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National Industrial Court

Mrs. Omoseebi – Oladipo Elizabeth -VS- Ondo State Judicial Service

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE: 4TH DECEMBER, 2018                  SUIT NO. NICN/AK/38/2017

BETWEEN

MRS OMOSEEBI-OLADIPO ELIZABETH………………  CLAIMANT

AND

  1. ONDO STATE JUDICIAL SERVICE COMMISSION
  2. HON. CHIEF JUDGE, ONDO STATE           ……….………..DEFENDANTS

 

REPRESENTATIONS

O.F Umar with him are I.J. Ifedayo, F.A Ifedayo, PraiseKehindeIgeEsq for the claimant

Bode Ayegbusi Assistant Chief Legal Officer Ondo State Ministry of Justice, with him are DFA Omoloye, F.O Ayegbusi (ACLO), A.A Adeyemi (ACLO), G.R Adebiyi Principal Legal Officer, TemitopeAyegbusi (Mrs) (PLO), O.K Adewole for the defendants

 

JUDGMENT

By a General form of complaintdated 5th of December, 2017 the claimant claims against the defendants as follows;

  1. A Declaration that the defendants have no legal or moral right or justification for issuing the Letter of Suspension dated the 14th September, 2017, and the subsequent Letter of Reinstatement dated the 8th November, 2017, more particularly when the claimant has not done anything to warrant such suspension and the demotion.
  2. A Declaration that Letter of Reinstatement dated the 8th November, 2017, as the effect of demotion on the claimant’s career progression same having been issued without justification or without any act of misconduct on the part of the claimant.
  3. A Declaration that letter of suspension dated the 14th September, 2017 and the subsequent letter of Reinstatement dated the 8th November, 2017, without giving the claimant a chance to be heard or give explanation is illegal, unconstitutional and amounts to a clear violent [SIC] violation of the claimant’s fundamental rights to fair hearing.
  4. An Order setting aside Letter of Suspension dated 14th September, 2017 and Letter of Reinstatement dated the 8th November, 2017 for being incompetent, wrongful, intended to intimidate, humiliate the claimant, ultra-vires the powers of the defendants and therefore null and void.
  5. An Order of this Honourable Court reinstating the claimant to her position as a Chief Magistrate Grade II, Grade Level 15 Step 3, in the Ondo State Judiciary with immediate effect or position shall be entitled to upon final determination of this suit.
  6. The sum of N1,545,534.41 special damages being claimant’s seven months salary arrears deprived her as follows:
1. October, 2016 at Grade Level 14.4 N159,954.22
2. November, 2016 at Grade Level 14.4 N159,954.22
3. December, 2016 at Grade Level 14.4 N159,954.22
4. January, 2017 at Grade Level 15.3 N213,9134.35
5. February, 2017 at Grade Level 15.3 N213,9134.35
6. September, 2017 at Grade Level 15.3 N213,9134.35
7. October, 2017 at Grade Level 15.3 N213,9134.35
8. November, 2017 at Grade Level 15.3 N213,9134.35
  TOTAL N1,545,534.41

 

  1. The sum of N154,070.62 special damages being claimant’s unpaid balance of her 2017 outfit allowance.
  2. The sum of N100,000,000.00 aggravated and general damages against the defendants for inconveniences, embarrassment and psychological trauma caused the claimant by the defendants.
  3. Cost of filing this suit.

The claimant in this suit was first appointed into the Ondo State Local Government Service Commission in 2007 and was posted to Akure South Local Government Area as Higher Executive Officer by a letter of Appointment dated 12th March, 2007 and the appointment confirmed via a letter dated 29th April, 2009. That she was converted to Legal Officer Cadre as Senior Legal Officer, Grade Level 10 by a letter of 17th December, 2009 following the establishment of Legal Departments in all Local Government Areas of Ondo State and that her Grade Level was regularized to Grade Level 12 by a letter of 15th March, 2011, she was promoted to GL 13 through a letter of 20th December, 2012. That she applied in 2013 for transfer of her service to Ondo State Judicial Service and the appointment was finally transferred following due process as required under the Ondo State Civil Service Rules as a Principal Registrar II GL 13 by a letter dated 2nd May, 2014, also that she was promoted to Principal Registrar I GL14 via letter dated 10th February, 2016. Subsequently, she applied and was appointed as a Chief Magistrate by a letter dated 17th January, 2017 but received a letter of Suspension dated 14th September, 2017 due to perceived irregularities in her appointment as Magistrate and that her salaries, allowances, imprest, outfit allowance and other perquisites attached to her office were denied her while the suspension was on. She further stated that after Pre-action Notice to the defendants, she received letter of Reinstatement to Registrar Cadre as the defendants claimed that she was never interviewed nor confirmed as a Magistrate.

It is her further testimony that her suspension and the subsequent demotion as a Chief Magistrate II (GL 15.3 to Registrar Cadre (GL. 10.1)  without due process and without having committed any misconduct, is a breach of her fundamental rights to fair hearing. She also stated that she was paid the sum of N84,514.94 as outfit allowance for 2017 but was short-changed in the sum of N154,070.62, her outfit allowance for GL15.3 being 60% of her basic salary in the total sum of N238,585.56.

