Mrs. Kate Chika Obiechina -VS- National Broadcasting Commission & ORS

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 14^th FEBRUARY, 2017 – NICN/ABJ/179/2013

BETWEEN

MRS KATE OBIECHINA – CLAIMANT

AND

NATIONAL BROADCASTING COMMISSION
D.G NATIONAL BROADCASTING COMMISSION
FEDERAL CIVIL SERVICE COMMISSION DEFENDANTS
HON. MINISTER FOR INFORMATION
ATTORNEY GENERAL OF THE FEDERATION

REPRESENTATION:
Parties absent.
Bole Olotu with Karim Williams for the Claimant.
B.V Omade for the 3^rd Defendant.
Patrick Etim with K. Usoro for the 5^th Defendant.

JUDGMENT

This matter was first filed before the Federal High Court on the 7^th of June, 2011 and was subsequently transferred to this Court by virtue of the effect of the Third Alteration/Amendment of the 1999 Constitution of Nigeria. In this suit, the Claimant is claiming as follows:

1) An Order declaring the procedure of the dismissal from the employment and/ or service of the 1^st Defendant as being in breach or in contravention of her constitutional right to fair hearing and therefore null and void.

2) An Order declaring her dismissal from the employment and/or service of the 1^st Defendant as being in breach of her constitutional right to fair hearing and therefore null and void and of no effect.

3) An Order that her dismissal from the employment and/or service of the 1^st Defendant as in breach of the 3^rd Defendant’s laid down rule(s) procedure and/or was in and/or guideline(s) and/or of the Federal Government Public Service Rules and therefore null and void and of no effect whatsoever.

4) An Order that the Claimant is still in the service and/or employment of the 1^st Defendant commission, thus the dismissal letter reference number NBC/SPF/260/Vol. 1/92 dated 24^th August 2010 is null and void and of no effect whatsoever.

5) An Order directing the 1^st, 2^nd , 3^rd and 4^th Defendants jointly and severally to pay to the Claimants all arrears of her salaries, allowances, benefits, entitlements and such other prerequisites due to the Claimant from May 2010 to date.

6) An Order directing the Defendants whether by themselves and/or their agents and or anybody whatsoever acting on their instructions and/or behalf not to disturb, interfere or tamper with in anyway whatsoever the Claimant’s job and or appointment and/or employment and/or service without following and/or observing due process of law to wit in accordance/compliance with the 3^rd Defendant’s laid down rules and regulations and/or guidelines and/or guideline(s) and/or the Federal Government of Nigeria Public Service Rules and/or fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria.

The bare facts of this case is that the Claimant was employed by the Offer of Appointment letter admitted as Exhibit A by the 1^st Defendant National Broadcasting Commission in April, 2003. By this letter of Appointment she was designated as a Senior Monitoring Officer on salary grade level 10 step 1. And by Exhibit A1 dated 31^st May, 2003 her appointment was confirmed by the 1^st Defendant. She was earlier posted to the Abuja Zonal office of the Commission on the 15^th of May, 2003 through Exhibit B dated 15^th May, 2003 and promoted by Exhibit C on the 3^rd of April, 2008. She was transferred/redeployed to the Jos Zonal Office by Exhibit C1 from the 28^th April, 2008 as Makurdi State Officer.

On the 27^th of April, 2010 she was queried by Exhibit C2 for abscondment from office in contravention of Public Service rules by the Jos Zonal Director and she presumed that her reply had been satisfactory to lay the matter to rest. She maintained further that after a month she received Exhibit D dated 24^th May, 2010 from the 1^st Defendant signed on behalf of the 2^nd Defendant inviting her from her Makurdi duty post to appear before a Board of Enquiry that was to sit the next day being 25^th May, 2010 at 11am in the Board room of the 1^st Defendant. That an allegation of theft for which she was never queried was now added to the allegation of abscondment alleged in the earlier query and she was given 24 hours to prepare her defence without informing her of the exact months for which and or the details of when she allegedly absconded from duty and the source of such information. She averred she was refused the opportunity to produce any document(s) and or witnesses in her defence despite the shortness of time within which she appeared.

