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National Industrial Court

MR. GAD BARMINAS -vs- NIGERIA POLICE FORCE & 3 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR…………………………………………………………..President

(President, National Industrial Court of Nigeria)

Date:                                                                             NICN/ABJ/107/2014

BETWEEN:

  1. GAD BARMINAS

…………………..……….CLAIMANT

AND

  1. NIGERIA POLICE FORCE                           
  2. INSPECTOR GENERAL OF POLICE
  3. POLICE SERVICE COMMISSION
  4. ATTORNEY GENERAL OF THE FEDERATION

…………………….DEFENDANTS

REPRESENTATION

 

 

 

JUDGMENT

This action was commenced by a General Form of Complaint filed on 29th April, 2014. In line with the rules of this Court, the Complaint was accompanied with the Statement of Facts wherein the Claimant is seeking the following reliefs:

  1. AN ORDER of Court directing the Defendants/Respondents to immediately   reinstate the Claimant into the Nigeria Police Force.
  2. AN ORDER of Court mandating the Defendants/Respondents to as a matter

            of urgency pay the Claimant his salary, entitlement and other benefits            accrued to him from when he was maliciously prosecuted and incarcerated.

  1. The sum of N20, 000, 000. 00 (Twenty Million Naira) being damages for        setting the machinery of the law wrongly against an innocent person and   having him spend nine years of his youthful and productive years behind            bars.
  2. AN ORDER of Court compelling the Defendants/Respondents to render a       public apology to the Claimant and having same published in national      dailies.

Also accompanying the originating process were the List of Witnesses, Claimant’s Witness Statement on Oath and List of Documents to be relied upon at the trial.

The 1st and 2nd Defendants’ Statement of Defence and accompanying Witness Statement on Oath were filed on October 3, 2014. Similarly, the 4th Defendant’s Statement of Defence was filed on the same day.

Hearing in the case started on 17th March, 2014 when the Claimant testified as CW. He was sworn on the holy bible.  CW informed the Court that he had previously worked with the 1st Defendant but that he is presently unemployed. He informed the Court that he swore to a Witness Statement on Oath on 29th April, 2014. CW then proceeded to adopt the said Witness Statement on Oath as his evidence before the Court. The Witness Statement on Oath of CW was tendered and admitted in evidence as Exhibit CWIA – CWIC.

CW also tendered in evidence a judgment of the Court of Appeal dated 27th June, 2013 delivered by Amiru Sanusi, JCA and it was admitted and marked Exhibit CW1-1 – CWI-1 – CWI -26. CW urged the Court to grant the reliefs he is seeking.

CW was cross-examined by learned counsel for the 1st, 2nd and 4th Defendants. Under cross-examination, CW gave his Force Number as 341283CP and that he was serving at 44PMF, IG’s Office, at the Force Headquarters, Abuja. He admitted that he deposed to the fact that he was arrested and subsequently charged to court. CW admitted that he went through Orderly Room Trial at the Force Headquarters before he was charged to Court but could not remember the date the Orderly Room Trial took place.

CW stated that after the Orderly Room Trial he was asked to sign for his letter of dismissal but that he refused to do so as a result of which he was kept in Police custody at the different Police formations for about 2 years. Under cross-examination, CW stated that after his trial at the High Court of the FCT, Abuja, he was convicted and sentenced to death 2010 but was discharged and acquitted by the Court of Appeal in 2013. Finally, CW stated that he would not know whether the Orderly Room Trial and subsequent court trial were reported by the press. The Claimant closed his case after cross-examination.

The defence called its sole witness, Jonah Waku [DWI] on 25th May, 2015. DWI stated that he works with the Nigeria Police Force. Having identified his Witness Statement on Oath sworn to on 3rd October, 2015, the same was tendered and admitted in evidence as Exhibit DWI – DWI4.

Under cross-examination, DWI confirmed that he is still a serving member of the Nigeria Police Force. He also stated that he is a Corporal in the Prosecution (CID), Legal of the 1st Defendant. DWI said he did not know the Claimant in person and that the Claimant could not have been paid his salaries and entitlements because his name was struck out from the Police Payroll. DWI admitted knowing what originating process is and that he is aware that the originating process in this case was served on the 1st and 2nd Defendants. It is important to note that the defence closed its case at this point.

The parties in this case adopted their respective final written addresses on 29th June, 2015. While adopting its final written address of the 1st, 2nd and 4th Defendants, their counsel submitted that it was wrong for the Claimant to raise the issue of malicious prosecution in the final written address. Learned counsel further submitted that no evidence relating to malicious prosecution was led by the Claimant. Counsel for the 1st, 2nd and 4th Defendants therefore urged the Court to discountenance the issue of malicious prosecution addressed in the final written address of the Claimant.

The Claimant’s counsel adopted the final written address dated 24th June, 2015 as final argument in support of the case of the Claimant. He urged the Court to grant the reliefs sought by the Claimant.