In the consequential amended statement of defence filed on the 28th March, 2018, the defendants admitted that the claimant transferred her service from Ondo State Local Government Service Commission to Ondo State Judicial Service as Principal Registrar II in 2014 and was only promoted to the post of Principal Registrar I in 2016. It was stated further that the 1st defendant did not advertise any vacancy in the Magistrate Cadre on any Notice Board or any medium whatsoever and did not receive any application from the claimant to be considered at any of its plenary session for appointment as a Chief Magistrate, hence, the 1stdefendant was not in the know of the appointment of the claimant at the time of her purported appointment vide appointment letter dated 17th January, 2017, also that the letter was issued without the knowledge, consent, directives of the 1st defendant, moreso, that the claimant was not invited by the 1st defendant for any interview whether oral or written prior to her purported appointment as a Chief Magistrate. Furthermore, the defendants stated that the Secretary to the 1st defendant who signed the claimant’s letter of appointment in question, is not a member of the 1st defendant and that his power, functions and routine duties do not include power to appoint Senior officers to GL 15 or as Magistrate. The defendants continued that the suspension letter issued to the claimant was to allow the 1stdefendant look into the circumstances surrounding the purported appointment of the claimant as a Chief Magistrate, also that other officers suspended alongside the claimant for same allegation were not paid their salaries and other entitlements. It was also posited that the claimant was reverted back to the Registrar Cadre upon discovering the abnormality and irregularity in her appointment as a Chief Magistrate, that the reversal conforms with the condition of the transfer of her service to the Judicial Service of Ondo State and not in violation of her right to fair hearing or any right whatsoever. Also that the 1stdefendant is at liberty to solely determine the issue on irregularity in the claimant’s appointment without hearing from her and that her letter of suspension was not a constructive termination/dismissal as a Magistrate as she was not appointed by the 1st defendant as a Magistrate nor the appointment approved by same.

The defendants stated in response to paragraphs 42 and 43 of the statement of facts, that all Ondo State Government workers were being owed arrears of salaries and allowances from August to December, 2016 and January, 2017 due to the economic downtown experienced in the State during the period and furthermore that between October and December, 2016, the claimant was still in her position as a Registrar and not as a Magistrate and was not entitled to the salary, allowance and other financial entitlements of Chief Magistrate as claimed. It was stated that all arrears of salary from August to October, 2016 that were paid to the claimant’s colleagues in the Registrar cadre were equally paid to her, also that she was paid salaries for September – December, 2017 as Registrar and that the duty is on her to complain to the 1st defendant any wrong placement on Grade level and subsequent reduction in salary following her reinstatement as other affected staff did. They went on to state that the purported arrears of salary, allowances and other entitlements between January and September, 2017 when the claimant acted as Chief Magistrate is illegal, unlawful and recoverable from her as her appointment and right to those facilities were not procured by due process of law.

Whereof the defendants urged the Court to dismiss the claimant’s case with substantial cost.

By way of counter-claim, the defendants claimed against the claimant as follows:

  1. A Declaration that the letter titled – “Letter of Appointment as Magistrate” dated 17th January, 2017 addressed to the claimant as a Chief Magistrate Grade II by one Chief Z.D. Egbunu without the knowledge, consent, authority, approval and directive of the 1st defendant/counter claimant is illegal, unlawful, null and of no effect whatsoever.
  2. A Declaration that all payments of monthly salaries, allowances and imprests to the claimant as Chief Magistrate from 17th January – August, 2017 is illegal, unlawful, and recoverable from the claimant as her appointment and right to these facilities were not procured by due process of the law.
  3. An Order directing and/or mandating the claimant to refund and pay to the 1st defendant/counter-claimant all monthly salaries, allowances and imprests unlawfully received by the claimant from January to August, 2017 as her appointment and right to these facilities was not procured by the due process of the law.
  4. An Order of Perpetual Injunction restraining the claimant from acting on the letter of appointment dated 17th of January, 2017, addressed to the claimant as Chief Magistrate Grade II with effect from 17th January, 2017 by one Chief Z.D. Egbunu, same having been written without the knowledge, consent, authority and directive of the 1st defendant/counter-claimant.

The Claimant during trial testified for herself as CW, she adopted her statement on oath as her evidence in this case; she sought to tender some documents which were admitted in evidence by the Court and marked Exhibits OE- OE13. The defendants during trial testified through one Williams AdebisiDaomi, as DW. He adopted his statement on oath as his evidence in this case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits W-W6.

The defendants raised four issues for the determination of this suit in their final written address filed on the 5th June, 2018, viz:

  1. Whether the purported appointment of the claimant as Chief Magistrate vide a Letter of Appointment dated 17th January, 2017 signed by one Chief Z.D. Egbunu without recourse to due process of Law is valid.

 

  1. Whether the purported Appointment of the claimant as a Chief Magistrate in the Service of the 1st Defendant vide a letter of Appointment dated 17th January, 2017 without the approval, consent and authorisation of the 1st Defendant is valid.

 

  1. Whether the suspension of the claimant vide a Letter of Suspension dated 14th of September, 2017 and Reinstatement of the claimant to the Registrar Cadre of the 1st Defendant was valid and in accordance with extant Ondo State Judicial Commission Laws and Regulations and Ondo State Civil Service Laws and Regulations.

 

  1. Whether the claimant is entitled to Salaries, Allowances, Imprests and other Perquisite of Office as Chief Magistrate Grade II, Grade Level 15, having acted as such without the Approval, Consent and authorisation of the 1st Defendant.

