IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 3RD MARCH 2017 SUIT NO: NICN/CA/141/2013
BETWEEN:
ENGR. PATRICK EDET OQUA CLAIMANT
AND:
ATTORNEY-GENERAL, CROSS RIVER STATE DEFENDANT
REPRESENTATION:
- O. ISONGfor the claimant
- N. EYOState Counsel 2 Ministry of Justice Calabar for the defendant
J U D G E M E N T
The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 27th September, 2013 against the defendants for the following reliefs:
- A DECLARATION that the non-payment of his salaries and allowances since December, 2002 is unjust and unlawful.
- A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect.
- AN ORDER compelling the Cross River State Government to pay the sum of #8,428,930.4 (Eight Million, Four Hundred and Twenty Eight Thousand, Nine Hundred and Thirty Naira Four Kobo) being unpaid salaries from December, 2002 till September, 2013 and thereafter his monthly salary as at when due.
- AN ORDER compelling the Cross River State Government to promote the claimant to grade level 14.
- AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira).
- AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar.
- Exemplary damages in the sum of #10,000,000 (Ten Million Naira).
In the alternative, the claimant claims as follows:
- A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful.
- A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect.
- A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013.
- AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013.
- AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013.
- AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira).
- AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar.
- Exemplary damages in the sum of #10,000,000 (Ten Million Naira).
In the further alternative, the claimant claims as follows:
- A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful.
- A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect.
III. A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013.
- AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013.
- AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013.
- AN ORDER restraining the Cross River State Government from evicting the claimant from his home at No. 17B Parliamentary Village, Calabar until six months after his outstanding salary and gratuity is paid.
VII. The sum of #10,000,000. (Ten Million Naira) being Exemplary damages.
Claimant’s Case
The Claimant is an Engineer by profession and was employed into the public service of the Government of Cross River State in 1988. He stated that he was allocated a house by virtue of his employment at No. 17B Parliamentary Village, Calabar where he lives with his wife and children. The Claimant averred that as part of his duties in the Ministry of Works, he was given a project to execute which project was not finished on time, as a result of this, his name was removed from the payroll in December, 2002 without a query or disciplinary hearing. He stated that three months later, he was invited to appear before the Disciplinary Committee to explain himself, which he did and that no letter of suspension or any other communication of disciplinary action was given to him. And that eleven years later in 2013, he received a letter of retirement from the defendant informing him that his retirement is retrospective with effect from 2002.
The defendants filed their processes namely their STATEMENT OF DEFENCE dated 4th February, 2015 and filed on 5th February, 2015.
Defendant admitted that claimant had a disciplinary action against him, but deny that he was pardoned, rather, that his punishment was merely mitigated. The defendant submitted that claimant was not offered opportunity to purchase the house he occupied as a result of his continued service in Government, rather it was because Government desired to divest her interest from all her residential properties and sell to the occupiers and the general public and that claimant had not accepted the offer up till now. And that claimant was not to make payment on the house from his salary but through a loan, which he was to obtain from any financial institution.
To the defendant, the claimant was not denied justice nor was he treated unfairly, that on the contrary, claimant defrauded the State Government of the sum of #1,576,860.00, which he admitted before the Civil Service Commission. The defendant averred that the State Government issued a letter of retirement to claimant dated 22/03/2013 maintaining that claimant’s period of service spanned from 1988 to 2002, when his salary was stopped.
The Defendant submit that the claimant is not entitled to any of the reliefs sought, urging the Court to dismiss the suit for lacking in merit, being speculative, wanton, frivolous, and an abuse of the process of the court.
