MUSA B. OHINE -VS- GOVERNMENT OF KOGI STATE & 4 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 27^th day of June, 2018 SUIT N0: NICN/LKJ/09/2017

BETWEEN:

MUSA B. OHINE —————————————– CLAIMANT

AND

GOVERNMENT OF KOGI STATE
ATTORNEY GENERAL & COMM. FOR

JUSTICE, KOGI STATE DEFENDANTS

KOGI STATE CIVIL SERVICE COMMISSION
ACCOUNTANT-GENERAL, KOGI STATE
HEAD OF CIVIL SERVICE, KOGI STATE

Representations:

Funso Agbanah with A.S. Idoko and C.D Anielozie for the Claimant

Austin Oboni for Defendants

Judgment

The suit was commenced by way of Originating Summons filed on 8^th of December, 2017 accompanied by a 24 paragraph affidavit, 6 exhibits and a written address. The affidavit is deposed to by the Claimant himself, Musa B. Ohine.

The Claimant is by the originating summons asking the court to determine the following questions:

Whether in view of the clear provision of PSR 030406, the claimant’s suspension on mere suspicion of misconduct is not a reckless breach and violation of his fundamental right to fair hearing.

2.Whether the defendants by their conduct of keeping the Claimant out of service without just cause for more than one year and without payment of salary have not determined his appointment.

3.If this Honourable court finds that the indefinite suspension of the Claimant amounts to a determination of his appointment: whether such determination is lawful, legal and in line with the conditions regulating the appointment of the claimant with the defendants.

Whether the claimant is not entitled to general damages in view of the hardship and prejudice suffered as a result of the unlawful determination of appointment.

Upon the determination of the above questions, the Claimant seeks the following reliefs:

A declaration that the decision of the defendants to suspend the claimant as contained in letter Ref. No. HCS/KGS/MlSC/COR/02/VOL.V/745 dated 21^st October, 2016, without first establishing a prima facie (sic) against him constitute a violent breach of the claimant’s right to fair hearing.
A declaration that the purported indefinite suspension of the claimant which has lasted over one year and continuing, without payment of salary is contrary to the terms and conditions regulating his appointment with the 1^st defendant and consequently amounts to a wrongful determination of his appointment
An order directing the defendants to re-call and re-instate the claimant into his post and position as Director Accounts with full payment of his salary and other entitlements, until his due time of voluntary retirement from service.
An order directing the defendants to pay all arrears of salaries and allowances due to the claimant before and during the period of the illegal and wrongful suspension, i.e. from 21^st October, 2016 till the carrying out the order of the Court.
One Million naira (N1, 000,000.00) as General Damages for unlawful determination of appointment.

In opposition of the originating summons, the Defendants filed on the 7^th of March, 2018, a joint counter affidavit of 15 paragraphs deposed to by Michael Adeyemi along with 5 exhibits and a written address.

The Claimant then filed of the 20^th of March, 2018, a 6 paragraphs further affidavit deposed to by Musa B. Ohine with two annexures.

Arising from the written address, learned counsel to the Claimant, Funso Agbanah, raised two issues for determination to wit:

Whether letter Ref. No. HCS/KGS/MISC/COR/02/VOL. V/745 dated 21^st October, 2016, indefinitely suspending the claimant from service did not constitute an infraction of the claimant’s right to fair hearing and consequently unlawful
Whether the defendants by their conduct of keeping the claimant out of service without just cause for more than one year and without payment of salary have not unlawfully determined his appointment.

In arguing issue one, learned counsel cited the provision of rule 030406 of the Public Service Rules (PSR). He also referred to the definition of ‘prima facie’ in the 9^th edition of Black’s Law Dictionary upon which he contended that the letter of suspension – Exhibit ‘A’ – merely states that following the interim investigation report on fraudulent activities in MDAs, I am directed to convey the approval of His Excellency, Alhaji Yahaya Bello to place the claimant on indefinite suspension without pay with immediate effect until otherwise directed. That the claimant was suspended on this purported investigation report and was never confronted by any of the alleged report as he was autocratically and arbitrarily suspended indefinitely.

Counsel further submitted that no prima facie case was established against the claimant before the suspension while establishing a prima facie case in the PSR is a condition precedent to exercising the power to suspend and it connotes the person to be disciplined with some facts of the allegations against him and affording him an opportunity to re-act to the allegations.

Counsel contended that the action of the defendants in suspending the claimant was, therefore, not in consonance with the statutory provision of (PSR 030406) and that it is trite that a right to fair hearing is a fundamental Constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), A breach of which renders the process null and void. He cited the cases of TANKO V U. B. A. PLC. [2011] All FWLR (Pt 556) 408; H. S. M. C. V. SABYRA NIG. LTD. [2008] All FWLR (Pt. 397) 132 at 148-149; ADIGUN V ATTORNEY-GENERAL, OYO STATE (1999) 1 NWLR (PT. 53) 678 and UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD V NNOLI (1994) 8 NWLR (Pt. 363) 376

Learned Counsel urged the court to hold that the suspension of the claimant as contained in letter Ref. No. HCS/KGS/MISC/COR/02/VOL. V/745 dated 21^st October, 2016, constitute an infraction of the claimants right to fair hearing and consequently nullifies the suspension.