It is her case that less than two weeks of her appearance before the Board of Enquiry for interrogation, she received Exhibit C5 dated 4^th June, 2010 from the 1^st and 2^nd Defendants placing her on interdiction with effect from 7^th June, 2010 pending the outcome of the Senior Staff Committees determination. She averred that she never appeared or made any submission or made any defence before the Senior Staff Committee which was to reach a determination on the allegations made against her. That by Exhibit C5 she was already being punished and presumed guilty of the allegations of abscondment and theft even before the outcome or determination of the Senior Staff Committee which she maintains she was never given an opportunity to be heard. That on the 24^th day of August, 2010, a month and 17 days of her being on the punishment of interdiction she received Exhibit D1 dated 24/8/2010 a letter of dismissal for serious misconduct arising from abscondment from duty and financial misappropriation of Government funds. That she was never queried for financial misappropriation of Government funds. She averred absolute hatred tinted with outright malice and desperation to get rid of her on the part of the Defendants. That she was never tried or found guilty and convicted by any competent Court of Law of the ground and reason for her dismissal and that she was not granted fair hearing on the ground for which she was dismissed.

She maintained that she wrote Exhibit E dated 23^rd September, 2010, a letter of appeal to the Director General of the 1^st Defendant maintaining that the procedure for her dismissal was contrary to laid down rules and regulations of the Public Service Rules. That by Exhibit E15 to E16 of 9^th March, 2011 the 1^st and 2^nd Defendants wrote back to the Claimant and asked her to pay the sum of ₦78,637.14 (Seventy eight thousand, six hundred and thrity seven naira, fourteen kobo) within 30 days of receiving the letter and that the 1^st Defendant still stood on its dismissal of the Claimant.

The 1^st and 2^nd Defendants on their part through two witnesses insisted that the dismissal of the Claimant was in order and essentially urged the Court to dismiss the suit as lacking in merit. The 3^rd Defendant the Federal Civil Service Commission, the 4^th Minister of Information and the 5^th Attorney General of the Federation did not call any witnesses but mounted defence to the claim except for the 4^th the Minister of Information, whom at this stage is and throughout the proceeding was just a nominal party sued along with the other Defendants because he is the Minister in charge with oversight functions of the 1^st and 2^nd Defendant.

The 3^rd Defendant in its defence insisted that it did not in any capacity whether officially or unofficially contributed to the employment of the Claimant. That Exhibit D1 which dismissed the Claimant did not emanate nor was it issued by the 3^rd Defendant and it did not have anything to do with the dismissal of the Claimant and that the suit has nothing to do with the Claimant that it was statute barred and should be struck out. The 5^th Defendant also insisted it had no knowledge of the Claimant neither was the Claimant in its employment at any time whatsoever. The 5^th Defendant also insisted that the Attorney General of the Federation did not exercise any advisory powers of the 1^st Defendant which is a body corporate and it had no legal, advisory, regulatory or administrative role to play in the day to day operations/activities of the 1^st to 4^th Defendants.

The 5^th Defendant also maintained that it is the 1^st Defendant with whom the Claimant had been employed and with whom a cause of action arises being a corporate body, there being no need to join the 5^th Defendant which was to embarrass the 5^th Defendant and an abuse of the Court process, the action being statute barred by virtue of the Public Officers protection Act.

At the close of the hearing the parties filed final written addresses. The 1^st and 2^nd Defendants in their address formulated the following issues for determination:

Whether the Claimant has sufficiently established and proven her allegation or denial of fair hearing.
Whether the Claimant’s allegation of denial of fair hearing establishes a miscarriage of justice?
Whether the Claimant is entitled to the reliefs sought?

The 3^rd Defendant by motion for extension of time filed a ‘Reply’ to the Claimant’s suit on points of law. There, a single issue was formulated for determination. This being

Whether the Claimant has established any cause of action against the 3^rd Defendant

The 5^th Defendant had earlier on filed its final written addresses before any of the Defendants where they had formulated the following issues for determination:

Whether the writ of summons and the statement of claim disclosed any reasonable cause of action against the 5^th Defendant?
Whether the joining of the 5^th Defendant in this suit is unnecessary and improper since the 1^st Defendant who is the employer of the Claimant and who is in a position to answer all questions relating to the matter in this suit, can itself be sued alone without the need to join the 5^th Defendant.
Whether the 5^th Defendant is a public officer protected by the Public Officers Protection Act.
Whether looking at the writ of summons and the statement of claim, the action of the Claimant is statute barred by virtue of the provisions of the Public Officers (Protection) Act.