It is apt for me to now review submissions made by learned counsel to the parties in their final written addresses.

In their joint final written address, the 1st, 2nd and 4th Defendants distilled 2 issues for determination as follows:

  1. Whether the Honourable Court has the power to grant the Claimant’s            prayer for reinstatement after his discharge and acquittal by the Court of Appeal?
  2. Whether this Honourable Court can grant the Claimant’s prayers for   damages and apology in the face of public duty?

TREATMENT OF ISSUE NO. 1

Learned counsel for the 1st, 2nd and 4th Defendants concede that it is within the purview of the power and jurisdiction of the Court to order the reinstatement of the Claimant who has been discharged and acquitted by the Court of Appeal. In support of this principle of law learned counsel cited the case of Omidiora v. FCSC (2007) 14 NWLR (Pt. 1053) 17 at 20.

Learned counsel for the 1st, 2nd and 4th Defendant urged the Court to hold that if reinstated, the Claimant is only entitled to the payment of the arrears of his salary, entitlements and other fringe benefits.

TREATMENT OF ISSUE NO. 2

Learned counsel submitted that the 1st, 2nd and 4th Defendants cannot be held liable in damages to the Claimant because they merely discharged their public duties in prosecuting the Claimant for offences he allegedly committed. He argued that the 4th Defendant discharged his public duty by rendering advisory legal opinion on the criminal allegations against the Claimant just as the 1st and 2nd Defendants discharged their public responsibilities by charging and prosecuting the Claimant. In this respect, learned counsel for the Claimant cited the case of CBN v. Igwillo (2007) 14 NWLR (Pt. 1054) 343 at 402.

It was therefore submitted that the Claimant is not entitled to the other reliefs he is seeking in this case.

On the other hand, learned counsel for the Claimant distilled a lone issue for determination, to wit:

In the evaluation of the Claimant’s case, is the Claimant entitled to the reliefs sought in this suit?

TREATMENT OF THE LONE ISSUE

Learned counsel for the Claimant submitted that available facts point to the fact that the Claimant was a serving Police Officer in the 1st Defendant before his arrest, incarceration and prosecution at the High Court of the Federal Capital Territory. Learned counsel further submitted that the position of the law is clear that once an accused person is acquitted by a court of competent jurisdiction, such an accused person is deemed not to have committed the crime abinitio. It was further contended that an acquitted offender can no longer be tried for the same offence based on the same facts. On this point, learned counsel for the Claimant cited the followings:

–           Section 223(1) Criminal Procedure Code;

–           Section 36(9) Constitution of the Federal Republic of Nigeria 1999;

–           State v. Madu & Anor (1976) N.N.L.R. p. 155;

–           Kalu v. Nigerian Army (2010) 4 NWLR (Pt. 1185) CA 433 at 451; and

–           Section 45(1) of the Police Act, Cap 359, LFN 1990.

Learned counsel for the Claimant posited that an employment with statutory flavour can only be terminated through compliance with the procedure laid down by law or regulation. Hence, learned counsel submitted that an employee whose employment is statutory flavoured will be reinstated if the court finds that his employment was unlawfully terminated. Learned counsel for the Claimant argued that this is so even where such employee has secured another employment during the pendency of the case, subject only to harmonization of any overlapping remuneration. In support of this proposition, learned counsel for the Claimant cited the case of Ofuleagba v. Abdulraheem (2009) 18 NWLR (Pt. 1173) 397, paras. 3 & 4.

On the basis of the authorities cited above, learned counsel for the Claimant submitted that the Court can order the reinstatement of the Claimant and the payment of his salaries, entitlements and benefits as per reliefs 1 & 2 of the Statement of Facts.

With respect to relief 3 and 4 sought by the Claimant, it was submitted for the Claimant that he was maliciously prosecuted by the Defendants. In line with this, learned counsel argued that malicious prosecution refers to wrongful initiation of criminal proceedings  against a victim and where the proceedings turn out in favour of the victim. On this point, learned counsel for the Claimant cited the case of Ojo v. Lasisi & Anor (2003) FWLR (Pt. 156) 886 at 894 -895 CA, where the Court of Appeal held as follows:

“That liability for malicious prosecution would require the establishment of the Defendant having put in motion the machinery for prosecution (Criminal Prosecution which ended in favour of the Plaintiff (Accused) that the Defendant (Complainant) had no reasonable cause to prosecute the law in motion against the Plaintiff (accused).”

It was submitted for the Claimant that it must be shown that the falsity of the allegation leading to the arrest, detention and possible charge before a court of law is such that entitles the plaintiff to damages in an action for malicious prosecution. It was further submitted that under cross-examination, the Claimant informed the Court that he was not given fair hearing at the Orderly Room trial before he was charged to court while the Orderly Room trial was not conclusive.  Learned counsel for the Claimant also submitted that the offence allegedly committed by the Claimant was not properly investigated which according to him, meant that the Defendants have no reasonable cause to charge the Claimant to court in the first instance.  It was contended that the Defendants have not shown that they complied with prescribed procedure to be followed by the 1s Defendant in other to discipline an officer in its service.