On issue two, learned counsel posited that PSR 030103 provides that the Chapter on discipline (Chapter 3) shall be read in conjunction with “Guidelines for Appointments, Promotion and Discipline” published by the Federal Civil Service Commission.

He then quoted the guidelines for Appointments, Promotion and Discipline (Part V, 6 (V) which states that “Under no condition should interdiction or suspension be made to last more than 3 months in the first instance. The permission of the Civil Service Commission shall be obtained where the need for extension arises” upon which he contended that in the instant case, the claimant was indefinitely suspended vide letter Ref. No. HC/KGS/MISC/COR/02/VOL. V/745 dated 21^st October, 2016 which is currently a period of over one year.

Learned counsel also provided the definitions of ‘suspension’ and ‘temporary’ according to the 9^th edition of Black’s Law Dictionary.

He then contended that the Rules that regulate the appointment and discipline of the claimant provides that:

“Under no condition should interdiction or suspension be made to last more than 3 months in the first instance. The permission of the Civil Service Commission shall be obtained where the need for extension arises.”

He posited that in the instant case, the claimant has been on suspension for over a year and the suspension is continuing. though there is no evidence that the Kogi State Civil Service Commission had granted any extension.

Learned counsel submitted humbly that where an employee has been kept out of service far beyond the statutory provision for suspension, as in this case, the only reasonable inference that can be drawn is that his service has been dispensed with and he is no longer in the service of the employer. Counsel urged the Court to hold that the defendants had unwittingly determined the employment of the claimant.

Counsel concluded by urging this court that upon finding the appointment of the claimant to have been wrongly determined, to order a re-instatement to his post and payment of arrears of salary and other entitlements as the appointment of the claimant is statutorily flavoured.

In reaction, learned Counsel to the Defendants, Austin Oboni, through the written address in support of the counter affidavit in opposition of the originating summons adopted the issues formulated by the counsel to the Claimants and argued on them accordingly.

With regards to issue one, learned counsel posited that by virtue of the provisions of the Public Service Rules (PSR 030406) as rightly stated by the claimant (which was also reproduced as applicable to Kogi State) the State Civil Service Commission Has the right to suspend such an officer in the public interest pending investigation into the misconduct once a prima facie case, the nature of which is serious has been established against an officer.

Learned counsel cited the cases of KALU V. F.R.N & Ors (2016) LPELR-40108(SC); UNIJOS v. YEMTET (2016) LPELR-40434(CA); MASSALA v. IGP (2015) LPELR-24723(CA) and Ajidagba V. I G P (1958) 3 FSC 5. for the meaning of ‘prima facie’ and argued that the claimants’ suspension is in accordance with the rule governing his employment as it can be seen from the letter of suspension which stated that “based on an interim investigation” meaning that there was an investigation which showed that there were fraudulent activities going on in the MDA’s to which the claimant was involved and based on which he was suspended in accordance with the provision of the Public Service Rules (PSR 030406).

Learned counsel further argued that the issue of public interest is also key in this matter as the claimant is said to have embezzled the sum of one hundred and fifty five million naira (?155,000,000.00) only, an amount that is meant to be used in paying workers’ salaries amongst other things in this period that workers are not being paid for lack of funds

With regards to the issue of fair hearing raised by the claimant, Counsel maintained that the claimant has not been denied his fundamental right of fair hearing as investigation into the crime was ongoing and it is been carried out by the State Security Service which is outside the control of the Civil Service Commission. He cited the case of TETRAZZINI FOODS LTD v. ABBACON INVESTMENT LTD & ANOR (2015) LPELR-25007(CA).

Counsel concluded by urging the court to hold that the suspension of the claimant was lawful and it is in the interest of the public.

With regards to issue two, learned counsel submitted that the word ‘suspension’ and ‘termination’ are two different and distinct words. He also provided the meaning of suspension that the word suspension is defined under the Public Service Rules 010103 to mean:

“Suspension” When disciplinary proceeding for a criminal case has been instituted or is about to be instituted against an officer, he shall be suspended from office without salary pending the determination of the case”.

Further on the meaning of suspension, counsel cited the cases of MOBIL PRODUCING NIGERIA UNLIMITED V. EFFIONG (2011) LPELR-9055(CA); MIAPHEN v. UNIJOS CONSULTANCY LTD (2013) LPELR-21904(CA) and UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR. v. BASSEY(2008) LPELR-8553(CA)

Learned Counsel also cited the case of KEYSTONE BANK v. AFOLABI (2017) LPELR-42390 (CA) on the meaning of termination or determination he argued that it is settled, that suspension is distinct from determination and therefore urged the court to hold that the claimant’s suspension is not a termination of his appointment but a temporary restraint pending the conclusion of a full investigation into the crime.

Learned counsel also craved the indulgence of the Court to reproduce the provision of the Public Service Rules [PSR] 030103 as against that which the Claimant provided and stated that the claimant is quoting the Rules wrongly in an attempt to mislead this Honourable Court.

Counsel concluded by urging the court Court to dismiss this action and enter judgment in the defendants favour.

Upon a careful consideration of the questions raised in the originating summons, the affidavits and exhibits accompanying the originating summons and in opposition and from the totality of the issues raised in the written addresses in support and in opposition of the Originating Summons, the issues for determination by this court are to wit:

Whether or not the suspension of the Claimant by the Defendant is in contravention of the Public Service Rules and Guideline on Appointment, Promotion and Discipline of the Federal Civil Service Commission, thereby amounting to breach of fundamental right of fair hearing.
Whether in view of the circumstances of this case and the provision of the Public Service Rules, the suspension of the Claimant amounts to termination of employment.