In response to these the Claimant filed its written address and lastly also filed a reply on points of law to the Defendants addresses. In the Claimant’s written addresses the following 5 issues are formulated for determination:

Whether the Claimant’s employment has statutory flavour and is protected by statute?
Whether the procedure followed by the 1^st and 2^nd Defendant in dismissing the Claimant was in breach of the applicable statute and regulations of her employment and/or in violation of her constitutional right to fair hearing.
Whether DW1 and DW2 are credible and/or honest witnesses whose testimony the Court can rely on?
Whether the Claimant having been dismissed wrongfully ought to be reinstated by this Honourable Court and be granted her claims and reliefs in this suit?
Whether the 3^rd, 4^th and 5^th Defendants have led evidence in support of their case which this Honourable Court can rely on and whether the 5^th Defendant is not estopped from raising issues/submissions in its final written address.

For the purposes of this judgment, I shall deal with the 5^th issue formulated by the Claimant before going onto deal with the other salient issues raised for determination by the parties.

Here the Claimant through Counsel had submitted the 3^rd Defendant filed a statement of defence without a witness statement on oath despite the fact that it is a cardinal principle in legal practice to frontload all processes to be used in a suit. That it had always been a requirement of our rules of court and the non-compliance of the 3^rd Defendant who entered appearance with Order 15 Rule 1 (d) of the Rules of the National Industrial Court of Nigeria (Civil procedure) Rules 2017 renders the statement of defence incompetent . And urged the Court to so hold especially as the 3^rd Defendant did not lead evidence and pleadings is not by itself evidence.

The Claimant also stated that the 5^th Defendant filed a statement of defence and a witness statement on oath but failed to call a witness to adopt same or lead evidence in support of the set processes filed. That it was held in ENEMUO VS. DIM (2002) FWLR (PT. 126) page 1007 ratio 4 that failure to lead evidence in support of facts means an abandonment of those averments and an admission of the claims of the opposing party. Claimant then urged the Court to hold that the averments in the statement of defence and witness statement on oath have been abandoned and the claims of the Claimant admitted.

I must state here that having gone through the arguments and submissions of the Claimants on this issue 5 as it affects the 3^rd and 5^th Defendant. I find and I do hold straight away that the doctrine of estoppel cannot appropriately be raised by the Claimant to prevent both 3^rd and 5^th Defendants from raising issues/submissions in its final written addresses. In this issue 5, I have gone through the address of the Claimant and the arguments/submissions. Even the authorities cited in support of the Claimant’s case did not include any in direct support of the issue with the effect of estopping the 3^rd and 5^th Defendants from raising and submitting on issues in their final written addresses. I hold that to deny them this right would amount to a breach of their (3^rd and 5^th Defendants) own rights to fair hearing. In the case of OBODO VS. OLOMU (1987) 18 NSCC (PT. 11) the Supreme Court held that where the opportunity to file an address was denied the Appellant, it amounted to a denial of fair hearing. Standing on this authority amongst others the 5^th issue as formulated by the Claimant is hereby determined against the Claimant. As to whether they could file and rely on their written addresses. See also AUDU VS. F. R. N (2013) 5 NWLR (PT. 1348) 397 SC. In OBODO VS. OLOMU (supra) Belgore JSC delivering the lead judgment said at page 120

“The procedure where by the parties to a case at the conclusion of evidence are to address the Court on the evidence before the Court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior Courts that denial of it cannot be regarded as a mere procedural irregularity”

By Order 45 Rule 7 of the National Industrial Court, Civil Procedure Rules 2017 the Court can even go on and deem as adopted the final written addresses of parties in their absence. That was not even the case here. In this case both the 3^rd and 5^th Defendants attended the trial regularly and both cross examined the Claimant, filed motions for extension of time at various times to be at par with the proceedings and having had Counsel in Court to adopt their said written addresses.

Regarding the 3^rd and 5^th Defendant, Claimant had submitted also in this issue that the 3^rd Defendant is the body vested with responsibility with regards to recruitment, welfare, appointment, promotion and discipline of all Federal Civil/Public Servants of which the Claimant is one. That by virtue of Section 153 (11) (1b) 3^rd Schedule Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the 3^rd Defendant is vested with powers not only to dismiss but also to exercise disciplinary control over Federal Civil/Public servants making the 3^rd Defendant a necessary party citing GREEN VS. GREEN (2011) ALL FWLR PART 76 page 799 ratio 4 & 5.