At the trial the claimant testified as CW adopted his written statement on oath which was marked C1 and went on to tender eleven (11) other documents. Under cross examination CW testified that he received one document in addition to Exhibit C6 from the defendants asking him to pay the initial deposit for the official residence he was occupying, that he didn’t pay, but he wrote to the Ministry accepting to pay but he was unable to obtain the required loan due to the stoppage of his salary, he further testified that he served the Cross River State Government meritoriously. And that he was not at the site that was also the Office headquarters when the Inspectors came but that was the week CW closed down the site. The claimant denied being suspended that his name was deleted from the salaries pending further investigation and that during that time he duly reported for work during the time and worked on the directive of the Chief of Staff to the Head of Service, sent on jobs by his Head of Department. He further testified that he is a civil Engineer and remained in the Civil Engineering department but that since 2002 he had not completed any APER forms, that as he was working in Projects where they did not observe the time book. They testified that in 2008 he was posted to oversee the patching of roads and states that he has a letter to that effect. And thereafter they kept directing him to jobs and he kept going, that the Chief of Staff kept promising to handle his matter and in 2013 he received a letter of retirement.
The defendant called one witness, Ikoi Obeten their Deputy Director Administration, who adopted his written statement on oath which was marked exhibit D1 and went on to tender four (4) other documents.
DW testified that the claimant was not an engineer but a Technical Officer on Grade level 09, that the claimant was issued Exhibit D2, the Letter of Retirement.
Under cross – examination DW testified that he attended the Disciplinary meeting that discussed the claimants matter but did not tender the recommendation of the committee, he also testified that he could not remember when the claimants salary was stopped, and that the claimant was relieved in 2002 after he absconded from his duty post, he went on to explain that an officer who absconds from duty would not be retired immediately, he has to go through the procedure that is why the letter was issued in 2013. In reply to the question whether the rules allow retroactive retirement he replied “No but when an officer’s salary is stopped the retirement or dismissal after going through the procedure takes effect from the date the salary is stopped. That is the usual practice.
At the close of trial parties were directed to file their final written addresses in line with the rules of this court. After waiting for the address of the defendants to no avail the claimants filed their CLAIMANT’S FINAL WRITTEN ADDRESS dated 19th September, 2016 and filed on 22nd September, 2016. With the following two (2) ISSUES
- Whether the dismissal or termination of the claimant with retrospective effect was proper.
- Whether the claimant is entitled to the unpaid salaries from December, 2002 till September, 2013 and thereafter, monthly salary as at when due and for damages.
ON ISSUE 1
Whether the dismissal or termination of the claimant with retrospective effect was proper.
Learned Counsel for the Claimant Rekana O. Isong, submitted that before a person can be deprived of his right, whether by a judicial or administrative panel, he must first be given a fair hearing and that such administrative panel is required by law in the discharge of its duty to observe the principles of fair hearing by affording adequate opportunity to the person/s against whom allegations were made, to know and answer to such allegations. AKWA IBOM CIVIL SERVICE COMMISSION v. AKPAN (2013) LPELR-22105 (CA). She argued that in the instant case, punishment by way of removal of claimant’s name from payroll and stopping his payment of salary was done long before he was even invited to appear before the disciplinary committee. CHIEF AUGUSTINE A. NAWA v. ATOORNEY-GENRAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294 (CA).
It is Claimant counsel’s contention that in a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. That presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power. F.C.S.C. v. LAOYE (supra); AIYETAN v. N.I.F.O.R. (Supra), per Omokri, JCA (P. 49, PARAS. A-F). Counsel to the claimant submitted that a decision given in breach of fair hearing must be declared to be no decision and set aside. AUGUSTUS A. NDUKAUBA v. CHIEF SILAS M. KOLOMO & ANOR. (2005) ALL FWLR (PT. 248) 1602 @ 1614, per Lokulo-sodipe, JCA (Pp. 37-38, PARAS. F-B).
ON ISSUE 2
Whether the claimant is entitled to the unpaid salaries from December, 2002 till September, 2013 and thereafter, monthly salary as at when due and for damages.