Whether the Claimant is entitled to the reliefs sought.

In resolving issue one, let me start by stating that there is no contention as to the Claimant being a civil servant whose employment is regulated by the Public Service Rules domesticated for Kogi State where he worked. The Claimant through his affidavit in support of the originating summons deposed to the effect that he is in the employment of the first defendant and he became a civil servant when he was employed by the government of kwara state as Ass. Master on Grade level 07. He was later deployed to Kogi state in 1991 upon the creation of the state and his last promotion was as Director Ass. (Accts.) in the office of the Accountant- General of Kogi State. see paragraphs 3, 8,9,10,11 and 12 of the affidavit in support of the originating summons. All of his appointments were evidenced by exhibits B,C,D,E and F.

The facts of the Claimant’s appointment were not controverted and same is accordingly admitted. The court in Habib Nigeria Bank Ltd. v. Opomulero (2000) 15 NWLR (Pt. 690)315 held that:

“It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court and where an affidavit is filed deposing to certain facts and the other party does not file a counter- affidavit or a reply to counter-affidavit, as the case may be, the facts deposed to in the said affidavit would be deemed as unchallenged, uncontroverted or undisputed and therefore admitted and the court can rely on such admitted facts in resolving the issue- See Alagbe v. Abimbola (1978) 2 SC 39; Agbaje v. Ibru Sea Foods Limited (1972) 5 SC 50; National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 SC 97; Egbuna v. Egbuna (1989) 2 NWLR (Pt.1 06) 773 and Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1996) 5 NWLR (pt.447) 166 at 180.” Per ADAMU, J.C.A. (Pp. 19-20, paras. G-C)

Going by the above, it is without doubt that the employment of the Claimant, being a civil servant, is one with statutory flavor, the discipline of which must be in accordance with the regulations guiding the employment.

Authorities are abound in this regard and one of such is the holding of the Supreme Court in C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 when the court described an employment with statutory flavor thus:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A)

In more recent time, the court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) also expoused on the meaning of an employment with statutory flavor by holding that:

“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26”.

That said, the issue arising from the originating summons is not one relating to employment but discipline of the civil servant. Such discipline which must be in accordance with the regulation guiding the employment of the civil servant, in this case, the Public Service Rules.

The facts leading to the issue for discipline as gathered from the affidavit in support and in opposition of the originating summons is that the Claimant was on the 21^st October, 2016 served with Exhibit A, a letter which is captioned as “NOTIFICATION OF INDEFINITE SUSPENSION WITHOUT PAY”. The said letter is a one paragraph letter which reads:

“Following the interim investigation report on fraudulent activities in MDA’s, I am directed to convey the approval of His Excellency, Alhaji Yahaya Bello to place you on indefinite suspension without pay with immediate effect until otherwise directed, Please.”

The Claimant maintained through his affidavit that the salary was indeed stopped and it has been over one year since the suspension without a review or re-consideration of the suspension. The Claimant also maintains that the suspension according to the Rules governing his appointment ought not to last more than three months. See para.4,6 and 7 of the affidavit in support of the Originating summons.

By the joint counter affidavit of the Defendants, they maintained that the suspension of the Claimant without pay is right as the claimant was suspended based on the allegation of crime. The Defendants annexed exhibit A, a copy of query dated the 13^th of December, 2017 issued the Claimant. That the claimant responded to the query of the 4^th defendant on the 13^th of December, 2017 (a copy of the response is annexed as Exhibit B). Upon the response, That the 4^th defendant directed that a disciplinary action be taken against the claimant having regards to the response of the claimant to the query. The 4^th defendant’s internal memo [DPM] dated 20^th December, 2017 is annexed as exhibit C. The claimant was then invited to appear before Senior Staff Management Committee of the office of the State Accountant-General on the 27^th of December, 2017 at 10:00am via a letter dated the 20^th December, 2017 herein annexed as Exhibit D. That the Claimant failed to appear before the Senior Staff Management Committee on the 27^th of December, 2017. At a meeting on the same 27^th December, 2017, it was resolved that disciplinary action be taken against the Claimant. The minute of the said meeting is annexed as Exhibit E. that the government, based on allegations ranging from falsification of records to corruption and embezzlement of public funds, are awaiting the receipt of report of the investigation before taking further steps.

The above facts presupposes that the Defendants have not denied suspending the Claimant, rather, they maintain that the suspension is in order.

The Claimant through his further affidavit in reaction to the counter affidavit of the defendants denied certain facts and posited that there is no pending investigation into any criminal allegation against him and was never invited for interview or interrogation by state security service but by State Investigation Bureau (SIB) sometime in 2017. That the SIB concluded investigation and sent the file to Kogi State Ministry of Justice which then gave a legal opinion exonerating the Claimant on November 6, 2017. He annexed the legal opinion as Exhibit FA 1.