As to the 5^th Defendant who in in his written address had submitted that the writ of summons and statement of claim disclosed no reasonable cause of action against the 5^th Defendants and that the joinder of the 5^th Defendant was unnecessary and improper and whether the Claimant is protected by the Public Officers Protection Act the suit being statute barred. To this, the Claimant submitted that the 5^th Defendant being the Chief Law Officer of the Federation and the Adviser, Custodian of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and all the Federal Laws/statutes in Nigeria is a proper party and therefore was properly joined in the suit. That the 1^st to 5^th Defendants are all agencies/agents of the Federal Government. That it is trite law that when an agency of the Federal Government is sued and the suit borders on Federal Laws and Statutes the 5^th Defendant as a Chief Law Officer of the Federation can be sued and sue. Citing A.G ANAMBRA STATE VS. A.G FEDERATION (2007) ALL FWLR (PART 379) page 1218 at 1250 para. A – B where it was held that the Attorney General of the Federation can be sued as Defendant in all civil matters which a claim can be properly made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of.

The Claimant at paragraph 4.45 of the written address stated that her case is on breach of her constitutional right to fair hearing by the 1^st and 2^nd Defendant and wrongful dismissal due to non-compliance with the Public Service Rules which is Federal Law. That it was held in ELELU-HABEEB VS. NATIONAL JUDICIAL COUNCIL (2010) ALL FWLR PART 536 pg. 494 at 533 para E – H that the Attorney General of the Federation is the Chief Law Officer of the Federation and as such obedience to the law by all persons and institutions is of interest to him, the Court should hold that this is one of such cases.

In the written address of the 3^rd Defendant headed: Reply on Points of Law to the Claimant’s suit, a sole issue was formulated for determination being:

Whether the Claimant has established any cause of action against the 3^rd Defendant

The 3^rd Defendant submitted amongst others that the suit of the Claimant as far as it relates to the 3^rd Defendant is totally misconceived in law and in facts because the entire length and breadth of the Claimant’s suit and final written address did not contain any items which by any conceivable stretch of the imagination can be described as an atom of liability against the 3^rd Defendant with regards to the claim before the Honourable Court.

In determining this issue formulated by the 3^rd Defendant it is pertinent to note that the Claimant had at paragraph 4.40 of her written address stated that the crux of the case before this Court is disciplinary action, dismissal, arrears of salaries which by law are the 3^rd Defendants functions and duties and makes the 3^rd Defendant a necessary party as the matter cannot be fully adjudicated in the 3^rd Defendant’s absence.

To this, 3^rd Defendant submitted that the jurisdiction of the 3^rd Defendant covers only Federal Civil Servants and not Public Servants as the Claimant is suggesting. That there is nowhere in the entire content of section 153 or Part 1 of the Third schedule to the Constitution of Nigeria 1999 (as amended) that the responsibility for the employment, discipline and dismissal of the entire public service is vested exclusively on the 3^rd Defendant as suggested by the Claimant, rather the scope of the 3^rd Defendant’s jurisdiction is expressly limited to only Federal Civil servants and nothing more.

The 3^rd Defendant then referred to the provisions of the 3^rd schedule of Constitution of the Federal Republic of Nigeria 1999 (as amended) which the Claimant also relied upon at paragraph 2.2 of the Reply on Points of law of the Claimant where it was submitted that the argument of the 3^rd Defendant was clearly a misconception of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Public Service Rules 2008. Counsel referred to s. 318 (1) (e) Part IV of the Constitutions of the Federal Republic of Nigeria 1999 (as amended) which provides that a Public service of the Federation means the service of the Federation and includes service of staff of any statutory corporation established by an Act of the National Assembly. Counsel contended that the Claimant is an employee of the National Broadcasting Commission established by an Act of the National Assembly (i.e. National Broadcasting Commission Act CAP N11 Vol. 10 LFN 2004) and as such fall under the Public Service of the Federation. Rule 030102 of the Public Service Rules 2008 was referred to which provides:

“The power to dismiss and to exercise disciplinary control over officers in the Federal Civil Service Commission. This power may be delegated to any member of the Commission or any officer in the Federal Civil Service”

For the benefit of this judgment and for the determination of this issue, I find that the above reliance on Rule 030102 of the Public Service Rules 2008 by the Claimant is wrong in that it best serves as a guide. The power and correct rules applicable to the Claimant are to be found in Chapter 16 of the Public Service Rules to Federal Government Parastatals, of which I find the 1^st Defendant to be one. Rule 160101 defines parastatals as a government owned organisation established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directive of the Government.