It was submitted for the Claimant that sections 369 – 384 of the Nigeria Police Regulation, L.N. 53 1968 under the Police Act, Cap 359 LFN prescribe the procedure to be followed in disciplining a junior officer n the employment of the 1st Defendant.

According to the learned counsel for the Claimant, the courts have held that a plaintiff in an action for malicious prosecution must pleaded and prove that:

  1. That he was prosecuted by the defendant. In other words, it must be proved that the defendant wrongly set in motion the machinery of law for          the arrest and prosecution of the plaintiff.
  2. That in consequence of the prosecution thereof, the complainant was            discharged and acquitted of the allegation against him.
  3. That the prosecution of the plaintiff by the defendant was devoid of any       reasonable and probable cause.
  4. That the prosecution was as a result of malice by the defendant against the plaintiff.

On this point learned counsel referred to the case of Bayam v. Agana (2010) 9 NWLR (Pt. 1129) 219, para. 5.

Learned counsel argued that the Claimant has met all the conditions stated above and is therefore entitled to damages and compensation as well as public apology from the Defendants. The Court according to the learned counsel for the Claimant is bound to follow the principles of law articulated by the Court of Appeal in Exhibit  CW1-1 – CWI-1 – CWI -26.

On damages, it was submitted for the Claimant that any claim for damages is deemed to be in issue and must be proved by the party claiming damages. In support of this proposition, learned counsel for the Claimant cited the case of Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626 at 647 where the Court held that:

“A claim for damages is always deemed to be in issue. Thus, any allegation in pleading that a party has suffered damage and allegation as to the amount of damages is deemed to be traversed unless specifically admitted.”

It was also submitted that there can be no award of damages in the absence of injury suffered. In support of this principle of law learned counsel for the Claimant cited the case of Akinterinwa v. Oladunjoye (2008) FWLR (Pt. 10) 1690 at 1712.

It was further argued by learned counsel for the Defendants that Exhibit DW3 is the hanger on which to assess the oral evidence of the witnesses. In support of this proposition learned counsel cited the case of Kimdey v. Military Gov. Gongola State (1988) 2 NWLR (Pt. 77), where the Court held as follows:

“No doubt the legal proposition where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one…”

According to the learned counsel for the Defendants, the Claimant was only entitled to payment of salaries until 17th July 2004 when Exhibit DW3, that is, the letter of dismissal was made.  It was further submitted on behalf of the Defendants that the Claimant was already dismissed from the employment of the 1st Defendant by the time he was charged, and that by the time the amended Charge Sheet (Exhibit CW4) was made, the Claimant had been dismissed and was no longer entitled to any benefits arising from his employment. Learned counsel submitted that Exhibit DW3 severed any relationship between the Claimant and the 1st Defendant. It was therefore submitted by learned counsel for the Defendants that the averments paragraphs 6, 7, 8 and 9 of the Statement of Facts remain unproved which means that the Claimant has failed to discharge the burden of proof placed on him by sections 131(1) & (2) and 132 of the Evidence Act 2011.

Learned counsel for the Defendants urged the Court to attach minimal evidential value to Exhibits C-CD which are handwritten and made with litigation in mind. Learned counsel further urged the Court to compare Exhibits CW – CD on the one hand with Exhibits CW3 and DW3 in order to discover that Exhibit CW – CD were manufactured by the Claimant without any input from the Defendants. On the basis of this, learned counsel urged the Court to discountenance Exhibits CW – CD. On the difference between admission of a piece of evidence and its evaluation,  learned counsel for the Defendants cited the case of Etataja v. Ologbo (2007) 6 SC 30, paras. 10-20.

It is therefore my finding that based on Exhibit DW1C, the 1st Defendant paid for the legal expenses in connection with the trial of the Claimant in Charge No. FHC/L/16C/2004. Consequently, the Claimant has not shown by preponderance of evidence that he is entitled to the sum of N350,000 (Three Hundred and Fifty Thousand Naira he is claiming. I so hold.

Having held that the Claimant has failed to prove his entitlement to the reliefs claimed on the basis of preponderance of evidence, it follows that the Claimant has also failed to prove that he is entitled to the award of general damages in the sum of N5,000,000 (Five Million Naira) or any amount at all. The relief accordingly fails.

In sum total, the case of the Claimant fails as it is unmeritorious. It is accordingly dismissed.

I make no order as to cost.

Judgment is entered accordingly.

Hon. Justice, B. A. Adejumo, OFR,

MCI.Arb, GFISMN, CFIAR, FCIArb, FNILS

President,

National Industrial Court of Nigeria.

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