In addressingwhether the purported appointment of the claimant as Chief Magistrate vide a Letter of Appointment dated 17th January, 2017 signed by one Chief Z.D. Egbunu without recourse to due process of Law is valid, learned counsel to the defendants urged the Court to hold that the appointment was invalid as the 1st defendant is the only body responsible for the appointment, dismissal and exercise of disciplinary control over the senior staff of the Commission. Counsel relied onSection 4 (d) of the Ondo State Judicial Service Commission Law, Cap 70, Volume 2, Laws of Ondo State of Nigeria. Counsel went further and argued that the issue of appointment of the claimant as Magistrate was not on the agenda and nothing related to the appointment was ever discussed in Exhibit W1. It is submitted that the claimant admitted under cross examination that Chief Z.D. Egbunuwho signed the appointment letter in question is not a member of the 1stdefendant and that the claimant has not proved that he signed the said letter on the authority or directive of the 1st defendant. In furtherance of his argument, counsel posited that in law, the best evidence in proof or disproof of fact is the document, where same is duly pleaded and tendered in evidence while he commended to Court the cases of S.S. GMBH v. T.D. Industries Limited [2010] 11 NWLR (Pt. 1206) 589 at 596; Atanda v. Ifelagba [2003] 17 NWLR (Pt. 849) 274; Emeje v. Positive [2010] 1 NWLR (Pt. 1174) 48 at 56. It is contended that the claimant did not do or follow any of the procedures stated in Regulations 12 – 17 of the Ondo State Judicial ServiceCommission Law and Regulationsbefore the letter of appointment as Chief Magistrate dated 17th of January, 2017 was purportedly issued to her as there is no evidence or record that established same.

It is also submitted that the claimant has not discharged the evidential burden of proof on her as to be entitled to the reliefs sought in this case, that other than pleading her purported Letter of Appointment dated 17th January, 2017, she did not in any way plead her Conditions of Service with the 1st defendant and neither did she adduce any evidence before the Court on non-compliance with the Terms and Conditions of Service throughout the trial of this case as the law requires.See Ojoh v. Kamalu[2005] 18 NWLR (Pt. 958) Pg. 523 at 565 paras F– G; Ayanru v. Mandilas Ltd. [2007] 10 NWLR (Pt.1043) Pg 462 @ 485 para B-C.

On issue two, counsel urged the Court to discountenance the testimony of the claimant that she was interviewed early January, 2017 in the office of the 1st defendant by Chief Z.D. Egbunu as she did not state the time of the interview neither did she substantiate or show any proof of her interview by the 1st defendant and equally urged the Court to hold that the laid down statutory procedure was not followed in the appointment of the claimant as Chief Magistrate in the Service of the 1st defendant and resolve this issue in favour of the defendants in this case.

In regard to issue three, it is the submission of counsel that the 1stdefendant acted pursuant to the law by suspending the claimant without pay, though she was not alleged of any misconduct by the 1st defendant but that the circumstance of her appointment as Chief Magistrate necessitated the Suspension. It is further submitted that Disciplinary procedure provided for in the Judicial Service Commission Regulations only applies to a situation of an alleged misconduct of an Officer in the course of discharging his or her duties and does not relate to issues arising from the procedure for the appointment of an Officer as it is in the instant case. To lend support to the action of the 1st defendant in respect of the suspension, the cases of Lewis v. Heffer [1978]3 All ER 354 at 364 and National Union of Chemical and Non-Metallic Products Workers v. Delta Glass Company Limited (Digest of Judgments of National Industrial Court) page 254were commended to the Court. Counsel also contended that the claimant is not entitled to any pay as salary or other perquisite of the office of a Magistrate during the period of her suspension. The provisions of Regulation 49 (2) of the Ondo State Civil Service Commission Regulations was relied upon.

Another submission of counsel is that the reinstatement of the claimant back to the Cadre and Grade Level she was before 2017 was valid and lawful as it was upon the findings of the 1stdefendant on her appointment as Chief Magistrate that she was reinstated back to the Registrar Cadre and the Grade Level that she was before her appointment as Chief Magistrate. Reference was made to Exhibits OE11 and W6. Counsel therefore urged theCourt to so hold.

On issue four, counsel argued that the claimant is not entitled to the salaries, allowances, imprests and other pecuniary benefits of office as Chief Magistrate Grade II, Grade Level 15 having acted as such without the approval, consent or authorization of the 1stdefendant, rather, that the defendants are entitled to receive from the Claimant all the salaries, allowances, imprests and other pecuniary benefits (January – August, 2017) paid to her during the period she held sway as Chief Magistrate as they were procured without due process of Law since it is trite that a party will not be allowed to take benefit from a wrong. See Agbareh v. Mimra [2008] 2 NWLR (Pt. 1071) 378 at 438-439 (SC); Adetoro v. U.B.N. Plc. [2007] ALL FWLR (Pt. 396) 590 at 626 PARA E; P. 628, (CA);.Also that the Court will not order further payment of salary or other financial benefits to be made to an employee under an offending circumstance. See also Agricultural and Allied Workers Union of Nigeria v. Benue State Agricultural and Rural Development Authority(Digest of Judgments of National Industrial Courts) Page 297.

On the whole, learned counsel urged the Court to uphold his argument and dismiss the case of the claimant for being frivolous and gold digging and, grant the Counter-Claim.

The claimant on the other hand framed three issues in her final written address filed on the 3rd of July, 2018, which include:

  1. Whether the claimant’s suspension and subsequent decision of the defendants declaring her office vacant is not a termination of claimant’s appointment.
  2. Whether the termination of the claimant’s appointment is not wrongful.
  3. Whether the letter of reinstatement is not a letter of demotion.