The Claimant added that he was never queried nor invited to any investigation panel before he was suspended. That the only query he received was that of 19^th December, 2017 which was three weeks after he instituted this suit. Nevertheless, the Claimant responded to the query via a representation dated 20^th December, 2017 annexed as Exhibit FA 2. Exhibit D, a letter of invitation to appear before, Senior Staff Management Committee dated 20^th December, 2017 vis-à-vis exhibit A tendered by the Claimant as the query served on him which is dated the 26^th 0f October, 2016. This clearly shows that the suspension of the Claimant occurred a year before he was queried or invited to appear before the Senior Staff Management Committee.

Going by the above facts, what then is the position of the regulations guiding the employment and discipline of the Claimant. The Claimant has invited the court to pronounce upon the provision of the Public Service Rules in relation to the discipline meted on him by way of suspension as captured in the above fact.

Rule 030406 cited by the Claimant in relation to suspension reads thus:

“Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument”

The Claimant argued that no prima facie case was conducted as condition precedent before the suspension and for that reason the suspension is in breach of the Claimant’s right to fair hearing.

The defendant on the other hand contended that the Rule gives the State Civil Service Commission (the right) to suspend such an officer in the public interest pending investigation into the misconduct once a prima facie case, the nature of which is serious has been established against an officer.

The defendants also contended that the content of the letter of suspension which reads “based on an interim investigation” indicates there was an investigation which revealed a prima facie evidence.

In this instant, I shall take into account the meaning of prima facie as expoused in DURU & ANOR VS JONATHAN NWOSU (1989) 4 NWLR (PT.113) PAGE 24 AT 52-53 [H- B] where the Supreme Court per NNAEMEKA -AGU J S C stated thus

“What then is the meaning of the expression “prima facie case”? the expression “Prima facie” comes from two Latin words Primus (which means first) and facie (which means face). “Prima Facie” therefore literally means on the first appearance. Applied to the rule of onus of proof in the law of evidence, a “prima facie case” is a case supported by such a quantum of evidence on every material issue thereof that, if no evidence is called by the other side, or, if called, as often happens in civil cases, such contrary evidence is disregarded, the plaintiff (or the party on which the burden lies) will be entitled to the verdict of the court on the case or the particular issue, as the case may be. It is evidence which, viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings.”

In addition to the above, in the case of S.S. GMBH v. TD. Ind. Ltd. (2010) 11 NWLR (Pt. 1206) 589 where the court held that:

“Simply put the phrase i.e. “prima facie” (which applies as a rule of onus of proof in the law of Evidence) means as per evidence which if accepted, appears to be sufficient to establish a fact or sustain a judgment unless rebutted by acceptable evidence to the contrary. In other words, it is not conclusive. It is evidence (as distinct from proof) that is, on the first appearance. The phrase “prima facie case” when it is used in the context of such matters signifies that at the close of the plaintiff’s case, the case is not sufficient; that is to say where the plaintiff fails to lead factual evidence or legal grounds, see: DURU V NWOSU (supra), and Aromire v. Awoyemi (supra) In such cases, the Court does not take into account at that stage the evidence called for the defence. See also section 136(1) of the Evidence Act as construed in Duru v. Nwosu (supra) – per Nnamani JSC (of blessed memory).” Per CHUKUMA-ENEH, J.S.C. (P. 31, paras. C-G)

Going by the above authorities and meaning of ‘prima facie’, particularly the holding that the court does not take into account at that stage (of holding a prima facie case which is established), the evidence called for the defence, it is safe to conclude that the suspension can indeed precede an investigation which would lead to proof. The ‘defence’ in this context would be the Claimant in this suit, appearing before the Defendant(s).

In simpler terms, where on the face of it, there is established a case, serious in nature against an officer, which upon considering public interest, the officer should be prohibited from carrying out his/her duties, suspension can be applied on such officer.

The letter notifying the Claimant of the suspension (Exhibit A) rightly stated that the suspension is “following an interim investigation report on fraudulent activities in the MDAs”. At this stage, the Defendants found a prima facie case which is considered serious and considering public interest, decided that the Claimant should be prohibited from carrying on his duties and from enjoying his/her emolument pending an investigation. The rule itself unequivocally states that the suspension shall be pending the investigation of the misconduct.

In addition, Rule 010103 which is the interpretation section of the Rules defined ‘suspension’ thus:

“Suspension” When disciplinary proceeding for a criminal case has been instituted or is about to be instituted against an officer, he shall be suspended from office without salary pending the determination of the case.

Consequently, I am convinced that literally, the suspension of the Claimant where predicated on a prima facie case can be imposed prior to and pending the investigation of alleged misconduct or pending a proceeding for a criminal case. The provision of the said rule is unambiguous and the duty of the court is to simply pronounce same in such situation where no further exposition is required. In DANGANA & ANOR v. USMAN & ORS (2012) LPELR-7827(SC) the court held that:

“Furthermore, where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result. In the instant appeal, the provisions of the foregoing section are clear and unambiguous. The words of the provision ought to be accorded their simple grammatical meaning. See also A-G Bendel State v. A-G Federation (1982) 3 NCLR 1. Imah v. Okogbe (1993) 1 NWLR (pt.316) pg.159”.

While that is one leg of the issue, which is that upon establishing a prima facie case, the Claimant can be suspended pending investigation, the second leg is that in establishing the prima facie case, what is the position of fair hearing? In other words, has the Defendants complied with the principle of fair hearing in establishing the prima facie case leading to the suspension? was the Claimant given any opportunity of being heard before he was suspended?