Claimant Counsel submitted that where a right has been infringed whether it is a fundamental right or a statutory right and the aggrieved party comes to the court for reinforcement of the right, it will not be given complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. It is the duty of the court to order a proper remedy.” Ubi jus ibi remedium”, per Omokri, JCA (P. 52, PARAS. E-F); UNDERWATER ENG. CO. LTD. V. DUBEFON (1995) 6 NWLR (PT. 400) 156.
The defendants filed their DEFENDANT’S FINAL ADDRESS dated 17th October, 2016 on 18th October, 2016. Wherein they raised four (4) ISSUES for determination
- Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service.
- Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment.
- Whether in the circumstances of this case, claimant is entitled to any of the reliefs sought.
ON ISSUES 1 AND 2
Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service.
Whether laid down procedure was followed before claimant’s retirement.
Learned Counsel to the Defendant E. N. Eyo State Counsel 2 Ministry of Justice Calabar, submitted that since it was the claimant who wrongfully repudiated the contract of service by his wilful failure to carry out his duties under the contract, the termination of his contract with retrospective effect is quite in order. Per Kutigi, JSC in OBO v. COMM. OF EDU., BENDEL STATE (Supra) 625 @ 635; per Onu, JSC (PT. 698) Supra 625 @ 637. He submitted further that an employee has no right to receive a copy of the report of committee set up by his employer concerning him. FEDERAL CIVIL SERVICE COMM. V. LAOYE; per Omage, JCA in NITEL v. AWALA (2001) 45 WRN 146 @ 159.
It is the Defendant counsel’s submission that a claimant wins on the strength of his own case and not on the weakness of the adverse party. EYO v. ONUOHA (2011) VOL. 45 (PT. 1) N.S.C.Q.R.H. 4 @ 215. And relying on the authority of ISHENO v. BERGER (2008) 4 MJSC P. 107 H2, Counsel to the defense submitted that an employer has the discretion to either declare an employee redundant or retire him, therefore, claimant’s retirement is in order
ON ISSUE 3
Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment.
Relying on the case of F.C.D.A. v. NWANNA (1998) 4 NWLR (PT. 544) 73 @ 83, per Salami, JCA, Defendant counsel answered this issue in the negative, submitting that claimant was an illegal occupant who had no documents vesting title to the property on him.
ON ISSUE 4
Whether in the circumstances of this case, claimant is entitled to any of the reliefs sought.
Counsel to the Defendant submitted that claimant lied to the court during his testimony, which proves that he is not a credible witness and also gave testimonies which contradict his pleadings. OLADUDU v. TENIYE (2002) FWLR (PT. 120) 1634 RATIO 3. She submitted that it is the duty of the court to make findings on evidence led before it, and ascribe probative value to it. BARMANI VENTURES LTD. V. KINGSFOAM & CHEMICAL IND. (2002) FWLR (PT. 124) H4 @ 417. And that it is claimant’s duty to prove his case, and not the defendant and that he who asserts must prove; that it is only after the claimant proves his case that the burden will shift to the defendants. Per Mukhtar, JSC in OHOCHUKWU v. A.G. RIVERS STATE (2012) VOL. 2 MJSC (PT. 11) 106 – 108.
The Defence Counsel submitted that declaratory reliefs are discretionary and that what would entitle a claimant to a declaration is a claim which a court can recognize, and if validly made it is prepared to give legal consequences to. AROWOLO v. OLOWOOKERE (2011) 48 N.S.C.Q.R. 70 H3. T And that exemplary damages are punitive in nature, and cannot avail the claimant against the defendant. ONAGORUWA v. IGP (1991) 5 NWLR (PT. 193) 593 @ 649, per Niki Tobi, JSC.
On 6th December 2016, the claimant was requested to reporsed to the issues raised by the defendant in their belated final address, the matter was then stood down for one hour for the claimants to respond, the claimant counsel opted to respond viva voce, shall be in-corporated in this judgment below,.
The Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues as formulated by the defendant and I shall adopt the issues raised by the defendant to holistically address the areas in contention in this suit..
- Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service.
- Whether laid down procedure was followed before claimant’s retirement.
- Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment.
- Whether
