hand book and the EFCC Act placed before it such that it would affect his perception and evaluation of whether the staff hand book was validly made and a decision based on only the documents tendered before it.
The Appellant failed to establish the effect of the few weeks delay on the mind of the Judge with particular reference to the validity of the staff handbook, a document

and the law, all within documentary evidence. I do not find that the perception, appreciation and evaluation of the trial Judge was affected in this case because the area highlighted is purely on interpretation of the EFCC Act and not the evaluation of a witness on facts other than what the staff handbook and the Act presents. I find the issue not established and is resolved in favour of the Respondent.

Issue two is contending that the chairman of the Appellant and the Appellant are one and the same. The EFCC Act, 2002 which created the Appellant shall be our compass to resolving the issue. Section 1 established the Economic and Financial Crimes Commission thus:
(1) There is established a body to be known as the Economic and Financial Crimes Commission (in this act referred to “The Commission”) which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.
(2) The Commission-
a. Shall be a body corporate with perpetual succession and a common seal;
b. May sue and be sued in its corporate name and may, for the purposes of its functions, acquire, hold or dispose of property

(whether movable or immovable);
c. Is the designated Financial Intelligence Unit (FIU) in Nigeria which is charged with the Responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.
The office of the Chairman of the Commission was created in Section 2 which says:
“(1) the Commission shall consist of the following members-
a. A chairman who shall-
i. Be the chief executive and accounting officer of the commission;
ii. Be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; and…”
The Chairman of the Commission was created specifically to be the Chief Executive Officer and the Chairman of the Commission was distinctly created separately from the Commission itself. The two are separate entities in law with functions provided for in the Act creating the Appellant. The Commission has the power to sue and be sued, that is not so with the Chairman of the Commission. The contention here is with regards to

the power to make the staff hand book. Section 9 (1) and it says:
“(1) The Commission may subject to the provisions of this Act, make staff regulations relating generally to the conditions of service of the employees of the Commission and without prejudice to the generality of the foregoing, the regulation may provide for-
a. The appointment, promotion and disciplinary control (including dismissal) of employees of the Commission; and
b. Appeals by such employees against dismissal or other disciplinary measures, and until the regulations are made, any instrument relating to the conditions of service of officers in the Civil Service of the Federation shall be applicable with such modifications as may be necessary to the employees of the Commission
2. Staff regulations made under Subsection (1) of this shall not have effect until approved by the Commission and so approved the regulations may not be published in the Gazette but the Commission shall cause them to be brought to the notice of all affected persons in such manner as it may, from time to time, determine.”
The contention canvassed by the Appellant under issue two

revolves around the making and validity of the Staff handbook tendered as Exhibit CW1-X1-112. The trial Court on the issue held that the handbook was made by a person unknown to the Appellant’s Establishment Act and therefore not validly made. It was declared invalid.
The take away from Section 9 is that the responsibility of making the Staff hand book is vested in the Commission and having found that the Commission is a legal personality while the Chairman of the Commission is not. The law gives the Commission the power to make or approve the staff Hand book and not the Chairman. I agree that the Chairman is the human face of the Commission but in law they are different personalities and he could also be the one to sign the approved handbook after it is duly approved by the commission in its meeting. As observed by the learned trial Judge, the non signing when and after the due process of approving it by the Commission cannot make the Handbook illegal. Therefore, until the regulations are made by the Commission, any staff handbook made or in existence as having been made by the chairman is invalid and illegal. It was in evidence that the commission

did not approve the staff handbook. See pages 384 of the Record of Appeal wherein DW2 contradicted himself when he said that it was the Chairman of the Commission that approved the staff hand book. The chairman lacks the vires to do so. The same witness in another way told the trial Court that the staff hand book was approved by the Commission thus contradicting himself. A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated and two pieces of evidence contradict one another when they are by themselves inconsistent. That is what DW2 did in this Appeal and in respect of the pertinent question of whether the staff hand book was properly made. The effect of a witness contradicting himself is obvious, the evidence is discountenanced and the issue is not proved by the party, see MOGAJI V CADBURY (1985) 2 NWLR (Pt. 7) 393; ALHAJI ISIYAKU V ALHAJI USMAN JAUROYEL & ORS (2014) LPELR-22732(SC) and KAYILI V YILBUK & ORS (2015) LPELR- 24323(SC) which held thus:
“The Law is well positioned that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the

entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must be rejected.”
Approval by the Commission cannot be established by the oral testimony of a witness, the Commission’s meeting must be reflected in the minutes of meeting and none was tendered, so when the Appellant’s Counsel says it was approved merely because the Chairman of the Commission released it for implementation is faulty and that is not how such approvals are handled. Furthermore, the Respondent made a negative pleading that the handbook was not validly made, this carries no burden of proof. The burden is on he who asserts the positive as settled by a plethora of authorities, see IMONIKHE V UNITY BANK PLC (2011) 5SCNJ 73 at 79 and Section 131(1) the Evidence Act. Whether it was gazette or not is irrelevant in this case, it was not validly made. The question of having a gazette of the said staff handbook is irrelevant. The lack of signature on the copy tendered by the Respondent could have been remedied if the commission made the Staff handbook pursuant to the Establishment Act of the Commission. In this case, lack of

date and signature is irrelevant when no valid staff handbook is before the Court. It is trite law that an unsigned and undated document is worthless, see OMEGA BANK (NIG) V O. B. C. LTD (2005) 8 NWLR (Pt. 928) 547. I agree that in the absence of a valid staff handbook the Public Civil Service Rules of the Federation shall fill the vacuum as provided by the Act establishing the Appellant. The Chairman lacks the power to make the staff Handbook, Exhibits CW1-X1-112 and consequently, it is invalid and could not have been the basis for the disciplinary action taken against the Respondent. The fact that nobody challenged the validity of the Staff hand book previously cannot make it valid and its coming into existence does not ipso facto make it valid.
I find the arguments of the Appellant’s Counsel that the Respondent’s office was created by the handbook preposterous. The Act that established the Appellant created the principal offices of the Commission and gave a framework for the operations of the commission and the hand book is meant to give effect and lay out procedures for staff management and discipline. Section 8(3) of the Act particularly

provides for the appointment or secondment of Staff from other sectors of the Federal Public Service and the conditions of such appointment is provided by Subsection 4 and as determined by the Commission and not the Chairman. It is certainly not the staff hand book that governs the appointment of the Respondent. The offices of the Commission cannot be tied to staff hand book in such a way as to divest the Respondent from a rank he is occupying by the nullification of the staff hand book. Fundamentally, the contract between the parties is created by the letter of employment and not the handbook. The handbook can only come into effect after the contract has been duly entered into.
Now to the disciplinary process which led to this appeal. In view of the illegal staff hand book, the Commission should have adopted the process applicable to officer of the cadre of the Respondent (management cadre) in the Federal Public service and the Civil Service Rules should have been used to determine the culpability of the Respondent if any. This finding is backed by Section 9(1) (b) of the EFCC Act. There is no need for any special aid in the interpretation of the

section. See the decision in GANA V SDP & ORS (2019) LPELR-47153(SC) which held:
“It must be stressed here and it is even trite, that in the process of interpretation of statute, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intention of the law makers. See AYODELE V STATE (2011) 6 NWLR (PT.1243)309; ATTORNEY GENERAL OF FEDERATION V ATTORNEY GENERAL OF LAGOS STATE (2013)16 NWLR (PT.1380) 249; OJOKOLOBO V ALAMU (1987)3 NWLR (PT.61)377 AT 402.”
The said section is clear and explicit, it cannot be interpreted otherwise. Furthermore, the section used the word shall and it is therefore, imperative for the commission to approve the staff hand book before it can be used in the Management of the Commission. Having not been so made, I resolve the issue against the Appellant.