In arguing the 1st issue, claimant’s learned counsel submitted that as suspension is not a demotion and does not entail a diminution of rank, office or position, it cannot import a diminution of the rights of the employee given to him under the law. While buttressing this position with the case of Bernard OjeifoLonge v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 SC, learned counsel further contended that since the claimant cannot be reinstated to her position as a Chief Magistrate in the Ondo State Judiciary, it thus means a termination of her appointment. In the circumstances, the Court was urged to resolve this issue in favour of the claimant.

On issue two, Counsel argued that “perceived irregularities” does not qualify for a reason upon which the claimant could be suspended and her office subsequently declared vacant thereby technically terminating her appointment as a Chief Magistrate as there are rules and regulations that must be followed for punishing any erring staff(Rule 04102 of the Ondo State Civil Service Rules and Regulation 43 of Judicial Service Commission).Counsel went on to contend that though Exhibit W1 was tendered and admitted in evidence, without more, it does not ipso facto amount to proof that its contents are valid and correct.The judicial authoritiesofOlarenwaju v. Governor, Oyo State [1992] 9 NWLR (Pt. 265) 335 at 366 paras H and Aromolaran v. Kupoluyi [1994] 2 NWLR (Pt. 325) 221 at 244 paras F-G were relied upon. As to the argument that the claimant did not follow the laid down procedure by attaching the documents referred to in paragraph 4.16 of defendants’ written address, it is the submission of counsel that the provisions do not apply to the claimant in the instant case, that the appropriate provisions is as contained in Ondo State Civil Service Rules which had to do with inter-ministerial transfer and not to the claimant who has been in the employ of the 1stdefendant (Rules 02601 and 02602 refers). On the other hand, counsel posited that the claimant does not need to present all the said requirement as same have been with the defendants. In regard to the contention that the claimant did not plead her conditions of service, counsel stated that the rules and regulations are part of the terms and conditions of the employee’s employment which gives it statutory flavour and also called on the Court to take judicial notice of its own record. Reliance was equally placed on the case of Engr. Godfrey Eze v. Nigerian Airspace Management Agency & 2 Ors [2016] LPELR 41453 CA at 27-29, paras E-A. On the whole, the Court was urged to hold that the claimant’s appointment was terminated wrongly.

In addressing issue three, counsel referred the Court to the case of Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (Pt. 1189) 1 SC and submitted that the letter of reinstatement back to Registrar cadre is actually a letter of demotion in rank of the claimant. It is also submitted that the defendants’ conducts smack off impunity and without regards to the claimant’s right to fair hearing and that the Court should not allow it stand in the circumstances.

On issue four, it is the position of counsel that the defendants cannot claim for refund of salaries paid to the claimant while she discharged her duties as a Chief Magistrate.

From the foregoing, learned counsel urged the Court to discountenance the defendants’ submissions and grant the claimant’s reliefs for payment of her benefits.

In reply on points of law to the claimant’s issue 1, defendants’ counsel stated that it is only where the right of an employee is conferred or donated by law that such right cannot be reduced but where it is not obtained by due process, it is opened to the employer to adopt a fair procedure in dealing with the employee as it isdone in the instant case. It is further contended that the claimant whose appointment as Chief Magistrate never followed due statutory procedure, cannot lay claim to any right or complain of infringement as the right of an employee must flow from the law for it to be exercisable by the employee. In case it is held that the appointment of the claimant is in accordance with laid down procedure, it is submitted that the claimant’s suspension is valid and in exercise of the power of 1st defendant.

It is stated that the case of Olanrewaju v. Governor, Oyo State (supra) cited by the claimant is distinguishable from the instant case. Again, the argument that Exhibit W1 cannot be relied on, is said to be baseless and an attempt at creating mischief as same is a public document which can be tendered by any public officer in whose custody the document is, including counsel from the bar, also that there is no evidence to contradict the contents and that it was validly certified as a true copy. Counsel submitted that the case of Longe v. FBN Plc (supra) cited by the claimant’s counsel is misplaced and same cannot avail her in the instant case. As a result of the above submissions, it is submitted that the Court should discountenance the argument of the claimant.

I have gone through the claimant’s claims and the accompanying documents; the defendants’ statement of defence and accompanying documents, oral evidence of witnesses before this Court as well as watched their demeanor, and the case law authorities cited in support of parties argument before the Court. It is in the calm view of the Court that the issues that best determine the suit are;

  1. Whether or not the claimant’s suspension is unlawful
  2. Whether or not she has proven her claims to entitled to same
  3. Whether or not the defendant/counterclaimant are entitled to their reliefs.

Regarding issue one, it is claimant contention that the defendants have no legal or moral right or justification for issuing the Letter of Suspension dated the 14th September, 2017 and that the issuance of the letter of suspension dated the 14th September, 2017 without giving the claimant a chance to be heard or give explanation is unlawful, illegal, unconstitutional and ought to be set aside by this Court. The defendants by paragraphs 12, 30 and 32 of their amended statement of defence, pleaded that the suspension letter issued to the claimant was regular and not vindictive as it was to allow the 1st defendant examine appropriately into the circumstances clouding the appointment of the claimant as a Chief Magistrate in the Ondo State Judicial Service.

The nature of claimant’s employment is not in contention in this case. This is so in the light of claimant’s testimony under cross-examination, where shestated that her employment is governed by the Judicial Service Commission Law Cap. 70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; The Judicial Service Commission Regulations Cap 70 Vol. 2, The Laws of Ondo State of Nigeria, 2006; Civil Service Commission Law Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006 and Civil Service Commission Regulation Cap.31, Vol 1, The Laws of Ondo State of Nigeria, 2006.The defendants are in absolute agreement with the above position of the claimant. They actually tendered all these laws in support of their defence.