Rule 160102 states that parastatals shall be classified into 4 categories (i) Regulatory Agencies; (ii) General services; (iii) Infrastructure/Utility agencies; (iv) Security agencies.

Rule 160103 provides in the main that in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules shall apply. Rules 160201 and 160202 deal with functions of the Boards/Councils and privileges of members of Boards respectively.

Rule 160301 provides that all appointments to Public officers, both senior and junior in Federal Government parastatals shall be made on the authority of the Boards. And by Rule 160303 the Board/Councils shall approve all promotions without prejudice to its power to delegate. Section 5 on discipline provides at 160501 that the power to discipline officers in parastatals is vested in the Supervisory Boards/Councils in accordance with their respective conditions of service.

Rule 160502 provides that the provisions of section 2 to 6 in Chapter 3 of the Public Service Rules shall guide all parastatals in addressing disciplinary matters provided that where reference to the Federal Civil service Commission, Head of the Civil Service of the Federation or the Permanent secretary, the Board/Council shall perform all functions.

From the above provisions of the Public Service Rules 2008 made pursuant to the 1999 Constitution (as amended) it is very clear that it is the Board/Council in the 1^st Defendant that is responsible to be sued and in this sense, the 1^st and 2^nd Defendant were aptly sued but not the 3^rd Defendant. This is so because Exhibit A to D1 clearly show that, the Federal Civil Service Commission did not employ the Claimant, did not promote, query or transfer the Claimant, certainly was not paying the Claimant’s salary, the suit as constituted clearly cannot be maintained against the 3^rd Defendant and I do so hold. And the sole issue formulated by the 3^rd Defendant is determined in its favour.

In the cross examination of the Claimant by the 3^rd Defendant, she told the Court she was aware of the Act establishing the 1^st Defendant which empowers it to employ staff to work with the 2^nd Defendant. She admitted her dismissal letter in Exhibit D1 which she admitted was not copied to the Federal Civil Service Commission (3^rd Defendant).

Similarly in the cross examination of the Claimant by the 5^th Defendant, she was referred to the incidents and processes leading to her dismissal and asked whether the 5^th Defendant was part of the process. She told the Court that the 5^th Defendant was not part of it but because her rights were infringed she joined the Attorney General of the Federation.

Now, the 5^th Defendant in the written address had formulated 4 issues for determination which I had reproduced earlier in the judgment. I do not think there is still much to be said regarding the 5^th Defendant having said much in regard to the 3^rd Defendant’s exculpation in this matter with reasons given. I do not see how or what reasonable cause of action is disclosed against the 5^th Defendant in this suit and I find and do hold that joining the 5^th Defendant in this suit was unnecessary as the 5^th Defendant played no role in the said dismissal of the Claimant. The issues 1 and 2 formulated by the 5^th Defendant are consequently determined in his favour.

As to the 3^rd and 4^th issue, this Court had given a Ruling on 25^th May, 2015 which broadly dealt with those issues raised and re-opening them now would be academic and unnecessary, implicit in the Court’s determination of the 1^st and 2^nd issues formulated for determination in favour of the 5^th Defendant that the Claimant’s suit did not disclose any cause of action against the 5^th Defendant. In the case of AFOLAYAN VS. OGUNRIDE (1990) 1 NWLR (PT. 127) 369 as cited by the 5^th Defendant, the Supreme Court had held that a party against whom there is no cause of action cannot be made a Defendant. The Supreme Court per Aniagolu JSC in the case of LASISI FADARE AND OTHERS VS. ATTORNEY GENERAL OF OYO STATE (1982) 4 S.C 1 at 6 – 7 had held:

“The term ‘cause of action’ as had been stated in READ VS. BROWN (1888) 22 QBD 128 at 131 per Lord Esher M. R denotes every fact (though not every piece of evidence) which it would be necessary for the Plaintiff to prove if traversed to support his right to the judgment of the Court”

