IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED: 5TH APRIL, 2017 SUIT NO: NICN/CA/20/2016
BETWEEN:
PC ITORO FRANK CLAIMANT
AND
BETWEEN:
- INSPECTOR-GENERAL OF POLICE
- ASSIST INSPECTOR-GENERAL
ZONE 6
- CHAIRMAN POLICE SERVICE COMMISSION
- THE COMMISSIONER OF POLICE
CROSS RIVER STATE – DEFENDANTS
- AREA COMMANDER AKIM COMMAND
- i.SGT. SAMUEL AKANG (NOE INSPECTOR)
- CPL CLETUS EKPANDU
iii. BASSEY ETIM
- UDESI NSORTA CPL. &
- ORIM SUNDAY
REPRESENTATION
LOE OKU EKPEYONG for the Claimant
NO APPEARANCE for the defendant
JUDGMRNT
By a complaint dated the 11th day of May 2016, the claimant instituted this action against the defendants and prayed the court for the following reliefs:-
1) A declaration that the prosecution in court and the unlawful stoppage of his salaries, allowances e.t.c are illegal, null and void.
2) An order for the claimant to be allowed to perform back his official duties fully to the Nigeria police Force immediately with all his due promotions, allowances, other benefits and salaries to be paid to the aforesaid claimant from the date of the incident viz August 2010 till date accordingly.
3) General damage of N55,000.000.00 only
4) Written unreserved apology by the defendants to the claimant.
SUMMARY OF FACT
The claimant was appointed as a police officer on the 1st day of May 2003 with force No: 410803, where he served till the date of the incident which gave rise to the institution of this suit.
On the night of 14th day of August 2010, he reported to duty at the Akim Police Area Command, Calabar, where he is attached, booked and was assigned for patrol within Marian Road, Otop Abasi Street, IBB Way, Atekong Street, vis-a-viz Big Qua Town Axis of the Calabar Municipal Council.
He was led by his patrol commander ie the 5th defendant and other police officers during the said night patrol, and was proved to be among this team which responded to the distress call in an alleged incidence of armed robbery attack, whereby escorted the victim to the general Hospital, Mary Slessor Avenue, Calabar.
The following day, which is on the 15th of August 2010, the 5th defendant, in company of 4 other patrol men without any warrant invaded his home at Ikot Ansa Archibong Village, Akpabuyo and carted away with:-
- a)police Uniform
- b)Police Officers ID Card
- c)Boots
- d)Baret
- e)Enlistment document and other documents.
He was subsequently arrested on the 16th and detained at the State C.I.D cell, Diamond Hill Calabar up to 13th January 2011. He was charged to the magistrate court after 6 months. He was later returned to the State C.I.D cell from 13th January 2011 to 5th May 2011 and later put in the ATM Afokang prison on 16th May, 2011. The DPP’s opinion exonerated him of the alleged charge on the ground that the charge lacks merit and was accordingly discharged. All the accused persons charged alongside with the claimant were released, recalled and were paid their financial arrears except the claimant, who though has been discharged is yet to be paid or recalled. As a result of which his wife deserted him, leaving 3 children in his helpless care.
DEFENCE
The defendants after serval adjournments did not enter appearance in this suit hence the claimant was allowed to prove his case, tendered exhibits and filed a written address.
CLAIMANTS WRITTEN ADDRESS
In his written address learned counsel to the claimant formulated 2 issues for determination to wit:-
1) Whether Ab initio the Nigeria Police was clotted with right (unknown in law) to have systematically laid-off, sack, determine appointment, ban, cease etc a serving police officer from office, especially after having been discharged by a court of competent jurisdiction and without any official reason or letters dully served on him.
2) Whether on claimant’s legal action filed in this court and the defendants being continually absent or unrepresented, they are not equally in default of appearance, thus enabling the claimant’s application to this court for judgment against the defendants.
ON ISSUE 1
Learned counsel submitted that there is no law granting the defendants right to determine appointment of the claimant nor resist to re-instate him where a law court has discharged him from a charge before it. Such action tantamount to other contempt of court or contempt exfacie curiae.
He submitted that the claimant is a regular police officer and as such termination of his appointment must be in accordance with the Police Act, his employment, being one with statutory flavor.
He submits further that the claimant was initially prosecuted without compliance with the Police Act, and as such, the court should find and hold issue I in favor of the claimant.
ON ISSUE 2
Counsel submits that they have proved their case knowing that a default judgment has many attributes of a judgment after trial.
COURT
For the just determination of this case, this court has distilled the issue below;
Whether the claims of the claimant succeeds?
For a dismissal or termination of an employment to be fair, an employer must show that such dismissal was for one of six potentially fair reason, namely:-
- i)Conduct of the employee.
- ii) Capability of the employee.
iii) Redundancy (in some cases)
- iv) Breach of a statutory provision or provisions of the contract of employment
- v)Retirement
- vi) Some other substantial reason of a kind such as to justify the dismissal, which may of course include criminal activities of an employee etc.
If an employee is charged with a criminal offence, it is not enough reason why an employee should be dismissed. It is crucial that employers take time to identify and investigate the charges levelled against the employee, and may even suspend the employee in the course of the investigation and place him/her on half salary pending the outcome of the investigation.
Furthermore, as can be seen from this present case, the employment of the claimant is one with statutory flavor, being regulated by the provisions of the Police Act, and when an employment has a statutory flavor, its conditions of service are provided for and protected by statute or regulations made thereunder where the contract of employment is governed by the provisions of a statute or where the conditions are derived from statutory provisions, it invests the employee with a legal status than the ordinary one of master and servant see BALOGUN VS UNIVERSITY OF ABUJA [2002] 13 NWLR (PT. 783) 42 AT 53 A, C-H, 62 PARAS D-G where such a person, is to be disciplined, or his employment terminated, the procedure laid down by the applicable statute must be fully complied with. See the case of ALHASSAN VS A.B.U. ZARIA [2011] 11 NWLR (PT. 1259) 417 CA.
In the instant case, the claimant was accused of armed robbery, was sent to prison, and was charged before a magistrate court who discharged him of the alleged crime based on the recommendation of the Director of Public Prosecutions, Ministry of Justice Calabar to the fact that the charge sheet does not contain credible evidence to prosecute the claimant.
It however follows that since he has been discharged of the alleged crime, he (the claimant) is ordinarily entitled to be re-instated to his employment and at the exact status to which he was, prior to the wrongful dismissal and I so hold .
Consequently, and for all the reasons given above, the issue formulated above succeeds in part to the extent that
1) Claim 1 Succeeds in part, This Court declares that the stoppage of the Claimant’s salaries, allowances e.t.c are illegal, null and void.
2) Claim 2 succeeds in its entirety, same is hereby ordered, since the claimant has been discharged of the offences levelled against him by a court of competent jurisdiction.
3) Claims 3 and 4 fails, for lacking in merit as same was not adequately proved.
Judgment is entered accordingly.
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HON. JUSTICE M.N ESOWE
Presiding Judge Calabar Division