Moving on, the next issue is a challenge to the finding of the trial Judge that the Appellant breached the Respondent’s right to fair hearing. Right to fair hearing is constitutionally

guaranteed and the effect of a breach is the nullification of any proceedings within which such occurred. The Appellant contends that the Court below erred in arriving at the findings that Appellant’s right to fair hearing was breached. The most contentious area is when the Respondent’s alleged that there was no allegation of Breach of confidence against him and he did not attend any proceedings where his defence to the allegation of breach of confidence was considered. The query issued to Respondent is found at pages 334-335 of the record, and the allegation therein is offence against Discipline and not Breach of confidence for which he was disciplined. The particulars of the query are founded on publications adverse to the interest of the Commission. Respondent denied the allegations. The Appellant’s witness DW admitted before the Court below that investigation into the publications proved that the Respondent was not responsible for the online publications. There was a disciplinary proceeding without allowing the Respondent to put in his defence, but after which the Acting Chairman approved that the Respondent be reinstated after 2 years of

suspension without pay and a letter of apology to the Acting Chairman. The reinstatement was conditional, it required that the Respondent should forgo his two years salary and must write a letter of apology to the Acting Chairman and be demoted. The fundamental defect in the entire administrative trial is the fact that the alleged infraction was Breach of Confidence and Respondent was disciplined for Offence against Discipline. On that alone, the purported disciplinary action cannot stand.
Furthermore, the Appellant contended that the Respondent was guilty of an offence, the alleged offence is not known to law. No penal law created either “breach of confidence” or “offence against discipline” for which a specific provision is made for its punishment in line with the decision of the Acting Chairman of the Appellant. An offence as legally known is one that is created by law and the punishment prescribed. If an offence is committed then, the perpetrator should be tried in a Court of law vested with the power to try such offences. The administrative panel cannot try an offence known to law and cannot also mete out punishment for

offences. Institutional or administrative infractions are not meant to be dealt with administratively by the institution’s disciplinary committee but offences must be tried by Courts of law. I also agree with the Respondent that if it was an offence then the Acting Chairman was indeed the accuser, the prosecutor and the Judge. All those who participated in the alleged trial did so under the directive of the Acting chairman, such cannot stand in law.
The argument of the Appellant that it is not in all administrative proceedings that the accused must attend the proceeding is flawed as the facts in the cases relied upon are distinguishable from the facts of this Appeal. Even if an employee may not attend disciplinary proceedings all the time, it is conditional on the fact that no evidence or witness is taken behind the back of the person being investigated. A person accused must be given a chance to cross examine any witness taken in the proceedings investigating him, otherwise the proceedings must be set aside. In this appeal, the Court below having found that the staff rules or hand book used in disciplining the Respondent is null and void. It could

not be used to discipline the Respondent. It is settled that you cannot accuse a person of one infraction and find him guilty of another that he was not confronted with, the entire process is strange, travesty of justice and definitely breached the Respondent’s right to fair hearing, see MR. ISA A. SAIBU V KWARA STATE POLYTECNIC, ILORIN (2008) LPELR-4524(CA) where Sankey JCA held:
“That the parties to a case should be given adequate notice and opportunity to be heard (audi alterem partem) and to satisfy the principles of natural justice and fair hearing, a person likely to be affected directly by a disciplinary proceeding must therefore be given adequate notice of the allegation against him to enable him make representation in his own defence. Once an Appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.”
The Appellant labeled the infraction an offence, if so, it must be have been brought to attention of the Respondent, give him an opportunity to respond before any punishment

and all that must be in conformity with a valid staff handbook. That was not the case in this appeal. Respondent’s right to fair hearing was brutally breached. Fundamentally so because the Public service Rules were not used, an illegality cannot birth a legal or legitimate process.
The Appellant also did not appeal against the far reaching findings of the trial Court that the Public Service Rules should have been used and it cannot turn round to complain on that at this stage. The settled position of law is that held in the case of NNADIKE & ANOR V NWACHUKWU (2019) LPELR-48131(SC) thus:
“… It is settled that where there is an appeal on some points only, the appeal stands or falls on those points appealed against only while the other points not appealed against remain unchallenged – see Michael V. State (2008) 13 NWLR (Pt. 1104) 361. In this case, the Respondent, as Appellant at the Court of Appeal, focused on the decision of the trial Court in the second part of its Judgment which stands rejected therefore, no orders can be made thereon.” Per AUGIE , J.S.C.
That being the case, the Respondent was not disciplined under the Federal