The court in FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (2012) LPELR-19696(CA) made a detailed exposition of what fair hearing means by holding that:

“The basic criteria and attributes of fair hearing have been outlined in Case Law. The rationale of all such binding authorities on the matter is that fair hearing imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict, Ndu v. The State (1990) 7 NWLR (pt.164) 550, 578, adopted by Onu JSC in Ogundoyin v. Adeyemi (2001) 33 WRN 1, 13-14. It, therefore, does not anticipate a standard of justice, which is biased in favour of one party, but prejudices the other. Above all, it is not a technical doctrine, but one of substance, Ogundoyin v. Adeyemi (supra) at pp. 14 – 15, Onu JSC, approvingly adopting the posture which Nnaemeka Agu JSC took in Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 418, 448. The touchstone in determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard, J. C. C. Inter Ltd. v N.G.I. Ltd. (2002) 4 WRN 91, 104.” Per NWEZE, J.C.A. (P. 53, Paras. A-E) –

The principle of fair hearing is a basic constitutional principle provided in section 36 of the 1999 Constitution of Federal Republic of Nigeria. By section 1 (1) and (3) of the same Constitution, all other laws and rules are subject to the Constitution. Therefore, in the absence of the requirement of fair hearing being expressly stipulated in the provision defining ‘suspension’ in the Public Service Rules, it is necessarily implied that the establishment of the prima facie case must comply with the rule of fair hearing in line with the Constitution.

In the instant case, the Claimant deposed via paragraph 16 and 19 of his affidavit in support of the originating summons, that he was diligently performing his duty when he was served a letter of suspension which occasioned a reckless trample on his fundamental righto fair hearing.

The Defendant merely retorted that the suspension was right as same is pending an investigation into a criminal act.

This clearly means that no action involving the Claimant preceded the suspension. In other words, the interim investigation conducted by the Defendants did not engage the Claimant in any way before he was suspended. There is no evidence establishing that the Claimant was invited for questioning nor queried by the Defendant prior to the suspension. In this regard, the court in FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (supra) held that:

“Interdiction or suspension of the employee with half pay is a kind of punishment. It should not happen without giving the employee a hearing. It is indeed denial of fair hearing… It would be wrong and contrary to Section 36 of the Constitution of the Federal Republic of Nigeria which guarantees every citizen fair hearing for the Rector to act without first giving the employee the opportunity to explain himself.” Per IYIZOBA, J.C.A. (Pp. 31-32, Paras. B-F)

I therefore hold in view of the above, that the suspension of the Claimant upon a prima facie case established through interim investigation without affording the Claimant fair hearing is unconstitutional, null and void.

Assuming however that the said suspension was carried out with regards to fair hearing, the questions that necessarily follows are: for how long should the investigation following the suspension be carried on? or for how long should the suspension be made to last? is the investigation and suspension to go on ad-infinitum?.

In answering these questions which one answer would seemingly satisfy, a pointer was provided by the Learned counsel to the Claimant who contended that Rule 030103 of the Public Service rules provides to the effect that the Chapter of the Rules on discipline (i.e. chapter 3) shall be read in conjunction with the Guidelines on the Appointment, Promotion and Discipline published by the Federal Civil Service Commission.

Learned counsel to the defendants reacted to this by reproducing the provision of Rule 030103 and argued that the Learned Counsel to the Claimant intends to mislead the court. I have taken a look at the provision of Rule 030103. While I quite agree that the provision in the said rule was what the Counsel to the Defendant says it is, I do not agree that it was intended by the Counsel to the Claimant to mislead the court as the provision he paraphrased is found in Rule 030101 of the same Public Service Rules. I therefore find that the cited Rule 030103 is meant to be 030101 and I so hold.

That said, it is apposite that I reproduce the provision of the said Rule 030101 which states that:

“It shall be the duty of every officer to acquaint himself/herself with the disciplinary rules and any other regulations in force. This Chapter shall be read in conjunction with “Guidelines for Appointments, Promotion and Discipline” published by the Federal Civil Service Commission.”

The effect of the above provision is that the provisions on discipline stated in the Public Service Rules shall operate in conjunction with the “Guidelines for Appointments, Promotion and Discipline” published by the Federal Civil Service Commission.

The Oxford Advanced Learners Dictionary, 6^th Edition at page 240 defines ‘in conjunction with’ to mean together with. This means chapter 3 of the Public Service Rules, which is the chapter on discipline should be read together with the Guidelines on Appointment, Promotion and Discipline as published by the Federal Civil Service Commission.

The learned counsel to the Claimant also narrowed down the link between the Public Service Rules and the published Guidelines for Appointments, Promotion and Discipline by referring this court to Part V, 6 (v) and argued that the said Guideline states to the effect that Under no condition should interdiction or suspension be made to last more than 3 months in the first instance. The permission of the Civil Service Commission shall be obtained where the need for extension arises. I have painstakingly taken the queue behind the reference to the said part of the Guideline, however, the paraphrased provision is not in the cited Part V 6 (v) but in Part V, 8 (v).

The said Part V, 8 (v) provides that:

The effect of the above is that upon suspending the officer, the body responsible for the suspension must conduct the investigation within a period of three months. Even if investigation is not conducted, the suspension should not be beyond three months unless same is extended by the permission of the Civil Service Commission.