It is also appropriate to give a precise gist of this suit. The claimant was on the 12th of March, 2007 offered a temporary appointment by the Local Government Service Commission as Higher Executive Officer (GD), the appointment was confirmed on the 29th of April, 2009 (Exhibit OE2). She rose through various positions. On the 2nd of May, 2014 her service was transferred to the Ondo State Judicial Service Commission as Principal Registrar II grade level 13 with effect from 1st of May, 2014 (Exhibit OE5). She was promoted to the position of Principal Registrar I Grade Level 14 on the 10th of February, 2016 (Exhibit OE4). On the 17th of January, 2017 she was appointed as a Chief Magistrate grade II Grade Level 15 (OE7). She was suspended on the 14thof September, 2017 (Exhibit OE8) and subsequently reinstated to her erstwhile position of Principal Registrar I Grade Level 14, a position she occupied prior to being a Chief Magistrate grade II Grade Level 15(Exhibit OE 11 and W6). The defendants are in consensus ad idem with the employment of the claimant into its Commission save for the mode of her appointment as Chief Magistrate grade II grade level 15 and it was upon that basis that she was suspended on the 14th of September, 2017, to enable them enquire into the procedure leading to that appointment.It is the law of common that an employer has inherent authority and right to discipline its employees or to make enquiries about any issue bordering on the contract of the employee in other toensure orderliness in the organization and such disciplinary actions include but not limited to issuing of queries, warning, suspension, interdiction, termination and dismissal. See the cases of Faturoti v University of Lagos [2016] 65 NLLR (Pt. 233) 783 NIC; Mr. TorkumaAbunku v Benue State Government & 6 Ors [2016] 65 NLLR (Pt 232) 613.. The Court of appeal in the case of Udemah v. Nig. Coal Corp. [1991] 3 NWLR (Pt. 180) 477 CA; held that an employer has the right to suspend an employee for the purpose of investigation/enquiry or disciplinary action. The case went on that in doing that, the employer must comply with any existing regulation governing such action.See Mr. BenardOjeifoLonge v First Bank of Nigeria Plc [2006] LPELR 7682 CA;See also the cases of National Judicial Council &Ors v Hon Justice JubrilBabajideAledejana&Ors [2014] LPELR 24134 CA; INEC v Chukwuka C. Okoronkwo [2009] LPELR 4321 CA. The legal consequence of suspension is determinable from the terms of employment in that suspension must be in accordance with the dictates of the condition governing the employment as stated earlier in this judgment. What I can glean from the Ondo State Judicial Service Commission Law and Regulations supraparticularly at Regulation 4 (d)discloses that the 1st defendant has powers to discipline its employees. The law vests the 1st defendant with power to “appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, magistrates, presidents and members of customary Courts and all members of the staff of the judicial service of the state not mentioned in the Constitution.” Also worthy of mention is Items 5 & 6 of Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) empowers the state judicial service commission at item 6 (c) “to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal, magistrates, judges and members of Area Courts and customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.” (underlinemine for emphasis).It therefore accords with the position of the law to find and hold that the 1stdefendant can suspend its employees, in this case the claimant when necessary and this cannot amount to a breach of the employee’s fundamental right under the Constitution. In Longe v. FBN Plc (supra) held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also the case of Ayewa v Unijos [2000] 6NWLR (Pt. 659) 142. It is consequent upon this that I find that claimant’s suspension was not unlawful. Accordingly, claimant’s reliefs 1, 3 and 4 in respect of suspension is discountenanced. I so find and hold.

As regards issue two, it is the claimant’s claim that the letter of reinstatement dated the 8th November, 2017 as (sic) the effect of demotion on the claimant’s career progression same having been issued without justification or without any act of misconduct on the part of the claimant and to that effect, she is entitled to her position as a Chief Magistrate Grade II, Grade Level 15 Step 3, in the Ondo State Judiciary with immediate effect.The defendants on the other hand stated that the purported appointment of the claimant as Chief Magistrate vide a Letter of Appointment dated 17th January, 2017 signed by one Chief Z.D. Egbunu without recourse to due process of Law is invalid as the 1st defendant is the only body responsible for the appointment, dismissal and exercise of disciplinary control over the senior staff of the Commission. The golden rule in civil proceedings is that he who asserts must prove, the onerous task of proving the claimant’s case is on the claimant to substantiate her claims before the Court with credible evidence. In taking up this task, the claimant tendered before the Court her letter of appointment as a Magistrate and judicial oath i.e. exhibit OE7. The content of which is hereunder captured thus-

“The Plenary Session of the Judicial Service Commission of January, 17, 2017 has approved your appointment as Chief Magistrate Grade II GL 15 notionally with effect from January, 1 2017. Please accept my congratulations”.