Now with regards to the 4^th Defendant, (the Minister of Information) the supervisory Minister for the 1^st and 2^nd Defendant, it would be best to determine the issues out of the suit between the 1^st and 2^nd Defendant. The 1^st and 2^nd Defendant had submitted on the 1^st issue for determination that the obligation of establishing denial of fair hearing is on the party alleging that he or she was denied fair hearing citing S & D CONSTRUCTION COMPANY LTD. VS. CHIEF BAYO AYOKU (SC) (2011) LPELR – 2965 (SC). And the case of MR. PETER OKOCHA & ANOR VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2010) LPELR – 4718 (CA) where the Court held that it is not enough to allege breach of the right to fair hearing without pleading and providing the collateral facts and circumstances that substantiate the said allegations. That an allegation that the said right was breached must be based on fact.

Counsel for the 1^st and 2^nd Defendant referred to Rule 030307 (viii) which provides that:

“If during the course of inquiry further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and steps shall be taken as prescribed above in the original grounds”

Further reliance was placed on Rules 030302 to 030306 on disciplinary procedure and it was submitted further that:

“Assuming without conceding that the allegation against the Claimant for financial misappropriation was not sustainable under the rules, the same could not be said for her absenteeism without approval which she admitted in her statement of claim and in her reply to the query she was given dated 29^th April, 2010 (Exhibit C3 and C4)” That abscondment alone constituted serious misconduct and urged the Court to hold that the Claimant had failed to establish her case”

In the Claimant’s Reply on points of law to this, it was stated that the only query issued the Claimant was that in Exhibit C2 dated 27^th April 2010 on abscondment from duty without approval ; that the invitation to appear before the Board of Enquiry (i.e. Exhibit D) was for only abscondment from duty without approval and theft. It was submitted further at 2.7 of the same Reply that the law is trite that documentary evidence is the best form of evidence that the 1^st and 2^nd Defendant failed to provide any query issued to the Claimant for financial misappropriation and any submission by Counsel on that point cannot be a substitute for evidence neither could it vary the contents of documentary evidence in Exhibit C2.

Now, Exhibit D1 dated 24^th August, 2010 is headed DISMISSAL. It was addressed to the Claimant in care of DW1 and it reads in 2 short paragraphs:

“Following your serious misconduct arising from abscondment from duty and financial misappropriation of Government funds, the Commission in line with the provisions of the Public Service Rules 030407 which states that “the ultimate penalty for serious misconduct is dismissal” hereby dismisses you from its service with effect from Monday, August 30, 2010.
You are to hand over all Commissions properties in your possession to the Jos Zonal Director on or before August 30, 2010”

Now, it is a clear fact that the Claimant was also dismissed for financial misappropriation and abscondment from duty. It is a fact that the Claimant was not queried by the 1^st and 2^nd Defendant for financial misappropriation. In other words she had no advance notice of this other offence.

The 1^st and 2^nd Defendant in their written address had referred to Rule 030307 (viii) which Rule had stated that the officer (The Claimant in this case) shall be the direction of the Commission (the National Broadcasting Commission Board in this case) be furnished with a written statement thereof and steps shall be taken as prescribed above in respect of the original grounds.

So in the light of this rule relied upon by the 1^st and 2^nd Defendants, what directions did the Board of Enquiry make or take as prescribed by the preceding provisions (above) in 030307 (i) to (v) the answer would likely be none, the Claimant was not queried on misappropriation of funds and cannot just be punished in the manner the 1^st and 2^nd Defendants have done, I so hold.

The Supreme Court in IDERIMA VS. R.S.C.S held that an officer in the Federal Public Service may be dismissed only in observance of the following procedures as those stated above in Rule 030307 i to viii, to xiii

a)The officer shall be notified immediately in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing before a day to be specified (which day must allow a reasonable interval for the purpose) any ground which he relies to exculpate himself.
b)The matter will be investigated by the appropriate authority with the aid of the head of officer’s department and such other officer or officers as the appropriate authority may appoint.
c)If any witnesses are called to give evidence, the officer shall be present to put questions to the witnesses.
d)No documentary evidence shall be used against him unless he had previously been supplied with a copy thereof or given access thereto.
e)If the officer does not furnish any representation within the time fixed, the Federal Public Service Commission may take such actions as it deemed appropriate against him.
f)If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed it shall take such actions accordingly.