Public Service Rules as held and consequently, any disciplinary step taken cannot stand. And for such a Senior Officer, it should not have been the Chairman of the Commission but the board of the Commission. The trial Court rightly found that the Respondent was not disciplined by the Commission and again, no appeal against that decision, consequently, the action of the Acting Chairman is ultra vires and a breach of the right to fair hearing of the Respondent, a similar situation was explained in the case FEDERAL CIVIL SERVICE COMMISSION & ORS V LAOYE (1989) 2 NWLR (Pt. 106) 652. Full compliance with the Public service disciplinary measure is a sina qua non in this case, see the case of E.P. IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION (2005) LPELR-1420(SC) which held thusly:
“It is well settled that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required, before such disciplinary action can be properly based or justified.”
The Appellant relied on the case of NJC V SENLONG & ORS (2010) LPELR- 4582(CA) supra to submit that a person accused

of an infraction may not necessarily appear before the panel investigating allegations against him, the authority is not on all fours with facts of this appeal. Therein, a distinction was created between a panel investigating an allegation without statutory powers and another panel with statutory powers which confronts the person alleged to have breached organizational rules. In this case, the investigating panel and approving person are both illegal and incompetent and without authority and all their actions are without vires, consequently they cannot stand. The authority is therefore not applicable because there was no statutory provision empowering the Appellant’s chairman to investigate either administratively or quasi judicially. The case of OBONGSNWAN MARY NTEWO V UNIVERSITY OF CALABAR (supra) is also not relevant because the decision reinforced the settled position of law that disciplinary procedures must follow rules and Public Service rules were jettisoned in this Appeal. The case cannot apply. In fact, the two authorities were cited out of context.

Flowing from the findings above, issue three is resolved in favour of the Respondent and against the Appellant.

On issue four, the Appellant questioned the propriety of the trial Judge in ordering reinstatement of the Respondent after nullifying the staff hand book because the rank of the Respondent was named in the handbook.
I did find earlier in this judgment that the staff of the Commission was provided for in the Establishment Act, particularly Section 8(3) & (4) of the Appellant’s establishment Act, it says:
“(3) The commission may, from time to time, appoint such other staff or second officers from the government security or law enforcement agencies or such other private or public or public services as it may deem necessary to assist the commission in the performance of its functions under the Act.
(4) The staff of the commission appointed under Subsection (3) of this section, shall be appointed upon terms and conditions as the commission may, after consultation with the Federal Civil Service Commission, determine.”
It is obvious from above that staff of the Commission are not enjoying their appointments by virtue of the staff hand book but their contracts of employment. I shudder at the rationale

of the argument because staff hand book does not exist before the staff of the Commission, conversely, the Commission and its staff exists before the making of a hand book. The hand book provides procedure just like rules of Court oils the workings of the Court. Furthermore, Section 9 provides for the making of staff regulations and it says:
“9(1) The Commission may, subject to the provision of this Act, make staff regulations relating generally to the conditions of service of the employees of the commission and without prejudice to the generality of the foregoing, the regulations may provide for-
(a) The appointment, promotions and disciplinary control (including dismissal) of employees of the commission; and
(b) Appeals by such employees against dismissal or other disciplinary measures.
And until the regulations are made, any instrument relating to the conditions of Service of Officers in the Civil Service of the Federation shall be applicable, with such modifications as may be necessary, to the employees of the Commission. Subsection 2 provides thus:
(2) Staff regulations made under Subsection (1) of this Section shall not

have effect until approved by the commission, and when so approved the regulations may not be published in the Gazette but the commission shall cause them to be brought to the notice of all affected persons in such manner as it may, from time to time, determine.”
It is obvious that the making of staff regulations was left at the discretion of the Commission and therefore, employment of officers of the Commission cannot take root in the staff regulations. Furthermore, it is the letter of employment that create contract of service and not the handbook, I made this point earlier in the Judgment. The argument of the Appellant is without basis. The order nullifying the staff hand book because it was not made according to law cannot affect the reinstatement of the Respondent who, the Court below found enjoyed an employment with a statutory flavour and there is no ground of Appeal against that finding. I also find for the Respondent under this issue.

Having resolved all the issues donated for resolution in this Appeal against the Appellant, the Appeal lacks merit and deserves to be dismissed and is hereby dismissed.

The Judgment of the National Industrial Court of Nigeria in Suit NO. NICN/ABJ/347/2017 delivered on the 26th day of February, 2019 is hereby affirmed.
I make no order as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

AUDU, Esq. For Appellant(s)

FRANCIS M. NWORAH, Esq. For Respondent(s)