The position of the claimant is that her appointment was valid having been made at the plenary of the 1st defendant and same issued and signed by the then Secretary of the 1st defendant. However, the defendants’ contention is that the plenary session of the 1st defendant on the 17th January, 2017 never discussed not to talk of appointing the claimant as a Magistrate. In prove of this assertion, the defendants tendered the minutes of the plenary meeting of Ondo State Judicial Service Commission held on Thursday, 17th January 2017 at the Chief Judges conference Room, High Court of Justice Akure, and was admitted as exhibit W1. I took my time to carefully peruse this document page by page, line by line, text by text, front to back, but found no single part therein where the appointment of the claimant as a Magistrate was discussed or approved. Claimant equally failed to call or subpoenaed the officer who issued that letter to testify in prove of her position. It is germane to state that the learned claimant’s counsel in his submission at paragraph 3.14 of the final written address that exhibit W1, i.e the minutes of the plenary meeting of the 1st defendant dated 17th January, 2017, cannot be relied upon as same was doctored to favour the case of the defendants. His grouse is that DW who tendered the document was not at the meeting;that the said Egbunu was the Secretary of the 1st defendant before he retired. In their response the defendants submitted that the claimant’s counsel argument is baseless and that exhibit W1 is a Public document which can be tendered by any public Officer in whose custody the document is; that the claimant failed to adduce evidence to contradict the content of exhibit W1 and that the document was validly certified as the minutes of the plenary meeting of the 1st defendant dated 17th January, 2017. I agree with the submission of the learned defence counsel respecting exhibit W1 in totality. This is because the document as rightly argued is a public document emanating from the proper custody who is DW the current Secretary of the 1st defendant, it was certified in accordance with the law and the claimant failed to impeach its content by any contrary evidence. Learned counsel also could not profer evidence to show how exhibit W1 was doctored. By merely stating that a document was doctored without any evidence in prove of how same was doctored cannot vitiate the admissibility of such document. It is in the light of this that I discountenance with the objection of the claimant against exhibit W1 and hold same to be valid and still forms part of the record of this Court. I have reasoned supra that an indepth perusal of exhibit W1 reveals that there was no consideration of, or approval of claimant’s appointment to the position of a Chef Magistrate 11 and no such pronouncement or appointment was made. One then wonders where the said Chief Egbunu obtained the approval or directive or authority to issue such appointment letter to the claimant. Consequently, I find that the letter of appointment of the claimant to the position of Chief Magistrate 11 GL 15 is questionable. I so find and hold.

Next, is the effect of the letter of claimant’s reinstatement to the position of Principal Registrar as opposed to her position as a Chief Magistrate 11 GL15? The task of proving the above question rests solely on the claimant as stated earlier in this judgment. See the cases ofFidelity Bank Plc v. Petroleum Special Trust Fund &ors [2012] LPELR -7928 CA; UBA Plc v Chief C.E Ubokulo [2009] LPELR 8923 CA; AbiodunAgetu& Anor v. Chief Lawson Akinboye& Anor [2012] LPELR 9749 CA. The claimant has to canvass unimpeachable evidence to convince me that she was considered for appointment as a Chief Magistrate 11 having satisfied the condition precedent for her appointment at the plenary of the 1st defendant on the date mentioned in exhibit OE7. She has to prove that Part IV of the Ondo State Judicial Service Commission Law and Regulations Cap. 70, Vol. 2, Laws of Ondo State of Nigeria, 2006 particularly at Regulations 12, 13 and 16which provides for the Appointment of Judicial Officers was followed. For ease of reference I reproduce same thus.

“12; the Commission shall exercise supervision over and approve all methods of selection for appointment to the offices to which this part of these Regulations applies including the procedure of any Selection Board that may be constituted.

13 (1); where vacancies are not to be filled solely by persons already in the service of the Judiciary, the public shall, unless the Commission otherwise directs, be informed by advertisement of the existence of such vacancies in time to enable candidates to make their applications.

(2)The Commission shall accord to the claims of meritorious officers in the Judiciary of the State to fill vacancies precedence over any comparable claims of the State unless the Commission otherwise directs in any particular case

  1. The following provisions shall apply to the filling of a vacancy in an office to which this part of these Regulations applies;
  2. As soon as it is known that a vacancy will occur or has occurred in the relevant office, the Chief Registrar shall on the direction of the Chief Judge communicate to the Commission in writing proposals regarding the filing of the vacancy. Such proposals shall indicate the methods to be employed in filling the vacancy and whether or not the vacancy should be advertised and if so, the recommended means of advertisement if other than publication in the Gazette of the various Governments of the Federation of Nigeria. Where necessary the Chief Registrar shall submit with proposals a draft advertisement. Where it is proposed that the Vacancy should be filled by promotion within the judiciary or by transfer or secondment within the Judiciary, the recommendation to that effect in accordance with these Regulations in respect of a named person may be included in the proposal or made separately;
  3. The Commission shall decide whether or not a vacancy shall be advertised and if the Commission decides that the vacancy shall be advertised, it shall arrange for the publication of the advertisement;
  4. where a vacancy is advertised, the Commission may direct that a short list be prepared and submitted to the Commission for consideration.”

It is noteworthy that there is nothing to infer that the procedure listed out on the Appointment of Judicial Officers vide Part IV of the Ondo State Judicial Service Commission Law and Regulationswas followed, rather what is before the Court as tendered by the claimant, is that by Exhibit OE7, she was appointed a Chief Magistrate grade II Grade level 15 at a plenary of the 1st defendant held on the 17th of January, 2017. This the Court has found supra to be otherwise, as held supra, contrary to the claimant’s position that the 1st defendant appointment her as a Chief Magistrate 11 GL15 at its plenary of 17th January, 2017, the plenary of the 1st defendant on the 17th January, 2017 did not discuss or appoint the claimant as a Chief Magistrate 11 on the stated date. An important question that begs for an answer at this stage is, under whose authority or instruction wasExhbit OE7,issued and signed by the said Chief Z.D. Egbunu who was at the material time the Secretary of the 1stdefendant? It is the position of the defendants that the said letter was issued by Chief Z.D. Egbunu without the 1st defendant’s lawful authority and consent. The general rule is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal.See GTB v. Yunana Solomon [2016] LPELR-40342CA; and FGN & ORS v. Shobu Nigeria Ltd & Anor [2013]LPELR-21457. The key words here is the “agent must act within the scope of his authority” [Underline is mine]. Will it be right to hold that the said Chief Egbunu acted within the scope of his authority for the 1st defendant in issuing the appointment letter to the claimant? An unequivocal answer to this is in the negative, this is in view of the fact that he acted outside of his function under Sections 4 and 5 of the JSC Regulations. This is because the plenary session where the claimant’s appointment was allegedly approved did not discuss or approve such appointment, contrary to claimant’s claim.