Upon the above, Claimant contended that the suspension has lasted over one year without review or reconsideration.

The Defendant said nothing in relation to the above provision of the Guideline which stipulates a period of three months for the suspension. Perhaps the argument that investigation is ongoing suffices. Although in attempt to establish the efforts to conduct investigation, the Defendants through Exhibits B and D proved that the investigation did not commence until December, 2017 with the serving of a query and subsequent invitation to appear before the Senior Staff Management Committee both of which occurred after one year of the suspension.

There is also no evidence that a criminal case has been established against the Claimant in court which may have warranted the suspension to last for more than three months beyond the powers of the Defendants.

That notwithstanding, the wordings of the above Guideline is clear and unambiguous to the effect that a suspension under the Public Service Rule should not be more than three months at first instance, unless extended.

The Defendant has not placed any evidence before this court to prove that the permission for an extension was sought and obtained and in interpreting the above Guideline, which I am not unmindful of the fact that it is not a Primary legislation, this court has no power to rewrite the law nor go on a voyage of discovery. The Supreme Court clearly stated in the case of CORPORATE AFFAIRS COMMISSION v UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR-40571(CA) that:

“It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more. Similarly, GALADIMA, JSC reiterated in AROMOLARAN v. AGORO (2014) LPELR – 24037 (SC) p. 25, paras. B – F, thus:

“I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474, WALI JSC said at page 512: “In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 41-42, Paras. C-E)

Consequent upon the above authority, I find that the suspension of the Claimant by the Defendant which lasted over one year, is not in accordance with the Public Service Rules and Guideline on Appointment, Promotion and Discipline of the Federal Civil Service Commission and I therefore resolve issue one in favour of the Claimant.

With regards to issue two, which is “Whether in view of the circumstances of this case and the provision of the Public Service Rules, the suspension of the Claimant amounts to termination of employment” learned Counsel to the Claimant has argued that suspension is temporary and having lasted this long, the only reasonable inference that can be drawn is that the Claimant’s service has been dispensed with and no longer in the service of the employer, that the Defendants had unwittingly determined the employment of the Claimant.

In reaction, Counsel to the Defendants provided a separate meaning of ‘suspension’ and ‘Dismissal’ simply to argue that suspension is distinct from determination.

In resolving this issue, let me reproduce for the purpose of this issue, the interpretation given to ‘suspension’ under Rule 010103 of the Public Service Rules which states thus:

There is no gainsaying that by the ordinary meaning of the above interpretation, no mention of suspension crystalizing into dismissal is made. The court must stick to this ordinary meaning without more. See Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 365 where the court held that:

“It is only when the literal meaning result in ambiguity or injustice that a Judge may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See Mobil Oil (Nig.) Ltd. v. FBIR (1977) 3 SC 53. The above is an exception to the rule rather than the rule. In the construction of a statute, the primary concern of a Judge is the attainment of the intention of the Legislature. If the language used by the Legislature is clear and explicit, the Judge must give effect to it because in such a situation, the words of the statute speak the intention of the Legislature.” See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 Per Tobi, J.S.C.(Pp.31-32, paras.C-C)

Going further, I find that it is ideal to make a clear distinction between ‘suspension’ and ‘termination/dismissal’ as done by the courts in a plethora of cases. For one, the court in MIAPHEN v. UNIJOS CONSULTANCY LTD (2013) LPELR-21904(CA) held that:

“The Black’s Law Dictionary, 8th Edition, by Bryan A. Garner, Page 1487, defined the word “suspension” as the act of temporarily delaying, interrupting or terminating something. The temporary withdrawal from employment; as distinguished from permanent severance, e.g. suspension from teaching without pay, between master and servant. In Longe v. FBN Plc. (2010) 6 NWLR Pt. 1189 P. 1 @ 55 and 60 the court described suspension as a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between an employer and employee, but there is neither work being done in pursuance of it nor remuneration being paid. It is neither a termination of the contract of the employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other. It is a term entitling the employer to suspend the employment of the employee. It is a step taken before finally deciding what disciplinary action is to be taken by an employer against an employee. Suspension by an employer of an employee only means that the employee has been stopped from performing the normal or ordinary functions or duties of his office. See University of Calabar V. Esiaga (1997) 4 NWLR pt. 302 p. 719. Where an employee is placed on suspension, he is placed on hold that is, in anticipation of either being recalled or laid off permanently. See SDPC (Nig.) Ltd. V. Emeharu (2007) 5 NWLR pt. 1027 p. 347 @ 376. The right to suspend an employee is available to an employer in order to effect proper investigation of allegation or during the process of a disciplinary action. See Udemah V. Nigerian Coal Corporation (1991) 3 NWLR Pt. 180 P. 479 @ 486.” Per BDLIYA, J.C.A. (Pp. 29-30, paras. A-A)

Further in Longe v. FBN. Plc (2010) 6 NWLR (Pt. 1189) 1 S.C., the Supreme Court with emphasis on what suspension is stated that:

“The word ‘suspension’ means a temporary privation or deprivation, cessation or stoppage of or from, the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.” Per OGUNTADE, JSC. (P. 43, paras. A-E)

Having found the clear distinction between suspension and termination, how does the distinction apply to the instant suit? the court in MOBIL PRODUCING NIG. UNLT & ANOR. v. UDO (2008) LPELR-8440(CA) held that:

“Also, in Olafimihan vs. Nova Lay-Tech Ltd (1998) 4 NWLR Part 547 p. 518, Mohammed JCA stated thus; ”The words used in Exhibit 4 are indeed quite plain and clear. Right from its heading, the letter was simply conveying to the Appellant his indefinite suspension without pay from the services of the Respondent. It is the law that where a document is clear, the operative words in it should be given their simple and grammatical meaning. See Union Bank of Nig. Vs. Ozigi (1994) 3 NWLR Part 333 p. 385 403. There is nothing in this document to justify any imputation into it that the Appellant was being dismissed for gross misconduct. This is because according to the unchallenged and uncontradicted evidence on record, the Respondent as employer of the Appellant did not ever accuse the Appellant of any short coming in the discharge of his duties not to talk of any misbehaviour amounting to gross misconduct that could warrant the dismissal of the Appellant before he was served with the suspension letter, Exhibit 4. For the foregoing therefore, I am of the view that the suspension letter Exhibit 4 did not amount to a letter of dismissal since it is quite clear from the evidence on record that the Respondent did not at any time exercise its power under Regulation 9(A) and 29 (4) of the conditions of service Exhibit 5 dismiss the Appellant for his alleged role in failing to stop the strike action by the junior workers of the Respondent.” PER ORJI-ABADUA, J.C.A. (Pp. 74-76, Paras. A-C)

Consequent upon the above authority, I have taken a further look at Exhibit A annexed to the affidavit of the Claimant. A letter dated 26^th October, 2016 addressed to the Claimant and I find that same is unequivocally captioned “NOTIFICATION OF INDEFINITE SUSPENSION WITHOUT PAY”. I am therefore convinced without doubt that the said letter does not bear an imputation to dismiss or terminate the employment of the Claimant and I so hold.

Issue two is therefore resolved in favour of the Defendants to the effect that in view of the circumstances of this case and the provision of the Public Service Rules, the suspension of the Claimant does not amount to termination of employment.

Considering the resolution of the above issues, I turn to provide the answers to the questions for the determination raised by the originating summons in this suit.

With regards to question1 which is:

Whether in view of the clear provision of PSR 030406, the claimant’s suspension on mere suspicion of misconduct is not a reckless breach and violation of his fundamental right to fair hearing.

Considering the finding that PSR 030406 must be read subject to and in accordance with the provisions of section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), question one is answered to the effect that the suspension of the Claimant without affording him fair hearing in conducting the interim investigation leading to the suspension is a breach and violation of his fundamental right to fair hearing.

With regards to questions 2 and 3 which are:

2.Whether the defendants by their conduct of keeping the Claimant out of service without just cause for more than one year and without payment of salary have not determined his appointment.

3.If this Honourable court finds that the indefinite suspension of the Claimant amounts to a determination of his appointment whether such determination is lawful, legal and in line with the conditions regulating the appointment of the claimant with the defendants.

The resolution of this court on issue two is that that the suspension of the Claimant does not impute a determination of the Claimant’s employment. Consequently, these questions are answered in the negative.

Question 4 touches on the reliefs sought by the Claimant and that would lead into the determination of whether the Claimant is entitled to the reliefs sought or not. The said question 4 read thus:

Whether the claimant is not entitled to general damages in view of the hardship and prejudice suffered as a result of the unlawful determination of appointment.

Flowing from the said questions 4, I therefore proceed to determine whether the reliefs sought by the Claimant are grantable or not.

With regards to relief one which is a declaratory relief, upon the Claimant seeking for “A declaration that the decision of the defendants to suspend the claimant as contained in letter Ref. No. HCS/KGS/MlSC/COR/02/VOL.V/745 dated 21^st October, 2016, without first establishing a prima facie (sic) (case) against him constitute a violent breach of the claimant’s right to fair hearing”, the court in Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt.289) 512 held that “It is an elementary but fundamental requirement of a declaratory relief to satisfy the court that he is entitled in law to the relief claimed.” Per karibi-Whyte, J.S.C. (P. 74, paras. F-G).

Predicated on the proof that the Defendant failed to give the Claimant fair hearing before he was suspended, relief one is granted to the effect that this court makes:

“A declaration that the decision of the Defendants to suspend the claimant as contained in letter Ref. No. HCS/KGS/MlSC/COR/02/VOL.V/745 dated 21^st October, 2016, without affording the Claimant fair hearing in establishing a prima facie case against him constitute a violent breach of the Claimant’s right to fair hearing”

With regards to relief two which is also declaratory upon the Claimant seeking for “A declaration that the purported indefinite suspension of the claimant which has lasted over one year and continuing, without payment of salary is contrary to the terms and conditions regulating his appointment with the 1^st defendant and consequently amounts to a wrongful determination of his appointment”, this court has resolved on issue two that the suspension of the Claimant does not amount to a determination of his employment. However, by the resolution of issue one, the suspension lasting over one year is found to be contrary to the Public Service Rules and Guidelines for the Appointment Promotion and Discipline published by the Federal Civil Service Commission.

Consequently, I find that the Claimant is entitled to relief two in part and same is granted to the effect that this court makes “a declaration that the suspension of the Claimant without payment of salary by the Defendant having lasted over one year and continuing, is in contravention of the terms and conditions regulating his appointment with the 1^st defendant”.