In the case of FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) AWLR 350 as to how public servants in the pensionable cadre can be validly dismissed. The apex Court per Oputa JSC stated

“The 1^st Defendant (here 1^st and 2^nd Defendants) is (are) creatures of statute and for its (their) dismissal of the Respondent (Claimant) to be intra vires, it has to comply strictly with all governing the dismissal of its staff here Federal Civil Service Rule 04107 (now 030307 Public Service Rules 2008). Failure to do that renders the dismissal ultra vires and null and void”

Here, in the present case, apart from Exhibit DC the undated report of the Board of Enquiry on abscondment and theft case at Makurdi in which a 5 member board recommended interdiction of the Claimant at DC4 pending the final determination of her case, nothing else seemed to have been done to meet the requirements of the Public Service Rules as stated earlier, there were no preliminary letters issued the Claimant (except the one query for abscondment) Exhibit DC6 tendered by the Claimant as ‘D’ dated May 24^th, 2010 was written to the Claimant through DW1 and the Claimant was required to be in the Board room of the 1^st and 2^nd Defendant in Abuja on the following day, May 25^th, 2010 at 11a.m. This would heavily fulfil the requirement in Rule 030307 (i) and especially (VI) which provides:

“The officer shall be informed that on a specific day the question of his/her dismissal shall be brought before the Board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/Her failure to appear shall not invalidate the proceedings of the Board”

It does not appear that Exhibit D to DC6 complied with this provision. And where it did not it is clear from the rule(s) that when a decision to dismiss the Claimant had been reached she (Claimant) would have been brought before the Board to defend herself and she shall be allowed to call witnesses. From the evidence before me in this case, I find and do hold that she was not allowed to call witnesses nor was she allowed to confront her accusers. She was therefore denied of her right to be heard as laid down in the Public Service Rules 2008, I so hold.

From the lengthy cross examination of the Claimant by the 1^st and 2^nd Defendant she was never confronted on her averment that she was not allowed to produce documents in her defence or call witnesses. Rather she was asked extensive questions on finances as though she were in a Criminal Court facing a charge of theft. And others were on a number of times she went on leave and so on about her movements. When it was put to her that when it was discovered she misappropriated money (funds) she was given time to defend herself and prepare she answered that she was never, invited for a case of misappropriation. The evidence it must be stated here was that she was not queried over misappropriation; no preliminary letters were issued her as required. And she was not allowed to call witnesses.

In the cross examination of DW1 he told the Court that no other letter was given the Claimant apart from Exhibit D of 24^th May, 2010 to appear before the board and the matter was not referred to any staff Committee. In fact DW1 and DW2 told the Court during cross examination that they were not present at the sitting of the Board of Enquiry who interrogated the Claimant on 25^th May, 2010 for abscondment from duty without permission and did not know what transpired there. It therefore becomes clear that there was no proper hearing/which if there was, was not fair to the Claimant as she could not confront her accusers or call her witnesses.

Here, in this suit, earlier in this judgment, I had held that the 5^th issue formulated by the Claimant was determined against her. However, in the face of the evidence before me regarding the issues formulated by the 1^st and 2^nd Defendant, I find and do hold that the Claimant has proved her case of denial of fair hearing which occasioned a miscarriage of justice by her dismissal and she is therefore entitled to the reliefs sought. Consequently, I hold that issues 1 to 4 as formulated by the Claimant are determined in her favour. Judgment is entered for the Claimant against the 1^st, 2^nd and 4^th Defendant who did not file a defence and is deemed to have admitted the claim of the Claimant.

And it is hereby ordered as follows:

It is hereby declared that the procedure of her dismissal from the 1^st Defendant is in breach of her constitutional right to fair hearing and is therefore null and void.
It is also declared that her dismissal from the employment and service of the 1^st Defendant is in breach of the 3^rd Defendant’s laid down rules and procedures and is null and void and of no effect .
It is hereby declared that the Claimant is still in the service of the 1^st Defendant Commission the letter of dismissal referenced NBC/SPF/260/VOL.1/92 dated 24^th August, 2010 having been declared null and void.
1^st, 2^nd and 4^th Defendants are hereby ordered to jointly pay the Claimant all her arrears of her salaries, allowances, benefits, entitlements and such other prerequisites due to the Claimant from May, 2010 till date.
The 1^st, 2^nd and 4^th Defendants are also hereby directed not to interfere with the Claimants employment and or service without observing the due process of law in accordance with the Public Service Rules.