Also on record is a document purported to bethe Judicial Oath of office of the claimant which was allegedly signedby the retired Chief Judge of Ondo State. A cursory look at the document depicts that it is a photocopy of a public document however, it was not certified in accordance with the provisions of Sections 104 and 105 of the Evidence Act, 2011. In effect it fails the required test of the probative value to be attached thereof having already been admitted on record by this Court. It is the law that in the pyramid of our adjectival jurisprudence, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. This is because admissibility and the weight to be attached to the document admitted are two different things. See the cases ofDawodu v Stanbic IBTC Bank Plc [2016] 66 NLLR (Pt. 236) 372;Ayeni v Dada [1978] 3 SC 35; Omega Bank (Nig) PLC V O.B.C Ltd [2005] 8 NWLR (Pt 928) 547.It is on this premise that I find that the document before this Court is bereft or lacking in probative value in the determination of this suit, it is a mere piece of paper and consequently, I expunge this document from the record. I also find and hold that the said Chief Egbunu did not act within the scope of his authority in issuing exhibit OE7 to the claimant. Consequent upon which I find from all stated in this judgment that the claimant has failed to prove that she was appointed as a Chief Magistrate 11. I so hold.

It is observed that learned claimant’s counsel was speaking through the two sides of his mouth, when in a breath he submitted that the Court should hold that the termination of claimant’s employment was wrongful and in another breath he urged the Court to hold that reinstatement of the claimant was termination. I need to state here that there is a difference between wrongful termination and reinstatement. Termination is said to be wrongful where the Court finds that in common law employment the employer breached the terms of employment, then such a simple contractual employment would be held to be wrongfully terminated. Reinstatement on the other hand is not synonymous with termination. They are two worlds apart. Reinstatement in labour law is when a Court finds that an employment with statutory flavor has been unlawfully terminated/dismissed, then the Court may in the circumstances of each case order for reinstatement. Therefore, reinstatement as a restorative order of Court cannot be akin to termination. Reinstatement as espouse in litany of case law authorities is to put back or restore back to the status quo, to the position an employee was before his or her termination.Having said that, it is obvious that the claimant’s appointment was not terminated by the defendants rather by Exhibits OE11 and W6 she was reinstated back to the Registrar cadre as Principal Registrar 1 GL 14, the position she was before her purported appointment as a Chief Magistrate 11. An important question to ask is can she be reverted to the Registrar cadre? I have held supra that the claimant has failed to prove that she was appointed as a Chief Magistrate 11, the import of this is that her appointment as a Principal Registrar 1 GL 14 vide exhibit OE 4 dated 10th February, 2016 still subsists.She would want the Court to hold that her appointment as Chief Magistrate is valid and exists, this she has not been able to substantiate. Her failure to call or subpoenaed the said Chief Egbunu who issued exhibit OE7 appointing her as a Chief Magistrate 11 GL15, is fatal to her claim. Therefore, having failed to prove her reliefs B and D, it thus goes without saying that claimant’s reliefs B and D must fail, they are discountenanced and thus dismissed. I so hold.

The claimant also claims special damages in the sum of N1,545,534.41being her seven months’ salary arrears for the period of October – December, 2016 and January, February, September, October November, 2017. She also claims as special damages the sum of N154,070.62 being the unpaid balance of her 2017 outfit allowance. The defendants argued that all arrears of salary from August to October, 2016 were paid to the claimant in the Registrar cadre, also that she was paid salaries for September – December, 2017 as Registrar. They contended that the purported arrears of salary, allowances and other entitlements between January and September, 2017 when the claimant acted as Chief Magistrate is illegal, unlawful and recoverable from her as her appointment and right to those facilities were not procured by due process of law.