With regards to relief three, upon the resolution that the suspension of the Claimant is in contravention of the terms and condition of his employment same having lasted for more than three months as provided by the Guideline on Appointment, Promotion and Discipline, it is apposite to grant relief three to the effect that the court makes:

“An order directing the defendants to re-call and re-instate the claimant to his post and position as Director Accounts with full payment of his salary and other entitlements”.

Relief four is an “An order directing the defendants to pay all arrears of salaries and allowances due to the claimant before and during the period of the illegal and wrongful suspension, i.e. from 21^st October, 2016 till the carrying out the order of the Court”. In determining this relief, it is of great importance to restate that the employment of the Claimant is one with statutory flavor and its consequence in terms of disciplinary measures is noted in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the court held that:

“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).

Considering the above authority, I have reckoned that the suspension of the Claimant according the Guidelines for Appointment, Promotion and Discipline ought to be for three months rather than being indefinite at first instance. Consequently, the employee upon being restored to his position as if no disciplinary measure had been taken against him at all should be entitled to be paid all the arrears of his salaries. Therefore relief four is granted to the effect that this court makes an Order directing the defendants to pay all arrears of salaries and allowances due to the claimant before and during the period of the illegal and wrongful suspension of the Claimant.

Relief five seeks for “One Million naira (N1, 000,000.00) as General Damages for unlawful determination of appointment”. While it is the holding of the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) that “General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B), it is instructive to note that this court has resolved that the suspension of the Claimant does not impute a determination of the Claimant’s employment. Therefore, I find that this relief completely lost its footing having been predicated on supposed determination of the Claimant’s employment and same is accordingly refused.

Having addressed all the questions raised in the originating summons and the reliefs sought, Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 27^th day of June, 2018 SUIT N0: NICN/LKJ/09/2017

BETWEEN:

MUSA B. OHINE —————————————– CLAIMANT

AND

GOVERNMENT OF KOGI STATE
ATTORNEY GENERAL & COMM. FOR

JUSTICE, KOGI STATE DEFENDANTS

KOGI STATE CIVIL SERVICE COMMISSION
ACCOUNTANT-GENERAL, KOGI STATE
HEAD OF CIVIL SERVICE, KOGI STATE

Representations:

Funso Agbanah with A.S. Idoko and C.D Anielozie for the Claimant

Austin Oboni for Defendants

Judgment

The Claimant is by the originating summons asking the court to determine the following questions:

Whether in view of the clear provision of PSR 030406, the claimant’s suspension on mere suspicion of misconduct is not a reckless breach and violation of his fundamental right to fair hearing.

2.Whether the defendants by their conduct of keeping the Claimant out of service without just cause for more than one year and without payment of salary have not determined his appointment.

Whether the claimant is not entitled to general damages in view of the hardship and prejudice suffered as a result of the unlawful determination of appointment.

Upon the determination of the above questions, the Claimant seeks the following reliefs:

A declaration that the decision of the defendants to suspend the claimant as contained in letter Ref. No. HCS/KGS/MlSC/COR/02/VOL.V/745 dated 21^st October, 2016, without first establishing a prima facie (sic) against him constitute a violent breach of the claimant’s right to fair hearing.
A declaration that the purported indefinite suspension of the claimant which has lasted over one year and continuing, without payment of salary is contrary to the terms and conditions regulating his appointment with the 1^st defendant and consequently amounts to a wrongful determination of his appointment
An order directing the defendants to re-call and re-instate the claimant into his post and position as Director Accounts with full payment of his salary and other entitlements, until his due time of voluntary retirement from service.
An order directing the defendants to pay all arrears of salaries and allowances due to the claimant before and during the period of the illegal and wrongful suspension, i.e. from 21^st October, 2016 till the carrying out the order of the Court.
One Million naira (N1, 000,000.00) as General Damages for unlawful determination of appointment.

The Claimant then filed of the 20^th of March, 2018, a 6 paragraphs further affidavit deposed to by Musa B. Ohine with two annexures.

Arising from the written address, learned counsel to the Claimant, Funso Agbanah, raised two issues for determination to wit:

Whether letter Ref. No. HCS/KGS/MISC/COR/02/VOL. V/745 dated 21^st October, 2016, indefinitely suspending the claimant from service did not constitute an infraction of the claimant’s right to fair hearing and consequently unlawful
Whether the defendants by their conduct of keeping the claimant out of service without just cause for more than one year and without payment of salary have not unlawfully determined his appointment.

Learned counsel also provided the definitions of ‘suspension’ and ‘temporary’ according to the 9^th edition of Black’s Law Dictionary.

He then contended that the Rules that regulate the appointment and discipline of the claimant provides that:

Counsel concluded by urging the court to hold that the suspension of the claimant was lawful and it is in the interest of the public.

Counsel concluded by urging the court Court to dismiss this action and enter judgment in the defendants favour.

Whether or not the suspension of the Claimant by the Defendant is in contravention of the Public Service Rules and Guideline on Appointment, Promotion and Discipline of the Federal Civil Service Commission, thereby amounting to breach of fundamental right of fair hearing.
Whether in view of the circumstances of this case and the provision of the Public Service Rules, the suspension of the Claimant amounts to termination of employment.

Whether the Claimant is entitled to the reliefs sought.