The law is trite that special damages are damages which the law does not infer from the nature of an act but they are exceptional in character. Special damages denote those pecuniary losses which have crystallized in terms of cash and value before trial. It is the kind of damages which though based on discretion of the trial Court; such must be backed up by credible evidence adduced before the trial Court which strictly proves the claimant entitlement to such an award. It is therefore settled that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without such proof, no special damages can be awarded. See the cases of Union Bank of Nigeria Plc v Alhaji Adams Ajabule&anor [2011] LPELR 8239 SC; Ahmed v CBN[2012] LPELR 9341 SC; British Airways v Mr. P.O Atoyebi [2014] LPELR 23120 SC; Zenith Bank Plc v AlhajiTitilayo [2015] LPELR 24782 CA. The claimant by Exhibit OE12 tendered her pay slips for the period of April- October, 2016, (when she was still on the Registrar cadre) a keen perusal of the documents discloses that the claimant for the month of October, 2016 was paid 80% of her salary in the sum of N115,203.22 which leaves 20% of her salary unpaid. The defendants contended that all arrears of salary from August to October, 2016 were paid to her. In prove of same they tendered Exhibit W4 Ondo State Judiciary October, 2016 salary. An examination of Exhibit W4 reveals that the staff of the defendants were only paid 80% of their salary for the month of October, 2016 this corroborated with claimant OE12 and nothing more. It is hence upon this basis that I find that the claimant is entitled to the outstanding 20% of her salary for October, 2016. With regards to her claims for November and December, 2016 salary, there is nothing on record to prove the fact that she was not paid the salary. It is trite that claims in special damages must be specifically proved by credible evidence to entitle the claimant to same.Therefore, and in the absence of this, I find that claimant’s claim on same fails. With regards to claimants claimthat her January, February, September, October and November, 2017 salary is unpaid. The defendants argued that she was paid salaries for September – December, 2017 as Registrar. They stated that the purported arrears of salary, allowances and other entitlements between January and September, 2017 when the claimant acted as Chief Magistrate is illegal, unlawful and recoverable from her as her appointment and right to those facilities were not procured by due process of law. It is clear by Exhibit OE12 dated 18th of October, 2017 that the claimant was paid for March till August, 2017 and there is nothing evincing claimant’s claim for the alleged unpaid month of January and February, 2017, she failed to tender her statement of account to prove same, thus her claim fails. The claimant’s claim for her salary for the period of September, October and November, 2017, the defendants on the other posited that she was paid salaries for those periods as Registrar upon reinstatement. By Exhibit OE12 dated 8th of January, 2018, it is revealed that she was paid the sum of N109,069.63 for the period of September, to December, 2017 as a Senior Registrar upon defendant’s reinstatement, this also corroborates with defendants exhibit W5. However, I noted that she was paid as a Senior Registrar which is different from her erstwhile position that is the Principal Registrar 1 grade level 14. I do not want to believe that the Senior Registrar cadre for which she was paid for the period of September to December, 2017 is a nomenclature to depict the position of Principal Registrargrade level 14 which she was reinstated to by exhibit W6 dated 22nd of January, 2018 and a letter dated 8th of November, 2017 exhibit OE11 as both cadres differs in terms of responsibilities and monetary entitlement. It is in this light that I find that the claimant is entitled to be paid all her entitlement as well as her arrears of salary as aPrincipal Registrar Grade level 14 officer. I so find and hold.

Claimantis also claiming special damages in the sum of N154,070.62 being the unpaid balance of her 2017 outfit allowance. I must state that there is nothing on record evincing that she is entitled to the sum claimed as she has failed to substantiate her claim with any document in this regards, hence the claimant’s claim for the sum of N154,070.62 fails.

Finally, claimant’s claims the sum of N100,000,000.00 (One Hundred Million Naira) asaggravated and general damages. Damages are the consequence of the act complained of, the position of the law is that before the grant of damages, it must be established that the party claiming same is so entitled, See the case of Augustine Okokon Etim v. Clasen Ventures & Ors [2011] LPELR-3827 (CA) Paras E-F.  Aggravated damages may be awardedwhere the action complained of is oppressive, arbitrary or unlawful/unconstitutional, where the defendant’s action or conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff and where it is expressly authorized by statute. See Udofel Ltd & anor v. Skye Bank Plc [2014] LPELR- 22742CA. I find no such situation played out in this instance case. Claimant did not prove any of the above situations against the defendants for her to have been entitled to such a damage. As regards general damages, I have already given an order earlier in this judgment that the claimant has been properly reinstated to her position as a Principal Regisrar 1 GL 14 and also for the payment of claimant’s salary arrears, allowances as a GL 14 officer. It will therefore amount to double compensation to the claimant if I resolve this claim in favour of the claimant. It is upon this basis that I find and hold that claimant’s claim for aggravated and general damages fail.

On issue three, it is the defendants/counterclaim that the claimant’s appointment as Magistrate is illegal and as such all salaries, allowances and imprest received is unlawful and defendant to counterclaim is bound to refund same.They equally claim perpetual injunction restraining the claimant from acting on the letter of appointment dated 17th of January, 2017. I have held above in this judgment that claimant’s appointment as a Magistrate is improper and thus invalid.Claimant can no longer act and hold herself out as a Chief Magistrate Grade 11 GL15. It is in consequence that claimant is hereby restrained from acting on the letter of 17th January, 2017 appointing her as a Chief Magistrate Grade 11 GL15. I so find and hold.

In conclusion, it is obvious that the claimant’s claims succeed in part and the defendants counter claims also succeeds. For the avoidance of doubt, I declare and order as follows;

  1. That the suspension of the claimant on the 14th of September, 2017 is lawful.
  2. That Claimant’s claims B and D Fails.
  3. That Claimant is not entitled to be reinstated to the position of Chief Magistrate Grade II Grade level 15.
  4. That claimant is entitled to the unpaid 20% of her salary for October, 2016.
  5. That her claims for the unpaid salary, allowance and imprest for the period of November and December, 2016 fail.
  6. That the claimant’s claim for January and February, 2017 salary, allowance and imprest fail also.
  7. That the claimant is entitled to the sum outstanding and unpaid to her as a Principal Registrar I Grade level 14 for the period of September –December, 2017
  8. That claimant’s claim in the sum of N154, 070.62 as outfit allowance fails.
  9. That the claimant is further restrained from acting on the letter of 17th January, 2017 appointing her as a Chief Magistrate Grade 11.
  10. That claimant claim as to damages fails.

 

No award as to cost

Judgment is entered accordingly

 

 

Hon. Justice OyewumiOyebiola O.

Presiding Judge

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